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 T^HE LAW OF COSTS. By JOHN INIARSHALL, 
 
 *- l.M)., ISarristcr-at-Law, one of the Authors of the New Practice of 
 the Common Law.
 
 /^v
 
 THE 
 
 NEW PRACTICE 
 
 COURT OF CHANCERY. 
 
 By C. STEWART DREWRY, Esq., 
 
 BARRISTER-AT-LAW, AUTHOR OP "A TREATISE ON THE LAW OF INJUNCTIONS.' 
 
 LAW TBIES OFFICE : 
 
 29, ESSEX STREET, STRAND, LONDON. 
 
 1856.
 
 T 
 
 LONDON : 
 
 PRINTED BY JOHN CBOCKPORD, W, E8SEX STREET. 
 
 STRAND.
 
 THE 
 
 COMPLETE PRACTICE 
 
 ^ LAW OF ENGLAND, 
 
 AS ESTABLISHED BT THE 
 
 RECENT STATUTES, ORDERS, RULES, &c. 
 
 VOL. IIL 
 
 MW PRACTICE OF THE COURT OF 
 CHANCERY. 
 
 C. STEWART DREWRY, Esq. 
 
 BAKBISTER-AT-LAW. 
 
 LONDON: 
 LAW TIMES OFFICE, 29, ESSEX STREET, STRAND. 
 
 1856.
 
 LONDON 
 
 miNTED B¥ JOHN CBOCKFOBD, 29, ESSEX STBEET, 
 
 STBAND.
 
 PREFACE. 
 
 This work is intended to be, as nearly as possible, 
 purely practical. The existing practice of the Court 
 of Chancery is, to a considerable extent, a combination 
 of the new rules and forms of procedure under the two 
 acts of the 15 & 16 of the Queen, and of the practice 
 existing before the great alterations effected by those 
 statutes ; and it is sometimes difficult to disentangle 
 them. 
 
 What I have endeavoured to do, is, to state the prac- 
 tice as it now is: whether it be a relic of the old 
 practice untouched, as is on some points the case ; or 
 whether it be a combination of the two ; or whether it 
 be purely new practice under the Statutes and Orders, 
 I have not found the task easy, and I have not spared 
 either labour or care in my endeavour to execute it. 
 
 I have avoided as much as possible all subjects of 
 pure Pleading, which fall properly under quite a distinct 
 head, and would only have encumbered and uselessly 
 increased the length and expense of the work. It has 
 been, however, impossible altogether to avoid touching 
 
 793387
 
 IV PREFACE. 
 
 here and there on questions which are inextricably 
 mixed up with practice, although in themselves, 
 perhaps, bordering more properly on Pleading, or on 
 the general principles of Equity. 
 
 I have appended the two acts of the 15 & 16 of the 
 Queen, A\-ith Notes of the Cases decided, under each 
 section ; and the Orders of 1850, on Claims, and the 
 Orders of August, 1852, and those since issued. I 
 have not thought it desirable to swell the size of the 
 volume with a collection of general forms, nor with 
 any of the earlier Orders, as these things are to be 
 foimd in many publications of reputation already before 
 the Profession. 
 
 C. Stewaet Deewrt. 
 
 77, Chancery Lane, 
 JIarch, 1856.
 
 CONTENTS. 
 
 CHAPTER I. 
 
 OT TUB PROCEEDINGS OF THE PLATNTIFF. 
 
 Sect. 1. — Of filing, printing, and serving a Bill, and of enforcing 
 Apj)earance thereto. 
 How bill drawn; to whom addressed; how marked; frame of bill; 
 ofchai'ges; of the prayer; retainer of solicitor; printing the 
 bill; summons indorsed; alterations in printed bill; filing 
 bill ; service on the defendant ; of defendant keeping out 
 of the way ; of attachment ; writ of, how prepared ; execu- 
 tion of writ; entering appearance for defendant ; substituted 
 service; principle of; proceedings under 29th Order of 1845; 
 taking bill ^jro confesso ; delivery of printed copies of bill 
 to defendant ... ... ... ... ... ... po^e 1 
 
 Sect. 2. — Of preparing, filing, and serving Interrogatories. 
 
 Preparation of interrogatories ; copying, stamping, and filing ; 
 time for filing ; appearance of defendant ; time for demurring ; 
 nature of demurrer ... ... ... ... ... ... Id 
 
 Sect. 3. — Of Plaintiff's Proceedings when Defendant demurs. 
 
 Notice of filing demurrer ; plaintiflTs course on receiving notice ; 
 submitting to demurrer ; costs of ; amending bill on sub- 
 mission; setting down demurrer; petition of course: of pro- 
 ceeding on ; briefs on demurrer ; aflidavit of service; course 
 of arguing demurrer ; costs of demurrer allowed ; amending 
 on demurrer allowed ; amending of course on submittmg to 
 demurrer; course for amending bill; when new printing of 
 bill re(|uisite ; service of amended bill ; interrogatories to 
 amended bill ... ... ... ... ... ... 12 
 
 Sect. 4. — Of Plaintiff'' s Proceedings when the Defendant pleads to 
 
 the Bill. 
 What a plea is ; filing plea and advising on; setting down plea; 
 costs on submitting to plea ; when amendment advisable, 
 and when bill should be dismissed; time for setting down 
 [CH.] b
 
 VI CONTENTS- 
 
 plea ; mode of ; argument on ; costs of plea allowed ; of 
 liberty to amend after argument ; irregularity of plea ; plea 
 ordered to stand for answer ; plea and answer ; replying to 
 plea ; plea of outlawry, or former decree, or existing 
 suit page 16 
 
 Sect. 5. — Of the Plaintiff's Proceedings where the Defendant 
 defends by Answer. 
 
 Time for answering; obtaining further time; effect of not answering 
 in time; proceeding by attachmtnt to enforce answer ; exe- 
 cution of attachment ; messenger ; bringing defendant to 
 bar; taking bill pro confesso; inquiry whether defendant of 
 ability to answer ; examination of defendant on, viva voce ; 
 defendant found of ability and not answering; habeas corpttt 
 cuvi causa ; how inquiries before chief clerk attended ; of 
 traversing note ; course on proceeding to take bill pro con- 
 fesso; sequestration; serjeant-at-arms ... ... ... 19 
 
 Sect. 6. — Of Exceptions to Ansicers, 
 
 As to utility of exceptions; how exceptions drawn; stamping 
 and filing; time for filing; setting down; in injunction causes; 
 course for setting down; briefs on exceptions; argument of; 
 costs of; course when allowed ; course when successive 
 insufficient answers; submitting to exceptions; costs of; 
 amending and requiring answer to exceptions and amend- 
 ments ; practice on now; excepting where answer and 
 demurrer, or answer and plea proved ; effect on utility of 
 exceptions, of practice of summons in chambers for production 
 of documents ... ... ... ... ... ... 25 
 
 Sect. 7. — Of Production and Deposit of Documents under the 
 15 tf 16 Vict. c. 86. 
 Order for production, how applied for ; distinction between order 
 for production and order for deposit ; form of order ; form of 
 afl5davit; of ordering application for production on answer ... 30 
 
 Sect. 8. — Of Except ions for Scandal. 
 
 What is scandal or impertinence; costs of impertinence; scandal 
 
 subject of exception; how exceptions prepared and dealt with; 
 
 time for setting down ; mode of proceeding on hearing ; costs 
 
 of 
 
 33 
 
 Sect. 9, — Of filing Replication and going into Evidence. 
 
 Effect of replication ; time for filing ; how prepared and filed ; 
 notice of; what number of replications there may be; of with- 
 drawing replication ; against what defendants to be filed ; 
 consequence of not filing replication; of replication when 
 there is no answer ... ... ... ... ... ... 34
 
 CONTENTS. VU 
 
 Sect. 10. — OJthe. Plaintiff's Proceedings on going into Evidence. 
 
 Of parties to suits giving evidence; evidence how taken now; 
 of affidavits and oral evidence; time for preparing affidavits; 
 course on getting up evidence ; instructions to counsel for 
 advising on ; affidavits how framed ; how and before whom 
 sworn; how sworn out of the jurisdiction; time for filing 
 affidavits ; office copies of; rule of evidence on affidavits ; 
 observations on framing of questions ; cross-examination on ; 
 time for closing evidence; notice of cross-examination ; sub- 
 pcena ad iest'ijlcandum ; brief on cross-examination ; cross- 
 examination, how conducted ; examiner; powers and duties of; 
 re-examination, when to take place; witness refusing to be 
 examined, course of proceeding to compel examination ; 
 witness demurring ; course of dealing with such demurrer ; 
 of extending time for closing evidence ; of proceeding by oral 
 evidence ; notice to opposite party ; of special leave to file 
 affidavits; of special examiners ; who may be; examination 
 by, how couducted; of deposit of record by; motion for 
 special examiner, when made; when to be in court, and when 
 in chambers ; time for setting down cause after evidence 
 closed ; office copies of examination ; proceedings for exami- 
 nation ; proceedings for extending leave for taking evidence ; 
 of examination by interrogatories; as to publication passing ; 
 of conflict of new and old practice thereon ... ... page 36 
 
 Sect. 11. — Of Proceedings by Motion for Decree. 
 
 Clauseof act and General Orders of 1852, in reference to; evidence 
 on motions for decree; affiilavits on, and costs of; hearing of 
 motion ; relief to be given on ; of replication, when pro- 
 ceedings by motion for decree; of notice of reading affidavits 
 and answers ; cross-examination on ; subp(Bna ad testijicandum 
 and subpcena duces tecum ... ... ... ... ... 49 
 
 Sect. 12. — Of Interlocxdory Applications by Motion. 
 
 What to be done by motion, and what by petition; of the several 
 kinds of motion ; what are motions of course; rule as to bona 
 fides of; when may be made; of motions in open court, and 
 hand motions; of special motions on merits; two classes of; 
 ex parte, and on notice ; what are ex parte, and what re(iuire 
 notice; special motion, how supported; motions in vacation; 
 before whom to be made; vacation judge ; ex parte motions 
 for injunctions ; in what cases ; course of proceeding and 
 evidence on ; of drawing up order on ; effect of notice of 
 order ; ex parte motions for injunction to stay proceedings at 
 law ; motions for ne exeat, on what clauses ; what evidence 
 necessary; on what insufficient evidence; debt how proved ; 
 written bill for ; when motion may be made ; drawing up &c., 
 the order; form of writ ... ... ... 51 
 
 b 2
 
 VUl CONTENTS. 
 
 Sect. 13. — Of Motions made on Notice. 
 
 Form of notice; and requisites of; when should embrace more 
 than one object ; service of notice ; leave for short notice ; 
 on whom notice to be served ; course when not served on 
 proper parties: of filing affidavits on, and notice of; be- 
 speaking office copies ; of filing counter affidavits and of 
 cross-examining ; notice to opponent of cross-examination ; 
 of serving witnesses with subpoena ; course of cross-exami- 
 nation and re-examination ; of limit to filing affidavits ; 
 observations on practice of filing affidavits without restric- 
 tion ; hearing of motion ; briefs on ; exhibits, form of 
 proving : what number of counsel allowed on ; right of party 
 to select from any bar ; and costs of brief ... ... page 59 
 
 Of Motions for Injunctions. 
 
 Of motions to stay proceedings at law ; always now on merits, 
 and not on mere default ; effect of 17 & 18 Vict. cap. 125 
 on; general statement of equity necessary to support such a 
 motion ; injunctions to restrain proceedings in other courts 
 generally ; form of notice of motion to restrain proceedings 
 at law; service of; effect of 15 & 16 Vict. cap. 86, on 
 the distinction between answers and affidavits ; principle of 
 court in refusing or granting such motions wholly, or upon 
 terms ; of obtaining and serving the writ of injunction ; 
 practice when demurrer put in to the bill ; of objection on 
 hearing motion that bill demurrable ... ... ... 64 
 
 Injunctions to stay Proceedings in other Courts. 
 
 In what courts proceedings will be stayed ; principle of the juris- 
 diction ; exceptions to the jurisdiction ... ... ... 72 
 
 Injunctions to restrain Wrongful Acts. 
 
 What are the acts inter partes which may be restrained ; course 
 of proceeding on motions for these objects ; evidence on 
 motions to restrain infringement of patents ; on motions to 
 restrain infringement of copyright ; distinction between 
 plaintiff claiming under legal title, and when on equitable 
 right 73 
 
 0/ opposing Motions for Injunctions. 
 
 Course of defendant's solicitor in preparing opposition ; motion to 
 dissolve ; only proper in regard to ex parte order ; course 
 where order made on hearing both sides; effect of 15 & 16 
 Vict. c. 80, on answers and on motion to dissolve; imma- 
 terial now when answer filed, and when ; observations on 
 special character of evidence on motions to restrain infringe- 
 ment of patent and copyrights ; of oral evidence in court on 
 motions ; course of court on motions to dissolve ; where
 
 CONTENTS. IX 
 
 plaintiff claims legal right ; in cases of nuisance ; of direct- 
 ing actions and issues ; case for court of law abolished ; of 
 practice of the court as to deciding legal questions ; of 
 the costs of motion ; when refused ; when no order made ; 
 when costs reserved ; when costs costs in the cause ; costs 
 when motion ordered to stand over ; of costs when motion 
 refused, and new motion made for same object; of motions 
 in chambers ; when ex parte, and when on notice; what 
 applications to be made in chambers ; which of them require 
 notice; how motion made in chambers; summons for, how 
 supported ; cross-examination and re-examination ; notice of 
 using affidavits in chambers ; mode of examination in 
 chambers; counsel cannot attend ; observations on rule laid 
 down on that point; nature of evidence to support motions 
 in chambers ; and of evidence in support of motion for 
 leave to amend bill ; of chief clerk's certificate ; time 
 for taking opinion of judge thereon; certificate signed by 
 judge is judge's order; drawing up and serving order ; time 
 for application to discharge it ; mode of application to dis- 
 charge certificate, and to what court ... ... page 74 
 
 Of Motions for Production of Documents. 
 
 Form of notice of motion for production of documents on the 
 admissions in the answer; must be strictly on the admissions; 
 discussion of nature of admissions requisite ; of privileged 
 communications ; discussion of doctrine and cases upon ; 
 briefs on such motions ; order made on ; as to sealing up 
 parts of documents; of obtaining production from plaintiff; 
 effect of common order for inspection ... ... ... 85 
 
 Of Motions for the Appointment of a Receiver. 
 
 What a receiver is ; only appointed in suits; except in lunacy; 
 formerly rarely appointed before answer ; now may be at any 
 time; not appointed in general against holder of legal estate ; 
 rule not applicable when contest as to right to legal estate ; 
 nor as against trustees, &c. ; receiver in partnership mat- 
 ters; motion in first instance to the court; must be sup- 
 ported by affivadit of merits ... ... ... ... 90 
 
 Sect. 14. — Of tJie Defendant's Proceedings to the Hearing 
 of a Cause. 
 
 Of entering appearance ; effect of as to service ; course of pro- 
 ceeding of defendant's solicitor after appearing ; on preparing 
 defence ; when desirable to communicate nature of defence 
 to plaintiff 92 
 
 Sect. 1.5. — Of Defence by Demurrer. 
 
 Preparing and filing demurrer ; time for demurring ; effect of 
 plaintiff not setting down demurrer ; effect of plaintiff sub-
 
 X CONTENTS. 
 
 mitting to ; when defendant may set domi demurrer ; pre- 
 paring briefs for hearing of; affidavit of service of order to 
 set down ; of demurring at the bar ; costs of demurrer 
 allowed on argument ; of dismissing bi'l, if plaintiff does 
 not amend within time given ; course of proceeding of court 
 on motions to dismiss ; when defendant entitled to give 
 notice to dismiss ; and costs of ... ... ... page 93 
 
 Sect. 16.— (9/ Defence hy Plea. 
 
 Instructions for plea ; time for filing; what pleas require to be sworn, 
 and what do not ; of setting down pleas ; costs on allowing 
 or disallowing pleas ; uses and abuses of pleas and de- 
 murrers ; effect of plea allowed ... ... ... ... 95 
 
 Sect. 17. — Of Defence hy Answer. 
 
 Time for answering ; obtaining further time ; instructions for 
 answer ; as to finality of answer ; exception to its finality ; 
 sufficient answer ; of signatures to answer, and engrossing 
 and filing ; of swearing answers ; insufficient answer ; 
 lunatics ; defendant out of jurisdiction ; answer of married 
 woman; answer and disclaimer ; disclaimer what ... ... 97 
 
 Of Exceptions to Answers. 
 
 Course to be pursued as to advising on ; time for submitting ; 
 costs of; further answer how prepared, &c. ; of setting 
 down 100 
 
 Of the DeftndanXs Proceedings on going into Evidence. 
 
 When defendant may read his answer as evidence; may convert it 
 into, by turning it into affidavit ; on whom defendant 
 serves notice of motion to enlarge time for evidence ; against 
 whom plaintiff may read answer; discussion of Cousins v. 
 Vasey, 9 Hare, App. 61 ; rule as to reading portions of 
 answer against defendant ... ... ... ... ... 101 
 
 Sect. 18. — Of Evidence generally. 
 
 Of admissions in pleadings ; of admissions by agreement ; proper 
 mode of making ; care requisite in framing ; effect of ; 
 observations on practice of making admissions ... ... 103 
 
 Of the Competency and Incompetency of Witnesses. 
 
 Grounds of incompetency formerly ; 6 & 7 Vict. cap. 85 ; 14 & 15 
 Vict. cap. 99; 17 & 18 Vict. cap. 81 ; evidence of hus- 
 band and wife for or against each other ; rules now as to 
 incompetency ; what grounds remain ; of idiots, lunatics, 
 and deaf and dumb ; as to amount of religious behef requi- 
 site : of infancy as ground of incompetency ; of privileged 
 knowledge ; who protected against divulging ... ... 106
 
 CONTENTS. XI 
 
 Of Documentary Evidence. 
 
 Of matter of record ; what is ; of documents proving themselves ; 
 of documents under the 14 & 15 Vict. cap. 99 ; of parish 
 registers; of letters patent and specifications ... ix'f/e 109 
 
 Of Documentary Evidence not of Record. 
 
 Proof of instnimont inter pai'tes ; of documents more than thirty 
 jears old ; proof of identity ; of letters ; books of account ; 
 proof in pedigree cases ; of rule as to producing best evi- 
 dence ; of notice to let ill secondary proof ... ... ... 112 
 
 0/ the Testimony of Witnesses- 
 
 Mode of swearing witnesses ; Jews, Gentoos, &c. ; principle laid 
 dovn in Ramkissensent v. Barker, 1 Atk. 19 ; examination 
 in chief ; only on matters in issue ; as to leading questions ; 
 par.ial disregard of rule in equity ; as to secondary evidence ; 
 distinction when hearsay good evidence and when not ; as to 
 witness answering questions tending to criminate himself; 
 ques';ion for court ; as to asking questions tending to degrade 
 witness ; examination of cases on ; cross-examination ; as to 
 relevincy in ; as to leading questions in ; re-examination ; 
 how confined ; when and by whom fresh questions may be 
 put ; of witness refreshing his memory, by memoranda ; 
 principle of allowing ... ... ... ... ... 114 
 
 Presumptions. 
 
 Presumptians of law, what ; presumptions of fact, what ; enume- 
 ration of various presumptions of law ; of presumptions of 
 fact ; when presumptions may be rebutted ... ... ... 118 
 
 Of Hearsay and other inferior Evidence. 
 
 Hearsay in pedigree cases; entries in bibles and prayer books ; what 
 proof of requisite; recitals in deeds; engravings ; charts ; tomb- 
 stones, &c.; of declarations of deceased members of a family ; of 
 double hearsay ; by wliom declarations must be ; membership 
 of the family must be proved aliunde ; when declarations 
 must be made ; doctrine of post litem motam, what it is ; 
 evidence of experts ; when opinions received as evidence ; 
 how limited ... ... ... ... ... ... 120 
 
 Sect. 19. — Of Amending Bilk. 
 
 Amending the bill as of course ; when the order may be obtained ; 
 amending after replication ; special order to amend ; what 
 amendments ; new practice as to amending ; of bills of 
 revivor and supplement ; as to amending by altering state of 
 parties ; amendments by whom drawn and signed ; time 
 for amending ; as to amendments affecting injunctions ; of 
 printed and written amendments ; costs of amending ; effect 
 of amending ... ... ... ... ... ... 123
 
 xn CONTENTS. 
 
 Sect. 20. — Oj Bills of Revivor and Sujjplement, and of Supplemental 
 Proceedings and Abatement getieralhj. 
 
 What renders a suit defective ; how defects cured formerly ; efifect 
 of the act of 15 & 16 Vict. cap. 86 on this point ; to what 
 cases act applies as to revivor ; order to revive, when of 
 course and when not; as to supplemental orders ... page 128 
 
 Sect. 21. — Of Petilioiis. 
 
 Objects to be obtained on petition ; as to obtaining injunction on 
 petition ; petitions in suits ; who may present ; to whom 
 presented; what it should contain ; who should be served; 
 how set down; how verified ; costs of; amending petitions; 
 what order may be obtained on petition ... ... ... 131 
 
 Sect. 22. — Hearing the Cause. 
 
 When to be set do^vn; serving subpoena to hear judgment ; caase 
 how set down ; what briefs on ; of reading secondary evidence 
 at hearing ; of proofs at hearing ; affidavit of service ; coarse 
 of hearing cause; of cause standing over: costs of; of short 
 causes ... ... ... ... ... 134 
 
 Sect. 2^.— Of the Decree. 
 
 Preliminary decrees ; what is the nature of in general ; passing 
 and entering minutes ; how settled ; of varying the decree 
 and speaking to minutes ; drawing up decree ; entering ; 
 what effect of entering ; of enrolling decree ; how prevented ; 
 time for enrolling ; what may be done without, and what 
 requires enrolment ; when preliminary decrees should be 
 enrolled and where ; who may enrol decree ; effect of caveat 
 against; of vacating enrolment ... ... 137 
 
 Sect. 24. — Of Enforcing Decrees. 
 
 How enforced ; in what cases particular process for ; writ of exe- 
 cution; of the Orders of 1841 ; on enforcing decrees and 
 orders ; what must be stated in an order ; of writ of assis- 
 tance : of decrees obtained by persons not parties ; what 
 process confined to orders for payment of money or costs ; 
 writ of venditioni exponas ; sequestrator what ; how seques- 
 tration avoided ; of excess of authority in sequestration ... 141 
 
 CHAPTER II. 
 Sect. 1. — Of carrying Decree into Execution. 
 
 Of proceeding on decree ; of defendant bringing in his accounts ; 
 of enlarging time for ; account how verified ; of surcharging 
 defendant ; of proof of payments ; of books of defendant as 
 evidence for ; authority of chief clerk ; of the certificate ; 
 form of ; objection to and appeal against ; when appeal to 
 judge, and wiien to Court of Appeal ; mode of taking evi-
 
 CONTENTS. Xm 
 
 dence in chambers ; costs of fees to counsel in chambers ; 
 filing affidavits; attendance of witnesses how procured; of 
 closing evidence ; of production of documents ; of inquiries ; 
 advertisements ; substitute for states of facts ; time for and 
 mode of proving debts ; interest on debts ; observations on 
 mode and kind of proof in various cases ... ... paje 146 
 
 Of Saks under Deci-ee, 
 
 Issuing advertisements ; preparing conditions ; reserved bid- 
 dings ; verifying biddings ; opening biddings ; of enforcing 
 payment of purchase money ; how purchaser discharged ... 154 
 
 Of the Proceedings on the Ajipointment of a Receiver. 
 
 How proposals made ; verification of ; duties of receiver ; course 
 for compelling tenants to attorn ; powers of receiver ; 
 passing accounts ; course for compelling receivers to bring 
 in accounts and bills ... ... ... ... ... 157 
 
 Sect. 2. — The Master's Report and Exceptions thereto. 
 
 Statement of the old practice ; the new practice of certificate in 
 chambers ; of objecting to certificate ; further consideration ; 
 setting down cause on ; of hearing on ; what evidence on ; of 
 certificate finding as to law ; where further consideration to be 
 heard; of decree on further consideration with reference to 
 original decree ; who may appear on fm'ther consideration ; 
 requisites of decree on ; examination of married woman on 161 
 
 Sect. 3. — Appeals. 
 
 Eflfect of appeal as to staying proceedings ; result of cases on ; 
 course of proceeding to stay execution of decree ; to vfhat 
 court appeals lie ; mode of preparing appeal ; form of peti- 
 tion of ; setting down ; deposit on ; who served ; briefs on ; 
 course vehen appeal from whole decree, and when from part 
 only ; evidence on appeal ; what appeals do not require peti- 
 tion of appeal, but heard on motion ... ... ... 167 
 
 Appeal to the House of Lords. 
 
 For what appeal will lie ; when to be printed ; of extending time 
 for ; notice of intention to appeal ; form of appeal ; appeal 
 how prepared and served ; amending ; answer or objections 
 to ; of setting down appeal ; printed case ; course of hearing ; 
 cross appeal; costs of appeals ... ... ... ...174 
 
 Of Sjjecial Cases. 
 
 WTiat may be done on; objections to; parties to; title of, how 
 framed, and form of; signed by counsel ; special cases where 
 married women, infants, &c., are parties ; jurisdiction on ; 
 when leave to set down requisite; how heard ; what the 
 court will do on; of refusing to decide on ; costs of ... 179
 
 XIV CONTENTS. 
 
 Of the Proceedings by Claim. 
 Of common claims ; form of ; of signing ; of obtaining leave to 
 file; printing; amending; injunction not obtainable on; 
 service of; defence to; evidence on ; claims when beard ; as 
 to counsel in support of at hearing ; parties to ; general 
 observations on ... ... ... page 185 
 
 Of the Proceedings by Summons in the first instance. 
 When applicable to real estate, and when to personal only ; effect 
 
 of, and of order on ... ... ... ... ... ... 190 
 
 Of Costs. 
 Principle of the court in dealing with costs; when costs of course; 
 two classes of costs ; of costs as between solicitor and client; 
 of costs as between party and party ; when costs do not 
 follow result of suit... ... ... ... ... ... 197 
 
 Costs out of the Estate. 
 In what cases ; rule as to administration costs ; order of payment ; 
 when estate insufficient; when plaintiff may have costs though 
 failing ; when general estate pays costs, and when particular 
 fund ; costs of trustees, &c. when they will be deprived of ; 
 costs in charity cases ; general rules as to trustees' costs ; 
 costs of incumbrancers ; when mortgagee will have no costs ; 
 costs of disclaiming parties ; costs of suits for specific pur- 
 pose ; costs of Crown ; costs in charity cases ; costs of 
 improper proceedings, or improper length ; when plaintiff 
 being right, will lose his costs ... ... ... ... 195 
 
 Security for Costs. 
 When plaintiff must give security, and when not ; of deposit instead 
 
 of security ... ... ... ... ... ... ... 207 
 
 Taxation of Costs. 
 Direction to tax in suits ; to whom referred ; how considered ; on 
 difference of taxation between costs as between solicitor and 
 client and as between party and party ; costs of special ex- 
 amination ; costs of fees to counsel ; what allowed on taxation 
 under 120th Order 1845; enforcing payment of costs ... 208 
 
 Payment into and out of Court. 
 When payment is ordered ; motion for on answer ; ^what admissions 
 requisite ; against whom usually made; as between partners; 
 as against purchasers ; payment under legacy duty act ... 212 
 
 Sect. 4. — Of Service. 
 Orders of 1842 on; when service must be made; times for 
 notice ; what good service ; short service; of notice of motion ; 
 service of bill abroad ; ser\'ice of subpoena to hear judgment ; 
 of injunction ; of decree ; of summons ; of substituted service 217
 
 CONTENTS. XV 
 
 Of Attachment generalhj. 
 When it may, and when it may not be issued ; against married 
 woman ; against infant ; attachment for want of appearance ; 
 discharging attachment; etVect of attachment on proceedings; 
 of second attachment ; writ of, how prepared and indorsed... 221 
 
 Of Taxation of Solicitor's Bill of Costs. 
 Taxation under statute ; when it may be made ; as to overcharge 
 alone ; overcharge and pressure ; special agreement for costs ; 
 what special petition must set forth ; for what business bill 
 may be taxed ; wlio may present petition ; as to signature of 
 solicitor to bill ; eflect of payment... ... ... ... 222 
 
 APPENDIX. 
 
 15 & 16 Vict. cap. 86, witli cases 
 15 & 16 Vict. cap. 80, with cases 
 
 230 
 263 
 
 General Orders and Rules op the High Court of 
 Chancery. 
 
 General Order of 7th August, 1852 
 General Order of 7th August, 1852 
 Order of 16th October, 1852 
 Order of 23rd October, 1852 ... 
 Order of 2.5th October, 1852 ... 
 Order of 10th November, 1852 ... 
 Order of 3rd December, 1852 ... 
 Order of 4th December, 1852 ... 
 Order of 16th December, 18.52 ... 
 Order of 24th December, 1852 ... 
 Order of 31st January, 1853 ... 
 Order of 4th March, 1853 
 Order of I2th April, 1853 
 Order of 10th Jlay, 1853 
 Order of 2nd June, 1853 
 Order of 3rd June, 1853 
 Order of 26th July, 1853 
 Order of 9th December, 1853 ... 
 Order of 9th March, 1854 
 
 Order of 1st June, 18.54 
 
 Order of 21st June, 1854 
 Order of 13th January, 1855 ... 
 Order of 2nd February, 1855 ... 
 Order of 30th November, 1855 ... 
 Orders of 22nd April, 1850 
 
 280 
 292 
 293 
 305 
 307 
 319 
 319 
 319 
 .320 
 321 
 322 
 322 
 323 
 324 
 325 
 325 
 .326 
 326 
 327 
 328 
 330 
 331 
 332 
 3.32 
 333
 
 TABLE OF CASES. 
 
 Acaster «. Anderson .. page 251 
 
 Adams v. Fisher . . 86 
 
 Adder v. Campbell . . . . 87 
 
 Aistabie t'. Rice 203 
 
 Albert, Prince, u. Strange .. 128 
 
 Alcock i;. Alcock 107 
 
 Allen ti. Aldridge 228 
 
 V. Bone . . . . . . 4 
 
 V. MacPherson . . . . 72 
 
 Ames V. Ames 50 
 
 Amsinck v. Barclay . . . . 57 
 Andrew, ex parte .. .. .. Ill 
 
 Angel r. Smith 144 
 
 Anonymous 244 
 
 Atkinson v. Oxford, &c. Rail. Co. 262 
 
 V. Parker 130, 255, 256 
 
 Attomey-GeneraU'. Attwood, 147, 263 
 
 ■». Berry . . 205 
 
 V. Caius College 205 
 
 V. Christ's Hos- 
 pital 199 
 
 V. aapham, 89, 236 
 
 V. Drapers' Co. 200 
 
 V. Drummond 205 
 
 of London 
 
 V. Holland 
 
 V. Hudson 
 
 ■ V. Corporation 
 
 ■ V. Jlanchester 
 
 and Leeds Railway Co. 
 V. Slarsh 
 
 • V. Munro 
 
 • V. Owen 
 
 - V. Smart 
 ■ V. Strange 
 
 - V. Vigor 
 
 • V. Corporation 
 
 72 
 127 
 168 
 205 
 205 
 
 74 
 158 
 
 Of Winchester 205 
 
 Austin V. Prince 
 Bacon v. Jones 
 Bailey v. CoUett 
 Baillie t>. Jackson 
 Balguy v. Chorley 
 Barker ». Dixie 
 
 T. North Staffordsh 
 
 V. Wardle . , 
 
 Bartlett v. Bartlett 
 V. Gilliard 
 
 Bartley v. Bartley 
 Barton v. Whitcombe 
 Bateman r. Cook . . 
 Bawbree v. Watson 
 Baynes v. Ridge 
 Rigge 
 
 Beale, re 
 Becke, re 
 Bennett, re 
 Besemeres v. Besemeres 
 Bickford t>. Skewes 
 Bidulph V. Bidulph 
 Blunt V. Cumyn . . 
 Boehm v. Wood . . 
 Bohn r. Bogue 
 Bonfll V. Purchase 
 Boschetti v. Power 
 Bourne v. Mole 
 Bowen v. Price 
 Bower v. Femie . . 
 Boyd V. Jaggar 
 Boydell v. Ulanhy 
 Bradstock v. Whatley 
 Brennan v. Preston 
 Broadhurst v. Tuuniclif 
 Brown v. Newall . . 
 
 V. Sawer 
 
 Bryan v. Austell . . 
 
 page 
 
 43 
 74 
 .. 184 
 .. 237 
 .. 141 
 .. 106 
 R.Co. 56 
 .. 196 
 .. 214 
 .. 103 
 .. 90 
 .. 238 
 39, 237 
 .. 222 
 .. 231 
 .. 187 
 .. 227 
 .. 228 
 
 228, 279 
 .. 245 
 .. 221 
 .. 194 
 .. 195 
 .. .58 
 .. 73 
 
 130, 255 
 .. 213 
 .. 214 
 1 1, 233 
 .. 89 
 .. 50 
 .. 252 
 .. 9 
 .. 45 
 .. 140 
 .. 222 
 .. 125 
 .. 269
 
 TABLE OF CASES, 
 
 XVll 
 
 Glamorgan- 
 
 Bryan V. Wastell 
 Buckley r. Cook 
 Burch c. Ricli 
 Burney v. M'Donald 
 Busk V. lieetliam 
 Bute, Marquis of, v. 
 
 shire Canal Co. 
 Butler V. Hutlcr 
 Canning v. JJell 
 Gates V. Heeves 
 Chatfers »'. Hcadlam 
 Chalk V. Raine 
 Champneys v. Buchan 
 Chappell i'. Purdav 
 Chatfield v. Berchtoldt 
 Chidwick v. Pebble 
 Cliurcli V. Marsh . . 
 Clarke f. Earl of Ormonde 
 
 r. Gill 
 
 Coles i'. Forrest 
 
 CoUinson r. 
 
 Commerell r. Hall 
 Cook V. Hall 
 Cooke !'. Turner .. 
 Cookson V. Pingham 
 Coombes v. Mansfield 
 Cooper V. Ewart .. 
 Cousins V. Vasey .. 
 Cramer, ex parte . . 
 Cridlaiul v. Lord De Mauley 
 Croft V. Day 
 
 V. Middleton .. 
 
 Cropper r. Mollersh 
 Cross r. Thomas . . 
 Cust V. Poode 
 Darby v. Nicholson 
 Davidson v. Bohn 
 Davics V. Bush 
 Davis V. Spurling 
 Deannan v. Wynch 
 Deaville v. Deaville 
 De Rvitzen v. Farr 
 Detillen v. Gale 
 Dolly V. Challin 
 Domville v. Lumb 
 Doody V. Higgins 
 Drake, re .. 
 Drew, re 
 
 Drummond v. Pigou 
 Dubless V. Flint 
 Duffleld V. Sturges 
 Duncan v. Mc Almont 
 Duncombe v. Lewis 
 Dunn V. Dunn 
 Eccles V. Cheyne 
 Edwards v. Jones 
 Eldridge, re 
 Elmslie, re 
 Ely, Dean and Chapter of, 
 
 wards . . 
 Emaght v. Fitzgerald 
 Empringham v. Short 
 English V. Hayman 
 Evans v. Evans 
 
 pufje 124 
 
 .. 2G2 
 
 .. 125 
 
 .. 201 
 
 .. 208 
 
 86 
 . . 58 
 .. 200 
 .. 252 
 .. 2-19 
 .. 130 
 
 126, 127 
 .. 73 
 .. 231 
 .. 127 
 .. 53 
 .. 72 
 .. 242 
 .. 200 
 .. 57 
 
 130, 257 
 .. 240 
 
 04 
 
 185 
 
 119 
 
 227 
 
 51, 102, 103 
 
 .. 249 
 
 .. 80 
 
 .. 74 
 
 242, 263 
 
 .. 247 
 
 130, 256 
 
 .. 18 
 
 .. 57 
 
 .. 73 
 
 .. 222 
 
 .. 103 
 
 .. 141 
 
 .. 243 
 
 117 » 
 
 .. 201 
 
 .. 124 
 
 .. 185 
 
 .. 24G 
 
 .. 229 
 
 .. 227 
 
 56, 57 
 
 .. 212 
 
 50, 283 
 
 .. 67 
 
 .. 123 
 
 .. 31 
 
 .. 189 
 
 87,213 
 
 .. 228 
 
 227 
 
 129 
 141 
 145 
 256 
 180 
 
 V. Ed- 
 
 Evans t>. Saunders.. .. page 188 
 Evelyn r. Chippendale . . . . 200 
 Ewart V. Williams 113, 147, 255 
 
 Eyre, re 222 
 
 Farebrother v. Welchman . . 07 
 
 F'arrow v. Kees . . . . . . 208 
 
 Fellowes I'. Deere . . .. 125,206 
 
 Finden v. Stephens . . 80, 88 
 
 Fitton, re .. .. .. .. 141 
 
 Flack !'. Holm .. .. .. 51 
 
 Fletcher v. Rogers . . . . 258 
 
 Flight r. Marriott 163 
 
 Fluker v. Taylor 64 
 
 Forbes i: Peacock . . . . 207 
 
 Ford V. Dolphin 82 
 
 Foster r. Donald 216 
 
 r. Menzies .. 130,258 
 
 Foulkcs u. Jones .. .. .. 13 
 
 Fowler u. Keynal .. .. ,. 175 
 
 r. Payldon . . 247, 246 
 
 Frankland ('. Overend .. •■96 
 Freeman t'. Fairlic .. 4,218 
 
 Frost i\ HoUoway .. ..117 
 
 FuUerton ii. Martin .. 130,256 
 
 Fulton r. Gilniore . . . . . . 97 
 
 Furnival r. lioyle . . . . . . 09 
 
 Galloway r. Bleadon .. ..122 
 
 Garbett's case 117 
 
 Gardner »'. Marshall . . . . 80 
 
 Garland v. Scott 87 
 
 Gerisp J'. Chartier .. .. 117 
 
 Giddings r. Giddlngs . . . . 207 
 
 Giles V. Powell 118 
 
 Gill V. Kayner 209 
 
 Girdlestone r. Lavender . . .. 252 
 Gladden v. Honeman .. .. 91 
 
 Glasscot V. Lang 72 
 
 Goldie f. Shuttleworth .. .. 105 
 
 Goldsmid r. Stonehewer . . . . 247 
 
 Goors V. Levie . . . . . . 250 
 
 Go\vran v. Bamett . . . . 208 
 
 Graham r. I'itch 221 
 
 Grant r. Grant 127 
 
 Greedy I'. Lavender .. ..196 
 Greenlaw r. King . . . . 87 
 
 Greeuough r. Gaskell . . . . 87 
 
 Gregory r. Smith 163 
 
 Groom V. Booth 181 
 
 f . Stinton 141 
 
 Grote V. Bing 91 
 
 Gwynne v. British Peat Company 187 
 
 Haggett V. Iniff 237 
 
 Hair, re 228 
 
 Hall's Estate, re Neddy .. ..Ill 
 
 Hanbury I'. Ward 130 
 
 Hanman )'. Riley .. .. .. 251 
 
 Harborough, Lord, v. Wartnaby 53 
 Harding, re.. .. .. .. 229 
 
 Harford 1'. Rees 44 
 
 Hamian i'. Jones . . . . . . 74 
 
 Harvey v. Brook 273 
 
 V. Harvey 199 
 
 r. Mount 206 
 
 Uathornthwaite f. Kussell .. 91
 
 XVIU 
 
 TABLE OF CASES. 
 
 Haverfield V. Pyman .. page 127 
 Hawke v. Kemp . . . . 60, 206 
 Hawkins f. Gatliercole .. .. 145 
 Hayward I', ll^iyward .. 22 n, 85 
 Haywood r. Haywood .. ..150 
 
 Heath v. Lewis 269 
 
 1). Chapman .. .. 2is7 
 
 Hele V. Lord Bexley .. ..248 
 
 Hewett ?i. Foster .. .. ..198 
 
 Hicks V. Lord Alvanley . . . . 222 
 
 Higher V. Games l4l 
 
 Hill V. Turner 72 
 
 Hilton r. Lord GranvUle . . . . 56 
 
 Hinder. Blake 214 
 
 Hindson v. Wealherill . . . . 72 
 Hitchcock V. Carew . . . . 239 
 
 Hobart V. Todd 240 
 
 Hobhouse v. Courtenay . . . . 8 
 Hobson r. Sherwood .. ..143 
 
 Hodge, re 269 
 
 Holloway r. Phillips . . . . 269 
 
 Hood i'. Phillips .. .. .. 4 
 
 Hope V. Hope . . . . 8, 9 re 
 
 v.Threlfall .. .. 172,243 
 
 Home u Thompson .. .. 208 
 Horsley V. Fawcett .. .. 206 
 
 Howard I'. Howard .. .. 286 
 
 ?). Papera .. .. .. 21 
 
 Howling t'. Butler 18 
 
 Hudson t'. Maddison .. .. 71 
 
 Hurst V. Hurst 8 
 
 V. Padwick 207 
 
 Inglis ». Mansfield.. .. ..174 
 
 Ivison t;. Grassiot . . .. ..241 
 
 Jackson v. Petrie 58 
 
 r. Turnley .. .. 253 
 
 Jacobs V. Hooper . . . . . . 93 
 
 !j. Pachards 189 
 
 Jarvis c. Chandler 72 
 
 Jenkyn v. Vaughan . . . . 238 
 Johnson v. Tucker .. ..35 
 
 Johnston r. Todd 190 
 
 Jones ». Griffiths 136 
 
 f. Morrall 164 
 
 V. James 247 
 
 Kampff t-. .Tones 199 
 
 Kelson r. Kelson .. 263 
 
 Kenna way r. Tripp .. .. 207 
 Kingf. Brvant 198 
 
 V. Sm'ith 200 
 
 Knight f. Knight 259 
 
 Lamb v. Orton . . . . 87, 235 
 
 Lambert r. Lomas . . .. .. 231 
 
 Lancashire v. Lancashire .. 198 
 
 Lark I'. Miller 256 
 
 Larkins r. Paxton 197 
 
 Lautour r. Holcombe .. .. 9i)7 
 Law V. London, Ac. . . . . 235 
 
 Lee V. Lee 256 
 
 Leigh r. -Macauley .. ..214 
 
 Lewis r. Ilinton .. .. .. 141 
 
 Lloyd 1). .lenkins .. .. ..70 
 
 V. Whitty 244 
 
 Lock V. Lomaa 202 
 
 Lodge V. Pritchard . . page 257 
 
 Loinsworth v. Rowley . . . . SO 
 London and Exeter Railway 
 
 Company, ;•« the Direct .. 140 
 Long V. Storie 248 
 
 V. Tottenham . . . . 208 
 
 Lopes r. De Tastet .. .. 17 
 
 Lords. Col Yin .. 42,135,261 
 
 Lovell, re 221 
 
 -r. Galloway .. 65.259 
 
 Lowes I'. Lowes .. .. 130,255 
 Luxton t\ Stephens .. ..194 
 
 Mac Gauren i;. Fumell .. ..57 
 
 — Haray r. Hitchcock .. .. 2)2 
 
 — Neil V. Garrett . . . . 56 
 
 — Niece f. Acton . . . . 45 
 
 Magney v. Mines Royal Company 69 
 Malins r. Greenway .. .. 4 
 
 Mandeno r. Mandeno .. .. 258 
 
 JIaniere t'. Leicester .. .. 234 
 
 Manser r. Jenner .. .. .. 76 
 
 JIansfield r. Shaw .. 56,57 
 
 Martin r. Hadlow .. 130,255 
 
 May f. Biggenden . . .. ..51 
 
 Meek !'. Ward .. ..39,50,224 
 
 Metcalf t). Pulvertoft .. ..91 
 
 Middleton r. Poole .. ..214 
 
 Mildinay v. Lord Methuen .. 273 
 
 Miles ?'. Williams 222 
 
 Millington t'. Fox 192 
 
 Monckton v. Attorney-General .. 121 
 Morgan v. Matchett . . . . 279 
 
 )'. Morgan.. .. .. 9 
 
 MorrelU'. Tinkler .. .. 237 
 
 Mounsey v. Burnham .. .. 105 
 Murray I'. Vipart .. .. .. 8 
 
 D.Walter 206 
 
 Newbury V. Benson .. .. 147 
 Newton t'. Dent .. .. .. 18 
 
 Nichols v. Haslam 64 
 
 r. Roe 72 
 
 Nielson t). Thompson .. ..73 
 
 NoUey I'. Palmer .. .. .. 257 
 
 Normanville r. Stannintj.. .. 244 
 
 Norton i'. Hepworth .. .. 8 
 
 V. Steinkopf .. ..50 
 
 Norway I!. Ro we .. .. ..76 
 
 Nowell f Whitaker .. ..53 
 
 Nurse ». Burm 103 
 
 Olirly V. Jenkins 202 
 
 Oldham r. Oldham .. ..57 
 
 Ollendorff i\ Black .. ..78 
 
 Other r. Iveson 67 
 
 Owen r. Thomas 106 
 
 Passingham r. Sherborn 165, 199, 206 
 Pattfison V. Patterson .. ..175 
 Paxton r. Douglas.. .. ..116 
 
 Pender, re 229 
 
 Perkins v. Bradley . . . . 205 
 
 Perry r. Truetit .. .. ..74 
 
 I'. Turpin 233 
 
 Pillar V. Thompson . . 45, 262 
 
 Pimm r. Ins il .. .. .. 262 
 
 Piimer f . Knight 4
 
 TABLE OF CASES. 
 
 XIX 
 
 Pitt V. Short . . . . page 94 
 
 Player r. Anderson .. .. 207 
 
 Porturlington, Lord, v. Soulby . . 7'2 
 Potts r. Thames Haven Dock 
 
 Company 187 
 
 Power t'. Walker 73 
 
 Prentice t>. Prentice .. .. 251 
 Purcell V. Macnamara . . . . 8'J 
 Radbuin r. L«wis .. .. 53 
 
 Radcliffe, ex parte . . . . DO 
 
 Ramkisseiisent I'. Barker ... 114 
 
 Rashlet'li i'- Master .. ..194 
 
 Rawlins r. McMalion .. .. 24"J 
 Records and Writs, re Clerk of .. 38 
 
 Reed !'. Langlois 87 
 
 r. Prest 240 
 
 Rees, re 220 
 
 Reeve v. Ilodson .. .. ..110 
 
 Rex r. Inhabitants of SI. Martin 118 
 Rhodes 11. Ibbetson .. 140,202 
 
 Richard v. Attorney-General of 
 
 Jamaica .. .. .. .. 198 
 
 Rico V. Gaultier 58 
 
 Roberts r. Kerslake 15)5 
 
 1'. Scoones ,. .. 195 
 
 V. Williams . . . . 202 
 
 Robinson?). Harrison .. .. 202 
 Rochdale Canal Co. v. King 33, 230 
 Rocke r. Matthews .. .. 70 
 
 Roddani r. Hetherington .. 58 
 
 Rogers r. Hooper .. .. 35, 44, 241 
 
 r. Jones •• 249 
 
 Ross !'. Ross .. .. .. 214 
 
 Routh r. Tomlinson .. ■. 244 
 Rowland !■. .Stiirgis .. .. 130 
 
 Rowley r. Eccles ,. 18 
 
 Rude r. Whitchurch .. .. 103 
 Sabbering f. Balcarris .. •. 207 
 Sale f. Kitson .. .. .. 247 
 
 Sancter r. Foster 74 
 
 Sandys I'. Long 208 
 
 SaundfTS ?'. Druce .. 149,278 
 
 Scoones r. Jlorrell . . . . . . 203 
 
 Sellon I'. Lewin 18 
 
 Senior v. Pritchard . . 65, 259 
 
 Sewell r. Asliley 251 
 
 Shaftoe V. Shaftoe 57 
 
 Sbetfield Canal Co. v. ShefiSeldand 
 
 and Kotherham Railway Co. . . 88 
 
 Sherwood r. Vincent 262 
 
 Shuttlewoith V. Lowther.. .. 201 
 Sidebotham v, Barrington 195, 204 
 Slderfield r. Thatcher .. ..222 
 
 Slffken V. Davis 240 
 
 Silver !'. Bishop of Norwich .. 91 
 
 V. Stein .. .. 248, 249 
 
 Simkins c. Vaughan .. .. 47 
 Simmons i\ Wood.. .. ..23 
 
 Smith V. Cork's 1 '<7 
 
 '• Green 201 
 
 Spain, King of, v. Machado .. 107 
 Spirch )■. Young . . . . 79, 80 
 
 Staines v. Rudlin 252 
 
 Stevens «). Keating .. 79,169 
 
 Stewart v. Graham 
 Stinton i\ Taylor .. 
 Stirke, re 
 Stone V. Davics 
 Storey v. Lord J. G. Lennox 
 Street r. Street 
 Strong !'. Moore .. 
 .Stuart r. Lloyd 
 Sturg r. Dela Hue.. 
 St. Victor r. Devereux 
 Suisse t'. Lowtlier . . 
 Swallow V. Wallingford 
 
 V. Binns .. 
 
 Sweet V. Cater 
 
 r. Shaw 
 
 TaffVale Hallway Co. v. 
 Tanner I'. Dancey .. 
 Tarleton v. Dyer .. 
 Tate V. Leithead . . 
 Taylor v. Sheppard 
 Thomas v. Gwynne 
 
 V. Langridge 
 
 Thompson v. Falk 
 
 - V. Partridge 
 
 Thomson v. Judge 
 
 Thornhill v. Cnplestone . . . . 262 
 
 !). Thornhill .. ..273 
 
 Thornton r. Wilson .. .. 208 
 
 Tipping r. Power .. .. .. 197 
 
 Totty V. Ingleby 9 
 
 Toulniin v. Copland .. ..215 
 Trustees of Birkenhead, &c. v. 
 
 Laird 2.53 
 
 Turner w. Frampton .. .. 196 
 
 Upperton v. Harrison .. .. 201 
 
 Vernon r. Cue .. .. ..17 
 
 Vigors D. Lord Audley .. .. 222 
 
 Walburn v. Ingleby .. .. 168 
 
 Walsh, re 227 
 
 Walter r. Selfe 78 
 
 Ward ?;. Cart Wright .. 130,256 
 Warner i\ Northern and Eastern 
 
 Counties Railway Company .. 122 
 Warren, ex parte .. .. ..90 
 
 Watson's case .. .. .. 117 
 
 Wayn v. Lewis . . . . . . 252 
 
 page 
 
 58 
 35 
 .. 227 
 1.5, 232 
 .. 86 
 .. .57 
 .. 202 
 .. 84 
 .. 73 
 .. 53 
 167, 168 
 .. 74 
 .. 250 
 .. 73 
 .. 73 
 3n.. 67 
 .. 196 
 .. 127 
 .. 255 
 .. 222 
 .. 221 
 79 n 
 .. 87 
 39, 243 
 .. 124 
 
 Webb V. Clavcrden 
 Wedgewood v. Adams 
 Weightman v. Powell 
 Welchnian, re 
 Welford v. Daniell 
 Wells, re .. 
 
 194 
 .. 197 
 .. 127 
 .. 227 
 .. 21 
 228, 2-19 
 Wheat V. Graham . . .. .. 135 
 
 Whistler I'. Aylward . .. 141 
 
 Whiter. Bishop of Peterborough 201 
 
 Whitehead v. Bennett 
 Wi}{an V. Rowland 
 Wiggins V. I'eppin 
 Wilkinson v. Stringer 
 Willcox V. Bellairs 
 Williams v. Williams 
 Williamson t'. Jeffi'eys 
 Wilson V. Cluer *.. 
 
 58 
 51,283 
 4 
 .. 243 
 .. 204 
 46, 51, 244 
 .. 263 
 .. 202 
 
 f. Squire 197
 
 XX 
 
 TABLE OF CASES. 
 
 Wilson ». Tlndal .. .. page 74 
 Winchester, Bishop of, i'. Paine.. 204 
 Winthrop 1'. Murray .. .. 4 
 
 Woodf. Scarth 102 
 
 Woodhead v. Marriott .. .. 199 
 Woodward v. Conebeer . . . . 222 
 
 Wright r. Anglo 35 
 
 V. Castle 4 
 
 r. Everard 208 
 
 ». Vernon 167 
 
 Wright V. Wright . . .. jiagt \'iA 
 
 Wroe «. Clayton .. .. ..221 
 
 Yates i). Fairbrother .. .. 215 
 
 D.Hardy .. .. .. 'ib 
 
 Yearsley v. Budgett . . . . 24 
 Yeatman t). Mousley.. .. 5,230 
 
 York and North Midland Railway 
 
 Company t). Hudson .. 149,262 
 Young I'. Ward 247 
 
 EREATA. 
 
 An error as to orders of course to amend in pp. 12 and 15, 
 is corrected in p. 81. 
 
 Also, an error as to the two clear days of service of notice 
 of motion in p. 46, is corrected in p. 219.
 
 THE 
 
 NEW PRACTICE 
 
 OF THE 
 
 COURT OF CHAN CERT, 
 
 CHAPTER I. 
 
 OF THE PROCEEDINGS OF THE PLAINTIFF. 
 
 I. Of filing, printing, and serving a hill, and of enforcing 
 appearance thereto. 
 
 A Suit in Chancery is commenced by filing a bill or a 
 claim. I sh<all treat first of the commencement by bill, as 
 that is the most usual, and with very few exceptions, the 
 most useftil course. 
 
 A bill may be drawn by the plaintiff's solicitor, and set- 
 tled and signed l)y counsel, but as it must, in point of form, 
 be signed, and must therefore practically be settled by coun- 
 sel, the invariable practice is for the solicitor to instruct 
 counsel to draw it. A bill properly drawn, according to 
 the modern practice, should be, and should be no more 
 than, a succinct and precise statement of the matters on 
 which the plaintiff intends to rely in support of his case. 
 The 15 & IG Vict. cap. 86, sect. 10, directs that every bill 
 of complaint to be filed in the court after the time therein 
 appointed for the commencement of the act, " shall contain, 
 as precisely as may be, a narrative of the material facts, 
 matters, and circumstances on which the plaintiff relies, such 
 narrative being divided into paragraphs, numbered conse- 
 cutively, and each paragraph containing, as nearly as may be, 
 a separate and distinct statement or allegation, and shall pray 
 specifically for the relief which the plaiiitiif may conceive
 
 2 NEW EQUITY PRACTICE. 
 
 himself entitled to, and also for general relief; but such 
 bill shall not contain any interrogatories for the examination 
 of the defendant;" and the 14th Order of the 7th August, 
 1852, suggests a form of bill, to which any bill may be made 
 similar, with such variations as the nature and circumstances 
 of each particular case may require. (') The bill is addressed 
 to the Lord Chancellor, and is marked by the plaintiflTs 
 solicitor for either of the branches of the court, that is, for 
 the Lord Chancellor, to be heard by one of the Vice-Chan- 
 cellors, or for the INIaster of the Rolls ; and thenceforth the 
 cause becomes attached to that branch, unless removed to 
 another branch by some special order of the Lord Chan- 
 cellor : (1st Order, 5th May, 1837, and 2nd Order, 2nd 
 November, 1850.) 
 
 It is very usual for the counsel, who draws the bill, to 
 mark in the margin of the di-aft the Court to which he re- 
 commends the cause to be attached; and it would be in 
 general prudent, for many reasons, for the solicitor to attend 
 to his suggestion ; however, it is the privilege of the solici- 
 tor, and not of the counsel, to select the court. 
 
 The bill commences by stating the name and address of 
 the plaintiff; and then it states in paragraphs, numbered in 
 such order as the pleader selects, subject to the general rule 
 laid down by the 10th section of the statute above referred 
 to, the facts and the documents, or the substance of the 
 documents, out of which the plaintiff's claim grows. It should 
 state the title of the plaintiff, positively and definitely ; 
 as, for instance, supposing him to claim as tenant in fee 
 by descent, it should allege not simply that he is seised 
 in fee, but that A. (the ancestor) being seised in fee, died 
 intestate, leaving B., the plaintiff, his heir at law, and that 
 the plaintiff is as such heir at law of A., seised in fee; or, 
 supposing him to be tenant in tail under a settlement, it 
 should not allege the title in those general terms, but should 
 state that by a certain deed, lands, &c., were settled to the 
 use of A. for life, with remainders in tail (following the 
 statements of the settlement); and it should allege and 
 show succinctly how the plaintiff is the particular person, in 
 the events which have happened, who is the tenant in tail. 
 In fact, not to nmltiply examples which would be infinite, 
 the statement of the title should not be a mere general 
 
 (') The General Orders, and the Forms annexed to them, together 
 with such other forms as may be thought useful, will be set out in 
 their places.
 
 THE BILl.. 3 
 
 statement of the result, but a statement of such particulars 
 as will enable the court to see for itself, that, as^iunlilli; tiie 
 facts alleged to be true, the plaintiifdoes really claim in the 
 right which he alleges himself to possess. 
 
 The bill should then state the circumstances out of which 
 arises the injury done to the plaintiff, and the particular 
 injury of which he complains, and for which he seeks 
 relief, and it should state generally the facts evidencing 
 that wrong. 
 
 For instance, suppose the case of a tenant in tail in re- 
 mainder subject to a life estate, with power to the tenant 
 for life to grant leases for twenty-one years, and the tenant 
 for life has granted improper leases for his own benefit ; the 
 lull, having stated the title, alleges that the tenant lor life 
 has improperly and fraudulently exercised the power, and 
 granted an improj)er lease, namely, a lease by a certain deed 
 at a rent of ( ) /., taking, therefore, a fine to himself of 
 ( ) Z. ; whereas the land let is worth, it will allege, 
 
 at a fair valuation, a rent of ( ) /., if no fine had been 
 taken. Under such an allegation the plaintiH" would be 
 able to go into evidence to prove the grant of the lease, 
 the taking of the fine, and the true value of the land, if let 
 without fine. 
 
 Formerly, after stating the plaintiff's title, and the injury 
 done to him, by way cf direct allegatioa, the bill used to 
 indulge freely in what were called pretences and charges ; 
 viz., suggestions of all the Imaginable defences that the de- 
 fendant might in the view of the pleader set up, and then 
 charges rebutting those pretences, and allegations of facts, 
 by way of charge, displacing the pretences. 
 
 This part of an ancient bill is in modern bills almost 
 wholly abandoned, as a useless incumbrance ; all the state- 
 ments of facts thought material are made by way of sub- 
 stantive allegation ; and the bill at once proceeds to state 
 what the plaintiff conceives and submits ought to be done ; 
 and the prayer Is framed accordingly. 
 
 The prayer should state distinctly, yet as generally as 
 may be, consistently with precision, what relief the plaintiff 
 seeks ; as for Instance, in the case above put, that the lease 
 may be declared fraudulent and void, and set aside, and 
 delivered up to be cancelled ; and if relief of various 
 kinds, ap]illcable to the several matters complained of, or if 
 one of several kinds of relief in the alternative, Is desired, 
 the prayer Is also divided into paragi-ajihs. 
 
 The substantial part of the prayer of the bill always con- 
 cluded formerly In practice, and now the prayer concludes 
 b2
 
 4 NEW EQUITY PRACTICE. 
 
 compulsorily, under the 15 & 16 Vict. cap. 86, sect 10, re- 
 ferred to ante, p. 2, with a prayer for general roUef. Of 
 what use this portion of the prayer is. it is, very diflBcult to 
 say, as the instances are very rare in which the court grants 
 any relief other than that which the plaintiti" specifically 
 asks, or at any rate, a relief substantially growing out of it. 
 However, it must be inserted. 
 
 The names of the defendant or defendants, if there are 
 several, are inserted at the end of the prayer, and the draft 
 must be signed^ as already observed, by counsel. 
 
 A minute discussion of the different kinds of bills, and of 
 the mode in wliich they should be framed, fills under the 
 head of pure pleading, to which it is not intended to devote 
 this portion of the work ; and it may, therefore, be con- 
 venient at once to state, that in general only so much of the 
 doctrines and rules of pleading will, in this part of the work, 
 be noticed, as is deemed essential to enable the solicitor 
 satisfactorily to instruct and confer with his pleader. 
 
 Before filing a bill, the solicitor of the intended plaintiff 
 should be specially authorised to do so by his client ( Wright 
 V. Castle, 3 IVIer. 1 2 ; Wiggins v. Peppin, 2 Beav. 403) ; 
 and regularly he should have a written authority ; for if the 
 authority cannot be implied from acquiescence, and there is 
 no written authority, and the plaintiff repudiates the suit, 
 the solicitor will be put to prove the authority : {Allen v. 
 Bone, 4 Beav. 493 ; Pinner v. Knights, 6 Beav. 174.) And 
 if there be any doubt, the court will hold the solicitor 
 liable. The liability that he incurs is that of personally 
 paying the CQSts of dismissing the bill, as between solicitor 
 and client, and of the motion made by the plaintiff for that 
 purpose, also as between solicitor and client {Allen v. Bone, 
 4 Beav. sup.) ; and also of paying the costs, charges and 
 expenses occasioned to the other parties to the suit, if it has 
 proceeded so far as to charge other parties besides the plain- 
 tiff: {Mulins V. Greenwaij, 10 Beav. 564.) If there are 
 several plaintiffs, the authority of all must be obtained 
 {Hood V. Philips, 6 Beav. 176) ; but if one of several plain- 
 tiffs has concurred in authorising a suit, and afterward he 
 instructs the solicitor to take no further steps, he is not en- 
 titled to be indemnified against the solicitor for the further 
 costs of the suit {Winthrop v. Murray, 7 Hare, 152) ; but 
 if the client revokes the solicitor's authority, he proceeds 
 afterwards at his own peril of costs : {Freeman v. Fairlie, 
 8 L. J. (N. S.) 44, Ch.) 
 
 The draft bill being prepared, the next step is to get it 
 printed: (15 & 16 Vict. cap. 86, sect 1.) It is printed on
 
 THE BILL. 5 
 
 royal writirif; paper, (piarto, in pica type, leaded (1st 
 General Order, 7tli August, 1852), and the copy to be filed 
 is to be interleaved with paper of the same description. 
 The name of the counsel -wiio sijined the draft is jjrinted at 
 the foot of it ; and to that are added the name and address 
 of the plaintifl's solicitor, so describing himself. On the 
 outside of the printed bill is indorsed the branch of the 
 court to which it is attached, the title of the cause, the 
 summons to appear, and the name and address ol" the plain- 
 tifl's solicitor. The form of the sunnnons to ajipcar is given 
 in the schedule to the 15 & 16 Vict. cap. 86, in lieu of the 
 subpoena to appear and answer, which were formerly in use, 
 but are now abolished by the ■2nd section of tiie 15 & 16 
 Vict. cap. 86. No bill, other than a printed bill, can now 
 be filed except in the cases provided for, and under the 
 conditions explained by the 6th section of the 15 & IfJ Vict. 
 cap. 86, which is as follows : — 
 
 Notwithstanding the provisions herein before contained, the Clerks 
 of Records and Writs of the said court may receive and tile a written 
 copy of any bill of complaint praying a writ of injunction or a writ of 
 Ne exeat ref;no, or filed for the purpose either solely or among other 
 things of making an infant a ward of the said court, upon the personal 
 undertaking of the plaintiff or bis solicitor to file a printed copy of 
 such bill within fourteen days, and every bill of complaint so tiled shall 
 be deemed and taken to have been filed at the time of filing the written 
 copy thereof, and a written copy of any such bill of complaint, stamped 
 as aforesaid, and with such indorsement therein as aforesaid, may be 
 served on any defendant thereto, and such service shall have the same 
 effect as the service of a printed copy. (') 
 
 Slight alterations of mere clerical errors may, however, 
 be made on the printed bill, in writing {Yeutman v. Moushy, 
 2 De G. Mac. & G. 220); but the alterations must not 
 be extensive or important, or interfere with the legibility 
 of the bill. {I'l-i see the judgment.) 
 
 The printed bill being thus prepared, the next step is to 
 file it, for which purpose it is taken to the office of the 
 Clerks of Records and Writs, where it is left with the clerk, 
 the alphabetical letter of whose division comprises the first 
 
 (') See as to written bills the 2nd and 3rd Orders of the "tii August, 
 1852, 
 
 B 3
 
 6 NEW EQUITY PRACTICE. 
 
 letter of the surname of the first of the plaintiffs, or of the 
 sole plaintifi'; the clerk will thereupon file it by putting it 
 on the records of the court, and all subsequent proceedings 
 in that otEce in the cause are to take place and be filed in 
 the division in which the original bill is ; although the 
 surname of the plaintiff in any subsequent bill in the suit 
 may not be the same as the surname of the plaintiff in the 
 original bill. 
 
 The next step is to serve the defendant or defendants. 
 The writ of subpoena to appear and answer is abolished by 
 the 15 & 16 Vict. cap. 86, sect. 2, and in lieu thereof, the 
 defendant must be served with a printed copy of the bill, 
 with an indorsement thereon according to the terms of the 
 schedule to the act already referred to, the bill being pre- 
 viously stamped by one of the Clerks of Records and Writs : 
 (15 & 16 Vict. cap. 86, sect. 3.) The filing and service of 
 the bill have the same effect as the filing of a bill and issuing 
 and serving subpoena under the old practice: (15 & 16 
 Vict. cap. 86, sect. 4.) Service of the bill must be effected 
 in the same manner as service of subpoena to appear and 
 answer formerly were, e.xcept that it is not necessary to 
 produce the original bill; and that the court may direct 
 substituted service in such manner and cases as it may 
 think fit : (15 & 16 Vict. cap. 86, sect. 5.) 
 
 The service must therefore be of a printed copy of the 
 bill upon the defendant or defendants, eitlier personally or 
 by leaving it at the place of actual residence. When, how- 
 ever (as is generally the case), the defendant has appointed 
 a solicitor, who has undertaken to appear and act for him, 
 the printed copy of the bill is usually served on the solicitor. 
 The service on the defendant's solicitor may be made either 
 by delivering the printed copy of the bill to him personally, 
 or by leaving it at his office in the hands of one of his 
 clerks. If there are several defendants, the directions above 
 given in reference to a sole defendant must be followed as 
 to each separate defendant. (') 
 
 If the defendant, not ha^^ng appointed a solicitor to act 
 for him, absconds or keeps out of the way for the purpose 
 of avoiding service, then the plaintiiFs solicitor must pro- 
 ceed, in the way hereafter pointed out, to substituted service. 
 
 If a defendant, being regularly served with the bill, does 
 not enter an appearance within the time prescribed by the 
 
 (') The details of the rules affecting the service of proceedings ac- 
 cording to their nature, and the character of the person served, will be 
 pointed out in a separate chapter.
 
 SERVICE OF BILL. 7 
 
 indorsement on tlic bill, tlie pLiintilV is ciilitlcd, to issue an 
 attachment asrainst him in order to compel him to do so. 
 The writ of attachment is in the following form : 
 
 V^ICTOIUA, &c. 
 
 To the Sheriff of greeting : We command 
 
 you to attach A. B., and to have him beforo us in our Court of 
 Chancery, on (Jiere insert the day of the reluni), ■wheresoever the said 
 court shall then be, there to answ-er to us as well touching a contempt 
 which he, as it is alleged, has committed against us, as also such other 
 matters as shall be then and there laid to his charge, and further to 
 perform and abide such order as our said Court shall make in this 
 behalf. And hereof fail not, and bring this writ with you. 
 
 Witness ourselves at Westminster, the day of in 
 
 the year of our reign. 
 
 The writ may be made returnable immediately if the 
 party in contempt resides or is in London, or within 
 twenty miles thereof; but if more than twenty miles from 
 London, there must be fifteen days between the teste and 
 the return of the writ. 
 
 The writ is prepared by the plaintiff's solicitor, who takes 
 it to the office of the Clerk of Records and Writs, accom- 
 panied by an aflidavit of the service of the printed copy 
 bill, which will be sworn before and left, together with the 
 ■writ and the prajcipe, with the clerk of the division in whose 
 branch the caxise is ; the writ will be then sealed and de- 
 livered to the solicitor, who may issue it at once without 
 notice to the defendant ; in practice, however, it is not 
 usual to issue it without notice to the defendant's solicitor. 
 The attachment is executed by delivering it to the olRcer 
 of the sheriff for the county in which the defendant resides, 
 whose duty it is to execute it by taking the defendant into 
 custody. 
 
 [The minute details affecting the process of attachments 
 generally will be more fully treated of hereafter, in a sepa- 
 rate chapter.] 
 
 If the shcritf cannot find the defendant ■within the time 
 when the writ is returnable, he i-eturns non est inventus; and 
 then a fresh attachment must be issued, and the same course 
 pursued to execute it, and so on till it is executed ; unless 
 the pliiintid' elects at any time to abandon the course of 
 proceeding by attachment, and to proceed by entering an 
 appearance for the defendant.
 
 8 NEW EQUITY PRACTICE. 
 
 If the sheriff does take the defendant, and the defendant 
 clears his contempt by entering an appearance and paying 
 the proper costs, the cause may then go on reguhiriy. Uut 
 if, instead, he is contumacious, the plaintiff, although he 
 may keep him in prison for the contempt of the court, has 
 no power to compel him to enter an appearance, and must 
 proceed, under the 29th Order of May, 1845, liimself to 
 enter an appearance for the defendant, that is, if the defen- 
 dant is neither an infant, nor a person of weak or unsound 
 mind, and has been duly served with the printed copy bill 
 within the jurisdiction of the court. lu each of these cases 
 the proceeding Is different. 
 
 I have assumed, hitherto, that the defendant or his solici- 
 tor has been regularly sei'ved with a copy of the bill. But 
 it happens, sometimes, that a defendant does not either ap- 
 pear or appoint a solicitor to act for him, but absconds or 
 keeps out of the way, so that. In fact, he cannot be found 
 for the purpose of sei'ving him with a copy of the bill The 
 5th section of the 15 & 16 Vict. cap. 86, gives the court 
 an apparently very unlimited power applicable to this 
 case, by providing that " it shall be at liberty to direct sub- 
 stituted service of the printed bill or claim in such manner 
 and in such cases as It shall think fit." I am not aware of 
 any case except Hope v. Hupe^ iufru, determined since the 
 statute, upon the question to what extent the court will 
 act under this section ; it Is, however, presumed that It will 
 be governed In exercising the jurisdiction by the same 
 rules which governed its application of the general power, 
 which it had before the statute, to give leave for substituted 
 service of the subpoena to appear and answer. It will be 
 convenient, therefore, here to refer to the principal cases on 
 that subject. 
 
 Substituted service of subpoena to appear and answer a 
 bill of revivor has been ordered on the solicitor who ap- 
 peared for the defendant to the original bill (Norton v. 
 Hepworth, 1 Mac. & Gor. 54) ; but the court has refused 
 to grant substituted service on solicitors who had acted 
 for the defendant In several other matte?:';, although some 
 of them related to the subject-matter of the particular 
 suit : {Hurst v. Hurst, 1 De G. & S. 694) ; on the otiier 
 hand, where the defendant has given a special authority 
 to a person to act for him with respect to the pro- 
 perty, the subject of the suit, the court has ordered sub- 
 stituted service on such agent : {Murray v. Vipart, 1 Phil. 
 521 ; Hub/iouse v. Courtenay, 12 Sim. 140.) 
 
 The cases on this subject are numerous, and not easily
 
 ENFORCING APrEARANCE. 9 
 
 rcconcileable. Tlie general principle tn be collected I'rom 
 them seems, however, to be this : that the court will order 
 substituted service when it is reasonably satisfied that the 
 defendant has either uduullij authorised, or is, in fact, re- 
 presented by the perscm on whom su])stituted service is 
 sought ; or that throuf:;h him. the defendant will be de facto 
 apprised of the stops for wdiich service is made ; but that 
 the court will not grant substituted service, unless it is so 
 satisfied. (') 
 
 The proceedings under the 29th Order of 1845 must for- 
 merly have been within three weeks from the time of the 
 service of the subpoena, and it is presumed it must be now 
 within the same period from the service of the printed copy 
 bill ; and the appearance for the defendant will be entered 
 by the Clerk of Records and Writs on production of the affi- 
 davit of the service, without any order. But if the three 
 weeks arc allowed to el.apse, the plaintilf must api)ly to the 
 court for leave to enter an appearance. This application, 
 if made within reasonable time, is made by ex parte mo- 
 tion ; but if there has been delay, not satisfactorily explained, 
 the court recpiires notice of the motion to the defendant, or 
 that fresh service of the subpoena should be made ; or 
 otherwise it will give only a qualified and conditional order : 
 (Bradstock v. Whatley, 7 Beav. 346 ; Totty v. Ingleby, 7 
 Beav. 591 ; Moi-gan v. Morgan, 1 Col. 228.) The order 
 for leave to enter an appearance, when made by the court, 
 must be drawn up ; and for that purpose the aflidavit of 
 service, and the certificate of the Record and Writ Clerk 
 of the defendant having entered no appearance, must be 
 left with the registrar. After this is done, the jtlaintlflT 
 may proceed with the cause as if the defendant had 
 appeared. 
 
 The plaintiff may elect to take at once, if he thinks fit, 
 this course of entering an appearance for the defendant, 
 ■when the defendant refuses to appear, instead of issuing an 
 attachment against him. Mr. Sidney Smith in his Handbook 
 of Practice, p. 137, observes, I think with gi-eat correctness, 
 that "since the Orders of 1845 appear to provide a more 
 complete remedy against a defendant neglecting or refusing 
 to appear, and since no eilectual proceedings can be fol- 
 lowed after the issue of an attachment for want of an ap- 
 pearance, the practitioner should be cautioned against the 
 
 (') I am informed that in a case of Hope v. Hope, a case recently 
 determined at the Rolls, but not yet reported, the Master of the Rolls 
 has laid down the principle as above stated.
 
 10 NEW EQUIXr TRACTICE. 
 
 latter mode of proceilure." In fact, however, attachment, 
 or the threat of attachment, is still used in practice as the 
 most convenient course against any defendant who may rea- 
 sonably be expected to defend, as such defendants, in conse- 
 quence of the issue or even the threat of an attachment, 
 commonly bring their contumacy to a close. 
 
 When the defendant not only avoids service of the bill, 
 but continues to keep out of the way, or to be de facto in- 
 accessible, the plaintilf is obliged to proceed throughout, as 
 it were, ex parte, by taking the bill pro confesso, and pro- 
 ceeding to a decree founded upon that assumption. This 
 course of exceptional proceeding will be treated of in detail 
 in its place. 
 
 Assuming the defendant to have appeared regularly by 
 his solicitor, the plaintiff's solicitor must next deliver to the 
 defendant's solicitor, on his application for the same, as 
 many copies of the printed bill, not exceeding ten, as he 
 may require, on being paid for the same at such rate as pre- 
 scribed by any General Order : (15 & 16 Vict. cap. 86, sect. 
 7, and 5th and 6th Order, 7th August, 1852.) 
 
 The payment is at present fixed at one halfpenny per 
 folio: (6th General Order of the 7th August, 1852.) 
 
 II. Of preparing^ filing, and serving interrogatories. 
 
 When it is intended hy the plaintiff that the defendant 
 should answer the whole or any portion of the bill, interro- 
 gatories addressed to the matters on which an answer is 
 required, must be prepared and delivered to the defendant's 
 solicitor within eight days after the time limited for the de- 
 fendant to appear : (17th Order, 7th August, 1852.) 
 
 The interrogatories are VL?,\ist\\y prepared in dr:ift by coun- 
 sel. It is presumed, from the form given in schedule (C), 
 of the Orders of the 7th August, 1852, that they ought to 
 be signed at any rate by counsel ; and the invarialile prac- 
 tice is for the plaintiff's solicitor to instruct his counsel to 
 prepare them on such points as he may think advisable ; for 
 which purpose he lays before him a copy of the bill, and of 
 such documents as are referred to, but not set out in the bill. 
 
 On the preparation of interrogatories no specific rules 
 will be here laid down ; as that subject also falls within the 
 department of pure pleading. It may, however, be stated 
 generally, that they should interrogate the defendant mi- 
 nutely as to the facts alleged, to which an answer is required, 
 in such a manner that he cannot, if he speaks the truth, 
 evade answering the whole substance of the allegations ; as,
 
 ENTERING APPEARANCE. 1 1 
 
 for instiincp, if the allocation is that the defendant "on a 
 certain day felled and cut down divers large trees, and cer- 
 tain sapling's," on the land of wliieh he was tenant for life, 
 the interrogatory wonld he "whether he did or not on that 
 day, or on some other and what day, fell and ent down, or 
 fell or cut down, divers or some, and how many, large trees, 
 or divers or some, and what trees, and of what kind," &c. 
 A general form for interrogatories, is given in Schedule 
 (C), to the (reneral Orders of the 7th August, 1852. 
 
 The interrogatories being prepared in draft, are copied 
 on paper, and must be taken to the Record OiKce to be 
 filed, and then a copy, duly stamped, and which must 
 be marked by the Record and A\'rit Clerk as an office 
 copy (17th Order, 7th August, 1852), must be de- 
 livered to the defendant's solicitor, either personally or by 
 leaving it at his office (^Boweii v. Price, 22 L. J. 179), as 
 stated above, within eight days after the time when the 
 defendant ought to enter an appearance to the bill. Inter- 
 rogatories may be filed by leave of the court before the 
 filing of the printed bill, where a written bill has been regu- 
 larly filed under the exce{)tion in the (3th se(;tion of the 
 15 & 16 Vict. cap. 86: (Lainbert \. Lomas, 16 Jur. 1008.) 
 But if interrogatories are not filed within the regular time, 
 they cannot be filed without special leave of the court to be 
 applied for on notice of motion : (20th General Order, 7th 
 August, 1852.) 
 
 It has been stated that the defendant must appear as re- 
 quired by the summons indorsed on the bill, within eight 
 days after service of the copy of the bill, exclusive of the 
 day of such service ; but if the day on which the appearance 
 should be entered expires on a Sunday, or any other day 
 on which the office is closed, be may enter his appearance 
 on the following day, and the appearance is to be held as 
 good as if entered on the preceding day. 
 
 Wlien the defenrlant has appeared, he has twelve days 
 from the date of his appearance (16th Order, JMay 1845, Art. 
 10) to consider whether he will demur merely to the bill, 
 not pleading or answering, either wholly or in part ; the 
 twelve days are exclusive of the day on which the appear- 
 ance is entered : (11th Order, 1845.) A denuirrer may be, 
 speaking genei-ally, either for want of equity in the bill, viz., 
 for some cause which, if held good, will put the bill as 
 framed, out of court ; or fiir want of parties, or for some 
 other ground which will only partially aiiect the validity of 
 the bill : in either case the course of practical proceedings for 
 the plaintitr, in order to dispose of the demurrer, are the same.
 
 12 NEAV EQUITY TRACTICE. 
 
 III. Of the pluintijff's proceedings when the defendant 
 demurs. 
 
 On a demurrer being filed, the defendant's solicitor gives 
 notice thereof to the plaintiif's solicitor, who thereupon 
 proceeds to the Clerk of Records and Writs Office, and ob- 
 tains a copy of the demurrer. His first step should then be, 
 in all cases where the demurrer goes to the whole substance 
 of the bill and not merely to parties or to some matter partially 
 affecting the relief asked, to consult his pleader, previously 
 to determining whether to submit to the demurrer without 
 having it argued or to set it down for argument. For fre- 
 quently there may be grounds, where the demurrer is to the 
 substance of the bill, which have escaped the attention of 
 the plahitifT's counsel (whose mental bias is to make a case) ; 
 and which, having been detected by the defendant's counsel 
 (whose mental bias is exactly the other way, viz., to try to 
 discover that there is no case), may, when called to the 
 attention of the plaintiff's counsel, make it prudent, in his 
 opinion, cither to submit to the demurrer conclusively, or 
 to submit to it for the purpose of amending the bill. And 
 when the demurrer is for want of parties, it is generally also 
 prudent in the first instance to consult counsel, because the 
 question who are necessary parties is one of pure pleading. 
 The difference between submitting to a demurrer at once, 
 and having it allowed on argument is this, that if it is sub- 
 mitted to at once, and the proper costs, fixed at 20s., are 
 paid by the plaintiff, he has, as of course., a right to amend 
 his bill ; but if the demurrer is argued, and allowed by the 
 court on argument, the court may, or may not, at its discre- 
 tion, after disposing of the demurrer, give leave to amend 
 the bill. And if it does give leave, it will only be on the 
 terms of the plaintiff paying taxed costs. If a demurrer is 
 submitted to finally, before it is set down, and the plaintiff 
 ! wishes to put an end to the suit without incurring further 
 expenses, his course is to dismiss his bill at once with costs. 
 If the plaintiff submits to the demurrer on account of some 
 existing but curable defect in the bill, and wishes to pro- 
 ceed with the suit, he obtains as of course an order to amend 
 the bill: this order is now had on a summons in the Judge's 
 chambers, which is obtained on application to the Judge's 
 chief clerk. It may be obtained, notwithstanding the 5th 
 General Order of the IGth October, 18,'i2, without notice, 
 as that order only applies to orders which can be opposed ; 
 but the order must be served.
 
 PROCEEDINGS ON DEMURRER. 13 
 
 The subject of aniendlug bills generally will be more 
 fully discussed in its place. 
 
 If the denmiTor is not submitted to, but is intended to 
 be argued, and if the defendant does not set it down, the 
 plaintilfniu-st set it down to be iirgued, if it is to the whole 
 l)ill, williin twelve days Irum the date of its being filed (4Gth 
 Order, Sth May, 1H45), and if it is to j)art of the bill, within 
 three weeks from such date (47th of the same orders), 
 otherwise the plaintiff will be held to have submitted to it. 
 
 A demurrer to the whole bill is, when it goes to the whole 
 equity, so that, if allowed, there remains no ground what- 
 ever for relief A demurrer to part of the bill is, when it 
 is either for want of parties, or I'or the presence of improper 
 parties, or to some particular portion of the equity ; so that, 
 allowing it, there still remains some ground for relief. 
 
 For the purpose of setting down a demurrer to be argued, 
 the times of vacation are not to be reckoned (1 4th Order, 
 8th Mav, 184.5) ; and if the day on which the demurrer 
 should be set down is a holiday, and the Registrar's Office 
 is shut, the demurrer will he regular if set down on the fol- 
 lowing day : (13th Order, 8th May, 1845.) To set down a 
 demurrer, the plaintiif must' present a petition of course, 
 addressed to the Lord Chancellor, or Master of the Rolls 
 (but it is usually presented at the Rolls) : this petition is 
 taken to the office of the secretary of the judge, and at the 
 Rolls it is answered at once by the secretary; if addressed 
 to the Lord Chancellor, it is answered in due course. The 
 petition is filed in the secretary's office : it should state for 
 what court the bill is marked : "(5th Order, 5th May, 1837.) 
 A copv of the bill and demurrer should be also left, at the 
 time of presenting the petition, with the secretary of the 
 judge before whom it is to be heard ; upon the petition 
 being answered, it must be taken to the Registrar's Office, 
 and thereupon an order is drawn up, which must be regu- 
 larly passed and entered, and then the Registrar will enter 
 the demurrer in his book, and give the solicitor a note of 
 the day on which it is to be in the paper. Demurrers are 
 put in the paper for argument two clear days after they are 
 set down ; the plaintiU's solicitor should, iherefore, imme- 
 diately after it is set down, serve the defendant's solicitor 
 \vith a copy of the order for setting it down, as the defen- 
 dant's solicitor is entitled to two cli'ur days' notice of the 
 demurrer l)eing in the paper for hearing. 
 
 When tlie demurrer has been thus set down, the plain- 
 tiff's solicitor should, without delay, deliver his briefs to 
 counsel. The brief consists of a brief copy of the bill and 
 [en.] O
 
 14 NEW EQUITY PRACTICE. 
 
 demurrer ; no other papers are recjulsite, except such 
 observations as the solicitor may think fit to append by way 
 of observations, not exceeding one or two brief sheets ; nor 
 will any other papers be allowed on the taxation of costs. 
 For the argun)ent of a demurrer a brief is usually, and, if 
 the case is of any importance, should always, be given to 
 leading as well as to junior counsel; and, as a general rule, 
 it may be here observed that, whenever it is usual or fit to 
 instruct two counsel, it is also fit and prudent to have a 
 consultation before bringing the case on in court ; and 
 whenever two briefs are allowed on taxation, a consultation 
 will also be allowed. The consultation is held at the cham- 
 bers of the senior counsel, and should always be attended 
 by the solicitor. Whenever the demurrer is what is tech- 
 nically called " in the paper," that is, in the list of business 
 marked in the court paper to be heard on that day, the 
 solicitor of the plaintili' should attend the court personally, 
 or by some competent clerk, and watch for the case coming 
 on to be heard, and he is entitled in costs to charge for 
 such attendance. He should be provided with an office 
 copy affidavit of service on the other side of the order, 
 setting down the demurrer, as sometimes the opponent does 
 not appear. 
 
 If the opponent does not appear, that is, if he has not 
 instructed counsel, and the phiintiff's solicitor produces his 
 affidavit of service, the plaintiff wUl be entitled to take an 
 order overruling the demurrer with costs ; if he has not 
 such affidavit, no order is made, but the demurrer will be 
 simply struck out of the paper, and may then be again 
 regularly put in the paper on the application of either party. 
 "When tlie demurrer is called on, the manner of disposing 
 of it is as follows : — the leading counsel for the defendant 
 opens the case, usually by reading the bill, unless it is of 
 great length, in which case he contents himself with reading 
 the particular parts of it which contain the alleged equity, 
 and to which the demurrer is put in. He then argues the 
 ground of demurrer, and is followed by the defendant's 
 junior counsel, who makes such further comments, if any, 
 as his experience suggests. 
 
 The plaintifTs leading and junior counsel then follow in 
 the same order, rebutting the arguments of the defendant, 
 and showing the equity of the bill. 
 
 The defendant's counsel replies, and the court then gives 
 judgment. If it allows the demurrer simpliciter, it is with 
 costs of the suit, if the denmrrer is to the whole bill ; and 
 of the demurrer, if it is only to part of the bill : (45th
 
 PROCEEDINGS ON DEjrURUER. lo 
 
 Order, 8th iMay, 1845.) The costs arc, however, in the 
 discretion of the court. The court may, as ah-eady observed, 
 in allowinj^ the demurrer, {jive liiicrty to tlie plaintiff to 
 amend ; this is entirely in the discretion of the court, and 
 whether it will i,'ive liberty to amend or not, depends on 
 whether it sees that the jdaintilF may Iiave in reality a case, 
 though lie has imj)roperly presented it to the court, or 
 whether it sees that the vice of the bill is inherent in the 
 nature of the case, and is thereii)re ineradicable by any con- 
 ceivable, amendment, in which case the court will not suffer 
 the defendant to be harassed by what it deems a proceeding 
 which can in no view be beneficial to the; plaintiff, and will 
 refuse liberty to amend. Such a case does not, however, 
 often occur. 
 
 When a demurrer is submitted to at once without setting- 
 it down, with a view to amend the bill, or when it is allowed 
 on argument with liberty to ameml, the })laintiff's solicitor 
 obtains an order of course to amend, upon payment of 20a'. 
 costs, as already pointed out, if tlie demurrer has not been 
 set down ; and of the taxed costs if it hiis been allowed 
 without any direction as to costs, or of the costs directed by 
 the court, if a special direction has been given. Although, 
 as before pointed out, the order to amend is granted and 
 drawn up by the judge's clerk, it must be entered at the 
 Registrar's Office, as if it were an order made in open court : 
 (•28th Order, 16th October, 1852.) When the bdl is to be 
 amended, the plaintiff's solicitor lays before his counsel the 
 bill and demurrer, and the instructions which were originally 
 furnished for preparing the original bill, and such further 
 information as may be thought nniterial by way of instruc- 
 tions to amend the bill. The amended bill, like the original 
 bill, is-usually prepared and nmst be signed by counsel. If 
 the amendments do not exceed in any one place two folios in 
 length, they may be made in writing on the printed bill, 
 on the file of the court ; for which purpose the plaintiff's 
 solicitor ftirnishes one of the Clerks of Records and Writs 
 with a fair copy of the printed copy of tlie bill as amended 
 by counsel, that is, a printed copy, with the amendments 
 written in ink. The signature of the counsel must Ije copied 
 on every copy so amended. The 7tli Order of the 7th 
 August, 1852, applies only to amendments not exceeding 
 two folios in length: (Stone v. Daries, 17 Jur. 585.) If 
 the amendments are so made, the defendant must be served 
 with a fresh copy of the printed bill with the amendments, 
 and as many such copies must be furni-^hed to him as he 
 was entitled to require of the original bill, and upon similar 
 c 2
 
 16 NEW EQUITY PRACTICE. 
 
 terms ; the signature of the counsel to the amendments 
 must be copied on every such amended printed bill. If the 
 amendments exceed the length of two folios in any one part, 
 the amended bill, that is, the whole bill as amended, must 
 be reprinted, and the same process must be gone through 
 in serving a copy of it on the defendant's solicitor, as has 
 been pointed out with respect to the service of the copy of 
 an original bill. 
 
 If the plaintiff desires an answer to the amendments, he 
 must file fresh interrogatories, and it is presumed they must, 
 as in the case of interrogatories to any original bill, be filed, 
 and copies delivered within eight days after the time when 
 the defendant ought to appear to the amended bill. It is 
 scarcely necessary to observe that an amended bill may be 
 demurred to in the same way and on the same grounds as 
 an original bill, and the same course of proceedings is 
 adopted on the part of the plaintiff, in meeting and dis- 
 posing of a demurrer to an amended bill, as in treating a 
 demurrer to an original bill. 
 
 IV. Of the j)laintijff" s proceedings ichcn the defendant pleads 
 to the hill. 
 
 The defendant, instead of defending by demurrer, may 
 elect to defend by plea. A plea may shortly and very 
 generally be explained to be a statement by the defendant 
 of some document, or some fact, not appearing upon the 
 face of the bill, which of itself displaces the whole or a part 
 of the equity of the bill, and absolves the defendant from 
 the liability to answer. If the defendant pleads, when his 
 .solicitor has filed the plea in the office of the Clerk of 
 Records and Writs, he gives notice, on the same day on 
 which it is filed, to the plaintiff's solicitor, who then pro- 
 ceeds as nearly as possible as in the case of a demurrer. 
 His first step, having obtained a fopy of the plea from the 
 Clerk of Records and Writs, should ahvat/s he to lay a copy 
 of the plea and the bill, and such further information as the 
 matter pleaded may show to be necessary, before his counsel, 
 to advise whether the plea should be submitted to or set 
 down for argument. 
 
 Either ])arty may set down a plea for argument imme- 
 diately on its being filed. If, therefore, the jjlaintiff elects 
 to submit to the plea, he must do so before the defendant 
 has set it down, if he wishes to avoid the costs of setting it 
 down ; for if he submits before it is set down, desiring to 
 amend, he pays only 20s. costs, and can obtain an oi'der of
 
 I'ROCEEDIXGS ON PEMUKKKR. 17 
 
 course to amcTul. But if he has allowed it to be set down, 
 and then submits to it, he must pay 51. in addition to the 
 20*.: {Lopes v. De Tastet, 3 Mad. 183; Vernon v. Cue, 
 Dick. 358.) 
 
 If the plea is submitted to, the plaintiff pays, as above 
 mentioned, 20.9. Costs, and may then obtain an order to 
 amend his bill as of oourse. But whether he will do so, 
 must depend upon the nature of the plea. If the plea is 
 only to show want of parties, or to show some defects which 
 can be remedied, the plaintiff will amend his bill. If the 
 matter brought forward by the plea is such as to show that 
 the plaintiif not only has not, in the existing state of the 
 pleadings, a sufficient ease, but cannot make one, that is, 
 cannot, by any facts to be alleged by amendment and 
 capable of proof, rcl)ut the effect of the matter pleaded, 
 then the plaintiff should at once, to avoid further expense, 
 dismiss his bill with costs. 
 
 If he is advised that the plea should be argued, he should, 
 within three weeks after the filing of the plea, set it down 
 for argument. W he does not, the plea will be held good, 
 as if it had been held good on argument (](3th Order, 8th 
 ]\Iay, 18-4.5, Art. 19), and the plaintiff will then have to pay 
 the costs referred to by the 48th Order, 8th May, 1845, 
 viz. the costs of the plea, and if it is to the whole bill, the 
 costs of the suit. A plea is set down for argument in the 
 same way as a demurrer, viz., by presenting a petition of 
 course for the purpose, stating for what court the bill is 
 marked, and getting the order made thereon drawn up and 
 served, and leaving it with the Registrar to be set down, as 
 with respect to the order for setting down a demurrer. A 
 plea is, like a demurrer, put in the paper for hearing two 
 days after it is set down ; and therefore the party setting 
 it down mu^t serve the order for setting down on the soli- 
 citor on the other side, immediately on oldaining it. Jn 
 arguing a plea, the same course is also pursued as in arguing 
 a demurrer, namely, the counsel for the plea opens the case 
 by reading the bill, or portions of it, and the plea, and then 
 arguing on the effect of the plea as a defence to the matter 
 alleged by the bill. Then the counsel for the bill follows, 
 and the leading counsel for the plea replies. 
 
 If the plea is allowed, it is generally with costs ; that is, 
 unless the plaintiff undertake to reply to the ])lea, or the 
 court orders to the contrary (48th (h-der, 8th May. 1845.) 
 If it is overruled, the defendant always asks for time, and 
 the court fixes a time within which he must answer. If the 
 plea is allowed, then it is for the plaintiif to endeavour to 
 C 3
 
 18 NEW EQUITY PRACTICE. 
 
 obtain leave to amend, which the court usually grants, if it 
 thinks that the case is capable of being mended by addi- 
 tional facts. But if the plea, from its very nature, is such 
 that no imaginable alteration of the facts can, in the opinion 
 of the court, entitle the plaintifi" to the relief he asks, 
 respecting the matter pleaded, then the court will refuse 
 liberty to amend : and in that case the order allowing the 
 plea also directs the dismissal of the bill (48th Order, 8th 
 May, 1845.) 
 
 It must be here observed, that a plea may be in some 
 instances resisted without reference to any defect either of 
 form or of substance. For instance, if the defendant has 
 allowed the time to answer to elapse, and is in contempt, 
 that is, if attachment against him has been issued for not 
 answering, it is irregular for him to file a plea without first 
 tendering the costs of the contempt : (Foulkes v. Jones, 
 2 Beav. 274.) So, after the overruling of a demurrer, a 
 plea filed without leave of the court is irregular {Rowley 
 V. Eccles, 1 Sim. & Stu. 511), and it cannot be filed until 
 the demurrer is actually taken oif the file : {C list v. Boode, 
 1 Sim. & Stu. 21.) Nor can a defendant plead after ob- 
 taining time to answer, and not having answered : {Newton 
 v. Dent, Dick. 234.) 
 
 A defmdant is sometimes allowed to amend his plea 
 either before or at the hearing of it. But it is not of course 
 that he should obtain leave ; he must, if desiring leave to 
 amend before the hearing, do so by a special application by 
 motion ; and whether the leave be so aske<l, or at the 
 hearing, the intended amendments must be stated. 
 
 A plea is sometimes, at the hearing, ordered to stand for 
 an answer ; and either with or without liberty to except for 
 insufficiency. If it is with liberty to except, the plaintiff is 
 entitled to costs (Howling v. Butler, 2 ^iad. 245) ; but if 
 nothing is said about liberty to except, the plaintiff cannot 
 except to so much of the answer as is comprised in the 
 plea: (Sellon v. Lewen, 3 P. Wil. 219.J 
 
 The defendant may, instead of pleading alone, elect to 
 plead and answer ; that is, to plead to some matter in the 
 bill, and to answer the rest. If he does this, there is no 
 difference in respect to the plaintiff's course for setting down 
 and arguing the plea, except that at the hearing the counsel 
 are furnished with copies of the answer as well as of the 
 plea, and the answer may be read as evidence by the plain- 
 tiff against the allegations of" the plea. 
 
 when the plaintiff simj)ly sets down a plea for argument 
 and does not reply to it, he admits, for the pui-pose of the
 
 PKOCEEDINGS ON PLEA. 19 
 
 argument of tlio j^U-a, tlie truth of the allegations of the 
 plea as matters of fact, and contends only either that it is 
 bad in point of form; or that it has not, admitting it to be 
 true, the efi'eet for which it is used. But if he disputes the 
 truth of the allegations contained in it, he may reply to it, as 
 if it were an answer, before it is set down ; or, at the hearing, 
 he may undertake to reply to it. The jjlea is then in fact 
 treated as in the nature of a suflicient answer, and evidence 
 is gone into lor and against It ; and when the evidence is 
 completed, the cause is set down as if the bill had been 
 answered. It nnist not be understood that such a hearing 
 of the plea is conclusive of the right so far as it is afleeted 
 by the matter contained in the plea. If the plea is sup- 
 ported by the evidence, it is a good bar to so much of the 
 suit as it affects, and that although it may be bad in point 
 of form or of substance ; tor the ])laintiH', by replying to it, 
 instead of arguing its effect, admits its validity as a plea. 
 
 A plea of outlawry, or of a former decree, or of an existing 
 suit for the same objects, should not be set down ; the first, 
 because its truth cannot be disputed ; the second, because 
 if the plaintiff" sets it down, he admits the fact of the two 
 suits being for the same matter. In the latter case, the 
 plaintiff''s course was, under the old practice, to obtain by 
 an order of course a reference to the master, to examine 
 whether the suits were for the same matter. But now it is 
 apprehended that the court would direct an incpiiry of the 
 same nature in chambers before his chief clerk. (') 
 
 V, Of the plaintiff's proceedings when the defendant defends 
 by answer. 
 
 The most usual course in a substantial suit is, for the 
 defendant to defend by answer, as it only occasionally 
 occurs that a p]aintiff''s case is so bad in itself, or so badly 
 pleaded in the bill if good in itself, as to justify a demurrer ; 
 and demurrers, therefbi'e, are usually tiled oidy in suits in 
 which the sole object is to take the opinion of the court on 
 a point of law, raised intentionally on the face of the bill. 
 And as for pleas in general, except in plain cases, such as a 
 clear release of the plaintitPs demand, or some document or 
 fact unknown to the plaiatiffi clearly and entirely rebutting 
 
 (1) The cnursp of proceeflin<:, when inquiries of any kind are directed, 
 falls properly within the subject of proceedini^s after order or decree in 
 cliamber.s, and will be discussed in its plate.
 
 20 NEW EQUITY PRACTICE. 
 
 his demand, it may be remarked that to defend by plea is 
 a course of proceeding so difficult, and it may be added so 
 seldom complete, and so often wholly fruitless, that ex- 
 perienced practitioners very seldom resort to it. 
 
 If then the defendant elects to defend by answering, and 
 the plaintili"has filed interrogatories, the defendant is bound 
 to answer within fmirteen days from the time when a copy 
 of tlie interrogatories has been delivered to him or to his 
 solicitor. ]\Iost frequently he does not answer within that 
 time, but obtains from the judge's chief clerk in chambers 
 further time. 
 
 The details of this procedure belong properly to the 
 subject of defence, and will be treated of hereafter. 
 
 If the defendant does not answer within the time origi- 
 nally prescribed, or within such further time as he obtains 
 for answering, the plaintiff is entitled to issue an attachment 
 against him ; or he may file a traversing note under the 
 52nd and subsequent Orders of May, 1845 ; or he may 
 proceed to take the bill pro confesso, under the 76th to the 
 80th of the same orders. If the plaintiff elects to proceed 
 by attachment simply, he prepares and sues out an attach- 
 ment in the same manner as for want of appearance, except 
 that the application need not be supported by an affidavit 
 of no appearance having been entered. The execution of 
 the attachment consists, as in the case of an attachment for 
 want of appearance, in delivering it to the under-sheriff, or 
 proper officer of the county in which the defendant resides, 
 whose duty it is to take the defendant into custody- If he 
 succeeds in doing so, and takes bail, and makes his return 
 accordingly, the plaintiff" may then proceed by moving the 
 court, that the messenger of the court do bring the defendant 
 to the bar of the court to answer his contempt. This is a 
 motion of course, and the order will be made on production 
 of the attachment and the sheriff's return. The plaintifT 
 must cause the defendant to be brought by the messenger to 
 the bar of the court, to show why he does not answer, 
 within ten days after he has been taken into custody ; other- 
 wise he will be entitled to be discharged without payment of 
 the costs of his contempt, and the plaintiff will have to pay 
 them (73rd Order, May, 1845) ; but the plaintii! may, if the 
 defendant does not answer within eigiit days after such dis- 
 charge, issue a new attachment. Under the old practice, 
 when tlie defendant was thus brougiit to the bar of the 
 court, the plaintitPs counsel was entitled to move for, and 
 obtained, as of course, an order to connnit him to the Queen's 
 prison. But he was always examined by the court to ascer-
 
 PROCEEDINGS IN DEFAULT OF ANSWER. 21 
 
 tain why he did not put in an answer ; and if he stated that 
 by reason of poverty he was unable to employ any pro- 
 fessional person, the court directed an inquiry by the master 
 to ascertain whether that statement was founded on fact. 
 If the master's report supported tlie defendant's statement, 
 the court assigned to him a solicitor and counsel ; but if the 
 master's report was against him, then the plaintiff proceeded 
 to take the bill pro con/asso. The 10th section of the 
 15 & 16 Vict. cap. 80, directs that after i\lichaelmas Term, 
 1852, "no reference shall be made to any of the masters in 
 ordinary of the court, except in cases in which, from some 
 previous reference made in the cause or matter, or in some 
 other matter or cause connected therewith, the court may 
 think it expedient to make such reference." This section, 
 and the 11th and 2Gth of the same act, and the practice 
 which has grown up under them of not merely in general 
 directing incpiirles in chambers instead of before the master, 
 but of the judge disposing at once of many matters of 
 inquiry in open court, to save time and expense, will, it is 
 apprehended, somewhat vary the practice. It is presumed 
 that the court will now frequently, if not usually, when the 
 defendant is brought to the bar in the custody of the 
 messenger, satisfy itself without directing an inquiry, by 
 requiring the defendant to state on oath the circumstances 
 on which he founds his allegation of inability from poverty ; 
 that if satisfied of his inability, it will at once make an 
 order assigning to him solicitor and counsel, and by the 
 same order, direct the issue of a habeas corpus, and that the 
 Clerk of Records and Writs do attend with the record on the 
 return of the writ, in order that the bill may be taken pro 
 confesso against him, unless he do in the mean time answer 
 (Welford v. Dauiell, 9 Sim. 652) ; or that, if not so satis- 
 fied, it will then make the order, simply handing him over to 
 the Queen's prison. If the court, instead of taking that 
 course, desires an inquiry, the order for committing the 
 defendant to prison will be made as under the old practice, 
 and an inquiry in chambers will be also directed. The 
 inquiry will he conducted in the following manner : — The 
 sohcitor for the plaintiff leaves at the judge's chambers a 
 copy of the order directing the inquiry (which being an 
 order of the court must be regularly drawn up like any 
 other order), duly certified as a true copy (17tli Order of 
 I6th October, 1852), and will then take out a summons 
 under the 18th of the same orders ; the defendant must be 
 served with notice of the order and the summons, ami the 
 defendant will then, on attending, either bring in an allidavit
 
 22 XEAV EQUITY PRACTICE. 
 
 verifying his stcatement, or be examined on interrogatories 
 or viva voce, as the judge may direct. If he is to be exa- 
 mined viva voce, his examination will properly be the 
 examination in chief, and the plaintiff's solicitor may cross- 
 examine him. If he brings in an affidavit, the plaintiff will 
 be entitled to cross-examine him on that affidavit (26th 
 Order of 16th October, 1852. )' The chief clerk will make 
 his certificate to the judge of the result of the inquiry ; and 
 the plaintiff will prepare a copy thereof, under the 46th of 
 the same orders, and procure it to be signed by the chief 
 clerk, and, after the expiration of four clear days, by the 
 judge : (49th Order of 16th October, 1852.) If no sum- 
 mons is taken out in the meanwhile by the dissatisfied party, 
 by way of appeal to the judge, on the certificate of the clerk, 
 so approved, the plaintiff will proceed as he would have 
 proceeded under the old practice, on the master's report or 
 certificate. 
 
 When the defendant, being found by the judge, or certi- 
 fied by the chief clerk, not to be of inability, persists in not 
 answering, and has been committed to prison, the plaintiff" 
 must apply by motion, on production of a certificate from 
 the keeper of the prison, for a habeas corpus cum causis 
 directed to the keeper of the prison, to bring up the body 
 of the defendant to the bar of the court to answer his con- 
 tempt. The return of the writ of habeas corpus must be at 
 least twenty-eight days from the day of the commitment of 
 the defendant (1 AVill. 4, cap. 36, s. 15, rule 2.) The order 
 being made, the solicitor prepares a writ of habeas corpiis 
 (the form of which is set forth in the Appendix), which will 
 be sealed at the Writ and Record office, on production of the 
 order and the praecipe. The plaintiff's solicitor lodges the 
 writ with the keeper of the prison ; the order for a habeas 
 corpus also usually directs that a Wi-it and Record Clerk do 
 
 ' It may be here observed that now, as a settled rule, the judges' 
 clerks are not permitted to be attended by counsel; consequently, 
 whenever the solicitor of the plaintiff to a suit desires that any exami- 
 nation taken in chambers should be conducted by counsel, must 
 apply to the judge to hear the examination. In principle, all orders 
 made in chambers are, in fact, the orders of the juilge, although for 
 Convenience the parties in an immense variety of cases dispense 
 with a formal attendance before the judge himself, and dispose of their 
 business before the chief clerk. But the judge is always accessible ; 
 and if any of the parties desire to go before him, it is the practice 
 to give them an opportunity of doing so directly : (^Haywurd v. 
 Hat/ward, 1 Kay. App. 31.)
 
 PKOCKEDINGS I\ DEFAULT OF ANSWER. 23 
 
 attend witli the record of the bill, in order that the siinic 
 may be taken pro cunfcsso. On the day of tlie I'eturn of 
 the writ, the Writ and llecord Clerk attends in e(nirt aeeord- 
 ingly; and if the defendant has not in the mean time pnt in 
 bis answer, and remains still eontumacions ; the plaintilf, by 
 his counsel, moves that the bill be taken j)ro con/esso, which 
 is ordered at once : (see Siiinnoiis v. Wood, 2 Hare, 644.) 
 
 If the plaintiif prefers, instead of adopting this course, to 
 file a traversing note, he may do so under tlu- .'32nd Order of 
 May, 184o (the form of the note is given in that order); a 
 copy of the note must be served on the defendant, under 
 the 19th or 21st Order (as the case may require) of October, 
 1842: (and 56th Order of May, 1845.) The eilect of a 
 traversing note duly served is the same as if the defendant 
 had filed a full answer traversing the whole bill, on the day 
 on which the note was filed (57th Order, May, 1845), and the 
 cause can then regularly proceed. It is obvious that the 
 course of filing a traversing note can only be usefully resorted 
 to when the ])laintifl' is independent of discovery by the 
 defendant ; that is, when he can rely entirely on proof of 
 the allegations of his bill. 
 
 The plaintilii when the defendant has been taken into 
 custody, has still another course open to him. Instead of 
 committing the defendant to prison, and then proceeding by 
 habeas corpus, as above pointed out, to take the bill pro 
 confesso, he may, instead, proceed under the 76th Order 
 of May, 1845, by moving against the deliendant upon notice 
 immediately after the execution of the attachment, at any 
 time within three weeks thereafter, that the bill may be taken 
 pro confesso, and on the motion being heard, the ccnirt may 
 order the bill to be taken pro confesso immediately or 
 upon terms as to time or otherwise. This order is, however, 
 only a preliminary ordei", and the cause must, nevertheless, 
 be set down ; usually it js ordered to be set down by the 
 court on a given day. 
 
 If the sheriff has not been able to take the defendant and 
 makes his return accordingly, the plaintiff may, under the 
 Orders of the 8th May, 1845, commencing with the 77th 
 Ordei', proceed to take the bill pro confesso against liim. 
 If due diligence to execute an attachment has been used, 
 so as to bring the defendant within the 77th Order as 
 an absconding defendant, and if the defendant has appeared 
 in person, or by his solicitor, the plaintiff serves on the 
 defendant, or his solicitor, a notice that on a day named 
 in such notice, being not less than fourteen days after 
 service of the notice, the court will be moved to take
 
 24 NEW EQUITY PRACTICE. 
 
 the bill pro cnnfesso, and if the court is satisfied on hearing 
 the motion that the defendant is within the 77th Order, it 
 will make an order to take the bill pro confesso (78th Order 
 of May, 1845.) Notwithstanding this preliminary order, 
 however, the cause is set down on a subsequent day, 
 and the defendant may then, waiving all objections to the 
 regularity of the decree, but not otherwise, be heard to 
 argue on the merits shown by the bill : (82nd Order, JNIay, 
 1845.) As the court must be satisfied upon the facts before 
 it will make an order under the 77th Order cited, the 
 motion must be supported by an affidavit of merits, and the 
 affidavit should be made by the sheriff's officer charged 
 with the execution of the writ (Yearsley v. Budgett, 1 1 Beav. 
 144), as it must be shown that he has used due diligence. 
 
 Or the plaintiff may, on the sheriff's return non est in- 
 ventus to an attachment, and upon affidavit that due diligence 
 has been made in endeavouring to execute the writ, proceed 
 by writ of sequestration to take the bill pro confesso: (9th 
 Order of August, 1H41.) The writ of sequestration must 
 be founded on an Order which is obtained on motion of 
 course, on production of the sherifif's return, and an affidavit 
 bringing the case within the 9th Order of 1841. But the 
 writ must be prepared by the solicitor like other writs, and 
 like those must be sealed by a Clerk of Records and Writs. 
 
 If tlie plaintiff cannot procure an affidavit to be made 
 to satisfy the exigency of the 9th Order of 1841, it is open 
 to him to move, on the return of the sheriff non est inventus, 
 that the Serjeant-at-Arms do take the defendant ; and if 
 the Serjeant-at-Arms takes him, the same subsequent course 
 is pursued as if he had been brought to the bar by a mes- 
 senger. If the Serjeant-at-Arms cannot succeed in taking 
 the defendant, and makes his return accordingly, then on 
 production of an office copy of his certificate, which is 
 obtained at the Record Office, the plaintiff m;iy move, as of 
 course, and will obtain an order for a sequestration. 
 
 The consequence of obtaining an order for sequestration 
 is, that the plaintiff may at once move, as of course, to take 
 the bill pro confesso. The above is a general statement of 
 the proceedings which must be adopted by a plaintifi' to 
 compel an answer, or to put himself in the same position, as 
 nearly as may be, as if an answer had been put in. The 
 details of the variations in procedure, consequent upon 
 special circumstances, or special qualifications, or disqualifi- 
 cations, of the parties, will be treated of in separate 
 chapters.
 
 EXCEPTIONS TO ANSWERS. 25 
 
 VI. Of exceptions to answers. 
 
 Supposing none of these difficulties to occur, and assuming 
 the defendant regularly to have answered, the plaintifT is 
 (lien to see that tlK- answer is sufficient, tiiat is, that it sub- 
 stantially answers all the interrogatories. For this ])urpose, 
 he obtains from the Wr'xl and licoord Office an office copy of 
 the answer, a brief copy of which he should without delay 
 make and lay, together with a copy of the bill, before his 
 counsel, to ailvise whether the answer is sufficient. If it is 
 not, the plaintiiF may take exceptions to it, and require a 
 further answer. 
 
 In modern practice, it is not very usual to except to 
 answers, unless they are grossly insufficient on some really 
 substantial point ; because, if they are insufficient on the 
 question of what books and papers are in the power of the 
 defendant (which is the most frequent subject of insuf- 
 ficiency), the plaintiif has a quicker and more efficient course 
 open to him by requiring the defendiuit to bring in to the 
 judge's chamber an affidavit of what books, papers, &c., are 
 in his possession or power; and as to other matters which 
 may rest peculiarly in the defendant's knowledge, the 
 j)laintiff may examine the defendant as a witness in the 
 cause. Hence, exceptions are now much discouraged, as 
 tending rather to useless expense and delay than to forward 
 the purposes of justice. However, as they are not abolished, 
 it is necessary to st;ite the proceedings upon them. 
 
 The question what is a sufficient answer, is one of pure i)lead- 
 ing, and will not here be discussed. J^xceptions are usuallj- 
 drawn by counsel, and may be taken off the file if they are 
 not so signed : ( Yatrs v. Hardy ^ Jac. 223.) When the draft 
 has been obtained from counsel, a copy of it is made on 
 unstamped paper, and indorsed with the name and address 
 f)f the plaintiff's solicitor, and taken to the office of the 
 Clerk of Records and Writs, where it is left with the clerk 
 in whose division the cause is filed. Notice should be given 
 on the same day by the solicitor of the ])laintifi' to the 
 defendant's solicitor, that exce{)tions are filed : (24th Order 
 of October, 1842.) Exceptions must be filed within six 
 weeks from the date of the filing of the answer, otherwise 
 the answer will be taken to be sufficient, and the plaintifl' 
 cannot afterwanls except to it : (8th Order. November, 
 1850.) Exceptions ai-e not now referred to the Master as 
 they used to be, but are disposed of by the court itself in the 
 first instance, under the \^■^ & 14 Vict. cap. 35, sect. 27. 
 [CH.] D
 
 26 NEW EQUIXr PRACTICE. 
 
 When the exceptions have been filed, the plaintiff's duty is to 
 set them down for hearing after the expiration of eight days 
 from the filing of the exceptions, and within fourteen days 
 from such filing. If he does not, on the expiration of four- 
 teen days, the answer is to be deemed sufficient (11th and 
 14tb Orders, November, IS-IO.) But with reference to the 
 eight days, there is an exception that if the plaintiflfis required 
 in case of election by notice in writing from the defendant 
 to set them down in four days, under the 13th of the same 
 orders the plaintiff must set them down within such four 
 days. The 11th Order contains another exception as to 
 the eight days, viz., " when the common injunction may be 
 obtained or retained on the allowance of such exceptions." 
 This exception seems now to be entirely neutralised by the 
 15 & 16 Vict. cap. 86, sect. 58, and the 45th General 
 Order of 7th August, 1852, which abolish the common 
 injunction for default of answer, and assimilate the practice, 
 with respect to injunctions to stay proceedings at law, to the 
 practice with respect to special injunctions generally. 
 
 To set the exceptions down, the plaintiff's solicitor obtains 
 from the Secretary of the Lord Chancellor, or of the Master 
 of the Rolls, as in setting down a demurrer or a plea, 
 an order of course, on production of a certificate from 
 the Clei'k of Records and Writs Office of the exceptions 
 being filed ; and procures that order to be drawn up and 
 passed at the Registrar's office. The Registrar will then 
 set down the exceptions, and the plaintiff 's solicitor must, on 
 the same day, serve a notice on the defendant's solicitor (12th 
 Order, November, 1850), otherwise the exceptions will be 
 deemed not to be set down. By the same order, it is directed 
 that excejjtions shall be advanced and put into the paper 
 for an early day, of which, in practice, the Registrar gives 
 a note to the plaintiflTs solicitor. Whenever the exceptions 
 are set down, the plaintiff's solicitor should, without delay, 
 prepare and deliver his briefs, and he should also leave with 
 the proper officer of the judge before whom the exceptions are 
 to be argued, a copy of the interrogatories, answer and 
 exceptions. The brief on exceptions consists of a brief copy 
 of the bill, of the interrogatories, of the answer, and of the 
 exceptions. No other papers are required, or allowed in 
 taxation, except one or two sheets of observations drawn by 
 the solicitor. On the subject of the observations appended 
 to a brief by the solicitor conducting a case, it may be stated 
 generally, for the guidance of young practitioners, that they 
 are usefully addressed to giving a brief exposition of the 
 general nature of the case ; and, in particular, of the peculiar
 
 EXCEPTIONS TO ANSWERS. 27 
 
 interests and relative positions of the parties, to assist tiie 
 counsel in selectinpr the points to which it is most important 
 for tlie substantial interests of his clients, that he shoukl 
 address his arj^uinents. But it is not in general desirable 
 in such observations to suggest arguments, or to refer to 
 authorities, as it is the peculiar duty and province of the 
 counsel to find those, anil they are sometimes rather em- 
 barrassed than assiste(], by having to consider a great 
 variety of arguments and cases. 
 
 When the exceptions come on for argument, the leading 
 counsel for the exceptant opens successively each exception, 
 by generally stating, first so much of the nature of the 
 ease as is requisite to show what is material to be answered ; 
 then, reading the interrogatory to which an alleged in- 
 sufficient answer has been put in, and the answer to it; and 
 then commenting upon the answer to show that the inter- 
 rogatory is not satisfactorily answered, lie is followed by his 
 junior, who offers such further observations as experience may 
 dictate to him. The counsel for the defendant then, in the 
 same order, oppose the arguments of the plaintiH", and the 
 plaintiff's leadirtg counsel replies. The court, in general, 
 gives judgment separately on each exception. If all the 
 exceptions are allowed or disallowed, they are usually 
 allowed or disallowed with costs to be paid by the unsuc- 
 cessful party ; but the costs are in the discretion of the 
 court. If some exceptions are successful and others 
 fail, the costs are usually made costs in the cause ; that 
 is, they follow the general result of the final decision ; or 
 sometimes the court will direct that there shall be no costs 
 on either side. As to those parts of the answer to which 
 exceptions are allowed, the court may, and usually does at 
 once, appoint the time within which the defendant must put 
 in a further and better answer. The defendant must then, 
 within that time, file such further and more complete 
 answer. If he does not, the plaintiff may sue out process 
 of contempt against him to compel him : (17th Order, No- 
 vember, 1 850.) And the plaintlfi 's course is then the same as 
 that already pointed out in reference to compelling an answer 
 in the first instance. When the defendant has put in a 
 further answer, if the plaintiff is advised that it is still in- 
 sufficient, he may, within fourteen days from the filing of 
 such further answer, again set down the old exceptions ; if 
 he does not, the answer is to be deemed sufficient (Kith 
 Order, November, 1850), and so with respect to a third 
 answer. But on setting down the old exceptions after 
 a defendant's second or third answer, the plaintiff must, in 
 D 2
 
 28 NEW EQUITY PRACTICE. 
 
 the notice to the defendant's solicitor of setting down the 
 exceptions, state the particular exception or exceptions to 
 which he requires a further answer: (19th Order, Xo- 
 veraber, 1850.) 
 
 If a third answer is held insufficient on argument, the 
 court may order the defendant to be examined on inter- 
 rogatories, (') and to stand committed until he shall have 
 perfectly answered, and the defendant is to ])ay such costs 
 as the court shall think fit to award : (22ud Order, No- 
 vember, 1850.) I am not apprised of any instance in which 
 these orders have been acted upon since the 15 & 16 Vict, 
 cap. 80, and indeed it must be a \erj peculiar case in 
 which it could be desirable to incur the delay and expense 
 of two or three successive sets of exceptions, each requiring 
 to be filed, set down and argued, when, as already observed, 
 the plaintitr may obtain at once production on affidavit from 
 the defendant of all the docjimenta?-y evidence which he 
 professes ; and may as to other things insufficiently an- 
 swered, by putting the cause at issue, proceed to examine 
 the defendant viva voce on all other matters in issue, in much 
 less time than v.'ould be required to file, set' down and hear 
 the exceptions. 
 
 The defendant, instead of meeting the original exceptions 
 to his answers on argument, may within thg eight days from 
 the filing of the exceptions submit to them: (provided he is 
 not in contempt.) And if he does so, and pays 20s. costs to 
 the plaintilT, he has three weeks from the date of the submis- 
 sion within which he ma}' file his answer (10th Order, Novem- 
 ber, 1 850 j; so he may after the exceptions have been set down, 
 and before they are heard, submit (l7th Order, November, 
 1850) ; if, however, he waits till they are set down, it is pre- 
 sumed he must apply to the judge's chief clerk in chambers 
 by summons upon notice to the plaintiff, for an order for fur- 
 ther time. For the l7th Order of November, 1850, appears 
 to contemplate this case, and to intend a specific application 
 to the court ; but since, under the 26th sect, of the 15 & 16 
 Vict. cap. 80, and the practice adopted under it, all orders 
 for time to answer are to be made in chambers, it is pre- 
 sumed that now, in such a case, the api)lication would be, as 
 above pointed out, to the judge's chief clerk, and as the order 
 
 (') Interrogatories, as a mode of examining in general, are abolislied 
 by the 15 & 16 Vict. cap. 86, sect. 28. But in proceedings in cham- 
 bers under the 15 & 16 Vict. cap. 80, sect. 30, plaintiffs and witnesses 
 may still be examined ou affidavits, or interrogatories, or viva voce, 
 
 as ll)e judge shall direct.
 
 ANSWERING EXCEPTIONS AND AMENDMENTS. 29 
 
 would be discretionary under tlie 17tli Order of November, 
 1850, and tlierei'orc the application susceptible of oppo- 
 sition, it should be made on notice of the summons. 
 
 The plaintilfwas frequently advised, under the old practice, 
 and it may still as frequently be nuiterial for him, to amend 
 his bill alter the exceptions to the answer have been either 
 allowed or suhmitted to ; and to require the amendments 
 and exceptions to be answered at the same time. If he did so 
 under the old practice, the order to amend was of course ; 
 and the defendant had the same time to answer the amend- 
 ments and exceptions as he would have had to answer an 
 amended bill sinipliciter, although that time might exceed 
 the time given by the Master for putting in a further 
 answer. It would seem that the practice cannot now be 
 strictly followed, the order for time to put in a further 
 answer under the l7th Order of 1850 being an order of the 
 court, and the defendant being expressly liable to process 
 of contempt if he disobeys it: (17th Order, November, 
 1850.) It follows, that unless the time given to him is the 
 same as that to which he would be entitled under an order 
 of course to amend (which would not be any time certain 
 fi'om the amendment of the bill, but fourteen days after the 
 service upon him of the interrogatories), he must answer the 
 exceptions and amendments separately ; so that an order of 
 course to answer the exceptions and amendments together 
 will be, under the new practice, in fact an impracticable order, 
 unless it includes terms that the time for answering the 
 exceptions is to be co-equal with the time at which regularly 
 the amendments must be answered. It is apprehended, 
 therefore, that the application for an order for time to 
 amend, and that the defendant may answer the amendments 
 and exceptions together, must be on notice, so that the 
 judge's chief clerk may Introduce into the order the neces- 
 sary terms. 
 
 The old rule is not abolished, that if the defence joins an 
 answer and demurrer, or an answer and plea, the plaintifl' 
 must not except to the answer until the demurrer or plea has 
 been disposed of; for if he does he thereby admits the 
 validity of the demurrer or ])lea. So there is nothing in 
 the new statutes or orders which alters the rule, that if a 
 plaintiff amends his bill after exceptions to the original 
 answers allowed or submitted to, and afterwards sets 
 dow'n again the old exceptions, and has re({uired an answer 
 to interrogatories filed with the amended bill, he may file 
 and proceed with new exceptions to any part of the answer 
 to the amended bill ; and he may set them down and take the 
 
 D 3
 
 30 KENV EQUITY TKACTICE. 
 
 opinion of the court upon the new exceptions, independently 
 of' the hearing of the old exceptions, though probably for 
 convenience' sake the court would, unless good reason for a 
 contrai-y proceeding be shown, direct the two sets of excep- 
 tioTis to be brought on together. It is scarcely necessary 
 to remark that, as under the old system of pleading and 
 practice, the new exceptions must not touch matters covered 
 by the old excei)tions. 
 
 It has been observed, that exceptions for insufficiency are 
 very infrequent under the modern practice. The most 
 usual, and, in most cases, the most material defect of an 
 answer is an insufficient discovery of what documents, papers, 
 and accounts are in the defendant's possession or power. 
 When the answer is defective on this point, the most usual 
 modem course is for the plaintiff, instead of excejJting to 
 the answer, to take out a summons at the judge's cham- 
 bers, that the defendant may bring in an aflidavit stating 
 what books and papers he has. The form of this affidavit 
 has been settled at the liolls, and approved by the other 
 judges (see iiifra, p. 31.) 
 
 VII. Of production and deposit of documents under the statute 
 15 & ]6 Vict. c. 86. 
 
 As this proceeding is of incessant occurrence In chancery 
 suits, and always early in the suit, it will be convenient to 
 dispose of it here, although it would properly belong to 
 the subject of interlocutory applications. 
 
 The oiTler, whether for deposit of documents, or only for 
 inspection, is made under the 18th section of the 15 & 16 Vitt. 
 cap. 86, which directs, "that it shall be lawful for the court, 
 upon the application of the plaintiff in any suit in the said 
 court, whether commenced by bill or by claim ; and as to a 
 suit commenced by bill whether the defendant may or may not 
 have been required to answer the bill, or may or may not have 
 been interrogated as to the possession of documents, to 
 make an order for the production, by any defendant upon 
 oath, of such of the documents in his possession or power 
 relating to matters In question In the suit as the court 
 shall think I'ight ; and the court may deal with such docu- 
 ments, when produced, in such manner as shall appear just." 
 The -iOth section reverses the case, and gives the same 
 privilege to a defendant as against the plalntili". The 
 order must generally, in the first instance, be applied for 
 at chambers, under a notice issuing from the chambers of 
 the Master of the Rolls, dated tlie 1 0th November, 1852, 
 acted upon aud confirmed in practice by the other judges.
 
 PKODUCTION OF DOCUMENTS. 31 
 
 The notice referred to speaks only of the production of 
 documents, not of tlieir deposit, but the practice is to apj)ly 
 for orders for deposit, at chambers, as well as for orders for 
 production. 
 
 The distinction between an order for deposit, and an 
 order for production, is this : — an order for production 
 merely is made for tiie purpose of obtaining discovery only 
 from the party orderetl to jn'oduco ; an order for deposit is 
 made either for the single purpose of securing documents, or 
 for the double purpose of .'^ecurit}' and discovery. The 
 results of this distinction are sometimes material; for in- 
 stance, documents ordered to be produced only for inspec- 
 tion, if brought into court, will in general be ordered out 
 again at a subsequent stage of the cause, if the court is satis- 
 fied that sullieient discovery has been obtained, to the party 
 out of whose custody they came, witliout reference to the 
 question of his interest in them ; while documents ordered 
 to be deposited will not be ordei'ed out until the court is 
 satisfied to whom they properly belong : (Dunn v. Dunn, 
 3 Drew. 17.) 
 
 The order, according to the form adopted, is that the de- 
 fendant do file an affi<lavit and produce for inspection or 
 depcjsit them, as the case may be. It must be obtained on 
 a summons on notice to the defendant, as it may, of course, as 
 to inspection or deposit, be opposed on many grounds. If 
 there is any serious and difficult (juestion involved in the 
 opposition, the application is usually adjourned to be argued 
 in open court ; sometimes after argument before and an 
 order made by the chief clerk ; sometimes by the application 
 being originally brought before the judge in chambers, and 
 by him atljourned to the court. 
 
 The form of the order to make an affidavit, and for in- 
 spection of documents under this statute is as follows : — 
 
 The Master of theRofls (or Vice Chancellor) at chamliers. 
 
 Upon the applicatiou of , and hearing the ^solicitor fur 
 
 tlie 
 
 It is ordered that the do within make and file a 
 
 full and sufficient affidavit stating whether he has, or has had in his pos- 
 session or power any, and, if any, what documents relating to the matters 
 in question in this suit, and accounting for the same. 
 
 And it is ordered that the said do, at all seasonable times, 
 
 upon reasonable notice, produce at the office of , at , such 
 
 of the said documents as by such affidavit shall appeur to be in Lis
 
 32 NEW EQUITY PRACTICE. 
 
 possession or power, except such of the same, if any, as he may by his 
 said affidavit object to produce. 
 
 And it is ordered that the said , his sohcitor or agent, be 
 
 at liberty to inspect and peruse the documents so produced, and to take 
 copies tliereof, and abstracts and extracts therefrom, as the shall 
 
 be advised, at his expense. 
 
 And it is ordered that the said do produce the same before 
 
 any examiner of this court, and at the hearing of the cause, as the 
 said shall require. 
 
 And the said is to be at liberty to make such further applica- 
 
 tion as to all or any of the documents mentioned in the said affidavit, as 
 he may be advised. 
 
 The order for an affidavit and deposit is in the same form, 
 except that it orders the documents to be " produced, and left 
 with the Clerk of Records and Writs, in whose division the 
 cause is," instead of ordinary production only ; and it orders 
 that the Clei-k of Records and Writs do produce the same 
 before any examiner, and at the hearing of the cause, instead 
 of orderlnof the party to do so. 
 
 The affidavit to be brought in, with documents, by the 
 party ordered to produce them, is as follows : — 
 
 L I have in my possession or power the documents relating to the 
 matters in question in this suit, set forth in the first and second parts of 
 the first schedule hereto annexed. 
 
 2. I further say, that I object to produce the said documents set 
 forth in the second part of the said first schedule hereto. 
 
 .3. I further say {state upon what grounds the oljection is made, and 
 verifij the facts so far as may be.") 
 
 4. 1 further say, that I have had, but have not now in my possession 
 or power, the documents relating to the matters in question in the suit 
 set forth in the second schedule hereto annexed. 
 
 5. I further say, that the last-mentioned documents were last in 
 my possession or power on {state token.') 
 
 6. I further say (slate what has become of the last-mentioned docu- 
 ments, and in whose possession they noio are.) 
 
 7. I further say, according to the best of my knowledge, remembrance, 
 information and belief, that I have not now, and never had, in my own 
 possession, custody, or power, or in the possession, custody, or power of 
 my solicitors or agents, solicitor or agent, or in the possession, custody, 
 or power of any other persons or person on my behalf, any deed, account.
 
 EXCEPTIONS FOR SCANDAL. 33 
 
 book of account, voaclicr. reci'ijit, letter, memorandum, pajier, or 
 writing, or any copy of an extract from any such docuiiicntb, or any 
 other document whatever relating to the matters in question in tlii.i 
 suit, or any of them, or wherein any entry has been made relative to such 
 matters, or any of them, other than and except the documents set forth 
 in the first and second schedule, hereto." 
 
 These forms have received the sanction of the court : 
 (^Rochflule Canal Company v. Kin^fi 15 Bcav. 11.) 
 
 The appUcation for an order for production or deposit 
 upon aflidavifc is under the 15 & IG Vict. cap. ^sG; and 
 does not exchi'le an ordinary application for |)rodnction, 
 according to the ohl practice, upon the admissions in the 
 ansvt'er, if a sufficient answer on that point has been put in. 
 This suhjoct will be treated of in its place under the head 
 of interlocutory applications. 
 
 YIII. Of exceptions for scandal. 
 
 An answer is open to other objections besides that of 
 insufficiency. It may be what is called scandalous ; or it 
 may be impertinent. An answer is scandalous when it con- 
 tains matter which is not only wholly irrelevant to any of 
 the matters in issue, but also reflects upon the character of 
 the plaintiil", or of some other person, or uses langunge unfit 
 for the court to hear. It is impertinent, when it contains 
 matters simply irrelevant, though it may be in no sense 
 offensive to any person, or when it indulges in wholly in- 
 defensible prolixity. Impertinence Avas formerly a subject 
 for exception ; but by the 1 7th section of tke 15 & 1 6 
 Vict. cap. 86, exceptions to imj)crtinence in pleadings are 
 abolished, and the impertinent matter is to be dealt with 
 upon application to the court in disposing of the costs. The 
 30th General Order of 7th August, 1852, provides that the 
 apphcation to be made for the costs of any impertinent 
 matter introduced into any bill, answer or other proceeding, 
 is to be made at the time when the court 'disposes of the 
 costs of the cause or matter, and not at any other time. 
 Under this order the question of the costs of impertinence 
 in an answer will not be disposed of till the hearing of the 
 cause. The consideration of that subject will therefore be 
 postponed to a su'.isequent chapter. 
 
 Exceptions still lie for scandal, and are disposed of by 
 the court at once, like exceptions for insufficiency (\i'> & 14 
 Vict. cap. 35. sect. 27), and the course of practice in pro- 
 ceeding to obtain the excision of scandalous matters from
 
 34 NEW EQUITY PRACTICE. 
 
 an answer docs not difFer materially from the course taken 
 to obtain a further answer. The objectionable matter must 
 be brought before the court by exceptions, which must be 
 signed and are usually drawn by counsel, and the exceptions 
 must describe the particular passages which are alleged to 
 be scandalous: (•23rd Order, 2nd November, 1850.) 
 
 The plaintiff having filed exceptions for scandal must set 
 them down within six days after the filing thereof, otherwise 
 they are to be considered as abandoned, and the plaintiff 
 will have to pay to the defendant such costs as he may have 
 incurred by the filing of the exceptions. "When set down, 
 the mode of proceeding to do which is the same as in setting 
 down exceptions for insufliciency, they will be ordered and 
 put in the paper for hearing on an early day, and the 
 plaintiff must, on the day on which they are set down, serve 
 a notice thereof on the defendant or his solicitor, otherwise 
 the exceptions will be deemed not set down : (I'ith Order, 
 2nd November, 1850.) The exceptions are argued in the 
 same manner as exceptions for insufficiency, separately, and 
 the court gives judgment on each exception. If the court 
 determines in favour of any of the exceptions declaring any 
 passages objected to scandalous, an order is made ac- 
 cordingly, which must be drawn up, passed and entered 
 like any other order ; and on production of the order, the 
 officers having the charge or custody of the answer will ex- 
 punge from it the parts which the court has held scandalous. 
 The costs on disposing of exceptions for scandal are in the 
 discretion of the court. 
 
 IX. Of filing replication and going into evidence. 
 
 When a complete answer and discovery, so fir as the de- 
 fendant can give it, have been obtained, the plaintiff's next 
 step in a suit proceeding in the ordinary way to a regular 
 hearing, is to put the cause at issue by filing rpplication, 
 which in such a case is to be done as under the old practice. 
 The effect of replication is to deny generally the truth of 
 the defendant's answer, and to put him to prove the allega- 
 tions in it. Replication must l)e filed, where answers have been 
 required and put in, within four weeks after the last answer 
 is deemed or found to be suftlcient : (l6th Order, 8th May, 
 1848, Xo. .37.) When there are several dcfemlants, the last 
 answer means the last sufficient answer of the last answering 
 defendant. The replication is prepared by the plaintiff's 
 solicitor on parchment (the form of it is set out in the 93rd 
 Order of Sth May, 1845), and is taken to the Writ and
 
 REPLICATION. 35 
 
 Record Clerk to be filed. On the same day the plaintiff's 
 solicitor must give notice to the defendant's solicitor of his 
 having filed replication. In Johnson v. 2'uckcr^ 15 Sim. 
 599, a replit-ation was ordered to be taken oil' the file 
 because such notiee had not been given ; but in a later case, 
 apparently fully argued, and in which Johnson v. Tucker 
 was cited, the court refused to take the replication off the 
 file, and instead, extended the time for the defendant to 
 take the next step in the cause, so as to give him the same 
 time from the notice that he would have had I'rom the day 
 of Jiliui( replication : (Wri^^hf v. Ai{!rle^ \\ Jur. 987.) By 
 the filing of replication the cause is completely put in issue, 
 and each j)arty may thereupon prepare for the examination 
 of his witnesses. 
 
 Before proceeding to discuss the mode of taking evidence, 
 it will be convenient here to explain some of the details 
 affecting the filing of replication. There can be but one 
 replication in a cause, unless the court otherwise orders : 
 (93rd Order, May, 1845.) It is clear, however, that within 
 the meaning of that order the court may order more than 
 one replication (Rogers v. Hooper^ 2 ])rew. see p. 97) ; but 
 that course is frecjuently inconvenient, in many cases 
 in which it is found, by coni])uting the times allowed in 
 procedure, that the times within which the evidence must 
 be closed would be dillerent with reference to the sepa- 
 rate replications; but when that ground of inconvenience 
 does not apply, the court will, if satisfactory reasons are 
 shown, order more than one replication : (Rogers v. Hooper, 
 2 Drew. 97.) If the ground of inconvenience applies, the 
 proper course for the plaintiff, is to apply for leave to 
 withdraw replication, and to file a fresh rejjlicatlon. Either 
 of these apj)licati<ms is by motion on notice to the court, 
 and not in chambers. If, however, an apjilication to with- 
 draw replication is not made till the cause is at such a stage 
 that the defendant will be put unnecessarily and improperly 
 to costs by the effect of withdrawing replication, tlie court 
 ■will (mly give the leave on payment by the plaintiff of such 
 costs as it thinks will meet the justice of the case : (Champ- 
 ney v. Buchan, S Drew. 5.) iS'or is it of course to permit 
 more than one rcj)lication to be filed : a case of necessity 
 must be shown : (Stinton v. Taylor, 4 Hare, 608.) 
 
 Replication should, of course, be filed against all the 
 answering defendants, whom it is desired to put to proof ol' 
 the matters alleged In their answers ; for as against any 
 defendants against whom the answers are not replied to, the 
 cause will be heard on bill and answer, that is, the plaintiff
 
 36 NEW EQUITY PRACTICE. 
 
 will be taken to admit the answer to be true, and the 
 answer is and may be received as evidence at the hearinrr for 
 the dc'i'endaut. The replication which indicates against 
 what defendants the cause will be heard on bill and answer, 
 will be framed accordingly. 
 
 The consequence of not filing replication at the proper 
 time is that the defendant may move to dismiss the bill 
 for want of prosecution (16th Order of May, 1845, sect. 37) ; 
 but when such a motion is made, the court, instead of dis- 
 missing the bill, almost invariably, except in a case of very 
 gross delay, gives the plaintiff leave to file replication within 
 such time as in the view of the court is sufficient, having 
 regard to the nature of the explanation given by the plain- 
 tiff of the dela}^ Under the new ])ractice, when a de- 
 fendant has neither answered nor been required to answer, 
 he is considered as having traversed the case made by the 
 bill, and it follows that the plaintiff must prove his whole 
 case, and issue is to be joined by filing replication : (28th 
 Order of 7th August, 1852.) No specific time is fixed by 
 the art of the 15 & l6 Vict. eap. 86, nor by the orders 
 under it for filing replication, where the defendant has not 
 been required to answer, and has not answered. But it will 
 be prudent always to file replication at the earliest possible 
 time after the plaintiff is in a position to be entitled to do 
 so, as by the 29lh Order of August, 1852, the defendant to 
 a suit commenced by bill, who shall not have been required 
 to answer, and shall not have answered, may move to dismiss 
 the bill at the expiration of thi'ee months after his ap- 
 pearance, unless in the meantime the plaintiff shall have 
 moved for a decree (under the 15th section of the 15 & 16 
 Vict. cap. 86, and the orders made in respect of that mode 
 of proceeding), or shall have set the cause down to be heard. 
 
 X. Of the plaintiff'' s proceedings on going into evidence. 
 
 It must be borne in mind generally, that now the parties 
 to a suit may be witnesses for or against themselves, and a 
 wife may give evidence against her husband, and the hus- 
 band against the wife : (14 & 15 Vict. eap. 99, and 16 & 17 
 Vict. cap. 83.) Evidence for the hearing of a cause regu- 
 larly brought to a hearing, may now be taken in two ways : 
 either by allidavits, or by oral evidence; the old practice 
 of examining on interrogatories being entirely abolished 
 by the 15 & 16 Vict. cap. 86, sect. 28, subjeet only to a 
 power in the court to order particnhir witnesses to be 
 examined on interrogatories. The plaintiff may in the first
 
 OF TAKINd KVIDKNCE. 37 
 
 instance, elect -whether lie will proceed to take evidence by 
 affidavit or orally (-iilth sect, of 15 & 16 Vict. cap. 86), 
 and he must give notice to the defendant of what his in- 
 tention- i«^seven days after issue joined (31st Order of 7tli 
 Auiriret, 1852); if he docs not give any notice, or if he 
 gives notice that he intends to proceed by aflidavit, the 
 plaintiif and defendant are both at liberty to verify their 
 respective cases by afHdavit ; but if any defendant shall, 
 within fourteen days after the expiration of the seven days, 
 give notice to the plaintiir or his solicitor that he desires 
 the evidence to be oral, then the evidence must be taken 
 orally: (30th sect, of the 15 & 1(5 Vict. cap. 8(i, and 
 31st Order of August, 1852.) It follows, therefore, that it 
 may be a fruitless expenditure of time and trouble for the 
 plaintiif to prepare aOidavits until the ex|)Iration of the 
 fourteen days from the date of his notice ; but that delay 
 is not in practice material, because in most cases of the least 
 importance, it is not more than is required for obtaining 
 advice on evidence, and preparing instructions for counsel to 
 settle affidavits, or to examine vivci voce, as the case may be. 
 For when the plaiiitifl''s solicitor has filed re])lication, before 
 collecting evidence, he usually lays the bill and answers, and 
 copies of the documents intended to be relied on, before his 
 counsel to advise, on evidence — that is, to advise on what 
 points the defendant's answer may be relied upon as evidence 
 for the ])Iaintifi', on what points it is material that the plain- 
 tiff should produce evidence, and in which of the modes per- 
 mitted by the practice evidence should be adduced. (') When 
 the solicitor has procured his counsel's opinion on these 
 matters, his next step, whether the ^ilaintilT intends to ])roceed 
 by affidavit or by oral evidence, should be to collect and 
 examine his witnesses, and to take down in writing what 
 depositions relating to the matters in issue, on which he is 
 advised to go into evidence, each of them can make. This 
 part of the solicitor's duties is among the most important 
 and difficult of his functions ; in executing it he must ex- 
 
 (') Since the printing of this passage the following (the 4th) 
 General Order, dated .January, 13, 1855, has been issued. " It shall 
 not be competent for the plaintiff or any defendant to require by notice 
 or otherwise, that the evidence to be adduced in a cause shall be taken 
 orally, but when issue shall liave been joined in any cause, the plaintiff 
 and defendants respectively shall be at hberty to verify their respective 
 cases eitiicr wholly or partially by aflidavit, or wholly or partially by 
 the oral examination of witnesses before one of the examiners of the 
 court, or before an examiner to be specially appointed by the court.' 
 [cil.] E
 
 38 NE"SV EQUITY PRACTICE. 
 
 ercise much judgment in the selection of his witnesses, so as 
 not to bring forward a witness who may, either from igno- 
 rance, or impetuosity, or from improper motives, damage his 
 case ; and so as not to mislead his counsel, particularly 
 when the evidence is intended to be viva voce, by suggesting, 
 as fit to be relied upon, as testimony, depositions which cannot 
 be borne out by the witness when he is under actual examina- 
 tion. In doing this duty the solicitor will remember also that 
 he has only himself to rely upon : since partly by reason of a 
 rule of etiquette, the gi-ound of which is not very intelli- 
 gible, and partly from a rule of convenience which is per- 
 fectly intelligible, counsel never in practice see or communi- 
 cate with the witnesses before their examination. The 
 preliminary depositions thus taken by the solicitor should 
 be carefully and clearly set out as part, and the most ma- 
 terial part, of the instructions given to the counsel who is 
 to prepare the affidavits or to examine the witnesses. 
 
 If the evidence is intended to be taken by affidavit, the de- 
 positions should be laid before counsel, with copies of the bill 
 and answer, and of the documents in the case, as his instruc- 
 tions to prepare or to settle the affidavits (that is, when the 
 plaintiff's solicitor chooses to have the affidavits settled by 
 counsel, a practice which is in general advisable, though it is by 
 no means universal.) Affidavits are to be divided into para- 
 graphs, and every paragraph is to be numbered consecutively, 
 and as nearly as may be confined to a distinct portion of the 
 subject: (15 & 16 Vict. cap. 86, sect. 37.) And they must 
 be in the first person (126th Order, May, 1845.)(') When 
 the affidavits are drawn and settled, they are copied on 
 paper (and care should be taken that there are no era- 
 sures) ; and they are sworn before the Clerk of Affidavits, 
 who files them and delivers out office copies, which must be 
 obtained to be used at the hearing, and in any proceeding 
 in which the evidence is to be relied on. 
 
 Affidavits sworn in London may also be sworn before one 
 of the " London Commissioners to administer oaths in 
 Chancery," appointed under the 16 & 17 Vict. cap. 78. 
 These commissioners must be solicitors, practising and having 
 an office within ten miles from Lincoln's Inn Hall ; but the 
 affidavits sworn before them need not be sworn at their 
 offices, but any where within the limit mentioned of ten miles 
 from Lincoln's Inn Hall : (Re Clerks of Records and Writs, 
 3 De Gex, M. & G. 723). If an affidavit is to be made 
 by a person residing more than ten miles from Lincoln's 
 
 (•) See further Orders relating to affidavits, jJos*, p. 40.
 
 or TAKING EVIDENCE. 39 
 
 Inn Hall, it is sworn before one of " the Commissioners to ad- 
 minister oaths in Chancery," appointed under the 1 6 & 17 
 Vict. cap. 78, in substitution of the " ISlasters Extraordinary 
 in Chancery;" and the name of the place and county wliere 
 the affidavit is sworn must be expressed in the jurat. If the 
 defendant is in Scotland, Ireland, or in the Channel Islands, 
 or in any colony, island, jjlantation or place under the domin- 
 ion of the Queen, an aflidavit may be sworn before any 
 judge, court, notary public, or person lawfully authorised to 
 administer oaths in such places ; or it may be sworn before 
 any of her Majesty's Consuls or Vice-Consuls in any foreign 
 parts out of her dominions ; and the Court of Chancery 
 will take judicial notice of the seal or signature, as the case 
 may be, of such person: (22nd sect, of 15 & 16 Vict. cap. 
 86.) The act applies to affidavits taken in the colonies 
 before the passing of the act ; and affidavits so taken in the 
 presence of a person lawfully authorised to administer oaths, 
 are receivable under the 22nd section of the act, without 
 verification of the signature of the person before whom they 
 are taken : {Bateman v. Cook, 3 De Gex, M. & G. 39.) 
 And an affidavit sworn abroad may be filed, although the 
 place at which it is sworn is omitted in the jurat : {Meek 
 V. Ward, 10 Hare, App. I.) 
 
 The introduction of affidavit and viva voce evidence has 
 so altered the practice in this material point, that the evi- 
 dence of each side may be known from time to time, as each 
 part is completed, pending the examination of the witnesses ; 
 cither party being entitled, if affidavits are used, to obtain 
 from the affidavit office, within forty-eight hours of their 
 being filed, office copies of the affidavits filed by the other : 
 (127th Order of May, 1845.) To prevent the results of 
 this, it is most usual in practice for each party to hold back 
 his affidavits ; that is, not to file them till the last day fixed 
 for closing the evidence ; and he has a right to do so : 
 {Thompson v. Partridge, 17 Jur. 1108.) 
 
 It would seem, indeed, from the expressions used in that 
 case by the Lord Justice Turner, that if one party has seen 
 the affidavits of the other side, that fact would be against 
 him in any application to enlarge the time for closing the 
 evidence ; and Lord Justice Turner intimates an opinion 
 that it never was the intention that there should be reply 
 upon reply on the affidavits (as in the case of affidavits for 
 and against a motion), or that it should be incumbent on 
 either party to file his affidavits within a limited time. 
 
 The plaintiff's solicitor, of course, takes office copies of 
 the affidavits that he files, with which office copies he should 
 E 2
 
 40 NEW EQUITY" PRACTICE. 
 
 be provided when attending the hearing of the cause, or any 
 previous proceedings in which the evidence is intended 
 to be read. 
 
 Before proceeding further it should be generally observed 
 that, strictly speaking, all the ordinary rules of evidence 
 apply to affidavit as well as to vivci voce evidence, though this 
 rule is fer from being invariably acted upon. 
 
 The most usual defect in affidavits not prepared with due 
 skill and care, arises indeed from a neglect of this rule. Affi- 
 davits are, in consequence, frequently presented to the court 
 full of irrelevant matter, and of what may be termed mere 
 gossip, quite useless as evidence, and having no efficacy of 
 any kind except in the swelling of costs, which may ulti- 
 mately fall on the party on whose behalf they are tendered. 
 It is not intended here to discuss particularly the rules of 
 evidence, but it may be stated generally, for the guidance 
 of the young and inexperienced solicitor, that, with regard 
 to affidavits, they should speak as precisely as possible, and 
 only as to facts touching the matters substantially in issue ; 
 they should speak only from the knowledge of the deponent, 
 and not as to mere belief unsupported by proof of facts 
 warranting that belief; and they should avoid altogether 
 hearsay and mere opinion, except where the particular sub- 
 ject-matter is one in which evidence of that kind is properly 
 admissible ; as, for instance, in cases of pedigree, where 
 hearsay evidence is good evidence, or in cases of a scientific 
 or professional character, where evidence may strictly (and 
 must, in fact, from the nature of the case) consist of opinion. 
 Also, in preparing affidavits intended to rebut the affidavits 
 filed by the opponent, great care should be taken to rebut 
 the allegations in general, if possible, — not by simple denial, 
 but by the allegation of facts negativing the opponent's evi- 
 dence. It is too common to find that an affidavit answering 
 an affidavit, which alleges facts, consists simply of a string 
 of contradictions of those facts, giving no reasons for the 
 contradictions, and no facts negativing the facts intended 
 to be contradicted. Such affidavits in reply are in general 
 worthless — indeed, worse than worthless, because they do not 
 and cannot satisfy the mind of any judge, but may, and 
 most frequently do, give to the court an impression that the 
 deponent has been brought up, as it were, broadly to give 
 the lie to the opposite witness, and thus raise a suspicion of 
 the honesty of the case that he is so brought to support. (') 
 
 (') Since the above passage was in print, it has been ordered by the 
 8th General Order of the 13th January, 1855, that "all affidavits
 
 CROSS-EXAMINATION. 41 
 
 By the 38th section of the 15 & 16 Vict. cap. 86, it is 
 provided that " any witness who has made an affidavit filed 
 by any party to a cause shall be subject to oral cross-exa- 
 mination, within such time after the time fixed for closing 
 the evidence as shall be prescribed in that behalf by any 
 order of tlie Lord Chancellor, by or before an examiner, in 
 the same manner as if the evidence given by him in his affi- 
 davits had been given by him orally before the examiner ; 
 and after such examination may be re-examined orally by 
 or on the part of the party by whom such affidavits were 
 filed ; and such witness shall be bound to attend before the 
 examiner to be so cross-examined and re-examined upon 
 receiving due and proper notice, and payment of his reason- 
 able expenses, in like manner as if he had been duly served 
 with a writ of subpana ad testificandum before such exa- 
 miner." The time within which the evidence should be closed, 
 including the cross-examination and re-examination of the 
 witnesses, is eight weeks, except that any witness who has 
 made an affidavit intended to be used by any party to a 
 cause at the hearing thereof, is subject to cross-examination 
 within one month after the expiration of the said eight 
 weeks: (5th Order of 13th January, 1855.) The plaintiff's 
 solicitor, therefore, when the evidence proceeds by affidavits, 
 should obtain office copies of the defendant's affidavits at 
 the earliest possible period after he has had notice of their 
 being filed, and should lay copies of them, together with the 
 pleadings and the documents, or copies of them, before his 
 counsel ; and having procured his advice whether they 
 require cross-examination, he should, if advised to cross-ex- 
 amine, prepare his instructions accordingly. He must give 
 forty-eight hours' notice to the defendant's solicitor of the 
 time and place of the cross-examination : (34th Order, 7th 
 August, 1852.) The service of a subpoena adtestijicandiim is, 
 as it will have been noticed, dispensed with by the statute ; 
 both the statute and the orders are, however, silent as to 
 what notice must be given to the witness, — nor was the pre- 
 
 whether to be used at the hearing of a cause, or on any other pro- 
 ceeding before the court, are to state distinctly what facts or circum- 
 stances deposed to are within the deponent's own knowledge, and his 
 means of knowledge, and what facts or circumstances deposed to are 
 known to or believed by him by reason of information derived from 
 other sources than his own knowledge, and what such sources are." 
 And by the 9th Order, " the costs of afladavits not in conformity with 
 the preceding order, are to be disallowed on taxation, unless the court 
 eiiall otherwise direct." 
 
 E 3
 
 42 NEW EQUITY PRACTICE. 
 
 else time for moving for the writ before the time appointed for 
 the examination fixed under the old practice. I believe the 
 practice is to give him, if in London or within ten miles of 
 it, forty-eight hours' notice. Regularly, the cross-exami- 
 nation takes place before one of the official or ordinary 
 examiners of the court, at whose office the plaintiff's 
 solicitor desiring to cross-examine will obtain an appoint- 
 ment ; and he must leave at the examiner's office a copy of 
 the bill, and of the answer, if any : (31st section of 15 & 
 16 Yict. cap. 86.) The plaintiff's brief for cross-examining 
 will consist of copies of the bill and answer, and the affida- 
 vits filed ; and of such further information as the plaintiff's 
 solicitor may have been able to obtain, if any, as to the 
 knowledge of the witness about the facts to which he has 
 deposed, and on which he is to be cross-examined. 
 
 The cross-examination of the witnesses is, of course, 
 opened by the cross-examining party ; the affidavits of each 
 party being the examination of his witnesses in chief. The 
 cross-examination is conducted as nearly as possible on the 
 same principle, and in the same manner, as a cross-exami- 
 nation at Nisi Prius. The language of the statute Is, that 
 oral examination before the examiner is "to be conducted 
 as nearly as may be in the mode now in use in Courts of 
 Common Law with respect to a witness about to go abroad, 
 and not expected to be present at the trial:" (sect. 31.) 
 Unfortunately, it seems that on what is the peculiar mode 
 of examining at coumion law with respect to a witness 
 about to go abroad, if, Indeed, it differs at all from the mode 
 followed In open court at Nisi Prius, no authority can be 
 found (see Lord v. Culvin, 2 Drew. 208) ; but the prac- 
 tice at Nisi Prius is well known, and is usually followed 
 in practice In the examiner's office. The depositions of the 
 witnesses are taken down by the examiner In wi-Itlng, and 
 must be with his own hand, In the form of a narrative. The 
 questions and answers are not usually taken down ; but the 
 examiner may put down any question or answer If he thinks 
 fit. The examiner has no power to decide upon the mate- 
 riality or relevancy of any question ; but if any question is 
 objected to he gives his opinion thereon, and notices 
 both the question objected to and his opinion on the face of 
 the depositions. He Is not, however precluded by the act 
 or orders from applying the ordinary rules of evidence as to 
 admissibility, and in practice does accordingly apply them. 
 
 When the plaintiffs counsel has cross-examined any of 
 the defendant's affidavit Avitnesses, the defendant's counsel 
 re-examines them, following, in such re-exammation, the
 
 EXTENDING TIME. 43 
 
 practice adopted in re-examination at Nisi Prius ; and so, if 
 the defendant cross-examines any of the plaintiff's witnesses, 
 the plaintilf is entitled to re-examine them; the original 
 alUdavits being, as already observed, treated as an examiua- 
 tion-in-chief on eacii side. The re-examination of any witness 
 must, however, immediately follow his cross-examination, 
 and not be delayed to a future period: (35th Order of 7th 
 August, 1852.) If a witness produced at the examiner's 
 ofhce for examination or cross-examination refuses to be 
 sworn or to answer, he is to be dealt with as he would have 
 been under the old i)ractice if he refused to be sworn or to 
 answer the written interrogatories (33rd section of 15 & 16 
 Vict. cap. S6) ; that is, the examiner certifies that he has so 
 refused, and the party examining moves in court ex parte, 
 on production of the examiner's certificate, that the witness 
 may be ordered to answer within four days or stand com- 
 mitted : (Austin v. Prince, 1 Sim. 348.) But if a witness 
 demurs or objects to any question put to him, the question 
 and the demurrer or objection are to be taken down by the 
 examiner, and transmitted by him to the Record Oflice, 
 and the validity of the demurrer or objection is to be decided 
 by the court : (15 & 16 Vict. cap. 86, sect. 33.) The soli- 
 citor of the examining party then takes an oflice co])y of the 
 demurrer or objection at the Record Office, and obtains an 
 order in the usual way to set it down ; but he serves the order 
 on the witness only, and the demurrer will be set down to be 
 argued after any demurrer or plea already set down. A\'hen 
 the depositions are completed, the original depositions signed 
 by the examiner are transmitted by him to the Record 
 Office, and are there filed ; and the plaintiff's solicitor then 
 takes an office copy of them, on payment of Ad. per folio. 
 A brief copy of the depositions will form part of the brief 
 to be used at the hearing of the cause. If, as is most 
 usually the case, the evidence cannot be completed by either 
 party within the time fixed by the General Order, the time 
 may be extended by an order of the court (38th section 15 
 & 16 Vict. cap. 86) ; for which an application in chambers 
 must be made: (Notice of IMaster of the Rolls, 10th No- 
 vember, 1852.) If both parties desire time, and agree to 
 have the time extended, the order is obtained as a consent 
 order; but if either party objects, the party desiring the exten- 
 sion must support the application by affidavits showhig that 
 there has been no avoidable delay, and that justice cannot 
 be done without giving him further time. After the time 
 fixed for closing the evidence, no evidence can be received 
 without the special leave of the court first obtained : (38th
 
 44 NEW EQUITY PRACTICE. 
 
 section of 15 & 16 Vict. cap. 86.) The application for 
 such special leave is made in open court, and not in cham- 
 bers. 
 
 If, instead of proceeding by affidavit evidence, the plain- 
 tiff elects, and gives such notice as pointed out above, or if 
 any defendant requires that the evidence should be oral, 
 an appointment will be obtained by the plaintiff's solicitor, 
 whenever he is ready to examine any of his vdtnesses, at 
 the examiner's office. (') [It has been already noticed, 
 that he may examine any defendant as a witness, and he 
 does not thereby lose or vitiate his right to a decree against 
 him : {Harford v. Rees^ 9 Hare, App. 70)] ; and he should 
 give to the soUcitor of the defendant forty-eight hours' notice 
 of the appointment: (36th Order, 7th August, 1852.) The 
 same course of examination then takes place before the ex- 
 aminer as already pointed out for cross-examination of 
 affidavit witnesses, except that, of course, each party first 
 examin.es his witnesses In chief viva voce^ instead of by affi- 
 davit; and the same general rules govern the examination as 
 in an examination at Nisi Prius. The depositions, when 
 completed, will be dealt with as above pointed out. 
 
 Although the parties may have elected to proceed by 
 oral evidence, affidavits by particular witnesses, or as to 
 particular facts and circumstances, might, before the Orders 
 of January, 1855, be taken to be used at the hearing as by 
 consent, or by leave of the court obtained upon notice, and 
 such consent might be given by or on the part of married 
 women, or infants, or other persons under disability, with 
 the sanction of the court: (15 & 16 Vict. cap. 86, sect. 
 36.) To obtain such an order there must be special rea- 
 sons applicable to particular witnesses — reasons arising out 
 of the particular facts of the case ; the mere fact of witnesses 
 being elderly persons is not enough : (Rogers v. Hooper^ 
 2 Drew. 97.)(-) 
 
 It occurs frequently that the examiner's office Is too full 
 of business to allow of an appointment sufficiently early to 
 meet the pressing nature of the suit ; and it occurs also, 
 of course, occasionally, that witnesses require to be exa- 
 mined who, either from age or Illness, or distance of 
 residence, cannot be brought to the examiner's office. In 
 
 (') It will be recollected that by the 4th General Order of January, 
 1855, such notice, or requisition, is not now necessary: (see arate, 
 p. 37.) 
 
 C') The 4th Order of January, 1855, seems to render the above 
 section of the statute now wholly inapplicable.
 
 Sl'ECIAI. KXAJtlNKR. 45 
 
 any of these cases it becomes necessary to obtain tlie ap- 
 pointment of a special examiner (niuler the 31st section of 
 the 15 & 16 Vict. cap. 8G), who, if the examination is to be 
 conducted in town, is usually, but not necessarily, a 
 barrister ; and, if in the country, either a barrister or a 
 solicitor practising in the neighbourhood where the wit- 
 nesses reside : but a hiyman muy, it seems, under circum- 
 stances, be a special examiner. When the appointment of a 
 special examiner becomes requisite by the state of business 
 in the examiner's office, if the parties can agree in the 
 selection of an examiner, either party, ])ut usually the 
 plaintifT, applies to tlie court, the other party appearing and 
 consenting to the appointment of the person selected, who 
 is then appointed by an order of the court, and forthwith 
 becomes and is the examiner for the purposes stated in the 
 order, and is invested, by force of the 15 & 16 Vict. cap. 86, 
 with all the authority and power of one of the regular 
 examiners of the court. The business of examining wit- 
 nesses is conducted before a special examiner at such times 
 and places as he appoints, with the same formalities, and 
 according to the same practice, as if he were one of such 
 regular examiners, and when the depositions are concluded 
 before him, as he has no officer responsible for the trans- 
 mission of the depositions, it would seem he must personally 
 deposit them in the Record Office. The practice, at any 
 rate, is for him to do so. If the parties to a suit cannot 
 agree in the choice of a special examiner, or if either })arty 
 objects altogether to a special examiner, the party desiring 
 it must a])i)ly to the court, by motion on notice, for an order 
 appointing a special examiner. Such a motion must be 
 supported by affidavits verifying the merits — -that is, the 
 circumstances on which the application is founded ■, and 
 generally the court will make the order, if satisfactory proof 
 is produced that the nature of the cause requires expedition 
 beyond that which could be obtained in the ordinai-y course 
 of business, and that an appointment cannot be obtained in 
 time, such as that the witnesses, or some (jf them, are very 
 old or in such infirm health as to warrant expectation of 
 death before an appointment could be obtained, or are 
 about to proceed abroad ; or that other circumstances of a 
 like nature exist, from which the court will collect that 
 justice will probably be defeated if the party applying waits 
 for his turn in the examiner's office, in the usual course of 
 business: (see Brennan v. Prcsfon, 10 Ilare, App. 17; 
 Pillar V. Thompson^ 10 IJare, App. 76.) The motion 
 is properly to the court, and not in chambers {MacNiece v.
 
 46 NEW EQUITY PRACTICE. 
 
 Acton, 22 L. J. 584) ; but such orders may be and are 
 made on application to the chief clerk in chambers : 
 {Williams v. Williams, 22 L. J. 639.) The distinction, 
 when they should be made by motion in court, and when 
 upon summons before the chief clerk, seems to be this : 
 that they are properly made in chambers when they are 
 consented to, or when the grounds of application and 
 objection are not such as to require much argument ; but 
 that when they involve difficult (juestions of fact, or of law, 
 or of both, directly or indirectly, they should be made to 
 the court at once, and for this reason — that if made before 
 the chief clerk, and either party is dissatisfied with his 
 decision, and desires to take the opinion of the judge upon 
 it, the judge would in such a case, almost of course, adjourn 
 the case to be argued by counsel in court. It will, there- 
 fore, be matter for the discretion of the solicitor, depending 
 on the nature and facts of the case, when to apply in cham- 
 bers, and when to instruct counsel to move in court ; and it 
 will be borne in mind that if either course is improperly 
 taken, the extra costs occasioned may fall on the party 
 taking it. 
 
 The consideration of the details of the method in which 
 these and other motions must be prepared and conducted 
 will belong to a subsequent chapter, devoted to the subject 
 of interlocutory applications by motion generally, which 
 forms a considerable portion of the business of the court. 
 Generally, however, it may be here at once observed, that 
 all motions, the order to be made on which depends on the 
 discretion of the court — that is, all motions which are from 
 their nature susceptible of opposition — must be made on 
 notice, and that, regularly, notice of motion must be served 
 on the solicitor of the opponent two clear days before the 
 first day on which the motion can be made ; that is, a notice 
 of motion for Thursday must be served on Monday, and so 
 on ; but a notice of motion on Tuesday is properly served 
 on Saturday, although one of the two clear days is a blank 
 day. So, if an application, in the nature of a motion 
 capable of opposition, is made upon summons in chambers, 
 the summons must be served two clear days before the 
 return : (5th Order of lOth October, 1852.) 
 
 The evidence in a cause, whether taken by affidavit or 
 orally, ought regularly to be concluded within eight weeks 
 from the time when the cause has been put at issue, by filing 
 replication, with the addition of one month from the end of 
 the eight weeks for cross-examining affidavit witnesses. The 
 time for setting down the cause when the evidence is by
 
 EXAMINATION ON INTERROGATORIES. 47 
 
 affidavit, and either party cross-examines orally, does not, 
 however, begin to run from the end of the eight weeks, but 
 from the end of the time allowed for cross-examining : 
 (Sunkins v. Vanghan, V. C. K., 13th January, 1855, not yet 
 reported) ; and when it is so completed, and the deposi- 
 tions have been duly lodged by the examiner in the Record 
 Office, either party may take office copies therefrom of the 
 ■whole or any part of the depositions : (34th sect, of 15 & 16 
 Vict. cap. 86.) 
 
 In practice, the evidence in contested cases rarely is com- 
 pleted within the regular time by either party, and then, 
 if both parties being in the same predicament agree, the 
 time is enlarged by consent by an order of course, obtained 
 from the chief clerk on a summons in chambers, on the 
 application of the solicitor of one of the parties, the solicitor 
 of the other appearing and consenting. But if either party 
 is ready and desirous to proceed with the cause, and the 
 other is not, the party not ready applies in chambers, upon 
 a summons on notice to the solicitor on the other side to 
 extend the time for taking the evidence. This application 
 will not be granted as of course, but must be supported by 
 affidavits showing that there has been neither wilful delay 
 nor culpable neglect, and explaining the delay in such a way 
 as to satisfy the chief clerk that, using reasonable diligence, 
 the applicant could not complete his evidence ■within the 
 regular time. The applicant for time, as he is asking an 
 indulgence, will, in almost all cases, have to pay the costs 
 of the application, even when it is granted; of course, he 
 must pay the costs if it is refused. 
 
 Although in general, as pointed out, all evidence for the 
 tearing of the cause must be either on affidavit or oral, the 
 court may, if it thinks fit, order any particular witness or 
 witnesses, within the jurisdiction or out of the jurisdiction, 
 to be examined upon interrogatories in the old mode ; and 
 with respect to such witnesses, the old practice of the 
 court in relation to the examination of witnesses continues 
 in full force, except so far as the same may be varied by 
 any general order of the Lord Chancellor, or by any order 
 of the court with reference to any particular case : (28th 
 section of the 15 & 16 Vict. cap. 86.) There is no general 
 order varying the old practice on this subject, and it therefore 
 becomes necessary to point out briefly what it is. ^V^len a 
 witness is to be examined on interrogatories, draft inter- 
 rogatories must be prepared ; they are invariably drawn, 
 and must be signed, by counsel. The general advice given in 
 a previous pagefor the guidance of the inexperienced solicitor
 
 48 NEW EQUITY PRACTICE. 
 
 in preparing instructions for settling afBdavits, will apply 
 equally to the preparation of instructions for interrogatories. 
 When settled, they are transcribed upon unstamped parch- 
 ment and left at the examiner's office to be filed, and an 
 appointment is then made for the examination of the witness ; 
 at the time appointed, the solicitor attends with his witness 
 or witnesses ; they are sworn and examined by the ex- 
 aminer privately, no person being allowed to be present. 
 The solicitor of the examining party should, however, be in 
 attendance. The statute, in the 28th section referred to, 
 does not speak of cross-examination, and I am not aware 
 of any reported case in which that section has yet been acted 
 upon ; however, I conclude that the act, by the word ex- 
 amination, must mean full examhiation — that is, examination, 
 cross-examination, and re-examination. When the ex- 
 amination of a witness in chief upon interrogatories has 
 been concluded, the solicitor of the party examining him 
 gives notice to the other side that he has done so, in order 
 to give him an opportunity of cross-examining. The notice 
 contains the name and description of the witness and the 
 place of his abode in London ; and he must keep the witness 
 at his own expense in town for forty-eight hours after the 
 service of such written notice, and so, if the witness is cross- 
 examined, he must be kept by the party producing him in 
 town at his own expense, until the cross-examination is 
 completed ; but the party intending to cross-examine must 
 leave his interrogatories at the examiner's office within the 
 forty-eight hours, otherwise he will have to keep the witness 
 in town for cross-examination at his expense. 
 
 It follows from the reservation of the old practice as to 
 examining particular witnesses on Interrogatories, that the 
 old rules as to publication passing and its consequences 
 exist, and must have some effect where no special order is 
 made by the court previously for the particular case, and 
 where such rules are not Incompatible with the exigences of 
 the 15 & 16 Viet. cap. 86, and the orders made under it. 
 But as under the last-mentioned ai't there is no such thing 
 as passing publication, and as the evidence is, if taken viva 
 voce, of course known to both sides as It proceeds, the recon- 
 ciling of the two systems will probably present many 
 diliiculties. In the absence of decision, and I am not aware 
 of any since the new practice, to offer speculative sugges- 
 tions would be worse than useless to the practitioner.
 
 MOTION FOR DECREE. 49 
 
 XI. Of proceedings hy motion for decree. 
 
 A plaintilT" may, in certaiu cases, instead of bringing the 
 cause to a regular hearing, proceed by moving for a decree. 
 This is by the 15th section of the 15 & IG Vict. c. 86, which 
 provides that, "the phiintilT, in any suit commenced by bill, 
 shall be at liberty, at any time after the time allowed to the 
 defendant for answering the same shall have e.xpired (but 
 before replication), to move the court upon such notice as shall, 
 in that behalf, be prescribed by any general order of the Lord 
 Chancellor for such decree or decretal order as he mav think 
 himself entitled to; andtheplaintifranddefendant respectivelv 
 shall be at liberty to fde alUdavits in support of and in oppo- 
 sition to the motion so to be made, and to use the same on 
 the hearing of such motion ; and if such motion shall be 
 made after an answer iiled in the cause, the answer shall 
 for the purposes of the motion, be treated as an aflldavit." 
 And by the 16th section it is provided, " that upon any such 
 motion for a decree or decretal order it shall be discretionary 
 with the court to grant or refuse the motion, or to make an 
 order giving such directions for or with respect to the further 
 prosecution of the suit, as the circumstances of the case may 
 require, and to make such order as to costs as it may think 
 right." 
 
 By the 22nd General Order of the 7th August, 1852, a 
 month's notice is to be given by the plaintiff to the defendant 
 or defendants, of the motion for a decree or decretal order ; 
 and by the 23rd of the same orders, the affidavits to be used 
 in support of such motion are to be filed before the service 
 of such notice, and a list of such affidavits is to be set forth 
 at the foot of such notice. The defendants must file their 
 affidavits in answer, and furnish the plaintiff or his solicitor 
 with a list thereof, within fourteen days after the service of 
 the notice of motion: (24t]i Order of 7th August, 1852.) 
 
 And within seven days after the expiration of the fourteen 
 days, the plaintiff must file his affidavits in reply, which nnjst 
 be conlined to matters strictly in reply, and he must, within 
 the same time, furnish the defendant or his solicitor with a 
 list thereof. If the affidavits are not strictly in reply, they 
 are not to be regarded by the court, unless, on the hearing 
 of the motion, the court shall give leave to the defendant to 
 answer them, and then the costs of such affidavits and ol" 
 the further affidavits are to be paid by the plaintilf, 
 [cu.] F
 
 50 NKW EQUITY PRACTICE. 
 
 unless the court otherwise orders: (25th Order of 7th 
 August, 1852.) And no further evidence is to be used on 
 either side on the hearing of the motion, without leave of the 
 court: (26th Order of 7th August, 1852.) It must be 
 recollected that a defendant may put in a plea, answer, or 
 demurrer, whether he is required to answer or not : (15 & 16 
 Vict. c. 86, s. 13.) And by the same section, if the court 
 gives time beyond the regular time for pleading, answering, 
 or demurring, the plaintiff 's right to move for a decree is, in 
 the meantime, suspended. 
 
 By the 8th Order of 13th January, 1855, "all affidavits, 
 whether to be used at the hearing of a cause or on any 
 other proceeding before the court, are to state distinctly what 
 facts or circumstances deposed to are within the deponent's 
 own knowledge, and his means of knowledge ; and what facts 
 or circumstances deposed to are knoAvn to or believed by him, 
 by reason of information derived from other sources than his 
 own knowledge, and what such sources are ;" and by the 9th 
 of the same Orders, " the costs of affidavits, not in conformity 
 with the 8th Order, are to be disallowed on taxation, unless 
 the court should otherwise direct." 
 
 These Orders clearly apply to motions for decree as well as 
 to any other kind of motion ; and besides, it seems that a 
 motion for a decree differs in no way from the heai-ing of a 
 cause : (Norton v. Steinhopf, 1 Kay, 50.) In that case 
 it was contended that the relief could not go beyond the 
 notice of motion ; but the court held, that relief, accord- 
 ing to the prayer of the bill, as at the hearing of a cause in 
 the ordinary way, might be granted. When the plaintiff 
 gives notice of motion for a decree, he should at the same 
 time set the cause down with the registrar ; and if he omits 
 to do so until after the expiration of the month, the court 
 will not order the cause to be set down, except upon a 
 motion on notice : {Boyd v. Jaggar, ] Hare, App. 54.) A 
 motion for decree may, in a fit case, be set down for hear- 
 ing as a short cause ; as causes to be heard on motion for 
 decree are to be treated as other causes : {Ames v. Ames, 
 10 Hare, App. 54.) And, by consent, a motion for a decree 
 not heard as a short cause, may be heard before the time 
 fixed by the General Order has expired : {Loinsworth v. 
 Rowley^ 10 Hare, 55.) 
 
 It is not necessary to file replication when the plaintiff 
 proceeds by motion for decree : {Duffield v. Sturgis, 9 Hare, 
 App. 77 and 87.) The notice of motion may be served on a 
 defendant out of, as well as on a defendant within the juris- 
 diction : {Meek V. Ward, 10 Hare, App. 55.)
 
 OF MOTIONS. 5\ 
 
 As to the evidence on motion for decree.] — Tlie23r(l Order 
 of the 7tli August, 1852, requirinir notice to tlie defendant 
 of the affidavits intended to be read, does not a])ply to the 
 answer where an answer has been filed before the hearing; 
 that may be used against the defendant, ^vithout notice to him ; 
 but the answer of one defendant cannot be read against 
 another without notice : (Covsiris v. Vasccy, 9 Hare, App. 61.) 
 This seems at first inconsistent with the settled doctrine, that 
 at the hearing of a cause the answer of one defendant can- 
 not be used at all against another defendant ; but it is not so 
 in reality, because the statute, by converting the answers for 
 the purpose of a motion for a decree, into affidavits, makes 
 them, in fact, evidence in the cause, and not mere admissions 
 by particular parties, which is the true and distinctive charac- 
 ter of an answer strictly so called. What length of notice 
 should be given, as between co-defendants, is not pointed 
 out in the case referred to. It is obvious that the Orders 
 of the 7th August, 1852, commencing with the 22nd, do 
 not touch the point. 
 
 The parties to a suit to be heard on motion for decree, 
 have the same lilierty of cross-examining the witnesses 
 who have made affidavits, as they have in respect to any 
 other affidavit evidence, notwithstanding the Orders of the 
 7th August, 1852, which regulate only the time within 
 wliich affidavits are to be made {Williams v. Williams, 
 22 L. J. 639), and the order for the appointment of a special 
 examiner (when that is needed), for such cross-examina- 
 tion may, if necessary, be made by the judge's chief clerk 
 in chambers : («V/.) 
 
 It has been held that, under the SOtli section of the 15 & 16 
 Vict. c. 86, the parties are entitled to the writ of the sub- 
 poena ad testifcandum, and subpoina daces tecum for the hearing 
 of a cause from the Clerk of llecords and Writs, without any 
 preliminary order of the court, as they would be entitled 
 to it under the 40th section for bringing witnesses before an 
 examiner ; and that rule applies to hearing a cause on motion 
 for decree, as well as to an ordinary hearing : {May v. 
 Biggenden, IJ Jur. 8lG; Wigan v. Rowland, 10 Hare, 
 App. 18.) 
 
 XII. Of interlocutory applications by motion. 
 
 It will be convenient to treat of interlocutory applications 
 by motion in this place, before describing the general pro- 
 cedure in detence, because of the frequency of some of these 
 F 2
 
 o2 NEW EQUITY PRACTICE. 
 
 applications, before the suit has proceeded even so far as 
 the filing of a sufficient answer. 
 
 Interlocutory applications are made by motion or by 
 petition ; I shall here treat only oT motions. 
 
 It is not easy to state precisely any general rule as to what 
 should be done by motion, and what by petition, beyond 
 this, tliat in any cases, not governed by the settled practice, 
 a motion is j^roper when the issue tendered to the court is 
 simple, although it may be incumbered by a great amount 
 of evidence, and that petitions are proper when there are 
 several issues tendered to the court, each requiring its portion 
 of proof. For instance, an application for a receiver or for 
 an injunction, usually tenders but one simple issue ; whe- 
 ther there has been a given extent of breach of duty in the 
 party against whom the application is made ; and ac- 
 cordingly, though on that question a vast amount of con- 
 flicting evidence may be brought forward, it is made by 
 motion. An application for payment of money out of court 
 usually tenders several issues, such as the pedigi-ee of the 
 claimant ; the existence and construction of settlements of 
 property, and the like ; and accordingly such applications 
 are by petition. There are, on the other hand, classes of 
 applications of which it would be difficult a priori to say in 
 which mode they should be made ; in most of these a con- 
 tinued course of practice has settled which is the proper 
 mode. But knowledge of the general principle is not 
 without use to the solicitor, as cases occasionally occur 
 which do not fall within the fixed rules of practice. 
 
 Motions are of two kinds, motions of course, and special 
 motions. Motions of course are those to which no oppo- 
 sition can be offered, and on which a given order must be 
 made if the party has complied with certain fixed rules. 
 They are made on ex parte applications, without notice to the 
 other side. But, like evoy ex parte motion, they must be 
 founded on a true statement of the facts ; for if an order of 
 course is obtained on what is termed a false suggestion, it 
 is liable to be set aside. Thus, though it is in general a 
 motion or petition of course to obtain leave to sue in forma 
 pauperis, on an affidavit simply of the filing of the bill and 
 the plaintiff^ being a pauper, yet where an order was so 
 obtained, and the circumstances which were not stated were, 
 that the plaintiff" claimed partly under the heirs of a French 
 subject, and through an instrument of doubtful construction, 
 the order was held irregular and discharged, even on the 
 assumption that the facts as appearing (m the motion to 
 discharge it, would justify the order. The application must
 
 OP MOTIONS. 53 
 
 state all that is material, otherwise the order is irregular, 
 and will be discharged on tlie single ground of irregularity : 
 (St. Victor V. Devereux, G Beav. 584 ; see also Nuwell v. 
 yVhitaker, 6 Beav. 407. I^Iotions of course may be made 
 on auy day in or out of term : (Lord Ilarhorough v. Wart- 
 naby, 1 Phil. 304.) In a case of Radburn v. Lewis, 7 Beav. 
 353, some doubt appears to be suggested whether the rule 
 is universal. I believe, however, it has been since always 
 acted upon as universal. 
 
 All motions, strictly so called, are made by counsel, though 
 some require only the signature of counsel and do not 
 require to be mentioned to the court, but are handed in to 
 the Registrar of the day, who enters a note of them in his 
 book, and marks the brief with his initials. Thereupon the 
 order made can be drawn up, as if it were made upon an 
 order pronounced by the court on hearing the motion. An 
 order of course should be served as soon as possible on the 
 party against whom it is made, for whether an order of course 
 IS or is uot positively no order because it has not been served, 
 it is clear that until served it is no effective order, and that 
 if before it is served the other party takes a regular step, the 
 order of course cannot afterwards be acted upon against that 
 step: (Church v. Marsh, 2 Hare, 652.) Motions of course 
 requiring the intervention of counsel are now, however, very 
 rare, firstly, because most of the orders which formerly re- 
 quired, and might now still be obtained on motions of course, 
 can also be obtained by petitions of course presented at the 
 Rolls, by the solicitors of the parties, a course which, being 
 found more convenient, is almost universally adopted ; and 
 secondly, because there are, under the new practice, many 
 applications which used formerly to be motions of course, but 
 which are now applications made by the solicitors of the 
 parties to the judge's chief clerk in chambers, by summons. 
 They are not strictly motions, but may be classed under 
 that general head; applications for time to plead, answer 
 or demur ; to amend bills or claims ; for enlarging publi- 
 cation, or the time for closing evidence; for payment into 
 court of purchasers' moneys under sales by the court, and 
 many others, are now made in chambers. 
 
 Special motions are motions addressed to the discretion of 
 the court, acting either in open court or in chambers ; that 
 is, motions which may be granted as asked ; or with modifi- 
 cations ; or wholly refused ; according to the merits. They 
 are divisible into two classes, those which may be made ex 
 parte, and those which require notice to be given to the 
 party agaipst whom they are made. Among the motions 
 F 3
 
 54 NEW EQDITT PRACTICE. 
 
 whicli require notice, are motions made, on the coming in of 
 the answer, for production of papers ; for the payment of 
 money into court ; for the appointment of a receiver ; in 
 general for injunctions ; or for stay of proceedings, being in 
 the nature of, but not strictly injunctions; for committing 
 a party for contempt of any order of the court, or in 
 general for being relieved from the consequences of a con- 
 tempt ; for discharging any order made by the court ; and 
 generally it may be said, all motions which are susceptible 
 of opposition on the merits, except in particular cases where 
 notice would necessarily, or with the highest degree of pro- 
 bability, paralyse the power of the court to do justice to the 
 jjarty moving, if he was in fact in the right. 
 
 Special motions, which may be made ex parte, are motions 
 for injunctions in really pressing cases ; for ane exeat regno ; 
 occasionally, though very rarely, for the temporary suspension 
 of an order of the court. It is, however, very dilhcult, as 
 observed by Mr. Daniell in his treatise (Dan. Pract. vol.2, 
 p. 1452), to lay down any precise rule when notice may 
 be dispensed with, where the question is not determined by 
 the settled practice or the general orders of the court. 
 
 All special motions, whether ex parte or on notice, are made 
 on the merits of the case, and must, therefore, be supported 
 by evidence, which is always in the first instance by affidavits. 
 Au ex parte motion is made on a brief indorsed with instruc- 
 tions to counsel, stating what is the order asked, and 
 accompanied by one or more affidavits verifying those facts on 
 which the application is grounded, and by such parts of 
 the pleadings as may be requisite to show the status of the 
 party moving and of the party against whom the motion is 
 made. An ex parte motion may be made on any day in or out 
 of term, either when the court is sitting in public, or before the 
 judge, wherever he may be found, if the court is not sitting ; 
 but it must be made before the judge to whose branch of 
 the court the cause is attached ; except during the regular 
 vacations, when it may be made without special leave before 
 the judge who executes the functions of vacation judge ; or 
 by leave before any judge who may be accessible, if there be 
 no vacation judge. The term vacation judge, and the office, 
 of vacation judge, are rather customary than positivi juris, 
 there being in strictness no such thing as one judge more 
 bound than another to sit or be specially accessible during 
 vacation. But in practice it has been the custom for many 
 years during the long vacation, and sometimes also during 
 the short vacations, for one of the judges to sit in private as 
 vacation judge, and then such judge lakes all agplications
 
 EX PARTE MOTIONS FOR INJUNCTIONS. 55 
 
 ■whicli may be made under the f9th Order, May, 1837, and 
 the order of the oth Auujust, 1842. Tiie more convenient 
 method for practice, if not the most logical, will be to 
 advert now to those classes of ex parte applications which 
 are most I'requent. 
 
 The most freijuent of all is an ex parte motion for an 
 injunction ; this is never advisable except in cases of really 
 pressing danger, as the court never deprives the intended 
 respondent of the benefit of notice, unless it is satisfied that, 
 if the order is not made at once, the mischief intended to be 
 prevented will be so prejudicial to the party moving, that 
 the court cannot afterwards set him right. In all other 
 cases, the court always requires notice to be given, and then 
 the costs incurred in the unsuc(;essful attempt to obtain an 
 ex parte order will, in general, i'all upon the party moving. 
 Ex parte injunctions are frequently granted in cases of 
 waste, properly so called, or of acts in the natnre of waste, 
 such as the improper erection or destruction of engineering 
 or building works ; of the threatened or reasonably appre- 
 hended misapplication of money held in a fidu(;iary character ; 
 in cases of nuisance, or of hasty sales prima facie improper; 
 and of other acts of a like nature. They are rarely, though 
 sometimes, granted in cases of invasion of patent or copy- 
 right ; or of other invasions of rights resolving themselves 
 into mere pecuniary rights, where the only injury done by 
 the respondents, is one which may be compensated by an 
 account and payment. An ex parte motion for an injunction 
 cannot be made till a bill has been filed ; (it will be recol- 
 lected that an injunction bill may still be written on parch- 
 ment and filed according to the old practice.) The motion 
 should be supported by affidavits verifying all the material 
 allegations of the bill. Usually the plaintiff is expected to 
 make such an affidavit to the extent of his knowledge or 
 belief, and If facts are alleged which are not in the positive 
 knowledge of the plaintiff' personally, they should be verified 
 by the allidavit of the persons in whose knowledge they are. 
 It is particularly material In preparing Instructions for an 
 injunction bill Intended to be the fi)undation of an ex parte 
 injunction, that the plaintiff's solicitor should thoroughly 
 examine his client as to all the facts, as an ex parte injunc- 
 tion will be dissolved as of course on the defendant's appli- 
 cation, without reference to the further merits shown on the 
 part of the plaintiff on that application, if it appears that 
 the court was, on the original motion, either misled or even 
 kept in the dark, whether designedly or inadvertently, on any 
 material fact, that Is, on any fact forming part of the ground
 
 56 NEW EQUITY PRACTICE. 
 
 of the order: (1 Myl. & Cr. 210, 2U, Hilton v. Lord 
 Granville, 4 Beav. 130) ; and the plaintiff must come to 
 the court quickly on the discovery of his right : (^Barker v. 
 North Staffordshire Raihoay Company, 12 Jur. 589.) When 
 the order is made, notice of it should be instantly, or with 
 the least practicable delay, given to the respondent by send- 
 ing to him a copy of the order as pronounced by the 
 court, without waiting for drawing up the order regularly. 
 In practice an order for an injunction, rarely is, though strictly 
 it should be, drawn up regularly, for the defendant being 
 bound to obey the order if he is in fact apprised of it in any 
 manner, though he should not have been so apprised by the 
 plaintiff himself, usually either obeys it, which makes all 
 further proceedings unnecessary, or proceeds in the regular 
 course to move to dissolve it, in which case drawing it up 
 becomes equally unnecessary for practical purposes. If, 
 however, the defendant does not at once obey the injunc- 
 tion, and does not give speedy notice to dissolve, the 
 plaintiff should, without delay, proceed regularly to draw 
 up his order and get the injunction sealed, and serve it on 
 the defendant or his solicitor ; for if he has not done so 
 with due diligence after obtaining it, it will prejudice his 
 right to obtain nn order to commit the defendant for con- 
 tempt for breach of the injunction ; though it seems a party 
 may be committed for an injunction without production of 
 the writ: [M'Neil v. Garratt, 1 Cr. & Phil. 98.) When 
 there is any doubt or difficulty about the completeness of 
 acceptance, of service by the defendant's solicitor, an order 
 for an injunction should be served personally on the de- 
 fendant. 
 
 Before the 15 &']6 Vict. cap. 86, there could be no such 
 thing as an ex parte motion for an injunction to stay pro- 
 ceedings at law except under the most special circum- 
 stances : (see Drummond v. Pigou, 2 Myl. & K. 168; 
 Mansfield v. Shaw, 3 Mad. 100.) But the 58th section of 
 that statute enacts " that the practice of the Court of 
 Chancery for the stay of proceedings at law, shall, so far as 
 the nature of the case will admit, be assimilated to the 
 practice of such court with respect to special injunctions 
 generally, and such injunctions may be granted upon inter- 
 locutory applications supported by affidavit, in like manner 
 as other special injunctions are granted by the said court." 
 
 And by the 45th Order of August, 1852, " no injunction 
 for stay of proceedings at law is to be granted as of course 
 for default of appearance or answer to a bill." As under 
 the statute and this order, injunctions to stay proceedings
 
 NE EXEAT. 57 
 
 at law appear to bo entirely assimilated to special injunc- 
 tions, that is, as they are only to be prantable on merits, 
 it seems to follow that on suliicient merits, that is, not only 
 a sufficient ecjuity disclosed, but also a case made of pressing 
 emergency, an injunction to stay proceedings at law might 
 now be made on an ex parte application. However, bear- 
 ing in mind that the court did before the act, possess the 
 power to grant an injunction to stay jn'oceedings at law on 
 merits before any default by the defendant, but refused to 
 exercise that power except under very special circum- 
 stances, it may be thought that the court will not now 
 grant ex parte injunctions except in cases to which the prin- 
 ciple laid down in Drummond v. Pigou, and Mansjield v. Shaw 
 (cited sup?-d) would apply. 
 
 The next class of motions of importance which may 
 be made ex parte^ are motions for a ne exeat regno. An 
 application for a ne exeat is an application to restrain 
 a defendant from quitting the kingdom, on the allegation that 
 the plaintiir has an equitable pecuniary demand against him, 
 and on allegations of fact showing that he intends to 
 depart, and will so evade his liability. It may also be 
 granted on a claim for alimony, where there has been a 
 decree for alimony not appealed from : (Shnftoe v. Sha/toe, 
 7 Ves. 171 ; Street v. Street, 1 Turn. & R. 322.) An 
 application for a ne exeat is of necessity ex parte ; since, if 
 the facts of the bill are true, the defendant would, of course, 
 defeat the motion by instant departure, if any notice, how- 
 ever short, were given to him. It must bo supported, on 
 the question of intention to depart, by affidavits pointing 
 precisely and specifically to facts from which the court can 
 itself infer whether there is or is not a reasonable probability 
 that the respondent intends to depart. 
 
 Proved threats or declarations by the defendant of his 
 intention to go abroad are sufficient ; so will sometimes the 
 plaintiff's evidence of belief, grounded on information derived 
 from others who, from their position, could not be expected 
 
 to come forward to make affidavits: (Colliiisonv. , 
 
 18 Ves. 353.) But mere information of an intention of the 
 plaintiff consistent with an intention of going or of not 
 going abroad will not do: {Oldham v. Oldham, 7 Ves. 
 409 ; see also Darhj v. Nicholson, 1 Dr. & War. 66.) On 
 the other hand, facts evidencing an intention to depart, 
 though there be no proof of declaration of such an intention 
 will be sufficient : (Amsinck v. BarUuy, 8 Ves. 594 ; 
 McGauran v. Furnell, 1 Sauss. & Scul. 263.) Nor is it
 
 58 NEW EQUITY PRACTICE. 
 
 necessary to show that the intended going abroad is with 
 intent to avoid process ; the principle is that if the effect will 
 be to endanger the debt, the writ may be granted ; but the 
 affidavit must go to that: {Stewart v. Graham^ 19 Ves. 
 313 ; Boehm v. Wood, 1 T. & Russ. 332.) 
 
 As to the existence of the debt, that must be positively 
 sworn to, and the court must be satisfied that the deponent's 
 knowledge is positive and personal, and not derived from 
 information by others : (Roddam v. Hethermgton, 5 Ves. 
 91 ; Jackson v. Petrie, 10 Ves. 164.) The affidavit must 
 show a certain sum due, that is, either a specific sum actually 
 due; or, if the bill is for an account, a certain balance due 
 on taking the account. If, therefore, the plaintiff in the 
 latter case will pledge himself to so much being due, he may 
 have the writ {Rico v. Gaidtier 3 Atk. 501 ; Butler v. 
 Butler, " Beames on NeEx." p. 52; Jackson v. Petrie, 10 
 Ves. 164), but if he states the grounds of his belief, and the 
 result of them is that so much as he swears is due, does not 
 appear clearly to be due, then the motion will be refused 
 {Flack V. Holm, 1 Jac. & W. 405) ; and see also as to necessity 
 of stating the debt with certainty, Whitehead v. Bennett, 
 10 Jur. 3. 
 
 To support the application the plaintiff's solicitor must be 
 provided with the Writ and Record Clerk's certificate of the 
 bill being filed ; a written bill praying a }ie exeat may be filed 
 (15 & 16 Vict. cap. 86, sect. 6) ; but as this only applies to 
 a bin praying a ne exeat, a ne exeat applied for, as it may be, 
 on a bill not praying the writ, must be on a printed bill. A 
 motion for a ne exeat, like an ex parte motion for an uijunc- 
 tion may be made at any time, in or out of term, and in 
 open court, or before the judge wherever he is ; but if the 
 order is obtained in the absence of any Registrar, care should 
 be taken to procure the order taken by counsel to be signed 
 by the judge. 
 
 The order, when obtained, must be drawn up, passed, and 
 entered, and then the plaintiff makes out the writ and pro- 
 cures it to be sealed by the Clerk of Records and Writs, 
 who will seal it on production of the order. 
 
 The following is the form of the writ : — 
 
 Victoria, &c. To our Sheriff of , greeting. 
 
 Whereas it is represented to us in our Court of Chancery, on the 
 part of A. B. complainant, ajjainst C. D. defendant famongst other 
 tbings_), that he the said defendant, is greatly indebted to the said
 
 NE EXEAT. 59 
 
 complainant, and designs quickly to go into parts beyond seas (as by 
 oath made in that behalf appearing), which tends to the great preju- 
 dice and damage of the said complainant, therefore in order to prevent 
 this injustice, we do hereby command yon, that you do without delay, 
 cause the said C. D. personally to come before you, and give sufficient 
 bail or seourity in the sum of £ , that he ihe said C. D., will not go 
 or attempt to go into parts beyond sea, or to Holland without leave of 
 our said court. And in case the said C. I), shall refuse to give such 
 bail or security, then you are to commit him the saidC. D., to our 
 nest prison, there to be kept in safe custody until he shall do it of his 
 own accord. And when you shall have taken such security, you are 
 forthwith to make and return a certificate thereof to us in our said 
 Court of Chancery, distinctly and plainly, under your seal, together with 
 this writ. 
 
 Witness, ourselves. &c. 
 
 The writ must be marked on the back for the sum named 
 in the order made by the court. 
 
 The writ is delivered to the sheriff who executes it. 
 
 XIII. Of motions made on notice. 
 
 When an application by motion is of a kind which requires 
 notice, the first step is the preparation of the notice of motion, 
 which is usually prepared by the plaintiff's solicitor ; the 
 notice of motion is headed by the title of the cause, and is 
 addressed at the foot to the solicitor of the respondent. 
 It should state precisely on whose behalf and against 
 whom the motion is to be made, as, in strictness, a motion 
 brought on, without clearly stating these matters on the 
 notice of motion, may be refused at once with costs. The 
 court certainly leans against so strict a proceeding, and 
 will frequently allow the motion to stand over for the 
 notice to be amended \ but there are not wanting in- 
 stances where such motions have been simply refused 
 with costs. The notice should also state accurately the 
 particular relief intended to be asked, as a respondent 
 has a right to know what claim it is that he is called upon 
 to answer, and the court will rarely make an order de- 
 parting materially from the order asked by the notice of 
 motion. It is not, however, necessary in a notice of motion 
 to ask for costs, unless the particular object of the motion la 
 costs, such as to discharge a particular order with costs.
 
 60 NEW EQUITY PRACTICE. 
 
 The following is the usual form of a notice of motion : — 
 
 In Chancery. 
 
 ("A., B., C, and D., plaintiffs, 
 Between -( and 
 
 (.E. F., and others, defendants. 
 
 Take notice, that this Honourable Court will be moved by Mr. 
 ('), before his Honour the , on {insert the day), or so 
 
 soon after as counsel can be heard on behalf of the above named , 
 
 that {here insert the particular order intended to be asked.) 
 Yours, &c., 
 
 (solicitor of the party moving.) 
 To Mr. {name of respondents' solicitor.) 
 
 A notice of motion may, and sometimes ought to embrace 
 several objects {Haiche v. Kemp, 3 Beav. 288.) 
 
 The notice of motion, being prepared, must be served on 
 the respondent's solicitor two clear days before the day 
 named in the notice for the motion to be heard ; and regu- 
 larly all notices of motion should be given for a seal day, 
 that is, for one of the days fixed at the commencement of 
 each sittings of the court for hearing motions. But if the 
 matter is pressing, leave may be obtained by an ex parte 
 application to the court, to serve notice of motion for any 
 other day and with a less interval than two clear days of 
 ser\ace. 
 
 Whenever leave is thus obtained to give what is called 
 special or short notice, the notice of motion must express on 
 the face of it, that it is hy leave of the court given on such 
 a day. If it does not, the respondent may either disregard 
 it, or appear on the motion and ask that it may, on that 
 ground alone, be refused with costs, and it will in general, 
 be so refused. 
 
 A notice of motion may require to be served on 
 other parties besides the particular party against whom 
 the order is asked, whether a motion be by the plain- 
 tiff against one or more defendants, or by one or more 
 defendants against plaintiffs, or by defendants against co- 
 defendants; in either case the motion made against one 
 party, may so involve the interests of other parties, as to 
 give them a right to be heard upon it ; and the general rule, 
 therefore, as to who ought, to be served with a notice of 
 
 ( ' ) It is not necessary, but it is a frequent practice, to insert the name 
 of the counsel who is to move.
 
 MOTIONS ON NOTICE. 61 
 
 motion is this, that every person a party to tlic suit wliose 
 interests are directly or indirectly affected by the motion, 
 dufrht to be served with the notice. A motion will not, 
 however, in general be refused merely because all necessary 
 parties hitve not been served, but will be ordered to stand 
 over to serve the necessary parties. The service, where the 
 motion is for any process of contempt or commitment, must 
 be personal. In other cases it is on the solicitor of the 
 party alfected. If, however, the party affected is out of the , 
 jurisdiction, leave must be obtained on a special application. 
 As all motions requiring notice are made on merits, the}' 
 must be supported by evidence ; which is always in the first 
 instance by alfidavits. The usual and regular course is for 
 the party who makes the motion to file affidavits verifying 
 the facts on which he founds his motion. The affidavits must 
 speak in the first person (l'26th Order, May, 1845), other- 
 wise they will not be allowed in costs: (128th of same 
 Orders.) It is not necessary that the party filing affidavits 
 should give any notice of his having done so, as the respon- 
 dent must search in the affidavit office from the date of the 
 notice of motion. It is, however, not unusual in practice, 
 and it is a practice conducive to the despatch of business, 
 for the party moving to give notice to his opponent when he 
 has filed affidavits. The respondent, when he finds that 
 affidavits are filed by the other side, should immediately 
 bespeak office copies of them from the affidavit office, and 
 such copies must regularly be delivered out to him within 
 forty-eight hours of their being bespoken : (127th Order of 
 1 845.) Hawig obtained and perused copies of the aflidavits, 
 he may then take one or both of the following courses: he 
 may either file affidavits in opposition ; or he may content 
 himself with cross-examining his opponent's witnesses viva 
 voce; or he may do both.(') If he cross-examines his 
 opponent's witnesses, he obtains at the examiner's oflice an 
 appointment, and he must give to the solicitor on the other 
 side, fort^'-eight hours' notice of his intention so to cross- 
 examine, and of the time and place of examination : (36th 
 Order of August, 1852.) The witnesses must be served with 
 a writ of snbpcena ad testificandum, and it is presumed they 
 should be served also forty-eight hours before the day fixed for 
 the examination. The object of the respondent serving the 
 
 (') I ■Bill here observe, once for all, that throughout this work 
 authorities will not be cited for every proposition well established in 
 every day's practice; but only, in general, in respect to matters either 
 of exceptional practice, or where there is or has been some conflict or 
 appai'cnt conflict of authority. 
 
 [CH.] ' G
 
 62 NEW EQUITY PRACTICE. 
 
 opposite party is stated (by the 34tb Order of 1852, -which 
 lias reference to the witnesses examined for the hearing of 
 the cause), to be that he may be present, which of course 
 means ibr the purpose of re-examining the witnesses if he 
 thinks fit ; the 37th Order, which relates exclusively to cross- 
 examination for the purpose of a motion, petition, &c., but not 
 for the hearing of the cause, does not contain that express 
 indication of intention ; however, it refers to the 34th Order, 
 and must, it is presumed, be taken to intend re-examination 
 as well as cross-examination. The practice, at any rate, is 
 that when a witness who has made an affidavit for an inter- 
 locutory application is called to be cross-examined in the 
 examiner's office, the party for whom he made the affidavit 
 is considered as entitled to re-examine him. The cross-ex- 
 amination and re-examination of a witness under such circum- 
 stances are conducted before one of the examiners of the court, 
 (or if a special examiner is required and appointed, before 
 the special examiner) in exactly the same manner as I have 
 already explained in reference to an oral examination of the 
 witnesses, after issue joined (see ante, p. 41 et seq.)^ and the 
 record of the depositions is made up and transmitted to the 
 Record Office by the examiner in the same way. 
 
 If the respondent also files affidavits in opposition, of which 
 the party moving must inform himself by searching in the 
 affidavit office from day to day (unless it has been arranged 
 between the solicitors on both sides that mutual notice of 
 filing affidavits shall be given), he may then file affidavits in 
 reply to the respondent's affidavits, and in practice is allowed 
 in such affidavits to go into new matter as well as matter 
 strictly in reply ; and the respondent may again file fresh affi- 
 davits in reply to the second set of affidavits, again going into 
 fresh matter if he thinks fit, and so on ; each party being at 
 liberty to file affidavits against those last filed by his opponent, 
 until both parties have thoroughly exhausted their evidence. 
 On every fresh set of affidavits, the party against whom they 
 are filed is entitled to cross-examine the witnesses viva voce. 
 There is no limit to the right of filing affidavits, provided 
 due diligence has been used by each party after the filing of 
 his opponent's affidavits ; and the court will never suffer a 
 motion to be heard so long as either party has filed affidavits 
 to which the other desires to reply before the motion is 
 heard ; for though strictly an affidavit, of which an office 
 copy has not been obtained before a motion has been 
 opened, cannot be read on that motion, yet the court will 
 rarely shut out the evidence, but will order the motion to 
 stand over for the other side to answer the affidavit if he
 
 AFFIDAVITS AND EXIIIHITS. 63 
 
 desires to do so. It Is nee Hess to observe tliat the result 
 of this practice is that, if considerable discretion is not 
 used by tlie solicitors of the respective parties, the evidence 
 on motions will run to a very jrrreat and most frequently 
 useless length, the expense arising from which may fall on 
 either or both of the parties to the motion. In general, the 
 party moving should carefully examine the affidavits fded in 
 opposition to those which he has originally tiled, and con- 
 fine his affidavits in reply strictly to a reply to the evidence 
 adduced by the respondent, and to such new facts as may 
 be strictly relevant ; and if the same rule is followed by the 
 respondent in filing affidavits in further opposition, it must 
 be a very exceptional case in which two sets of affidavits on 
 each side will not entirely exhaust all the relevant evidence. 
 When both parties have gone into all the evidence that they 
 desire to tender, the motion may be heard and disposed of 
 by the com-t. 
 
 On the hearing of a motion, the brief to counsel consists 
 of a copy of the bill, the notice of motion, and of all the affida- 
 vits filed on both sides, and, if there has been any oral cross- 
 examination and re-cxamination of the witnesses, of copies 
 of the depositions, which are obtained i'rom the examiner's 
 office in the same manner as copies of depositions taken for 
 the hearing of the cause. Also, if there are exhibits, that is, 
 documents, accounts, models, or other things identified and 
 sworn to by the affidavits, the exhibits themselves, or copies 
 of such as are susceptible of being copied, should be 
 furnished to counsel. The form of proving exhibits by 
 affidavit is as follows : — " I have looked upon the exhibit 
 marked (A.) now produced and shown to me at the time 
 of swearing this my affidavit. It is {here sliortly describing 
 it.y The particular thing that is to be proved is shown 
 to the witness, who, having examined it, thus deposes in 
 his affidavit or oral examination. The exhibit is then 
 marked by the officer before whom the affidavit is sworn, 
 or by the examiner if the proof is oral, and forms part of the 
 evidence. Sometimes the pleadings, or parts of the plead- 
 ings form also a necessary part of the brief. The solicitors 
 on both sides on tiie hearing of a motion should be provided 
 with ofiice copies of all the evidence, as strictly no affidavit 
 can be used In court, unless an office copy has first been 
 obtained, and in the event of any dispute as to what the wit- 
 nesses have said, arising out of any inaccuracy in copying the 
 evidence for the brief, the court will only look at oflice copies. 
 
 It occurs but rarely in practice that a motion involving 
 any considerable amount of evidence can be heard on the 
 G 2
 
 64 NEW EQUITY PRACTICE. 
 
 (lay for which it is originally fixed by the notice of motion ; 
 but, unless by arrangement the motion stands over to a later 
 day, briefs should be delivered always at the latest on the 
 day preceding the day fixed by the notice ; and the respon- 
 dent should in practice never fail in this. 
 
 A motion, according to its importance, maybe intrusted to 
 one or more counsel ; and for a motion involving any material 
 and difficult question of law or practice, encumbered with any 
 substantial amount of conflicting evidence, briefs to leading 
 and junior counsel will always be allowed in taxation ; 
 the principle is one of public .policy, not of mere private 
 convenience: {Cooke v. Turner, 12 Sim. 649-) Moreover, 
 the parties are not bound, in reference to the costs allowed 
 in taxation, to confine themselves to the counsel practising 
 at any particular bar, and it is therefore presumed they 
 need not confine themselves to the counsel practising in a 
 particular court at the same bar. On a motion made in 
 vacation, a special fee to the Attorney-General, ordinarily 
 practising at the Common Law bar, was allowed in taxation, 
 although it was in evidence that several leading counsel 
 practising at the Chancery bar were in town, and accessible 
 without a special fee: (Nicholls v. Haslam, 15 Sim. 49.) 
 On the hearing of a motion, no affidavit can in strictness 
 be received, unless an office copy of it has been obtained 
 before the motion is opened. But the court is now so 
 averse to shutting out any evidence which either party 
 considers material, that it will in general, if affidavits 
 have been filed by either party too late to be received, 
 order the motion to stand over for the other party to reply, 
 if he desires it. 
 
 Having thus given an outline of the proceeding by motion 
 on notice generally, I shall proceed to discuss somewhat 
 more minutely the particular motions of the most frequent 
 occurrence ; and first of motions for and to dissolve in- 
 junctions. 
 
 Motions yor Ivjunctions. 
 
 ^lotions for injunctions may be classed under two general 
 heads : motions to stay proceedings in courts of law or in 
 other courts, and motions to restrain the doing of acts inter 
 partes of a wrongful character. Bills may be filed for 
 general purposes ultra an Injunction, or exclusively or mainly 
 for an injunction ; but although a prayer for an Injunction 
 Is inserted In most bills of a certain class, such as, for example, 
 hostile bills for the administration of estates, or for any 
 suit in the progress of which It is anticipated that at some
 
 MOTIONS FOR INJUNCTIONS. 65 
 
 time an injunction may be required, in general, motions for 
 injunctions are only made in suits where the injunction ia 
 either the only relief of importance, or the most material 
 preliminary relief to be obtained. Of the latter class are 
 suits for staying procccilings at law. 
 
 ]\Iuch of the peculiarity of motions for injunctions to stay 
 actions at law, as distinguished from motions for injunctions 
 to restrain special acts of a wrongful nature, has been 
 abolished by the 15 & 16 Vict. cap. 86, sect. 58, and the 
 45th Order of August, 1852, noticed ante, p. 56. Thus, 
 no such motion can be now made as of course upon default 
 of the defendant in not appearing or answering; but it must 
 in every case be made upon the merits appearing on the 
 evidence adduced on both sides ; but if interrogatories have 
 been filed, and the defendant meets a motion for an injunc- 
 tion by aflidavits only, the plaintiff may be still entitled to an 
 injunction till the answer has come in : {Senior v. Pritchard, 
 1 6 Beav. 473, and see Lovell v. Galloway, 1 7 Beav. 1 .) 
 
 A motion for an injunction to stay proceedings at law is 
 also rendered now more difficult to be obtained, by reason 
 of the Common Law Procedure Act, 17 & 18 Vict. cap. 
 125, the 83rd clause of which enacts, that "it shall be 
 la^vful for the plaintiff or defendant in replevin in any 
 cause in any of the superior courts, in which, if judgment 
 were obtained, he would be entitled to relief against such 
 judgment on equitable grounds, to plead the facts whicli 
 entitle him to such relief by way of defence, and these courts 
 are hereby empowered to receive such defence by way of 
 plea," &c. 
 
 This clause has recently in equity been made the occasion 
 of refusing injunctions, on the ground that equity will pre- 
 sume that the Courts of Law will take notice of equities, 
 which before the act could only be administered in Chancery; 
 and therefore this court will now refuse to draw from the 
 courts of law to its own exclusive cognizance many cases of 
 which formerly it would have taken cognizance. Thus, in 
 Farehrother \ . TFeZcAmon (3 Drew. 122), the Vice Chancellor 
 in his judgment said : "The equity set up, as I understand it, 
 is this : a court of law will not recognise the validity of 
 their pleas (pleas of ecpiities by way of defence), unless the 
 payments are such as in strict legal sense can be treated as 
 set off. But, when I find that by the New Procedure Act 
 a defendant is allowed to defend by matter of equitable 
 defence, the very purpose of which enactment is to prevent 
 a party against whom an action is brought from being driven 
 to this court, it does appear to me that when a defendant 
 G 3
 
 66 NEAV EQUITY PRACTICE. 
 
 pleads such matter as I find here, I must assume that if the 
 facts are found in favour of the defendant, judgment must 
 also be in his favour ;" and an injunction, having regard to 
 the effect of the Common Law Procedure Act, was accord- 
 ingly in that case refused. 
 
 As it is not the province of this part of the work to go into 
 a minute consideration of all the equities that will support, 
 and are necessary to support, a bill to restrain proceedings at 
 law, I shall here content myself with pointing out the general 
 principles on which the court proceeds in such matters. 
 
 In order to support such a bill, the court requires, speaking 
 generally, that it should be shown that there are matters in 
 issue, which either by reason of the rules of the common law, 
 or by reason of the forms oi procedure of Courts of Common 
 Law, cannot be dealt with at law so as to do complete justice. 
 As an instance of the latter rule, if a marriage settlement is 
 made and executed, at law the rights of the parties must be 
 treated as definitively fixed by its terms ; and accordingly 
 (unless the Common Law Procedure Act has introduced a 
 different rule, on which point there is at present too little 
 authority to justify the venturing even of a suggestion) 
 a Court of Law would not allow as a defence to an action 
 brought under any of the legal covenants contained in the 
 settlement, that it was not made in pursuance of the inten- 
 tion and instructions of the parties ; but a Court of Equity 
 would, on being satisfied that it was so made contrary to the 
 intention, rectify it and cause it to be altered so as to carry 
 out the instructions of the parties, and would accordingly 
 grant an injunction to stay an action brought on any covenant 
 not so intended to be inserted. So, as an instance of the former 
 rule, though a court of law would be bound in an action of 
 ejectment to allow as a defence the existence in the defen- 
 dant of a term of years in the land, however inequitably 
 obtained, because the term has the legal title, a Court of 
 Equity would in many cases prevent such an action going 
 on in that form, and prevent the defendant at law fi-om using 
 his inequitably acquired legal title. Again, the rule of the 
 law is, that a deed under seal cannot be contradicted or 
 modified by any less solemn instrument ; and, consequently, 
 if a bond under seal were given, with a contemporaneous 
 agreement merely under hand, to suspend or modify its effect 
 at law, the parol agreement could not be looked at, and the 
 obligor would be bound by the letter of the bond. But 
 equity would restrain an action on the bond, having regard 
 to the intention of the parties nianifi'sted by the parol agree- 
 ment. So, if an obligation at law, joint and several, could be
 
 MOTIONS FOR INJUNCTIONS. 67 
 
 shown to have been intended by the parties to be joint only, 
 equity would restrain an action brought on it as a several 
 obligation, thougli at law such an action could not be resisted : 
 (^Otherv.Ioeson,'.\ Drew.177-) Again, in (juestions of account, 
 whicharc perhaps those in wliich must fre([uently injunctions 
 to restrain actions at law have been and still are sought, 
 although the Courts olLaw have jurisdiction and will exercise 
 it, yet, because the machinery of Courts of Law is in equity 
 assumed to be not so completely adapted to take complicated 
 accounts as tiiat of (/ourts of E(|uity, an injunction will 
 frequently be granted to restrain an action at law, where 
 there is not only a cross account, but a complicate<l account. 
 The principle on wiiich Courts of Equity have interfered in 
 matters of account has been in some cases assumed to be 
 this — that the court will interfere wherever there are mutual 
 accounts, that is, payments and receipts by each party for 
 the other party. But that does not seem, according to a 
 recent case (Fluker v. Taylor, 3 Drew. 1H5), to be the true 
 principle. In this case the court said such was not the rule ; 
 that if it was, the case of an ordinary banking account would 
 fall within it, and that the equity hi each case must depend 
 on the nature of the account ; that it depended on this, 
 whether the account is, not merely from number of items, 
 but from its own nature, so complicated, that this court 
 will say that such an account cannot be taken in a Court of 
 Law. (Sec also l^ajf Vale Railway Company v. Nixon, 
 1 CI. & Fin. Ill, as to when equity will, and when it will 
 not, interfere.) 
 
 The broad principle on which Courts of Equity interfere 
 by injunction to restrain proceedings in other courts, is to 
 be found in the case o? Duncan v. Mc Almont (3 13eav. 409), 
 in which an injunction was granted to restrain proceedings 
 m the Admiralty Court, on the ground that that court could 
 not so conveniently, directly, and effectually as this court, 
 compel the defendants to do all that was necessary for the 
 full and satisfactory investigation and determination of the 
 riglits of the parties. And this principle, although laid down 
 in a case in which the proceedings sought to be restrained 
 were in the Court of Admiralty, applies equally to proceed- 
 ings in Courts of Law, or in other courts. 
 
 When a bill is filed praying an injunction to restrain 
 proceedings at law, and a motion on notice is intended to 
 be made, the general form of the notice is now the same as 
 that of notice of motion for any other s[)ecial injunction ; 
 the operative part refers to the particular acticjn, and in 
 general asks that all actions may be restrained ; thus, where
 
 68 NEW EQUITY PRACTICE. 
 
 an action has been brought on a promissory note, the notice 
 will ask that the defendant may be restrained from prose- 
 cuting the said action, and from commencing or prosecuting 
 any other action on the said note. 
 
 This notice is also, like other notices of motion for special 
 orders, to be headed by the name of the cause, and addressed 
 to the solicitor of the defendant. It must also be served 
 two clear days before the day on which it is to be made, and 
 should in general be for a seal day ; but, by special leave, to 
 be obtained on an ex parte application, it may be for any 
 other day, and for a shorter date. The motion may be made 
 without reference to whether the answer (if an answer has 
 been required) has come in or not ; and is supported by ai£- 
 davits verifying the material allegations of the bill and any 
 other facts supporting those allegations. Formerly, as ob- 
 served already (p. 56), there was, with the rarest exceptions, 
 no such thing as moving for a special injunction to stay 
 proceedings at law before answer, though there might be 
 regularly a motion for that pm-pose when the answer came 
 in, upon the merits confessed by the answer ; but then the 
 motion was strictly upon the answer, and no affidavits could 
 be read in support of the bill against it. But now, by the 
 59th section of the 15 & 16 Vict. cap. 86, " upon application 
 by motion or petition to the court in any suit depending 
 therein for an injunction or a receiver, or to dissolve an in- 
 junction or discharge an order appointing a receiver, the 
 answer of the defendant shall, for the purpose of evidence on 
 such motion or petition, be regarded merely as an affidavit 
 of the defendant, and affidavits may be received and read in 
 opposition thereto." This is general, and of course applies 
 to a motion for an injunction to restrain proceedings at law. 
 The filing of affidavits and counter-affidavits, and replies 
 and counter-replies, almost without end, may then take place 
 in the manner pointed out in p. 62, in reference to motions 
 generally ; and the same rules of discretion which are there 
 referred to for limiting the superabundance of affidavits, 
 are recommended to the attention of the practitioner. 
 
 When a motion is made to restrain proceedings at law, it 
 is in the disci'etion of the court to grant the injunction simpli- 
 ciier, or to refuse it, or to grant it on terms. In taking either 
 of these courses, the court is guided as nearly as may be by 
 the same considerations which formerly governed it in sus- 
 taining or dissolving the common injunction, when, after an 
 order of course to dissolve, the plaintiff showed cause on the 
 merits confessed in the answer why the injunction should 
 not be dissolved.
 
 MOTIONS FOR INJUNCXrONS. 69 
 
 Before the 15 & 16 Vict. cap. 86, the course of practice on 
 injunctions to stay proccctlings at law was this: — After the 
 bill was filed, if the defendant, havinjf appeared, made 
 default in answering within eight days (the time allowed for 
 answering an injunction 1)111), the plaintill might obtain liy an 
 order of course the common injunction for staying the pro- 
 ceedings, that is, lor staying all proceedings, if a declaration 
 at law had not been delivered before the making of the order, 
 and for staying execution only, if declaration had been de- 
 livered. The defendant, on putting in his answer, was then 
 entitled to an order nisi, also obtained as an order of course, 
 to dissolve the injunction, unless the plaintiff on a subse(|uent 
 day showed cause why it should not be dissolved. On the 
 day appointed for showing cause, it might be of two kinds ; 
 one that the answer was insufficient, the learning relating to 
 which is now by reason of the assimilation of the answer 
 to an affidavit wholly inapplicable even as a guide, and need 
 not be further noticed ; the second, was that on the case 
 shown by the answer, taking it to be true, there was enough 
 of the equity of the bill admitted, to show that justice could 
 not be done if the injunction was not sustained. 
 
 The same principles which regulated the discretion of 
 the court on showing cause against dissolving the com- 
 mon injunction, will now, it seems, govern it on the ques- 
 tion of granting a special injunction to stay proceedings at 
 law. In Magnay y. The Mines' Royal Company (3 Drew. 
 130,) the Vice Chancellor, referring to the ancient practice, 
 said : " That practice is altered andthe plaintifl'is not entitled 
 as of course to an injunction ; on the contrary, he is bound 
 to make a special application supported by affidavits, so as 
 to show on the face of the evidence that the allegations of 
 the bill are well founded ; of course, this involves the con- 
 sequence that the defendant has a right to oppose on affidavit. 
 Now, it appears to me that the very intention of this altera- 
 tion goes to show that in substance what the court has 
 to determine on a motion of this sort is very much the same 
 as what it had formerly to determine on showing cause 
 against dissolving; that is, whether on the merits, looking at 
 the whole, there is a fair question to be reserved to the hear- 
 ing, and if there is, then whether in the meantime an injunc- 
 tion should be given, and on what terms." 
 
 Now, when under the old practice the whole equity of the 
 bill was explicitly and fully denied by the answer, the 
 injunction would clearly be dissolved (Furnival v. Boyle, 
 4 Russ. I42j; and so it is presumed an injunction would now 
 on the same principle be simply refused, if on the whole of
 
 70 NEW EQDIXr PRACTICE. 
 
 the evidence (tlie aflidavits, and oral depositions, if any, on 
 both sides) the e(juity of the bill is entirely displaced. 
 
 When an action has been brought to recover a sum of 
 money due at law under some legal title, as rent or money 
 due on a bond, a bill of exchange, or a promissory note, 
 and a bill is filed to restrain the action on grounds of equity 
 not cognizable or not so effectively cognizable in the action, 
 the court will not in general grant an injunction simpUciter^ 
 if there is any fair doubt whether the equity can be main- 
 tained at the hearing of the cause, but will only grant it on 
 the terms of the plaintiff (the defendant at law) submitting 
 to judgment at law, to be dealt with as this court shall 
 require, and bringing the money in the meantime into 
 court. The order is then, that the defendant undertaking to 
 deal with any judgment he may obtain as the court shall 
 direct, is to be at liberty to proceed to judgment, but is 
 not to sue out execution ; and the plaintifi' is ordered to pay 
 in the money by a day fixed. Either actual notice of the order 
 to the defendant, or constructive notice by the defendant or 
 his attorney being present when the order is pronounced, or in 
 court at the hearing of it, is sufficient to make it his duty to 
 submit to and obey it ; and there can be no doubt that any 
 disobedience of the order would be held a contempt of the 
 court, and subject the defendant to process of contempt, 
 provided there is no subsequent delay, on the plaintiff's part, 
 in getting the order drawn up and the writ sealed and served. 
 For regularly a writ of injunction should be sued out without 
 delay, after the order is made and duly served on the defen- 
 dant. The service ought to be either on the party enjoined 
 personally, or on some person substituted by an order of 
 the court. 
 
 The principle of the practice above stated, as applicable 
 to cases involving a mere claim for a money payment, 
 applies generally ; so that if the equity shown upon the result 
 of the evidence on both sides is not so clear as to induce the 
 court to see a probability, almost amounting to certainty, 
 that it will be sustained at the hearing, it will not put the 
 defendant (the plaintiff at law) in the position of losing the 
 advantage of judgment at law and speedy execution, unless 
 the plaintiff in ecjulty gives satisfactory security that if he 
 should in the end turn out to be wrong, the fruit of judg- 
 ment shall not be lost to the defendant. Jt will, therefore, 
 in such cases, put the plaintiff in equity on terms to give 
 judgment in the action to be dealt with as the court shall 
 direct ; and it will impose such other terms as any pecu- 
 liarities of the case may render necessary for securing to the
 
 5I0TI0NS KOU IXJUNCTIOXS. 71 
 
 plaintiiT at law tlie fruit which ho woulil Ijc entitlfd to reap 
 from judfiment at law, if it should turn out, on the hear- 
 ing of the cause in equity, that the decree is hostile to the 
 plaintiff. 
 
 Under the old practice, if a demurrer was put in to a bill, 
 it was irregular to obtain the common injunction pending 
 the demurrer ; the course was for the court to order the 
 demurrer to be argued immediately. As to motions for 
 special injunctions, if a demurrer was put in, and then a 
 notice of motion given, the practice was, on the day when 
 the motion would be regularly brought on to hear the de- 
 murrer first ; if the demurrer was overruled, then the 
 motion proceeded ; if the demurrer was allowed, of course 
 the motion failed. 
 
 A motion for an injunction to stay proceedings at law 
 standing now on the same footing as a motion for any other 
 special injunction, the course of practice on this point will, 
 it is apprehended, be a combination of the course under the 
 old practice where the common injunction miglit, if there 
 had been no demurrer, have been obtained, and of the course 
 then taken where a motion for d, special injunction was con- 
 templated ; viz., that the filing of a demurrer will be no bar 
 to a motion for an injunction ; but that the motion will not 
 be heard until the demurrer has been disposed of; and that 
 the court will, on the application to the plaintiff, direct the 
 demurrer to be advanced to be heard with the motion 
 whenever the motion may regularly be made and is ripe for 
 hearing. 
 
 Under the old practice the common injunction might be 
 obtained immediately, as of course, for default of answer, on 
 the overruling of a demurrer ; but on a motion for a special 
 injunction of any kind, a demurrer being filed, the course 
 was, first to hear the demurrer, and if that was overruled, 
 then (as observed above) to hear the motion on the merits ; 
 for it did not follow that, because the bill was not demurrable, 
 therefore, a special injunction, resting on the judicial dis- 
 cretion of the court, would be grantable. And this, it is 
 presumed, nmst be also the practice now, as applied to mo- 
 tions for injunctions to stay proceedings at law. 
 
 It may here be noticed that, on a motion to dissolve an 
 injunction, an objection may be taken that the bill is demur- 
 rable (Hudson V. Maddison, 12 Sim. 416), and it is pre- 
 sumed that in like manner such an objection may be taken 
 without a demurrer actually filed, on resisting a motion for 
 an injunction.
 
 72 NEW EQUITY PRACTICE. 
 
 Injunctions to stay proceedings in other Courts. 
 
 Injunctions may also be obtained to stay proceedings in 
 other courts, besides the Courts of Common Law, such as the 
 Ecclesiastical Courts ; the Court of Admiralty ; in what 
 are termed relatively foreign courts, such as the Irish Courts 
 of Equity, the Courts of Scotland, and the subordinate and 
 local Equity Courts of this country ; and even in strictly 
 foreign courts, that is, courts abroad. In fact, with 
 certain exceptions which will be noticed, it is difficult to say 
 to what the jurisdiction of equity to restrain any proceedings 
 in other courts do not extend ; because the jurisdiction is 
 founded, uot on any right of interference with the foreign 
 tribunal itself, a right which the Court of Chancery wholly 
 disclaims, but on the right of the court over the person of 
 any suitor, who is jjersonally, or in respect of his property, 
 within the local jurisdiction of tliis court, to restrain him 
 from doing that which is inequitable. The authorities on 
 this point are numerous and explicit : {Hill v. Turner ., 
 1 Atk. 516; Jarvis v. Chandler., 1 Turn. & R, 319; Glasscot 
 V. Lang., 3 Myl. & Or. 451 ; Lord Portarlington v. Soidhy, 
 S Myl. & K. 104 ; Clarke v. Earl of Ormonde, Jac. 108.) 
 
 The exceptions to the exercise of this jurisdiction of the 
 court are as follows: — The court has not jurisdiction to 
 restrain proceedings in an award — where the submission to 
 arbitration has been or maybe made a rule of a Court of Law : 
 (see Nicholls v. Roe, 3 Myl. & K. 431.) It has not jurisdic- 
 tion to Interfere against obtaining probate of a will of person- 
 alty in the Ecclesiastical Court on the ground of fraud or 
 otherwise : (see Allen v. Mc Pheison, 1 Phil. 133, in which the 
 learning bearing on this matter is collected in the judgment.) 
 Possibly in a case of fraud in obtaining a will, or a benefit 
 under a will, the jurisdiction of the court might attach on 
 the fraudulent donee, the character of a trustee for other 
 parties ; but this even seems very doubtful : {Hindson v. 
 Weatherill, 18 Jur. 499.) The court will not interfere to 
 prevent proceedings in Parliament after the reception of a 
 bill by either House {Attorney -General \. Manchester and 
 Leeds Railway Company, 1 Rail. Cas. 436), and semble, 
 that it has not even jurisdiction to restrain parties from 
 petitioning the Legislature : (1 Rail. Cas. 458.) These are, 
 I believe, all the cases of strict exception to the jurisdiction 
 of the Court of Chancery to restrain proceedings in other 
 courts.
 
 MOTIONS FOR INJUNCTIONS. 73 
 
 Tiijinictiojis to restrain wrongful acts. 
 
 The principal heads of the equity for granting injunctions 
 to restrain wrongful acts inter partes, as distinguished i'roni 
 inequitable proceedings in other courts are, waste ; infringe- 
 ment of copyright, and of patent rights ; the inequitable 
 publication of secret inventions ; the inequitable use of 
 names or trade marks; nuisance; breach of agreement 
 generally ; and, in particular, breach of I'arliamentary agree- 
 ment, that is, infraction of the clauses of acts of Parliament, 
 which are treated as contracts between the public and the 
 individuals in whom powers are vested by the act. 
 
 On filing bills and moving for injunctions in all these 
 matters, the general course of proceeding is the same, and 
 is that which has been already pointed out in this section 
 in reference to motions on notice generally, and to motions 
 under the modern practice to restrain proceedings at law in 
 particular. But in respect to some of these motions, there 
 are a few peculiarities arising out of the nature of the sul)jcct, 
 which require to be borne in mind. Thus, as to the evidence 
 in support of thein, in all cases the merits must be verified 
 by evidence in support of the bill. That is, the title of the 
 plaintiff and the acts of injury must be proved ; but in 
 support of a motion by a patentee, there is this peculiarity ; 
 if it is made ex parte, the plaintiff" must swear not merely 
 that he believed himself to be the true inventor at the time 
 when he obtained the patent, but that he so believes at the 
 time of making tlie affidavit. That is quite settled : (Sturg v. 
 De la Rue, 5 lluss. o22.) It is not, however, quite settled 
 that when he moves on notice, such an affidavit is necessary : 
 (Neilson v. Thompson, 1 Web. E^at. Cas. 27G,n.(a) However, 
 in the present state of the authorities, the prudent practitioner 
 will not dispense with the affidavit being in conformity with 
 Sturg V. DelaRne. On a motion for an injunction to restrain 
 infringements of copyright, it is not strictly necessary to 
 prove a legal title ; an equitable right to have a legal title 
 is sufficient (Sweet v. Shaic, 3 Jur. 217; Sweet v. Cater, 
 5 Jur. 68 ; Chuppell v. Furday, 4 Y. & Coll. Eq. Exch. 485 ; 
 Bohn V. Bogue, 10 Jur. 420), and if proceedings at law are 
 directed, the defendant will be put on terms to admit thelegal 
 title of the plaintiff; but if the plaintiff' is an assignee of the 
 copyright, the assignment must be proved : {Power v. Walker, 
 3 Man. & Selw. 7 ; Davidson v. Bohn, 12 Jur. 922.) 
 
 This distinction also is to be noticed. In all those cases 
 in which the plaintiff claims under a jjurely legal title or 
 right, as in cases of patent or copyright ; nuisance ; breach 
 [cn.] 11
 
 74 NEW EQUITY PRACTICE. 
 
 of a legal contract, &c., the court may or may not grant an 
 injunction ; but it never -will grant an injunction without 
 putting the legal right (if the defendant desires it) in course 
 of trial at law : (see Bacon v. Jones, 4 Myl. & Cr. 433 ; 
 Harman v. Jones, 1 Cr. & Phil. 299 ; Swallow v. Wallinford, 
 12 Jiir. 403 ; Sancster v. Foster, 1 Cr. & Phil. 302. Wilson 
 V. Tindal, Web. Pat. Case, 730, does not seem on this point 
 to be law.) 
 
 On a motion, therefore, for an injunction to restrain in- 
 fringement of patent or copyright, or of any other right being 
 a purely legal right or title in the plaintiff, he must always 
 be prepared to undertake, as the price of an injunction, 
 to take proceedings at law to establish his title, if it is ques- 
 tioned by the defendant. But this rule does not apfjly to 
 sul)jects of injunction where the contest rests on purely 
 equitable principles. Thus, in a case of alleged fraudulent 
 imitation of a name, or of trade marks, or of the fraudulent 
 publication of secret inventions, the ground of interference 
 is not properly the title of the plaintiff, which may or may 
 not be a right of property, but the fraud of the defen- 
 dant ; and the court grants or refuses an injunction 
 without requiring or adverting to any proceedings at law : 
 (see the cases of Perry v. Trvejit, 6 Beav. 66 ; Crojt v. Doy, 
 7 Beav. 84), so in the case of Attorney- General v. Strange, 
 (1 Macn. & Gord. 25 ; see p. 48); although the injunction 
 was granted on the principle of a prima facie right of 
 property in the plaintiffs in the description of their unpub- 
 lished etchings, yet the court refused to direct proceedings 
 at law, because, independently of that ground, the defendant 
 was guilty of fraud, and that alone was sufficient to support 
 an injunction, whether the legal title was sustainable or not. 
 
 Of opposing motions for injunctions. 
 
 The mode of conducting the opposition to a motion for an 
 Injunction is very simple. When the defendant's solicitor 
 has been served with the notice of motion, he procures office 
 copies of the afiidavits filed by the plaintiff, and to these he 
 may either reply at once by affidavits contradicting them ; or 
 he may content himself with cross-examining the plaintiff's 
 witnesses in the examiner's office; or he may take both 
 courses concurrently. If the time given by the notice of 
 motion is not, as it rarely is, sufficient for either of these 
 purposes, he gives his counsel a brief to oppose the motion, 
 consisting of the bill and the notice of motion, and instructs 
 him to appear and ask for time to answer the affidavits, which
 
 INJUNCTIONS. 75 
 
 is <jrantcd as of course. Whenever, by the process already 
 pointed out (p. G2), both parties have thorouglily exhausted 
 all the evidence that they can procure, the defendant will 
 then allow tiie motion to come on. If the order for an in- 
 junction is made, his course is either to submit to it, if he is 
 advised that the judgment will be maintained, or to appeal. 
 For a motion to dissolve an injunction before the judge who 
 granted it is, in practice not to be made when the injunction 
 has been granted after hearing both parties, but only when 
 the injunction has been granted ex parte. 
 
 The proper course for getting rid of an injunction obtained 
 ex parte is to move on notice to dissolve it. A motion to 
 dissolve an injunction is prepared and conducted on the 
 same principles, and as nearly as may be in the same 
 manner, as a motion for an injunction. The formal parts of 
 the notice are the same as on notice of motion ; the opera- 
 tive part being " that the order made by this Honourable 
 Court on the ( ) day of ( ), may be discharged, 
 
 or otherwise may be varied as this court shall think fit." 
 The defendant's solicitor, in preparing for the motion, pro- 
 cures office copies of the affidavits fded in support of the 
 original motion, and replies to them, and he may also cross- 
 examine upon them if he thinks fit ; and the motion comes 
 on when, and not till, both parties have filed all the affi- 
 davits that they deem requisite. 
 
 Under the old practice, whether on moving for or to dis- 
 solve an injunction, and whether the injunction was to stay 
 proceedings at law or a special injunction inter partes., there 
 was much intricate learning on the subject of what affida- 
 vits might and what might not be I'ead, when the defendant 
 had filed an answer ; making it sometimes of great practical 
 importance on behalf of a defendant to file an answer as 
 quickly as possible, whether it was to meet a motion for 
 an injunction or to support a motion to dissolve. For if the 
 title to file a bill rested on allegations which could be posi- 
 tively denied by the defendant by his answer, in general 
 the plaintiff could read no affidavit against the answer, and 
 the answer, however much it might be in conflict with 
 e'vidence which the plaintifT might be ready to adduce, put 
 him at once out of court. But there were a variety of 
 fine distinctions limiting or modifying this right of the 
 defendant. All this intricate learning and its consequences 
 on the practical steps to be taken, are however now ren- 
 dered unnecessary and Inapplicable by the .59th section of 
 the 15 & 16 Vict. cap. 86, providing that "upon application 
 by motion or petition to the court in any suit depending 
 H 2
 
 76 NEW EQUITY PRACTICE. 
 
 therein for an injunction or a receiver, or to dissolve an in- 
 junction, or discharge an order appointing a receiver, the 
 answer of the defendant shall, for the purpose of evidence 
 on such motion, be regarded merely as an affidavit of the 
 defendant, and affidavits may be received and read in opposition 
 thereto.'''' 
 
 It is therefore now, subject to the doctrine of the two 
 cases cited in p. 65, quite immaterial to the defendant, 
 having to resist a motion for an injunction, whether to re- 
 strain proceedings at law or for any other purpose, when he 
 files an answer; or, indeed whether, he files an answer or not, 
 or only afiidavits ; and it is equally immaterial to the plaintiti 
 whether the defendant has or has not filed an answer ; or, if 
 he has, whether it was filed before or after any of the plain- 
 tifTs affidavits ; or whether it goes to matter of title or only 
 to matter of fact : (see on the old learning, Norway v. Rowe, 
 19 Ves. 147; Manser v. Jenner, 2 Hare, 600; Lloyd v. 
 Jenkins, 4 Beav. 230 ; Roche v. Mathews, 12 Jur. 643, and 
 2 De G. & Sm. 227.) 
 
 The 59th section of the 15 & 16 Yict. cap. 86, only speaks 
 of affidavits, and does not in express terms say that oral 
 evidence may be read against the defendant's answer ; but 
 since It entirely reduces the answer to the condition and value 
 of an affidavit, and since oral evidence may clearly be read 
 against any ordinary affidavit, it is presumed that no ob- 
 jection could be taken to the reception of oral evidence 
 against an answer, and the unchallenged course of practice 
 has been, since the 15 & 16 Vict. cap. 86, to treat all the 
 evidence on both sides, whether answer, affidavit, or oral 
 evidence, as equally admissible. 
 
 It may be useful here, although it is not usual in books of 
 practice to go into such matters, to allude to the particular 
 kind of special evidence that should be procured on some 
 motions for ami to dissolve injunctions touching wrongful 
 acts inter partes, particularly as on the most usual of such 
 motions, the evidence has not unfrequently to be prepared 
 in great haste in the country, without an opportunity being 
 afforded to the solicitors of the parties of advising with 
 counsel on the evidence. 
 
 On a motion for an injunction to restrain the infringe- 
 ment of a patent, of course the allegations of the plaintifTs 
 title must be particularly, and the allegations of acts of 
 infringement must be generally, verified by the affidavits. 
 But as the defence to infringement of a patent is generally . 
 in addition to any legal objection to the title, and whether the 
 legal title to the patent is or is not principally relied on,
 
 EVIDENCE ON INJUNCTIONS. 77 
 
 that there is some considerable distinction between the 
 machinery or ])rocess used by the dofend;int and that used 
 by the plaintill', the evidence of eoinj)L'(ent men of science, or 
 practical knowledge, should always be obtained to show the 
 similar it 1/ of the two machines or processes. Wiien the sub- 
 ject-matter of the invention is machinery, if there is in it 
 any degree of complication, it should be exemplified by 
 aj\ actual machine, or by a working model, proved as an 
 exhibit, as the explanations afforded by the specification 
 and {)lans filed by a patentee, however intelligible to practi- 
 tical mechanics, are not always understood by judges and 
 counsel. Tiie peculiar character, that is, the specific feature 
 of novelty and merit of the patented invention sliould always 
 be distinctly and prominently brought forward in the affi- 
 davits. And the affidavits should not use purely technical 
 terms of art, without explanation; for though judges and 
 counsel are usually possessed of considerable scientific infor- 
 mation, they are not and cannot be expected to be acquainted 
 with the particular technical terms used by mechanics and 
 other persons practising special arts; and it not unfre- 
 quently happens that the rights of the patentee or his 
 opponent, as the case may be, are perilled or lost by reason 
 of the inadequacy of tiie affidavits to explain and present 
 clearly to the mind of the court, the particular things and 
 operations intended to be designated by the witnesses. 
 
 In support of a motion to restrain infringement of copy- 
 right, in addition to the general and what may be termed 
 formal evidence of title and infringement, the plaintiff's 
 solicitor should always carefully examine the piratical work 
 and compare it with the original, and procure evidence to 
 show particular similarities, and especially similarity of 
 errors, a point much relied upon by the decided cases as 
 showing plagiarism. All models, books, drawings, and other 
 things intended to be produced to the court as evidence of 
 things, in addition to the depositions as to facts, must of 
 course be proved as exhibits. 
 
 Oral evidence in court cannot be taken on motions for 
 injunctions (nor indeed on any interlocutory applications) 
 except by consent; the 40th section of the 15 & 16 Vict. 
 cap. 86, which is applicable to interlocutory proceedings, 
 applying only to oral examination before an examiner; and 
 the 39th, which authorizes the taking of oral evidence by 
 the court itself, applying only to the hearing of the cause; 
 this point is not, I believe, to be found laid down in any 
 reported case, but it has been repeatedly so held, and the 
 practice is accordingly. 
 
 H 3
 
 7H NEW EQUITY PRACTICE. 
 
 "When a motion is made for an injunction to stay wrongful 
 acts inter partes^ on an ex parte inj unction having been granted, 
 and a motion is made to dissolve it, the court sometimes 
 grants or sustains the injunction with or without conditions; 
 and sometimes refuses it, but puts the defendant on terms. 
 On a motion to restrain infringement of a patent, the usual 
 course is, if the patent is of long standing, and particularly 
 if its validity has already been successfully maintained at 
 law, to grant an injunction, putting the plaintiff on terms to 
 bring an action, if the defendant disputes the validity of the 
 legal title, and desires an action. If the patent is but of 
 recent date, and has not been tried at law, the more usual 
 course is to make no order either for or refusing an injunc- 
 tion ; but to direct the motion to stand over, with liberty to 
 the plaintiff to bring an action, and to put the defendant on 
 terms to keep an account in the mean time. In cases of copy- 
 right, the direction of a trial at law is in practice less fre- 
 quently to be anticipated; copyright being a patent legal title, 
 which only in exceptional cases can be the subject of doubt, 
 so that proceedings at law are in general only directed when 
 the, fact of imitation is on the evidence so far doubtful that a 
 Court of Equity considers it necessary to send it to a jury. 
 But when the validity of the legal title is called in question, 
 as in the case of Ollendorf v. Black (4 De G. & Sm. 209), 
 the course of the court in respect of copyright is the same 
 as in respect of patent right. In cases of nuisance, the right 
 of the plaintiff rests not on his own special legal title, but 
 on the illegality of the act of the defendant. An injunction 
 is therefore, in such cases, sought rather in opposition to a 
 prima facie legal right in the defendant, than in support of 
 a prima facie legal right in the plaintiii'. And accordingly, 
 in this class of cases, the court not only never grants an in- 
 junction without directing proceedings at law, but very 
 rarely will grant it until the nuisance has been established 
 at law. In Walter v. Selfe (15 Jur. 416), the court by 
 consent decided the question of nuisance without the pre- 
 liminary establishment of the nuisance at law. But I am 
 not aware of any case in which this course has been taken 
 adversely. 
 
 The court may still, and sometimes does, on a motion for 
 an injunction, direct an issue of fact to a court of law, 
 instead of an action ; but it has no longer power to direct a 
 case for the opinion of a court of law : (61st section of the 
 15 & 16 Vict. c. 86.) This and the subsequent section of the 
 act have been considered by the Profession as calculated to 
 lead to the determination by the court, on motions for in-
 
 COSTS OF MOTIONS FOR INJUNCTION'S. (9 
 
 junctions in aid of legal rights, of the legal question between 
 the parties. 'l"he G'ind section is as follows : — " In cases 
 where, according to the present practice of the Court of 
 Chancery, such court declines to grant equita])le relief until 
 the legal title or right of the party or parties seeking such 
 relief sliall have been established in n ])roceeding at law, 
 the said court may itself determine such title or right 
 without requiring the parties to proceed at law to establish 
 the same." 
 
 I am not aware, however, of any case in which the court 
 has strictly acted on this section, and until there shall be 
 authority on the subject, the practitioner must rather as- 
 sume tliat the Couits of Equity will not go further than they 
 did before the statute, in dispensing with the assistance of a 
 Court of Law to determine legal titles, in respect of which 
 equitable relief by injunction is sought. (') 
 
 The course of proceeding as to giving notice to the re- 
 spondent when an order for an injunction is made, and with 
 respect to the drawing up and serving the order, and ob- 
 taining and serving the writ of injunction, has been already 
 pointed out (p. 70.) When the order is made, the costs are 
 always made costs in the cause. 
 
 If a motion is successful, but afterwards the bill is dis- 
 missed with costs, the defendant will have, as part of his 
 costs, the costs of opposing the motion, because the result 
 shows that the motion never ought to have been made : 
 {Stevens v. Keating, 1 Macn. & Gord. 659.) 
 
 If a motion is refused, it will most frequently be refused 
 with costs ; and then the costs must be immediately paid 
 by the plaintiff, that is, the payment will not be postponed 
 until the general costs of the suit are disposed of; and a 
 motion for several purposes will be refused with costs if 
 the principal one fails . (^Stttrch v. Young, 5 Beav. 557) ; 
 but, if the circumstances between the conflicting parties are 
 so nearly balanced that the injunction is only refused on the 
 ground that more injury would be done by it to the defen- 
 dant, if he should turn out in the end to be right, than 
 would be done to the plaintiff by refusing it if he should 
 ultuuately turn out to be right ; or if there is any miscon- 
 
 (') In a case of Tfiomas v. Laji^rnt^gre, heard before Vice Chancellor 
 Wood, August 18o3 (in which the writer was counsel for the plaintiff ), 
 the court, after argument on the above clause of the act, refused to 
 decide the legal question, and directed an action ; although there was 
 no material dispute as to the facts, and the sole question was the lega 
 title to the patent.
 
 80 NEW EQUITY PRACTICE. 
 
 duct on the part of the defendant, of which the court wishes 
 to mark its disapprobation, although it cannot withhold 
 from hiin his right to be free from an iniunction, costs will 
 not be given to him, but the motion will either be refused 
 simply without costs ; or the costs will be expressly reserved. 
 If the motion is refused simply without anything said about 
 costs, the costs will in eifect be costs in the cause, because 
 the costs of the motion will be a part of those general costs 
 which have been incurred ; and will follow the general 
 decision ; that is, if in the result the plaintiff obtains a decree, 
 or if the case is sent to law, and he there succeeds, and 
 comes back for and obtains an injunction, then he will, it is 
 presumed, have the costs of the original motion, although 
 he was primarily unsuccessful in it, on the principle of 
 Stevens v. Keating, because he ought to have had the 
 injunction ; but if in the result the bill is dismissed, then 
 the motion ought never to have been made, and the 
 defendant will have the costs. But if the court expressly 
 reserve the costs, then I apprehend, on the authority of 
 Stevens v. Keating, it will deal with those costs at its dis- 
 cretion when the general costs are disposed of. It is true 
 that in Gardner v. Marshall (14 Sim. 575], the V. C, Sir L. 
 Shadwell, held otherwise ; in that case, the costs of a motion 
 had been reserved till the hearing ; at the hearing, the costs 
 of suit were reserved, and on further directions the plaintiff 
 was ordered to pay the costs of the suit. The V. C. refused 
 to include the costs of the motion, because a reservation of 
 costs of the suit was not a reservation of costs of a previous 
 interlocutory motion. But Stevens v. Keating., above cited, 
 proceeds on the principle, that if the result shows that a bill 
 was wrong ab initio, a motion made in it was also wrong, 
 and therefore the costs of it ought to be paid to the party 
 who never ought to have been vexed with the motion.. And 
 Finden V. Stephens, (11 Jur, 898), which Sir L. Shadwell 
 decided on the same ground as Gardner v. Marshall, viz. : 
 that costs of interlocutory applications are not costs of suit, 
 was overruled on that very point by Lord Cottenhara : (see 
 12 Jur. 319.) It is apprehended, therefore, that Gardner 
 V. Marshall is not law, and that the practice is as I have 
 stated it. 
 
 When a motion is ordered to stand over, the costs follow 
 the decision, and stand over too, and all discussion about 
 them is postponed till the motion is renewed ; and if a 
 motion stands over at the defendant's instance, he having 
 filed a demurrer, and that demurrer is afterwards overruled, 
 and the plaintiff is ultimately ordered to pay the costs of
 
 MOTION'S IN CIIA1\IBKRS. 81 
 
 the suit, he will have to pay the costs of the motion : {Firiden 
 V. Stephens, 12 Jur. 319.) 
 
 If a niotion is refused so tliat it is pone, and then a new 
 motion for the same object, on afresh notice of motion, is 
 made, tlie old alllduvits, if intended to be used, must be either 
 re-sworn, or notice nmst be given that they will be read, 
 otherwise they cannot be used; and if the renewed motion 
 rests on those allidavits only, in strictness it must be refused 
 with costs. liut probably now the court would order 
 it to stand over on payment of any extra costs occasioned 
 by its standing over, for the affidavits to be re-sworn. 
 
 It has been pointed out (in p .53), that many motions 
 which used to be made in court are now made on summons 
 in chambers. Some of these applications may be made ex 
 parte, and some must be made on notice. Applications for 
 time to amend bills may be made at any time before any 
 answer is fded, or after an answer, merely for the purpose of 
 rectifying some clerical error in names, dates, or sums, as 
 often as the plaintiil desires it, as under the old practice 
 (Orders 64, 65 of 1845), as of course, and therefore ex parte ; 
 but if there are several defendants, and any one has 
 answered, the plaintifp can only have one order of course 
 to amend. After an answer is filed, one application of 
 course may be made for leave to amend within four weeks 
 after the answer of a sole defendant, or if there are several 
 defendants, after the last answer is found oris to he deemed 
 to be sufficient. An order of course to amend is not 
 obtained by summons in chambers, but by a motion or 
 petition of course, as explained in p. 13. It has been in- 
 advertently stated in pp. 12 and 15, that an order to amend 
 of coiirse, is obtained on summons, after the plaintiff 
 has exhausted his right to amend as of course, that is, after 
 one amendment where an answer has been put in, any 
 further amendment must be by special order, and must be 
 on notice. Applications for time to plead, answer or demur, 
 not demurring alone, must also be on notice ; so must 
 applications to enlarge publication or the time for closing 
 evidence. Applications for payment Into court of purchase- 
 money under sales by the court may be made ex parte. 
 
 The following is the list of the applications which should 
 he made at chambers at the Rolls : — and 1 believe the other 
 branches of the court adopt the same practice. 
 
 1. As to the guardianship of infants (except the appoint- 
 ment of guardians ad litem.) 
 
 2. For the appointment of a special guardian to concur 
 in a special case.
 
 82 NEW EQUITY PRACTICE. 
 
 3. As to maintenance or advancement of infants. 
 
 4. Under the Drainage Act : (see on this the General 
 Order of the Court of 4th March, 1846. 
 
 5. Under the Trustee Acts 1850 and 1852 : (see the General 
 Order of 10th June, 1848.) 
 
 6. For the administration of estates under the 15 & 16 
 Vict. c. 81, see sects. 45, 46, and 47. 
 
 7. Under the Legacy Duty Act for pajTnent of money 
 out of court. 
 
 8. For time to plead, answer or demur. 
 
 9. For leave to amend bills or claims. 
 
 10. For enlarging publication or the time for closing 
 evidence. 
 
 11. For the production of documents. 
 
 12. Relating to the conduct of suits or matters. 
 
 13. As to matters connected with the management of 
 property. 
 
 14. For the payment into court of purchasers' moneys 
 under sales by order of the court, and investing the same, 
 see the notice issued from the Master of the Rolls' chambers, 
 10th November, 1852. 
 
 To these may be added applications for substituting a 
 purchaser ; to determine questions in dispute under con- 
 ditions of sale ; to make abatement in purchase money 
 by means of defect of title ; to approve of contracts for sale 
 by private contract ; to appoint a receiver when there has 
 been an order for such appointment, or without any such 
 order, by consent ; to make stop orders by consent. 
 
 Of these different kinds of applications, all except No. 14, 
 and the appointment of a receiver by consent, appear of 
 their nature to require notice ; on this point, however, in 
 chambers as well as in court, the general rule must be borne 
 in mind, that whenever any party, other than the applicant, 
 may be interested in the order not being obtained, or being 
 obtained with a variation, notice will be requisite. 
 
 Every application in the nature of a motion in chambers is 
 made upon a summons taken out in chambers upon applica- 
 tion to the judge's chief clerk ; and if it is one which 
 requires notice, the summons must be served on the 
 solicitor of the respondent two clear days before the return, 
 that is, two clear days exclusive of the day of obtaining 
 the summons, and the day on which it is to be heard : 
 (5th Order, 16th October, 1852.) 
 
 A summons in the nature of a motion on notice must, 
 like a motion in court, be supported by affidavits (see the 
 23rd Order, I6th October, 1852) j and the parties respectively
 
 EVIDENCE ON MOTIONS IN CUAMliERS. 83 
 
 and the judge may tlien sign such certificate; the certificate 
 may be to cross-examine and re-examine the aflidavit wit- 
 nesses orally, but such oral examination takes ])lace in the 
 judge's chambers before the judge's chief clerk, or before the 
 judge, as the case may be, histcad of before one of the 
 examiners of the court. 
 
 The party intending to use any allidavit on any proceed- 
 ing in chambers, is to give notice to the otlier parties con- 
 cerned of his intention in that behalf: (24th Order of Itith 
 October, 1852.) 
 
 The mode of proceeding is the same as before an examiner, 
 pursuant to the 26th Order of the 16th October, 1852, 
 which directs " that when a chief clerk is directed by the 
 judge to examine any witness, the practice and mode ot 
 proceeding is to be the same as in the case of the examina- 
 tion of witnesses before the examiner, subject to any special 
 directions which may be given in any particular case." The 
 only diflerence adopted in practice is, that by a rule laid 
 down by the judges, counsel cannot be heard either to argue 
 or examine witnesses before the chief clerk ; of course they 
 may if the examination is before the judge in person. 
 
 It may be doubted whether the judges had any jurisdiction 
 to lay down such a rule as to examination of witnesses, 
 except by a General Order, without at any rate first rescind- 
 ing the 26th Order of the 16th October, 1852, if at all ; as 
 the 31st section of the 15 & 16 Vict. cap. 86, directs 
 expressly that the oral examination of parties under that 
 act shall be in the presence of the parties, their counsel, 
 solicitors, or agents ; the 30th section of the 15 & 16 Vict. 
 cap. 80, gives to the chief clerk for the purpose of any 
 proceedings directed by the Master of the Rolls or any 
 Vice-Chancellor to be taken before him, full power " when 
 so directed by the judge to whose court he is atta<^:licd, to 
 examine parties and witnesses, either upon interrogatories 
 or viva voce, as such judge shall direct." Bearing in mind 
 also the 28th section, which directs the mode of proceed- 
 ing before the judges at chambers to be as near as may 
 be according to the form adopted before the Judges of the 
 Common Law at Chambers, before whom the suitor is 
 of right entitled to be heard by counsel, it seems very 
 (]uestionable whetker the Legislature did not intend by 
 the two statutes of the 15 & 16 Victoria, that whenever 
 and wherever a witness is directed to be examined viva 
 voce, the party should of right be entitled to the assist- 
 ance of counsel. The practice, however, is settled as above 
 pointed out.
 
 84 NEW EQUITY PRACTICE. 
 
 The substance of the evidence in support of any appli- 
 cation in chambers should be the same as would be re- 
 quired if the motion were made in court. Thus, to support 
 a special application for leave to amend a bill after answer, 
 there must be an alHdavit, pursuant to the 67th Order of 
 May 1845, viz., that the draft of the proposed amendments 
 has been settled, approved, and signed by counsel, and that 
 the amendment is not intended for the purpose of delay or 
 vexation, but because the same is considered to be material 
 for the case of the plaintilT. And after replication, or an 
 undertaking to file replication, the application must be 
 supported by a further affidavit showing that the matter of 
 the proposed amendment is material, and could not with 
 reasonable diligence have been sooner introduced into such 
 bill: (68th Order, 1845.) The affidavit should be made by 
 the plaintiff and his solicitor, unless the plaintiff is abroad, 
 or for other reasons is unable to join, and then it may be 
 made by the plaintiff's solicitor alone. In general, the affi- 
 davit of materiality need not state the actual amendments, 
 but it should state enough to enable the judge (or his clerk) 
 to determine whether the amendments are material. The 
 words of the Order are, an affidavit " showing," and a mere 
 naked averment on oath that the amendments are material, 
 is not sufficient, without setting forth such matters as will 
 enable the court to judge of the case, and the same rule 
 applies to the question of reasonable diligence ; the affidavit 
 must state facts, and not merely follow the words of the 
 68th Order : (^Stuart v. Lloyd, 3 M. & Gord. 181.) 
 
 When the matter brought before the chief clerk has been 
 heard, he makes his report or certificate to the judge, which 
 report, when prepared and settled, is to be transcribed by 
 the solicitor prosecuting the proceedings, in such form and 
 within such time as the chief clerk shall require, and is then 
 to be signed by the chief clerk at an adjournment to be 
 made for that purpose. But where, from the nature of the 
 case, the certificate can be drawn and copied in chambers, 
 whilst the parties are present before the chief clerk, the 
 same shall be then completed and signed by him without 
 any adjournment : (46th Order of 16th October, 1852.) 
 
 And the party dissatisfied with the certificate, has four 
 days after the signing of the certificate by the chief clerk, 
 to take the opinion of the judge upon it (47th Order of 
 16th October, 1852); within which four days he must 
 obtain a summons so to take the opinion of the judge ; if he 
 does not, at the expiration of the four days, the chief clerk 
 is to submit his certificate to the judge for his approval,
 
 AITEAL lUOM CHIEF CLERK's CKKTIllCATE. So 
 
 and the judge may tlien sign such certificate; the certificate 
 thus signed becomes the order of the judge. Until then, 
 it is uo order at all ; in laet, the chief clerk never makes 
 any order, properly so called: {llnyxcardy. Huijicard,\ Jvay, 
 App. 31, see p. .'3;$.) 'I'lie certificate signed \>y the judge is 
 then to be transmitted by the chief clerk to tlie Report 
 Office to be there filed: (oOth Order, iCth October, 1852.) 
 
 The order will be drawn up by the chief clerk, and must 
 be entered in the same manner and in the same office as 
 orders made in open court : ('JSth Order of I6th October, 
 i852.) If any party is dissatisfied with the order so made, 
 he has eight clear days from the filing of it to apply by 
 summons or motion to discharge or vary it: (51st Order of 
 l6th October, 1852.) 
 
 If the matter, ha\-ing been heard by the chief clerk, is not, 
 within the four days, brought before the judge for his opinion, 
 but is signed l)y the judge formally, but without liis having 
 heard the matter personally, the course of objecting to it 
 is by summons or motion before that judge to discharge or 
 var}' it ; and then the judge either hears it in chambers, or 
 adjourns it to be heard by liimself in open court. But if 
 the judge's opinion has been taken upon it on the clerk's 
 certificate, then, as it is the substantial decision of the judge 
 as well as \\\s formal order, the course is to move to review 
 his decision, not before the same judge but' before tiie Court 
 of Appeal, in the sanie manner as on an appeal motion. 
 
 The original examinations and depositions of the parties 
 and witnesses taken by or before the chief clerk, and 
 authenticated by his signature, are to be transmitted by 
 him to the Record and Writ Office to be there filed, and 
 any party to the suit or proceeding may have a copy thereof, 
 or of any part or portion thereof, uj)on pajTnent of the 
 proper fee. 
 
 Of any further specialties peculiar to proceedings by sum- 
 mons, more will be said in its place in the chapter treating 
 of proceedings in the judges' chambers generally. 
 
 Of motions for production of documents. 
 
 A motion for production of documents upon the admis- 
 sions in the answers, may still, as already pointed out in 
 p. 33, be made, notwithstanding the new practice under the 
 18th section of the 15 & IG Viet. c. 86. However, the con- 
 venience of that new practice is so great, that such motions 
 in court made upon the answer are becoming every day lens 
 necessary, and, therefore, less usual. A motion for pro- 
 [CH.] I
 
 86 KEW EQUTTT PRACTICE. 
 
 ductlon of documents upon the admissions in the answer, 
 must be made on the usual two clear days' notice of motion ; 
 and the notice is in the usual form as to its merely fonnal 
 part. The operative part is as follows : — " that the said 
 defendant may be ordered to j)roduce and leave m the hands 
 of the Clerk of Records and Writs the several deeds and 
 papers and waitings admitted by his answer in this cause, 
 and the schedides thereto, to be in his custody, possession, or 
 power; and that the plaintiff may have Uberty to inspect 
 and take copies of the same, and that the Clerk of Records 
 and Writs may be ordered to attend with the same before 
 the examiner, or at the hearing of the cause." 
 
 The motion must be strictly on the admissions in the 
 answer, and cannot generally be supported by any affidaAit 
 contradicting it. And the answer must contain a clear admis- 
 sion, not only that the docmnents are in the possession and 
 power of the defendant (see Storey v. Lord J. G. Lennox, 
 1 Myl. & C. 25), but that they relate to the matters in the 
 suit ; and it must also contain an admission of the title of 
 the j)liimtiff {Adams v. Fisher, 3 Myl. & Cr. 526), otherwise 
 a motion for production will fail. A motion cannot be sus- 
 tained for production of documents against a trustee of them, 
 unless aU the cesiuis que trust are parties to the motion 
 (Ford V. Dolphin, 1 Drew. 222) ; nor if the defendant swears 
 that they relate exclusively to his own title, and do not 
 relate to the title of the plaintiff; nor for production of 
 documents in the hands of the defendant's solicitors, as 
 solicitors for him and for other parties who are not before 
 the comt {Cridland v. Lord de Mauley, 13 Jur. 442) ; but 
 by the title of the plaintiff must be understood, not his title in 
 the ordinary sense of the word, that is, his proprietary title, 
 but his title to the particular rehef foimded on the particular 
 allegations of the bill. Thus, where the bill was for a commis- 
 sion to ascertain boundaries and alleged acts of the defendant 
 olditerating or tending to obUterate the boundaries, and that 
 ([uays and wharfs had been built, and acknowledgments had 
 been made to the defendant by the occupiers thereof of the plain- 
 tiff's right, and the defendant admitted to be m his possession 
 sun'eys and maps relating to the matters in the bill, but swore 
 tliey related to the eridence of title of the defendants, and 
 did not form part of the title of the plaintiff to the premises; 
 the Lord Chancellor, Lord L^tidhurst, said that it was not 
 sufficient. From the nature of the documents they might evi- 
 dence the title of the plaintiff to a commission, though not his 
 title in the ordinary sense of the word ; and the document 
 was ordered to be produced ; (3/. of Bute v. Glamorganshire
 
 rUODUCTION OF DOCUMENTS. 87 
 
 Canal Company, 1 Phil. 681.) And the answer must \)0 jmsi- 
 tive; mere statement of information and belief, or ([uaiilii'd 
 statements, will not do {Edwanls v. Jones, ] riiil 501) ; and 
 if the answer admits that the documents relate in any degree 
 to the title of the jtlaintill", although they may relate partly or 
 even principally to the title of the defendant, an order for 
 production wUl be made. It was held in Adder v. Campbell, 
 (1 Beav. 261 ), that where the answer neither admits nor 
 denies, but ignores either the possession of particular docu- 
 ments or theu" relation to the title of the plaintiff, the motion 
 may be supported by a(lida\it. But in a very recent ease of 
 Lamb v. Ortou (1 Drew. 41), the contrary, and that since 
 the 15 & 16 Vict. c. 86, appears to have been ruled. 
 
 A very frequent ground of objection to production of 
 documents is, that they are privileged as conlidential com- 
 munications. 
 
 Tliis rule is at least well settled, that any documents in 
 the possession of a defendant, being actual or intended com- 
 munications between him and his legal advisers in relation to 
 the matters affected by the suit, and whether communicated 
 or intended to be communicated direct to the legal advisers of 
 the defendant, or through tliird persons acting as the agents 
 in the matter, are privileged documents which he is not oblio-ed 
 to produce, though he admits their possession, and that they 
 relate to the matters in the bill: {Reed v. Laiu/lois, 1 Macn. 
 & Gord. 627; Greenough v. Gaskcll, 1 U\\. k K. (j8.) It 
 is also well established, that if the defendant has in his pos- 
 session documents relating to the matters in the bill, being 
 confidential communications between hhn as solicitor of a 
 party, and that party, for the purpose of legal advice those 
 documents are pri\'ileged, whether the communications were 
 in the matters of the suit, or before it in respect of the suit, 
 or quite irrespective of and unconnected with the suit. If 
 they are confidential communications between him, in his 
 character of soUcitor, and his client, they are privileged 
 against production. But, though a solicitor is thus privileged 
 in right of his client against divulging any confidential com- 
 munications, the privilege of the client, when the motion is 
 against liim personally, seems not to go so far, but oidy to 
 extend to communications made in or in reference to the 
 particular suit: (see Greenlaw v. Kiiir/, 1 Beav. 137.) The 
 order is in Garland v. Scott (3 Sim. 396); Greenoiujhx. Gas- 
 kell (1 Myl. & K. 98), and the authorities there referred to. 
 In a very recent case {Thompson v. Falk, 1 Drew. 24), Vice 
 Chancellor Kindersley thus observed upon the distinction 
 "If I could upon authority determine the abstract poin. 
 1 2
 
 88 NEW EQUITY PRACTICE. 
 
 which has been argued, viz. whether the privilege of the client 
 is as extensive as that of the solicitor, I should be glad 
 to remove the anomaly by which it seems that, when the 
 solicitor is interrogated, and objects because it would be 
 calling on him to divulge matters which passed in the 
 relation of solicitor and client, then there is privilege, with- 
 out more, whether such matters relate to an actual or con- 
 templated litigation or not ; and yet, if the same questions 
 are put to the client, then when his privilege is in question, 
 he is to be told that he has a less privilege than he would have 
 through his solicitor if the latter were questioned ; so great 
 an anomaly, so inconsistent and absurd a rule, I should be 
 glad to take on myself to say is not the rule of this court ; 
 and that there is no such distinction." From this language 
 it may be collected that, probably at this day, if the precise 
 point were to come before the court, it would extend the 
 privilege of the client in person, so far as relates to 
 answering through his solicitor ; however, in practice the 
 point must still be treated as at least doubtful. 
 
 The brief, on a motion for production on the admissions 
 contained in the answer, will consist of a copy of the bill ; 
 of the notice of motion ; and of the answer or answers on 
 which the motion is made. 
 
 In strictness, as above pointed out, the order made on a 
 motion to produce documents is, that they may be left with 
 the Clerk of Records and Writs ; but when the defendant 
 satisfies the court that, for any sufficient reason, as, for 
 instance, that the documents are in daily use (as a banker's 
 or merchant's ledgers) such transfer of the documents from 
 his possession would be very inconvenient, it will, in general, 
 oi'der inspection at the office or counting-house, or on the 
 premises of the defendant. When production is ordered of 
 documents containing matters relating to the plaintiff's case 
 and title, and also other matters relating exclusively to the 
 business of the defendant, or of other persons in respect of 
 matters not concerning the bill, the defendant is permitted 
 to seal up all such parts as he swears, either by his answer 
 or by an affidavit filed in support of his answer, do not 
 relate to the matters in the cause. It is not very usual to 
 anticipate this jjoint in the answer, but it is in general 
 reserved to the hearing of any motion, and then an affida- 
 vit is filed on producing the documents, and against such 
 affidavit no evidence will prevail. Thus, in the Sheffield 
 Canal Company v. Sheffield and Rotherhum Railway Company 
 (1 Phil. 484), the defendants admitted the possession of a 
 particular book, and the plaintills obtained an order for its
 
 PKODUCTION BY PLAINTIFF. 89 
 
 production, l)ut liberty was fjiven to the (k'fondnnts to seal 
 up, on the oath of their law clerk, such parts as (lid not relate 
 to the matter in (juestion, and the l)ook so sealed was pro- 
 duced; afterwards, a motion was made for producinjr the 
 book unsealed, founded on an aOidavit that a resolution 
 (relating to the matter in issue) had been passed ; and 
 "that the page of the book in which the resolution would 
 have been found, if it had been entered at all, was one of 
 those which were scaled up ; " the defendants filed no affi- 
 da\'it in rej)ly, but stood upon the practice as laid down in 
 Purcell V. Maciiamara (Wigr. on Disc. '240) ; Bower v. 
 Fernie (3 Myl. & Cr. 632), and the Lord Chancellor refused 
 the motion. 
 
 Before the 15 & 16 Vict. c. 86, in general a defendant 
 could not obtain fi-om a plamtilF production of documents, 
 except l)y filing a cross bill; there were some few exceptions, 
 which it is unnecessary now to consider, because, by the 20th 
 section of the act, the court, upon the application of any de- 
 fendant inanysuit, whether commenced by bill or by claim (but 
 as to suits commenced by bill where the defendant is re- 
 quired to answer the plaintiff's bill, not until after he has put 
 in a full and sufficient answer to the bill, unless the court shall 
 make any order to the contrary) may make an order for 
 the production by the plain tiff in such suit on oath of " such 
 of the documents in his possession or power relating to the 
 matters in question in the suit, as the court thinks right; and 
 the court may deal with such documents, when i)roduced, in 
 such manner as shall appear just." The language of this clause 
 of the act is, it will be observed, precisely the same as that 
 of the 18th clause relating to production by defendants; 
 whence it is to be inferred that the plaintiif is under the 
 same liabilities as to the production, and will have the same 
 rights in regard to any ground of objection to production, as 
 a defendant would have. The practice is for the plaintiff 
 to be put to file an affidavit as to all the documents in liis 
 possession or power, of the same kind as that which has to 
 be filed l)y a defendant ; and the same course is pursued on 
 a summons in chambers by a defendant against a jilaintiff to 
 produce, as on a summons by a plaintiff against a defendant: 
 (see the form of affidavits, ante, p. 32.) A defendant cannot, 
 however, obtain production by a co-defendant without a 
 crossbill (Attorney-General v. Clapkam, 10 Hare, A])p. 68), 
 but this is not very material, because a defendant mu} ex- 
 amine a co-defendant as a witness, and in such examination 
 may of course obtain the production of any documentary 
 evidence, not privileged, that the witness possesses, material to 
 I 3
 
 90 NEW EQUITY PRACTICE. 
 
 his ewlence ; and may read such documentary evidence 
 against the plaintiflf. 
 
 The common order for inspection is for the plaintiff, his 
 solicitor and agents, to be permitted to ins^pect; this does not 
 authorize the plaintiff to employ, or to bring with him a 
 co-defendant to inspect : {Bartley v. Barlley, 1 Drew. 233.) 
 As to delivery out of documents, see ante, p. 31. 
 
 Of motions for the appointment of a Receiver. 
 
 A Receiver is'an officer of the court appointed pro hac vice, 
 in cases in which the rights of parties to property real or 
 personal are in dispute, and in the mean time, the rents, 
 issues, and profits of the property are in danger either of 
 being improperly received and applied, or of not being 
 received at all, to the detriment of the party who shall 
 ultimately be determined to be the right owner. 
 
 A receiver can only be appointed in a suit commenced, 
 except in the case of lunatics, in which the Lord Chancellor 
 will appoint a receiver on petition in the lunacy {Ex parte 
 Radcliffe, 1 Jac. & W. 639; Ex parte Warren, 10 Ves. 622), 
 and formerly, a receiver was veiy rarely appointed before 
 answer, and could in general only be moved for on the 
 admissions contained in the answer. There were certain cases 
 of exception which it is now immaterial to consider, by 
 reason of the 59th clause of the 15 & 16 Vict, c, 86, which 
 makes the answer for the purpose of evidence on a motion 
 for or to discharge a receiver, only on affida\'it, which may 
 be rebutted by affidavit on the part of the respondent. 
 Consequently, now, a motion for a receiver, like a motion for 
 an injunction, may be made at any time after bill filed, on 
 affida\'its. The 6th section of the act only applies to in- 
 junction bQLs, or bills prajing a ne exeat, or for making an 
 infant a ward of the court. Therefore, a bill praj-ing a 
 receiver, or on which it is intended to found an applica- 
 tion for a receiver, must be a printed bill. A motion for 
 a receiver must be on notice, and on the usual two clear days 
 of notice. 
 
 In general, a receiver will not be appointed against the 
 party in possession under the legal estate, unless he holds such 
 legal estate in a fiduciary character, and the case made against 
 him is of fraud, or of conduct being a breacli of trust, or in the 
 nature of a breach of trust. Thus, a receiver will not be ap- 
 pointed so as to interfere vnih the possession of a legal mort- 
 gagee in possession, though, if he is not in possession, a 
 receiver may be appointed as between subsequent equitable
 
 defendant's proceedings. 91 
 
 incumbrancers, -without prejudice to the rij^ht of the legal 
 mortgagee to take possession ; and if he thinks fit he may 
 take possession, but, except by taking possession, he cannot 
 object to the appointment of the receiver: {Silver v. Bishop of 
 Norwich^ 3 Swanst. ll'i.) 
 
 But this ruk' only applies to the case of a clear prior legal 
 owner, not to the case of a contest between the plaintiff claim- 
 ing the legal estate, and the defendant holding it ; in this 
 latter case, then, the court will appoint a receiver, if it sees 
 ground for fairly anticipating that the plaintiff may turn 
 out to be entitled, and if a case of danger is made : {Metcalf 
 V. Pulvertoft. 1 Ves. & B. 180.) 
 
 In the case of trustees or executors, the court will appoint 
 a receiver against them, upon a sufficient case made of 
 danger arising from misconduct, or actual bankruptcy or 
 insolvency, but not upon mere impUed danger anticipated 
 from poor circumstances : (Hathornthwaite v. Russell, 2 Atk. 
 126; Howard \. Papera, 1 ^Mad. 142; and see Gladdon v. 
 Honeman, ibid. p. 143, notes.) 
 
 So, a receiver will be appointed in suits for terminating 
 and winding-up partnerships, or for winding-up partnership 
 accounts after termination ; upon a sufficient case of miscon- 
 duct either producing or tending to produce danger to 
 the partnership assets, by the party in possession remaining 
 in possession ; or by either party being in possession. But 
 in all cases, and in partnership cases more especially, the 
 appointment of a receiver is a matter for the discretion of 
 the court, and the court will, in partnership cases, look 
 anxiously to see whether a receiver would or would not 
 damage the carrying on of the concern : the object of a 
 receiver being always the preservation of the property in 
 its integrity. 
 
 A motion for a receiver must be made in the first instance 
 to the court. But whenever a receiver has been appointed, 
 and the office has become vacant, a motion for the ap- 
 pointment of a new receiver is made upon summons in 
 chambers : [Grote v. Bing, 9 Hare, App. 50.) 
 
 'llie motion must be supported by affidavits verifying all 
 those material facts on which the equity for it is founded, 
 and is in that and other respects conducted in the same 
 manner as a motion for a special injunction (see ante, p. 54, 
 et seq.)
 
 92 NEW EQUITY PKACTICE 
 
 XIV. Of the Defendant'' s proceedings to the hearing of a cause. 
 
 I proceed now to discuss the general proceedings of 
 defendants, assuming that the cause goes on in the regular 
 course. 
 
 When the defendant's solicitor has been served with a 
 copy of the printed bill, his first step in the cause is to 
 enter an appearance. This he does by attending at 
 the Writ and Record Clerk's Office, and there leaving 
 with the clerk in whose di^^sion the cause is entered, a 
 paper signed by him in the following form : — 
 
 A. ■) Enter an appearance for the defendant ( ) at the suit 
 
 V. V of A. Dated the day of 185 . C. D. 
 
 B.J No. (address.) Defendant's solicitor. 
 
 Before appearance, no notice of motion can be served on 
 a defendant without special leave of the court obtained for 
 that purpose. After appearance has been entered, generally, 
 all ser^nces on the part of the plaintiff are regidarly made 
 on the defendant's soUcitors. There are a few exceptional 
 cases in which service must be personal ; they will be 
 noticed in the separate chapter on service. The defendant is 
 entitled to require from the plaintiff's solicitor ten printed 
 copies of the bill, pajing therefor at the rate of one half- 
 penny per folio. Appearance having been entered, and the 
 defendant's solicitor having procured from his client informa- 
 tion as to what, if any, defence he can make to the case made 
 bythebiU, he will proceed accordingly. If the defendant has a 
 bond fide., and apparently conclusive, answer to make to the 
 bill, it is sometimes prudent, particularly if the defence is 
 founded on documents or other incontrovertible evidence, 
 at once to communicate with the plaintifi's solicitor and 
 inform him of the nature of the defence, with a view to give 
 the plaintiff the opportunity of terminating at once the 
 litigation, by dismissing his bill. But assunung, as usually 
 is the fact, that the case is not altogether clear on either 
 side, then the defendant's soUcitor should proceed to put 
 into a connected form a written statement of his client's 
 case ; and this, accompanied by copies or a full statement 
 of the contents of such material documents as his client 
 possesses or can have access to, he should lay before his 
 counsel, as instructions to advise what course should be 
 pursued in defending, viz. whether it should be by demurrer, 
 by plea, or by answer. It will be recollected that, if the 
 plaintiff does not file interrogatories, the defendant is not 
 bound to put in an answer (see ante, p. 10); but he may 
 always put in a voluntary answer at any time within twelve
 
 1>EFENCK UY DKMUKURR. 93 
 
 (lays after his appearance ; and frequently it may be advis- 
 able to defend by answer, though the plaintilf may not have 
 required it. 
 
 XV. Of defence by Demurrer. 
 
 If a defence by demurrer is advised, the solicitor instructs 
 counsel to prepare such demurrer as he advises ; and when he 
 has obtained the draft demurrer, he has a copy made on 
 parchment which he indorses (17th Order 18ii'2); and takes 
 such copy to the oflice of the Clerks of Records and Writs, 
 where he procures it to be fded by leaving the copy with the 
 clerk in whose division the cause is. Having fded the 
 demurrer, he must on the same day and before eight o'clock 
 in the evening ("i'ind & 'iSrd Orders of October, 18.52) give 
 notice of his having done so to the plaintiil's solicitor. 
 
 The defendant has twelve days from the date of his appear- 
 ance to demur, if he demurs to the whole bill, and fourteen 
 days from the date of the delivery of the inteiTogatories, if 
 he demurs to part only, for pleading or answenng to the 
 whole, or to the residue. If the plaintiff does not set down 
 the demurrer within (twelve) days fi-om the date of its being 
 filed, the demurrer js taken to be allowed as if it had been 
 heard in court and allowed on argument. The bill is then out 
 of court, and the defendant is entitled to his costs of the 
 suit if the demurrer is to the whole bill, and of the demurrer, 
 if it is to part of the bill only, and these costs may be at 
 once recovered on an ex parte application, by motion handed 
 in to the registrar : (Jacobs v. Hooper.) If the demurrer 
 is submitted to without being set down, the plain till has, 
 as before mentioned (page 12), a right as of course to 
 amend his bill on paying 20s. costs. If the plaintiff does 
 not set down the demurrer, the defendant may do so, and 
 the proceedings which he must take for setting it down are 
 the same as those already pointed out for setting dovm a 
 demurrer by the plaintiff: (sec p. 13.) If the demurrer is set 
 down by the plaintiff, the defendant's solicitor, on receiving 
 service of the order setting it down, should proceed at once 
 to prepare and deliver his brief The brief for the defendant, 
 like the brief for plaintiff, will consist of a copy of the bill, 
 and of the demurrer, and of one or two sheets of observations, 
 if the solicitor chooses to prepare any. On attending the 
 court when the demurrer comes on for argument, the defen- 
 dant's solicitor shoulil be furnished with an affidavit of the 
 service on him of the order setting down the demurrer, as, in
 
 94 NEW EQUITY PRACTICE. 
 
 case the plaintiff does not instruct counsel to appear, the 
 defendant's solicitor will, on production of such affidavit, be 
 entitled to have the demurrer allowed with costs ; but if he 
 is not prepared to produce the affidavit of ser\ace, the 
 demurrer will be simply struck out of the paper, and may 
 be restored on the application of either party. 
 
 On the argument of a demurrer, the defendant is not 
 confined to the grounds set forth in the written demurrer ; 
 but may demur at the bar, as it is termed, ore tenus^ on other 
 grounds, but that nuist be understood with this limitation : 
 the demurrer ore tenus must be to the matter to which the 
 demurrer on the record addi-esses itself, though it may be 
 on grounds of argument not appearing thereon. Thus a 
 demurrer on the record for want of parties only would 
 not support a demurrer at the bar, for want of equity 
 generally ; nor would a demurrer for want of equity gen- 
 erally to a bill for discovery and examination of Avitnesses 
 for recording their testimony support a demurrer ore tenus 
 to the examination of witnesses: {Pitt v. Short, 17 Ves. 213.) 
 
 If the demurrer is allowed on argument, it is, unless the 
 court make other order, allowed with the costs of the de- 
 murrer, if it is only to a part of the bill, and with costs of 
 suit, if the demurrer is to the whole bill : (45th Order, 1845, 
 ajid see Sect. III.) When the demurrer is allowed, but with 
 leave to the plaintiifto amend, the court may give special di- 
 rections about costs, but usually the demurrer, if allowed at all, 
 is with costs of the demurrer : fsee on this part of the pro- 
 ceedings, ante, p. 15.) The defendant has then nothing 
 more to do till the plaintiif has amended his bill, and served 
 him with a printed copy of the amended bill. The plain- 
 tiff must, however, amend within the time limited by the 
 order gi\ang him leave ; if he does not, the defendant may 
 move to dismiss the bill for want of prosecution. For 
 this purpose he procures a certificate from the office of 
 the Clerk of Record and "Writs, of the date of the filing 
 of the bill; and from the Registrar's Office, an office copy 
 of the order made on the hearing of the demurrer. These 
 documents form the materials on which he instructs counsel to 
 move that the bill may be dismissed for want of prosecution. 
 This motion must be on notice, and must be moved in or 
 out of term on one of the days called seal days, which are 
 fixed at the beginning of each sitting by the court. The 
 defence to such a motion is usually some explanation sup- 
 ported by affidavits explaining the delay ; it is not, in general, 
 very material to answer such affidavits, as the court is at this 
 stage of the cause so extremely reluctant to do more than
 
 DEFENCE BY PLEA. 95 
 
 put tbc pliilntlfi' oil peremptory terms to proceed, that it 
 IS scarcely possible such merits can be shown as will 
 obtain an actual ilisniissal of the bill ; the terms of giving 
 time to the plaintill" are, almost invariably, that he pay the 
 defendant's costs of the motion, and that he take the step 
 which he has neglected within some given time ; sometimes 
 an atlditional term is, that if that step is not taken at the time 
 fixed, the bill shall stand dismissed with costs, as of the 
 date of the motion to dismiss ; but, more usually, the 
 motion is ordered to stand over, to be renewed if, at the 
 period fixed, the plaintifFhas not taken the prescribed step. 
 The defendant is entitled to give notice of motion to dismiss 
 immediateh', on the expiration of the time allowed for 
 amending, and having given the notice, he is entitled to 
 prepare forthwith and deliver a brief to counsel, and the 
 costs of preparing such brief must be paid by the plaintiff, 
 as the defendant is entitled to make the motion, if he has 
 regularly given notice. It is, however, usual for the solicitor 
 of the defendant to give a preliminary notice by letter to 
 the plaintilPs solicitor, informing him that he intends to 
 move to dismiss, if the amendments are not filed by a given 
 day. 
 
 XVI. Of defence by Plea. 
 
 ^\Ticn the defendant is advised to plead to the bill, (he 
 grounds of the plea are usually stated or referred to by 
 counsel in his Opinion ; and the defendant's solicitor will 
 then lay before his counsel instructions to prepare the plea, 
 accompanying such instructions by copies of the documents, . 
 or information on the particular points on which the plea is 
 to be based. A plea must be filed within fourteen days 
 after service of the copy of the interrogatories, when an 
 answer is required, and within twelve days from appearance, 
 if no answer is required and the plea is voluntary. Pleas 
 are invariably drawn and must be sic/ned by counsel. When 
 the plea is drawn, the solicitor makes a copy of it on parch- 
 ment, and files it in the same way as a demurrer ; and must 
 give notice on the same day to the solicitors of the plaintifT 
 of his having filed a plea. Some pleas retpiire to be sworn, 
 and that must be done in the same manner as already pointed 
 out in respect to affidavits (see p. 38 j, and must be signed by 
 the defendant. Those pleas which do not requin^ to be on 
 oath need not be signed by the defendant. The distinction 
 when a plea must be, and when it needs not be, on oath, is 
 this: when the plea is of matter of record, or of some matter
 
 96 NEW EQUITY PRACTICE. 
 
 requiring no proof but that which is before the court and 
 proves itself, as a plea of a former suit, or of the plaintiif 's 
 conviction for felony, of which therecord is proof, the plea needs 
 not be on oath. When the plea is wholly of matter of fact, 
 or of statutes, the operation of which in bar of the plaintiti["'a 
 right requires the addition of matters of fact, as a plea of a 
 released and settled account, which must be supported by an 
 averment of no fraud, or of the Statute of Frauds, which 
 requires an averment by the defendant denying the part 
 performance alleged by the plaintiff; then the plea must be on 
 oath. When the plea has been filed, either party may set it 
 down immediately (44th Order, 1845); but if the defendant 
 does not set it down, and the plaintiff does not set it down 
 wuthin three weeks from the date of the filing of the plea, 
 he will be held to have submitted to it. The mode of setting 
 down a plea is the same as that for setting down a demurrer 
 (see ante, p. 17), and so is the mode of disposing of it 
 on argument in court : (see also, p. 17.) If the court allows 
 the plea, it may do so wholly and without giving liberty to 
 the plaintiff to amend his bill as in the case of a demurrer ; 
 or it may allow the plea, with liberty to the plaintiff to 
 amend. In either case the costs are in the discretion of the 
 court, but usually, if a plea is allowed, it is with costs. If 
 the court overrules the plea, it is almost invariably with 
 costs ; and then a certain time in the discretion of the court 
 is allowed to the defendant to put in his answer. It is 
 obvious that demurring and pleading may thus be used for 
 other purposes besides a substantial defence to the bill ; as, 
 unless the demurrer or plea is plainly frivolous, time is 
 ^ways given for answering ; and thus the defendant may gain 
 time, if he chooses to do so at the risk of pacing the costs 
 of the demurrer or plea. In heavy cases, such as bills by 
 contractors against companies, where the mere postponement 
 of an account and of the payment of very large sums of 
 money may be of great importance, it occurs sometimes 
 that defendants demur or plead, although they may be 
 advised, or may reasonably expect that the demurrer or 
 plea will be overruled : such a course is, however, manifestly 
 an abuse of the procedure of the court, and deserves 
 reprobation rather than imitation. 
 
 The effect of a plea to the whole bill being allowed, with- 
 out liberty to amend, is to put the bill out of court, and the 
 order allowing the plea also orders the bill to be dismissed : 
 (48th Order, May, 1845.) 
 
 The other material points relating to the practice on pleas 
 are discussed ante^ in Section lY., p. IG, et seq.
 
 OF ANSWERS. 97 
 
 XVII. Of defence by Answer. 
 
 If having demurred, or pleaded, or both, the defendant is 
 unsuccessful, he must jn-cjcefd to put in an answer, which he 
 must then fde by the period fixed on the overruling of the 
 demurrer or plea. 
 
 The time within which a defendant must fde his answer, 
 if he defends by answer without either dcnuirring or plead- 
 ing, is fourteen days from the service of the copy of the 
 interrogatories. If in either case, the defendant re([uires 
 further time to answer, he applies for it to the judge's chief 
 clerk in chambers, by taking out a summons, of which he 
 must give two clear days' notice to the plaint ilPs 
 solicitor. The application for time to answer must be 
 supported by an aliidavit shewini;, why the defendant can- 
 not put in an answer within the tniie limited. 
 
 The preparation of instructions for an answer requires great 
 care and skill. The defendant's solicitor should first prepare 
 a brief copy of the bill, and a copy of the interrogatories 
 copied in half margin, which he should lay before his client, 
 with instructions for him to write, opposite to each interro- 
 gatory, the answer that he is able to give to it. The 
 solicitor should then himself carefully peruse the client's 
 answers, and afr.erwards, in one or more personal confer- 
 ences, go through them carefully with his client ; calling 
 his particular attention to any answers which may appear to 
 him to require explanation or addition, and in particular, 
 to any which may appear to him, however advantageous 
 they may be to the defendant, to bear the impress of inac- 
 curacy or exaggeration ; for, generally speaking, an answer 
 once filed is final, and will not be allowed to be afterwanls 
 contradicted by the defendant on any material point, and 
 in practice it is found that defendants are frequently in- 
 jured by theirjown overstatement of their case, quite as much 
 as bv the evidence of the plaintiff. 
 
 Although, in general, an answer is final, there are 
 instances in which it will be allowed to be corrected by a 
 supplemental answer. Thus, in a case^where a defendant, 
 answering as to matters taking place in India, set up the 
 Indian Insolvent Debtors Act, by way of defence, and 
 stated dates which did not bring him within it, he was 
 permitted to file a supplemental answer to correct that 
 statement of dates by the substitution of dates which did 
 bring him within it: {Fulton v. Gilmore, 1 Phil. 522.) So, 
 in a case where the original answer misstated facts as to 
 the custom of a manor, the defendant was permitted by 
 [CH.] K
 
 98 KEW EQUITY PRACTICE. 
 
 supplemental answer to correct it : [Frankland v. Overend, 
 9 Sim. 365.) But this liberty is given with extreme re- 
 luctance and difficulty if the effect of the correction is to 
 damnify the plaintiff; and it can only be obtained by a 
 special application, which is made to the court by motion or 
 notice. The notice of motion must specify the alterations 
 proposed to be made, and must be supported by affidavits 
 verifying the new statements, and satisfactorily explaining 
 the grounds of the mistake, and the reasons why the new 
 statement was not introduced in the original answer. 
 
 When the defendant's solicitor has obtained from his client 
 his own version of his defence, he lays it before his counsel, 
 together with such documentary information as he possesses, 
 as instructions to prepare a draft answer. As an answer, like 
 every other pleading, strictly so called, must be signed by 
 counsel, it is in fact always drawn by coimsel ; the draft so 
 prepared and signed is copied on parchment, and the name of 
 the counsel transcribed on the copy. The answer, thus en- 
 grossed, is endorsed by the defendant's solicitor with his 
 name and address, and is signed and sworn by the defen- 
 dant in the same manner as an affidavit. The answer, duly 
 sworn, is filed at the office of the Clerk of Records and 
 Writs, and the defendant's solicitor must give notice the 
 same dav to the plaintiff's solicitor, before eight o'clock 
 of the eviening : (22nd Order, October, 1842.) 
 
 Some answers are not sworn. Thus a peer of the realm 
 puts in his answer on his protestation of honour, not on oath : 
 (Beam. Orders, 105.) And a bishop upon bis honour; and 
 a corporate body answers under the common seal of the 
 corporation. 
 
 An infant is incapable of binding himself positively by 
 answer, and puts in his answer by his guardian, who signs 
 and swears it. Mr. S. Smith in his recent valuable work, 
 (Practice of the Court of Chancery, 1855, p. 168), suggests 
 that the usual infant's answer, amounting to no more than 
 stating that he is an infant, and claiming such rights as he 
 is entitled to, will now no longer be necessary. But this, 
 I apprehend, is not so ; for although the usual infant's 
 answer is, for all substantial purposes, utterly useless, yet 
 in point of form, 1 conceive that it is still the practice that, 
 if interrogatories are filed, and an infant defendant is 
 rc(juired to answer, the cause could not regularly be set 
 down for hearing, unless he had answered. Of course, if an 
 infant defendant is not required to answer, replication may 
 be regularly filed under the new practice, whenever the 
 plaintifi' is in a position to do so against the answering
 
 OF ANSWERS. 99 
 
 defendants ; and the cause will be thus regularly at issue 
 (see ante. Sect. IX., p. 34, et seq.), and of course also, as it is 
 wholly useless to address interrogatories to an infant defen- 
 dant, the point becomes in fact of little importance, as it is 
 probable that the practice of requiring any answer from an 
 infant will fall entirely into disuse. The solicitor of an 
 infant defendant should not, however, treat it as altogethei 
 unimportant whether his client answers or not ; but should 
 lay the bill and the matters which he may have to ofler in 
 defence before his counsel, as the new practice does not in 
 the slightest degree remove the propriety of an infant in 
 some cases putting in a voluntary answer, in order to 
 suggest facts, the proof of which may be material to his 
 interests. 
 
 A lunatic, so found by inquisition, answers by his com- 
 mittee ; if not found lunatic by inquisition, but being of 
 imbecile or unsound mind, the court will assign him a 
 guardian ad litem,, and he puts in his answer by such 
 guardian. 
 
 As to defendants in Scotland, Ireland, or the Channel 
 Islands, or in any colony, island, plantation, or place, under 
 the dominion of the Queen, or in any foreign parts out 
 of Her Majesty's dominions, that is provided for by the 
 22nd section of the 15 & 16 Vict. c. 86 (see ante, p. 39), 
 and the answer of any such defendant may be sworn in the 
 same manner as is there pointed out in reference to affida- 
 vits. An answer taken in the country, or out of the juris- 
 diction, may be transmitted to London to be filed in the 
 same way as an affidavit: (15 & 16 Vict, c 86, s. 25.) 
 
 The answer of a married woman, if she answers with her 
 husband, is the husband's answer, but they both sign and 
 swear it ; but if her interests require a separate answer, or 
 if the husband and wife live sepai-ate, the wife may obtain 
 an order of course to answer sepai'ately ; and then she signs 
 and swears to her own answer. 
 
 Sometimes a defendant defends partly by answer and 
 partly by disclaimer, or wholly by clisclaimer ; that is, by 
 an averment that he has not, and had not at the insti- 
 tution of the suit, any claim, or had before the institution 
 of the suit distinctly intimated his readiness to give up and 
 release, and was able to release, all his interest, if any. 
 
 A discUvimer is, in point of form, an answer, and must be 
 signed by counsel and engrossed, and signed and sworn by 
 the disclaiming defiendant and filed, like an answer. If the 
 defendant by his disclaimer avers that he had not at the 
 institution of the suit any interest ; or, Living an interest, 
 K 2
 
 100 NEW EQUITY PRACTICE. 
 
 that he had offered beftire the institution of the suit to 
 disclaim and release it, and also by his disclaimer avers that 
 he claims no interest, he is entitled to be dismissed with his 
 costs. But if he disclaims for the first time by his answer ; 
 or if, although he offered to disclaim before the suit, it is 
 shown that he could not effectually bar his interest, he may 
 or may not be entitled to be dismissed, but, if dismissed, is 
 not entitled to costs. 
 
 Of exceptions to answers. 
 
 "WTien the answer has been duly filed, the defendant's 
 solicitor will proceed to take an office copy of it. If the 
 plaintiff excepts to the answer for insufficiency, on receiving 
 notice of the filing of the exceptions, the defendant's solici- 
 tor obtains from the office of the Clerk of Records and 
 Writs an office copy of the exceptions, and lays a copy 
 of them before his counsel, to advise whether they should 
 be submitted to and a further answer put in, or whether 
 they should be resisted. It is a very common course of 
 practice, at this stage of the proceedings, to lay the bill 
 and answer before counsel, to advise not only on the suffi- 
 ciency of the answer but on the necessity of going into 
 e'vidence, and, as it is phrased, to advise on the suit generally. 
 Such a course is not, however, to be recommended to the 
 prudent practitioner, as it is manifestly premature to 
 take the opinion of counsel on the necessity of going into 
 evidence on the admissions of an answer, which, if held 
 insufficient, may lead to a further answer entirely changing 
 the state of things. The proper course is, at any rate on 
 behalf of the defendant, at this stage of the suit, to require 
 counsel to advise only on the sufficiency of the answer. 
 
 "What is the regular course of proceeding on exceptions 
 on the part of the plaintiff, has been stated ante, (Sect. VI., 
 p. 25, et seq.) 
 
 If counsel for the defendant advises that the exception 
 cannot be resisted, the defendant has eight days from the 
 filing of the exceptions to submit to them : (9th Order, 2nd 
 November, 1850.) This he does by handing a note to that 
 effect to the plaintiff's solicitor, and paying 20.s, costs. He 
 must then put in a further and better answer, within three 
 weeks from the date of his submission (10th Order, Novem- 
 ber, 1850), for which purpose he instructs counsel to pre- 
 pare the further answer in the same manner as in giving 
 instructions for the original answer, except that he furnishes 
 him with such information as the defendant has, whether
 
 OF defendant's evidence. 101 
 
 intentionally or inadvertently, withheld in giving instructions 
 for the orif,nnal answer. 
 
 The further answer is engrossed, signed, sworn, 'and filed, 
 in the same maimer as an original answer. If the defen- 
 dant's counsel advises resistance to the e.vceptions, no notice 
 to the plaintifFs solicitor is re(|uisite, and the exceptions 
 wiW be set down by the plaintiff fur hcai'ing m the manner 
 pointed out in p. '2G ; and if they are not set down as there 
 stated, after the expiration of the eight days allowed to the 
 defendant to submit, and within fourteen days from their 
 being filed, the answer will be deemed suilicient. On receiv- 
 ing notice of the exceptions being set down, and not befure, 
 the defendant's solicitor should prepare, and as early as 
 possible deliver, his briefs to counsel, as to which the obser- 
 vations made ante (pp. 26, 27), in reference to the brief 
 on behalf of the plaintilF, apply. The course of disposing of 
 the hearing of' exceptions, and the mode of dealing with 
 the costs upon allowing or overruling them, and the 
 duties and liabilities of a defendant in respect of his several 
 further answers, if successive sets of exceptions are taken, 
 have been discussed ante (Sect. VI., pp. 27, 28, et seq.) and 
 require no further notice here. 
 
 Of the defendant's proceedings on going into evidence. 
 
 When the answer or answers have been finally cither 
 found sufficient or treated as sufficient by the plaintiifj and 
 tlie plaintiif has filed replication, each defendant against 
 whom replication is filed will then proceed to prepare his 
 evidence ; for which purpose the solicitor will lay the bill 
 and the answer, and copies of the documents, on which he 
 intends to rely, before his counsel, to advise on what points 
 evidence must be gone into in support of the answer. 
 
 The subject of evidence has been already partially dis- 
 cussed ante (Sect. X., p. 36, et seq.) ; and what is there 
 said on its preparation, for the examination of witnesses 
 on the nature of the evidence now used, and on the mode of 
 examination, applies generally to defendants as well as to 
 plaintiifs. But there are some matters peculiar to defence, 
 which require to be here noticed. 
 
 The defendant cannot, in point of form, use his own 
 answer, although on oath, when the plaintifl has replied, as 
 evidence for himself against the plaintiif, except on the 
 question of costs; or for the purpose of raising a case for 
 further inquiry in chambers But he may, by converting 
 the whole or part of his answer into an affidavit, make it 
 
 K 3
 
 102 NEW EQUITY PRACTICE. 
 
 evidence ; that is, he may make himself a witness, and prove 
 by affidavit whatever he has sworn by his answer; but 
 he will then of course be liable to cross-examination. If 
 the plaintiff has not replied, but sets the cause down upon 
 bill and answer, then every averment of the answer may be 
 read by the defendant as evidence for himself, or perhaps, to 
 speak more accurately, as the plaintiff produces no evidence 
 except the answer, he must stand or fall by that. The sub- 
 ject of applications to enlarge the time for closing evidence 
 has been discussed ante (p. 47.) It may here, however, 
 be noticed, that if a plaintiti' seeks to enlarge the time, he 
 serves all the defendants entitled to examine witnesses with 
 the summons. If a defendant seeks to enlarge the time, 
 he serves all his co-defendants., entitled to examine witnesses, 
 as well as the plaintiff; and when the time is enlarged at 
 the instance of any party, all the other parties entitled to go 
 into evidence may profit by the enlargement further to 
 examine witnesses. The rule is that, until the evidence is 
 closed, the court will not preclude any party from produc- 
 ing evidence: {Wood v. Scarth, 3 Week. Rep 305.) 
 
 The plaintift may read any portion of a defendant's 
 answer as evidence /or himself against that defendant, but 
 not against any other defendant., unless previous notice is 
 given to such other defendant of the intention to read his 
 answer as evidence: (Cousins v. Vasey, 9 Hare, App. 61.) 
 This arises out of the rule that, in general, the answer of 
 one defendant is no evidence against a co-defendant. 
 
 It is very difficult to conceive on what principle notice to 
 one defendant of an intention to read another defendant's 
 answer against him can let in that answer as evidence. The 
 principle on which the answer of a defendant is read against 
 him is intelligible and clear; it is not that it is strictly 
 evidence^ that is, the deposition of a witness, but that it is 
 an admission by the defendant. But a defendant answering 
 was not, under the old practice, nor is he under the new, 
 simply by and through his answer a witness; and therefore 
 though obvious that practically to give to defendant A. 
 notice of an intention to read against him the answer of 
 defendant B., will enable him to bring forward evidence 
 contra ; and so may remove the practical inconvenience 
 alluded to in Cousins v. Vasey., yet it is not clear how in 
 strictness and upon principle any notice can make evidence 
 against A. an answer of B. which is not made of itself by 
 the statute (the 15 & 16 Vict. c. 86), anything more than it 
 was before; viz., the admission of B. usable against him- 
 self as an admission, and not in the strict character of the
 
 EVIDENCE GENERALLY. 103 
 
 evidence of a witness; the point is only stated in Cousins v. 
 Vasey by way of dictum, and it may be thought still very 
 unsafe to rely on the doctrine, that with notice even, the 
 plaintiiF may read the answer of one defendant against 
 another. As the clear admission of the defendant is evidence 
 for the plaintiir, it follows that the ])laintit!" cannot go into 
 evidence to prove that which is aclmitted by the answer, 
 except at the risk of pajing the costs of such superfluous 
 evidence ; and against a positive statement by the answer, 
 the bill cannot be sustained on the evidence of a single 
 witness, unsupported by any corroborative evidence. Jiut 
 sli"ht corroborative evidence may turn the scale. 
 
 When a defendant's answer is read as evidence against 
 himself, he is entitled to require not only that the whole 
 «)f any particular passage selected, but that any other 
 passage substantially relating to and connected with the 
 passage so tendered, shall be also read ; that is, the plaintift 
 may not read as evidence part of a passage telling for him, 
 and omit another part of it qualifying the first ; nor may he 
 read one passage for him without also reading any other 
 which, whatever may be its locality in the answer, fairly and 
 substantially relates to and qualifies the passage tendered : 
 (see Bartlett v. Gillard, 3 liuss. 149; Rude v. Whitchurch, 
 3 Sim. 562 ; Nurse v. Burm, 5 Sim. 225.) This rule is 
 dealt with as one of substance, not of form; therefore, if the 
 plaintiff reads from the answer a passage, the defendant 
 cannot read a passage, even immediately following, merely 
 because it is connected with the passage read by some 
 expletive word, as " but " or " for " unless the passage so 
 introduced relates substantially and materially to the pre- 
 ceding passage ; while, on the other hand, he may insist on 
 reading a passage from any part of the answer, whether 
 it is or is not connected with the passage tendered by any 
 expletive word, if it substantially relates to it : {Davis v. 
 Spurlitig, 1 Russ. & Myl. 64.) 
 
 XVIII. Of evidence generally. 
 
 Before the new practice, evidence being by interrogato- 
 ries the conduct of it was so much out of tlu; hands of the 
 solicitor, and confided by him to counsel, that a knowledge 
 of the general subject of evidence was not so material to the 
 solicitor as it has become since. But now that a large 
 portion of the evidence in Chancery is taken orally, and so 
 much depends on the solicitor in collecting evidence and 
 preparing depositions by way of instructions for examination,
 
 104 NEW EQUITY PRACTICE. 
 
 it will be convenient that, before proceeding to treat of the 
 hearing of a cause, I should discuss somewhat more the 
 general rules of evidence, and the nature of the evidence 
 that is in practice required in Chancery suits. 
 
 And firstly it may be observed that, generally, the same 
 rules prevail in equity as at law, as to what is evidence; though 
 of course the pecuUarities still incident to equitable pro- 
 cedure may sometimes modify the operation of the rules. 
 
 The evidence used in a Chancery suit consists of — 
 
 1 . The admissions of the jiarties. 
 
 2. Documentary evidence. 
 
 3. The evidence of witnesses. 
 
 The admissions of parties are of two kinds — the admissions 
 contained in the pleadings, and the admissions made by 
 agreement. 
 
 The admissions contained in the pleadings are, as against 
 the plaintiff, the allegations of the bill ; as against the defen- 
 dant, the admissions made by the answer. 
 
 Whatever is alleged by the plaintiff in the bill positively^ 
 by way of averme7it, is eiidence against him ; thus, if he 
 avers that he did a certain act, not only the defendant may 
 read that averment as proof of the fact in his own favour, but 
 the plaintiff cannot go into evidence to show that he did not 
 do it. But what the bill alleges, not by way of positive 
 averment, but only by way of inference or hj-pothetically, 
 is not evidence against the defendant. 
 
 It has already been observed that, whatever the answer 
 avers may be read by the plaintifT against the defendant as 
 an admission of the facts averred. And the extent to which, 
 and the qualifications with which, the averments of the 
 answer must be read, have also been discussed. It is needless 
 to say that a carefully drawn bUl will scarcely ever be found 
 to aver positively any facts or matters beyond those which 
 are the plaintiff's own case. 
 
 Admissions by agreement. 
 
 Admissions are frequently, to save expense, entered into 
 on both sides in writing, or they may be made by one side 
 only; reciprocity or consideration not being essential. The 
 proper mode of makuig admissions is for the solicitors of the 
 parties to sign an agreement to the effect of the intended 
 admissions. Thus : " We the undersigned solicitors for the 
 plidntifi" and defendant in this cause, agree to admit at the 
 hearing thereof, or otherwise as may be necessary, that the 
 several deeds mentioned and referred to in the schedule hertto
 
 ADMISSIONS. 105 
 
 were respectively duly executed by the persons whose names 
 are signed thereto as executing parties; and that tlie several 
 letters mentioned and reterrc'd to were respectively signed 
 by the persons whose signatures they hear respectively, and 
 were respectively sent to and received l)y the j)ersons to whom 
 they were adch-essed respectively ; and that the same shall be 
 respectively read at the hearing of, or otherwise, in this cause 
 as either party may be advise<l, in the san\e manner as if the 
 same had been regularly proved ; and that we will produce 
 and permit to be read at the hearing of and otherwise in 
 this cause such of the original letters respectively as are 
 admitted in the said schedule to be in our respective pos- 
 session. 
 
 " A. B. Plaintiff's solicitor. 
 
 " C. D. Defendant's solicitor." 
 
 Great care sliould be taken in framing admissions, so as 
 not to make them go beyond the intention ; though in 
 general they will be strictly construed. Thus, an agreement 
 to admit deeds or letters as executed or written, leaves it 
 quite open to show that they are badlif pleaded or essentially 
 defective : ( Goldie v. Shuttleworth^ 1 Camp. 70.) So in 
 Mouusey v. Burnham (1 Hare, 15), where the solicitors 
 of the parties agreed to admit as fact that the defendant 
 was served with a certain notice, and that a certain paper 
 writing was the notice, and that another paper writing was a 
 true copy of the lease referred to in the notice. The original 
 lease was not produced, and there was no evidence of its 
 existence except the copy produced as a true copy and the 
 notice which informed the defendant of the execution by 
 the plaintiff of the lease. The court held that the admission 
 merely substituted the copy of the lease for the original, 
 but did not place it in a better position than the onginal 
 would have been in if producetl ; and that the admission 
 of the notice did not dispense with proof of the lease by 
 calling the attesting witness. 
 
 The practice of admissions, as they avoid expense, is 
 favourably looked at V)y t\w. court ; but they will be confined 
 to the ca.ses where the rights of the ])arties only are affected 
 by them, and the parties are persons compc^tent to waive 
 their own riglits. Thus, an infant cannot make admissions. ^ 
 Nor will any agreement in the nature of admissions be per- 
 mitted to defeat the provisions of the law. So that no 
 admission of an unstamped document that ought to be 
 stamped will be permitted ; nor would formerly any consent 
 to the examination of a wife for her husband be permitted :
 
 106 NEW EQUITY PRACTICE. 
 
 (see Barker v. Dixie, Rep. temp. Hardw. 264 ; Owen v. 
 Thonias, 3 Myl. & K. 357.) 
 
 On the practice of entering into admissions generally, I 
 may observe in conclusion, that much danger arises from an 
 indiscriminate resort to it. The object and almost the only 
 object of it in a contested suit is to save expense ; and in 
 general it should therefore be strictly conBned by the practi- 
 tioner to those cases in which he is satisfied that his opponent 
 has the means of proof, and that the only result of putting 
 him to proof will be to cause unnecessary expense. But 
 wherever he has any reason to belfeve or anticipate that, if 
 put to proof, the opponent may whoUy or partially fail in the 
 particular proof, he should abstain from entering into any 
 admission. 
 
 Of competency and incompetency of witnesses. 
 
 Before discussing the details of evidence, it wUl be con- 
 Tenient to dispose of the question, who may be vdtnesses? 
 that is, what classes of persons are, and what are not, in- 
 competent to give evidence. 
 
 This inquiry is much more limited now than it used to be 
 formerly, by reason of the several acts that have passed of 
 late jears, removing various grounds of incompetency. 
 
 The principal grounds of incompetency were fonnerly, 
 personal incompetency, arising from idiocy, lunacy, infancy, 
 absence of religious behef, and infamy ; to these may be 
 added, the ground of marriage, which applied onlj- as between 
 husband and wife; and interest in the subject-matter of 
 the litigation, whether by being parties ; or not being parties 
 by having an interest aliunde; these grounds of incom- 
 petency have been affected by several statutes. 
 
 Tlie 6 & 7 Vict. c. 85, commonly called Lord Denman's 
 Act, provided that " no person offered as a witness shall 
 hereafter be excluded, by reason of incapacity from crime or 
 interest, from giving evidence either in person or by deposi- 
 tion, according to the practice of the court, on the trial of any 
 issue joined, or of any matter or question on any inquiry 
 arising in any suit, action, or proceeding, civil or criminal, in 
 any court or before any judge, jurj', sheriff, coroner, ma<;is- 
 **trate, or person having by law, or by consent of parties, 
 authority to hear, receive, and examine e^idence ; but that 
 every person so offered may and shall be admitted to give 
 evidence on oath or eolemn affirmation in those cases wherein 
 affirmation is by law receivable, notwithstanding that such 
 person may or shall have an interest in the matter in question,
 
 IXCOMPETENCT OF -VnTNESSES. 107 
 
 or in the event of the trial of any issue, matter, question or 
 inquiry, or of the suit, action, or proci'i-din"; in which he is 
 otl'ered as a witness ; and notwithstanding that such person 
 otTered as a witness may have been previously convicte<l of 
 any crime or ollence." This was followed by a proviso ex- 
 cepting from the new competency parties individually named 
 on the record, and affecting actions of ejectment and ic- 
 
 Ele\in ; and then it was provided that, " in Coui'ts of 
 Iquity any defendant to any cause pending in any such 
 court may be examined as a witness on the l)t'half of tlic 
 plaintiff, or of any co-defendant in any such cause, saving 
 just exceptions ; and that any interest which such defen- 
 dant so to be examined may have in the matter or any of 
 the matters in question in the cause shall not be deemed a 
 just exception to° the testimony of such defendant, but shall 
 only be considered as affecting or tending to affect the 
 credit of such defendant as a witness." 
 
 Tliis act was followed by the 14 & 15 Vict. c. 99, which 
 first repealed the first proviso of the pre\ious statute 
 affecting parties to the record, and ejectment and re- 
 plevin, and then provided '•'• that on the trial of any issue 
 joined, or of any matter or (question, or on any inquiry 
 arising in any suit, action, or other proceeding in any court of 
 justi(;e, or before any person having by law or by consent of 
 parties authority to hear, receive, and examine evidence, 
 the parties thereto, and the persons on whose behalf any 
 such suit, action, or other proceeding may be brought or 
 defended, shall, except as hereinafter excepted, be compet-ent 
 and compellable to give evidence, either viva voce or by de- 
 position, according to the practice of the court, on behalf of 
 either or any of the parties to the suit, action, or other 
 proceeding." 
 
 ITie first exception was that, in criminal proceedings 
 no person was to be competent or compellable to give evi- 
 dence for or against himself ; and that in civil proceedings, 
 husband and wife should not be competent or compellable 
 to give evidence for or against each other. 
 
 Under the last of these statutes, a question arose in a suit 
 in e<piity, whether a wife party to the suit was competent or 
 compellable to give evidence against her husband ; and it 
 wa.s held that she was not: (Alcock v. Alcock, 16 Jur. 6o3.) 
 But that statute was followed by the 17 & 18 Vict. c. 83, 
 which enacts that, " on the trial of any is.su(^ jnin.ed, or of 
 any matter or question, or on any incpiiry arising in any suit, 
 action, or other proceeding in any couit of justice, or befi^re 
 any person having by law or by consent of parties, authority
 
 108 NEW EQUITY PRACTICE. 
 
 to hear, receive, and examine evidence, the husbands and 
 wives of the parties thereto, and of the persons on whose 
 behalf any such suit, action, or other proceeding, may be 
 brought or instituted, or opposed, or defended, shall, except 
 as hereinafter excepted, be competent and compellable to 
 give evidence either viva voce, or by deposition according to 
 the practice of the court, or of either or any of the parties 
 to the said suit, action, or other proceeding." 
 
 The exceptions are, first, that the husband and wife are 
 not to give e^ddence in any criminal proceeding, or on any 
 proceeding instituted in case of adultery ; and secondly, that 
 " no husband shall be compellable to disclose any communi- 
 cation made to him by his wife during the marriage, and no 
 wife shall be compellable to disclose any communication 
 made to her by her husband during the marriage." 
 
 The law therefore seems now to be that in suits in equity 
 no interest of any kind, as such, whether by reason of being 
 a party or otherwise, renders a person Incompetent to give 
 evidence for or against any other party ; nor does crime of 
 any kind. 
 
 The grounds of incompetency which remain untouched by 
 the statutes are idiocy and lunacy. 
 
 An idiot, that is, a person from birth non compos mentis, or 
 from birth deaf, dumb, and blind, is incompetent as a wit- 
 ness. So are lunatics, whether so found by inquisition or 
 not, but lunatics may, in lucid intervals, be witnesses ; and 
 persons simply deaf and dumb, whether bom so or not, are 
 competent, and so are persons simply blind. 
 
 A person totally without religion, that is, not believing in 
 the existence of a God who will reward and punish, is not a 
 competent witness. The amount of belief generally required 
 in practice, is belief in God and In a future state of reward 
 or punishment. But semble that If a witness believes in God, 
 and that he will reward or punish, ivhether in this world or in 
 a future state, he is a competent witness : (see Willes, 550.) 
 A person belle'ving the existence of God, and in a future 
 state; that is, a pure theist, as a Jew, or a theist of the com- 
 posite order, as a Mohammedan, is a competent witness, how- 
 ever he may differ in other respects from the Christian creed. 
 Infancy is a limited or qualified ground of incompetency. 
 An infant is not, like a person of full age, prima facie com- 
 petent, nor is there any particular age fixed under twenty- 
 one at which he is competent ; but it must be shown in 
 each case that he comprehends the nature and consequence 
 of an oath. It is for the judge to satisfy himself on this point 
 by a preliminary inquiry before the Infant is sworn.
 
 DOCUMENTARY EVIDENCE. 109 
 
 Tliosc above enumerated are, I Ijelieve, now the only general 
 grounds of personal ineoinpetency. Tlu-re are some special 
 grounds of incompetency, such as that imiiosed by the 17 & 
 ]8 Vict. c. 8;3, supra, upon husband and wife, that they shall 
 not be comj)ellable to disclose coninmnieations made durinjj 
 the marriage ; of the same kind is what is termeil privileged 
 testimony, of which ])artial mention has been already made 
 in treating of production of documents; viz., the testimony 
 of counsel, solicitor, or attorneys, touching matters of which 
 they haveac([uired knowledge through conhdential communi- 
 cations in the course of business, from their clients. On such 
 matters those persons cannot be compelled, nor even per- 
 mitted against the will of the client, to give evidence ; 
 whether the knowledge was acquired in, or in reference to, or 
 in anticipation of the existing litigation, or without reference 
 to it. It is sufficient that it was acquired by means of con- 
 fidential communications made by the client to his legal 
 adviser in his character of legal adviser ; the privilege 
 extends to the clerk of the privileged person ; but it does not 
 go beyond counsel, solicitors, and attorneys or their clerks. 
 
 A medical man is competent and compellable to give 
 evidence on matters communicated to him confidentially by 
 his patient ; so a clergyman of the Church of England, and 
 a Roman Catholic priest, are compellable to give evidence 
 of matters come to their knowledge through confession. 
 
 Of documentary evidence. 
 
 Documentary evidence is of two kinds, matter of record, 
 and matter not of record ; that is, documents of a judicial or 
 qiMsi judicial nature, which are publicly recorded, and of 
 which the distinctive character is, that in general they prove 
 themselves on production, and cannot be contradicted by any 
 evidence ; and instruments made between parties, which re- 
 quire extrinsic proof of their execution, and sometimes of 
 collateral qualities. 
 
 Documentary evidence of record consists of acts of Par- 
 liament ; the proceedings of Courts of Judicature ; and such 
 documents as are made by act of Parliament matter of record. 
 All such documents prove themselves ; that is, the production 
 of them is sufficient proof without any testimony of witnesses. 
 Thus, the probate of a will produced by the party relying 
 upon it, is sufficient evidence of the will ; the production of 
 the record of a conviction, or of a judgment at law, or of a 
 decree or other order in Chancery, would be sufficient proof 
 of such conviction, decree, or order, and of the matters con- 
 tained in it, without any further or other evidence. But 
 [cu.] L
 
 110 NEW EQUITY PEACTICE. 
 
 with regard to most of such documents, copies of a specific 
 kind of the record itself are made evidence. Thus, a cer- 
 tificate of a conviction is in certain cases under the 7 & 8 
 Geo. 4, cap. 18, evidence of the conviction; the copies of 
 acts of Parliament printed by the Queen's printer are 
 admissible; and of all decrees and proceedings of record 
 in the Court of Chancery, office copies duly certified are 
 evidence in all Chancery proceedings ; and in general, in 
 proceedinjjs in Chancery, the original record is not pro- 
 duced, but copies of bills, answers, and depositions are 
 certified under the hand of the Clerk of Records and 
 Writs (see 14 & 15 Vict. c. 99, and Reeve v. Hodson, 
 10 Hare, App. 19.) By the 7th section of the 14 & 15 
 Vict. c. 99, "all proclamations, treaties, and other acts of 
 state of any foreign state or of any British colony, and all 
 judgments, decrees, orders, and other jutlicial proceedings 
 of any court of justice in any foreign state or in any British 
 colony, and all affidavits, pleadings, and other legal docu- 
 ments filed or deposited in any such court, may be proved 
 in any court of justice, or befoie any person having by law 
 or by consent of parties authority to hear, receive, and ex- 
 amine evidence, either by examined copies or by copies 
 authenticated as hereinafter mentioned ; that is to say, if the 
 document sought to be proved be a proclamation, treaty, or 
 other act of state, the authenticated copy to be admissible 
 in evidence must purport to be sealed with the seal of the 
 foreign state or British colony to which the original docu- 
 ment belongs ; and if the document sought to be proved be 
 a judgment, decree, order, or other judicial proceeding of 
 any foreign or colonial court, or an affidavit, pleading, or 
 other legal document filed or deposited in any such court, 
 the authenticated copy to be admissible in evidence must 
 purport either to be sealed with the seal of the foreign or 
 colonial court to which the original document belongs, or, in 
 the event of such court having no seal, to be signed by the 
 judge, or, if there be more than one judge, by any one of 
 the judges of the said court, and such judge is to attach to 
 his signature a statement in writing on the said copy that 
 the court whereof he is a judge has no seal ; but if any of the 
 aforesaid authenticated copies shall purport to be sealed or 
 signed as hereinbefore respectively directed, the same shall 
 respectively be admitted in evidence in every case in 
 which the original document could have been received in 
 evidence, without any proof of the seal where a seal is 
 necessary, or of the signature, or of the truth of the state- 
 ment attached thereto, where such signature and statement
 
 DOCUMENTS OF UECOUD, 1 1 1 
 
 are necjssary, or of the judicial cliaracter of the j)urson 
 appearing to have made such sij/iiaturc and statement. 
 
 By the 10th section every document wliich by any law 
 now in force or hereafter to be in force is or shall be ad- 
 missible in evidence of any particular in any court of 
 justice in Ireland, without proof of the seal or stamp or 
 signature authenticating the same, or of the judicial or 
 official character of the person appearing to have signed 
 the same, shall be admitted in evidence to the same extent 
 and for the same purposes in any court of justice in England 
 or Wales, or before any person having in England or Wales 
 bylaw or by consent of parties, authority to hear, I'eceive, 
 and examine evidence, without proof of the seal or stamp 
 or signature authenticating the same, or of the judicial or 
 official character of the person appearing to have signed 
 the same. 
 
 By the r2th section, registers of British vessels, and 
 certificates of registry, are admitted as prima facie evidence 
 of their contents, without proof of signature. 
 
 By the 14th section, whenever any book or other docu- 
 ment is of such a public nature as to be admissible in evidence 
 on its mere production from the proper custody, and no 
 statute exists which renders its contents provable by means 
 of a copy ; any copy thereof or extract therefrom shall be 
 admissible in evidence in any court of justice, or before 
 any person now or hereafter having by law or by con- 
 sent of parties authority to hear, receive, and examine 
 evidence, provided it be proved to be an examined copy or 
 extract, or provided it purport to be signed and certified 
 as a true copy or extract by the officer to whose custody 
 the original is intrusted, and which officer is re(|uired to 
 furnish such certified copy or extract to any person apply- 
 ing at a reasonable time for the same, upon payment of a 
 reasonable sum for the same, not exceeding fom^pence for 
 every folio of ninety words. 
 
 Parish registers, though not judicial documents, are 
 pubhc documents which pi'ove themselves by jjroduction. 
 Extracts from parish registers used to be admitted as evi- 
 dence if signed by the proper officer to whose custody the 
 original was intrusted, certifying themselves to be such 
 officers. But since the 14 & 15 Vict. c. 99, it has been held 
 that such registers signed by the persons who were tie 
 proper officers, and certified by them to be true copies, 
 although they do not go on to certify that they were the 
 officers to whose custody they were committed, are admis- 
 sible : {Re Neddy HulVs estate, 17 Jur. 29.) 
 L 2
 
 112 NEW EQUITY PRACTICE. 
 
 The Queen's letters patent are, as matters of public record, 
 of the class that would prove themselves by production. In 
 proceedings theymay be proved by an exemplification from or 
 constat of the enrolment of the letters patent under the 
 Great Seal, which forms part of the patent. 
 
 The specification and its due enrolment are proved, if it 
 is enrolled at the Enrolment Office, or in the Petty Bag, 
 by an examined copy ; but if it is enrolled at the R0II3 
 Chapel, by a copy certified by the deputy keeper of the 
 records, or one of the assistant keepers, and sealed with the 
 seal of the Record Office. 
 
 As it is not the intention of this work to treat at large and 
 minutely upon evidence, but only on its general principles 
 and rules, I must refer the reader for a detailed statement 
 of all the different kinds of documents which are of record 
 or in the nature of documents of record, to the treatise 
 of Mr. Powell, which forms a part of this Practice of the 
 Law. 
 
 Of documentary evidence not of record. 
 
 Documentary evidence not of record or of a public char- 
 acter consists of all kinds of deeds or other instruments 
 executed by or between parties. 
 
 The proper proof of such instruments is proof by the at- 
 testing witnesses ; but if they are dead, or cannot be found, 
 then by proof of their handwriting ; but instruments more 
 than thirty years old prove themselves, that is, they are 
 admitted to be read as being executed between the parties 
 between whom they purport to be made, without proof by 
 the attesting witnesses, or of the handwriting of the attesting 
 witnesses ; of course it mil be understood that if the identity 
 of the parties to the deed is disputed, that must be proved. 
 The proof of the deed simpliciter, proves only that such a 
 deed was executed between some persons called A. and B. ; 
 but to show that it was the deed of the particular A. and B. 
 to whom in the htigation it is attributed, there must be proof 
 of identity, if the matter is disputed. 
 
 Letters are proved, either by the writer, or, if be is inac- 
 cessible, by proving the handwi'itnig of the writer ; and 
 their delivery is proved either by proving their actual 
 delivery when they have been personally delivered, or by 
 pi'oving the posting of them if they have been sent by the 
 post, the court assuming that if posted they have been duly 
 delivered. Of course such proof is capable of being i-ebutted 
 by proof that no such letter was received, which may be by
 
 DOCDMENTS NOT OF RECORD. 113 
 
 the positive denial of the person addressed, that lie ever re- 
 ceived it, or by proof aliuiiile that siicli a letti-r was delivered 
 and retained elsewhere, liooks of aceount are proved by- 
 proving the handwriting of the person who has made the 
 entries, and his identity so as to connect him witii tlie persons 
 whose accounts they purport to be ; but books of account, 
 though evidence against the persons kee])ing tlieni, are not 
 in general evidence for tliem. But by the Chancery Improve- 
 ment Act (the 15 & 16 Vict. c. 8G) books of account may be 
 received by the court in its discretion as prima fucie evidence 
 of the truth of the matters entered, for as well as against 
 the parties keeping the books ; but the court will not so 
 admit them except upon collateral evidence, not only 
 that all other ordinary evidence that is procurable has 
 been procured, but that the books have been kept in such 
 a manner as to justify confidence in their general accuracy. 
 On the latter point, the court will either require evidence 
 or satisfy itself by personal inspection : (^.a^Eicart v. Wil- 
 liams, 3 Drew. 21.) In equity proceedings there can rarely 
 be any difliculty about the proof of books of account and 
 such writings, because they arc almost always, from their 
 very nature, produced by the party who admits them to be 
 his accounts. 
 
 In pedigree cases, to which a peculiar set of rules is ap- 
 plied (which will be discussed in a subsequent section), 
 private entries in books, such as entries in family bibles, in 
 diaries, family correspondence, and the like, and Inscriptions 
 on tombstones, engravings on rings, and other evidential 
 marks or entries, are received as evidence of the truth of the 
 matters entered. 
 
 It is a general rule that the best evidence that can be 
 procured must always be tendered, and inferior, or, as it is 
 termed, secondary evidence cannot be admitted unless it is 
 proved that the best is inaccessible ; therefore, copies of 
 deeds, or of any written instruments, cannot be produced in 
 evidence, if the originals can be procured. But if it is proved 
 that the originals are destroyed or lost, or are in the possession 
 of persons who have a right to hold them and will not pro- 
 duce them, then secondary evidence in the shape of copies 
 proved to be correct copies, will be let in. In equity, if 
 either party has in his possession documents, the contents 
 of which are material to the other party, he must give notice 
 to his opponent to produce the originals at the hearing of 
 the cause, before he can be allowed to produce secondary 
 evidence; and if the party possessing the documents either re- 
 fuses or neglects to produce them, or producing them refuses 
 L 3
 
 114 NEW EQUITY PRACTICE. 
 
 to let them be seen and read at the hearing, then, and not 
 till then, secondary evidence of their contents may be read. 
 
 Of the testimony of ivitnesses. 
 
 The most frequent and important class of evidence is the 
 parol evidence of witnesses. I have pointed out what classes 
 of persons are incompetent wholly or partially to give evi- 
 dence. It remains to show how those who are competent 
 should give their testimony, what species of testimony from 
 such persons may, and what may not be received, and for 
 and against whom. 
 
 And first, of the mode of swearing witnesses. As to all 
 competent witnesses of the ordinary kind and qualification, 
 it is scarcely necessary to state that they are sworn on the 
 New Testament. Jews are sworn on the Pentateuch, and 
 take the oath with the hat on. A Gentoo has been sworn, or 
 rather admitted to give evidence, on touching with his hand 
 the foot of a Bramin. A Quaker is not sworn at all, but 
 makes a solemn declaration. A Mohammedan is sworn on 
 the Koran. A Chinese has been sworn on breaking a saucer, 
 and declaring that if he did not speak the truth, his soul 
 would be cracked like a saucer. Bearing in mind the 
 principles laid down in Ramkissenseat v. Barker (1 Atk. 
 19), it may be presumed that the testimony of any person 
 of whom it has been previously ascertained that he believes 
 in God, and that God will punish him for a breach of his 
 solemn oath, will be admissible, if he is sworn according to 
 the custom of his country, or goes through the ceremonial, 
 whatever it is, which, according to the custom of his country, 
 is adopted in giving testimony in a court of justice. 
 
 When a witness has been sworn, he is first examined in 
 chief, and upon the examination in chief some rules of im- 
 portance prevail as to the questions which may be asked. 
 
 In the first place, the general rule is, that he can only be 
 questioned on matters put in issue in the litigation. Of 
 course this in practice affords a very wide latitude, as it is 
 next to impossible to say that a question however appa- 
 rently irrelevant, may not be of a distant relevancy ; and in 
 practice, if the examining counsel alleges that his question 
 has in his own mind a bearing upon the matters in issue, 
 the court will rarely stop him. However the rule exists, 
 and must not be lost sight of in considering what evidence 
 is admissible. 
 
 The next rule is, that leading questions must not be put ; 
 this is construed to mean that you must not, in an examina-
 
 EVIDENCE OF WITNESSES. 115 
 
 tion-in-chief, put such a question as will inform the witness 
 or put into his mint], the sort of answer you wish. Thus for 
 example, you may not ask a witness " did you not at the 
 house of A. B. on such a day see A. B. do so and so? " 
 because that shows the witness that you wish him to prove 
 that particular fact. But the question oujrht to be in this 
 wise : " When you wore at the house of A. B. on such a day, 
 what did you see him do ? " It is obvious that the rule 
 about leading questions is of the easiest possible evasion ; 
 and, indeed, in practice, it is every day, and every hour of 
 every day eirectually evaded ; because, to say nothing of the 
 facility of putting a loading question in an unloading form 
 so that it cannot be objected to, the objection can only be 
 taken when the question has been actually put, and then 
 the mischief is done ; the witness has been informed by 
 the question what is the answer wanted, and while the 
 counsel are arguing the objection, and the judge deciding 
 upon it, he collects himself to make the answer that he thinks 
 fit to give. Though leading questions are therefore much 
 objected to at common law, and are particularly opposed on 
 criminal trials, probably for some reason arising out of the 
 constitution and idiosyncracy of juries, in Chancery, counsel 
 seldom take much ti'oublc to object to leading questions, 
 knowing that the judge, being neither aided nor mcumbered 
 by a jury, will, in weighing the credibility of evidence, cast 
 into the balance the just number of grains due to the mode 
 in which it is extracted ; and accordingly in equity, arguing 
 objections to questions on the ground that they are leading, 
 is almost entirely neglected as being a pure Avaste of time. 
 
 Another rule of examination is one which Hows from the 
 general rule affecting all evidence, viz., that the tribunal 
 must be supplied with the best evidence that can be got. 
 Consequently, a witness may not be asked to depose by parol 
 to the contents of any written document accessible and 
 admissible. Therefore, if a letter has been written by the 
 v?itnes3 or by any other person, the witness may not be 
 asked whether he wrote or saw such a letter, and whether it 
 did not contain such and such matter, but the letter should 
 be put into his hands to prove the writing of it, and then 
 the contents of the letter will be road from the letter itself. 
 A witness can in general only be heard to prove what is in 
 his own knowledge or observation ; that is, he cannot be 
 allowed to give evidence of facts of whi(;]i he received the 
 knowledge from another ; because the ])r()por person to 
 testify to those facts is the person from whom he derived the 
 knowledge. Thus, a witness cannot be heard to say that he
 
 1 16 NEW EQUITY PRACTICE. 
 
 was told of a given fact by another, that is, if the object of 
 the evidence is to show the truth of the fact ; but if the 
 CNadence is tendered not to show the fact, but merely to 
 show that A. B. did make an assertion, then of course the 
 testimony would be admissible. The distinction will be 
 made easily perceptible by an example : — K the issue was 
 whether A. had slandered B., the witness might prove that 
 he heard A. say that B. was a scoundrel. But if the issue 
 were whether B. had stolen a horse, the witness could not be 
 heard to say that A. had told Idm he saw B. steal the horse, 
 for this would be what is called hearsay. 
 
 Another ride is, that a witness is not bound to answer 
 questions the answers to which would criminate or tend to 
 criminate liimself : (Paxton v. Douglas, 16 Yes. 239.) But 
 this must be understood in equity to be confined to answers 
 which would implicate or tend to implicate him in the pen- 
 alties of a criminal transaction. A defendant in equity was 
 always obliged to answer as to facts which might produce a 
 civil decree against him; and so, a witness in equity, whether 
 a party or not, cannot protect himself from answering any 
 question merely because it tends to his civil injury; though 
 he might always, and may still demur to any question tend- 
 ing to involve him in penalties, or forfeiture in the nature of 
 a penalty. Thus, a witness may be asked whether he did or 
 did not do an act which would be a breach of trust. But 
 a lessee could not be asked whether he had neglected to 
 insure in breach of his covenant, because that would create 
 a forfeitm-e ; nor could he be asked whether he had done 
 an act which, under any act of Parliament, or at the common 
 law, would expose him to penalties; as for instance, whether 
 he had not knowingly and purposely affixed an insufficient 
 .stamp to a deed, because that would expose him to penalties 
 under the Stamp Act. But whether the answer would or 
 would not tend to criminate or to involve the witness in penal- 
 ties or forfeitures, is a question for the decision of the 
 judge, not of the witness, if the validity of the objection is 
 disputed. 
 
 Whether a witness may be asked questions irrelevant to 
 the issue, tending to degrade his character, as whether he 
 had not suffered some infamous punishment, or been guilty 
 of some disgi-aceful transaction not material to the question in 
 Issue, is a point still in doubt. Mr. Phillips, in his Treatise 
 on Evidence (vol. 2. p. 493, et seq. edit. 1852) cites a consider- 
 able number of cases for and against. The result seems to 
 be that the better opinion is, that he is not compellable to 
 answer such questions ; but that is his privilege, not the
 
 ' CROSS- KXAMINATIOX. 117 
 
 privilege of the party examining bin), and tbi-refore it is not 
 unlawful to ask the questiou (see however Frust v. IIullo- 
 tcriy, cited in the book above referred to, p. 500); and if the 
 witness chooses to answer, his evidence is admissible, and 
 the party asking him is bound by his answer : (see Watsuri's 
 case, Gurn. vol. 2, 228.) The distinction seems somewhat 
 confused and al)surd, since it is dillicult to see how a ques- 
 tion can be lawful, to which it is not lawful to compel an 
 answt-r. On the whole, the doctrine must be considered 
 as still vague and unsettled. However, to whatever extent 
 the witness's privilege goes, he may claim it at any part 
 of the inquiry, whether he has already partially answered 
 or ha« not answered at all : [Garbett's case, Den. Cr. Cas. 
 Reserved, 236.) 
 
 When a witness has been sufiBciently examined by the 
 party calling him, he may be cross-examined by the opposite 
 pai'ty. On cross-examination, much greater latitude is allowed 
 in regard to the mode of ([uestioning. The general rule to 
 be collected, seems this : in cross-examining, the party ex- 
 amining is not confined strictly as to relevancy to the question 
 in issue. He may ask questions aflecting the credit of the 
 witness, although not relevant to the matter in issue, and 
 consequently may travel into a variety of transactions with 
 that view, which have nothing to do witii the matter. But 
 he may not ask questions as to facts not relevant, and not 
 aifectiug the credit of the witness. 
 
 But care must be taken to distinguish from this last rule, 
 cases where the questions go to elicit answers as to transac- 
 tions with third persons, showing that the transaction 
 alleged in the cause between A. and B., was in fact between 
 A. and C. : {seeGerisp v. Chartier, 1 C. B. Hep. 13.) (') 
 In truth such a (question, although appiu'entl)^ relating to 
 transactions between third parties, is in reality relevant, 
 because it tends to show that there was no such transaction 
 between the parties to the record, as that which is put in 
 issue. 
 
 Also, in cross-examination, any amount of leading in the 
 questions is permissible. The distinction seems founded on 
 no tenable principle; for the reason given, viz., that where a 
 witness is unwilling (as witnesses under cross-examination 
 are assumed to be, and in fact usually are), there can be no 
 danger in leading too much, is obviously no reason at all. 
 
 (») The case of De RUzen v. Farr, 4 Ad. & El. cited by Mr. 
 Phillips on this point, (p. 470) has no bearing upon it.
 
 118 NEW EQUITY PRACTICE. 
 
 A leading question in cross-examination tends just as much 
 to show the witness what he is to negative, as it does on 
 examination-in-chief to show him what he is to affirm. 
 However, so is the rule. 
 
 After cross-examination, the witness may be re-examined 
 by the party who called him. 
 
 Ke-examination is confined to such matter as is relevant 
 to the cross-examination, and must not travel into new 
 matter properly belonging to, and as to which the witness 
 might have been examined in chief Kit is thought necessary 
 to go into any such fresh matter, the course is to ask the 
 judge to put the question, which he may do, if he thinks 
 fit ; and in fact the judge will, at any time after a -nntness 
 has been examined, permit a particidar question (otherwise 
 in itself admissible) to be put, tending to get rid of objec- 
 tions beside the justice of the case, and little more than 
 matter of form ; but not questions tending to the merits and 
 justice of the case : (Giles v. Powell, 2 Car. & Pay. 269.) 
 
 A witness must, in strict theory, speak from his memory. 
 But as this, without assistance, is in complex matters practi- 
 cally impossible, he is allowed to refresh his memory, as it is 
 termed, by reference to written memoranda. On this point 
 the minute distinctions are too many to be pointed out 
 within the limits to which in this work the subject must be 
 restricted. But the principle may be thus stated : — The 
 memoranda must be used _ as refreshing or exciting the 
 memory merely, not as substantive evidence ; that is, the 
 witness may so use the memoranda, that having done so, he 
 recollects and takes on himself to swear to the facts as 
 being in his memory ; but he may not prove the facts merely 
 as finding them in the memoranda. If the memoranda 
 are to be so used, that is, if the e\-idence is in fact in the 
 memoranda, and not in the memory of the witness, the 
 memoranda themselves must be proved and used as evidence : 
 (see Rex V. Inhabitants of St. Marthi, 2 Adol. & Ell. 210, 
 and the cases there cited.) 
 
 Presumptions. 
 
 I proceed now to treat of certain classes of evidence not 
 being the positive e\'idence of documents which prove them- 
 selves, or are proved ; nor the positive evidence of witnesses 
 who depose to what they know of their own knowledge or 
 memory. 
 
 The principal of these classes are, presumptions; and
 
 PRESUMPTIONS. 119 
 
 sccoml;iry evidence ; and in particular, as a part of the 
 second class, hearsay evidence. 
 
 Presumptions are ofhiw, or of fact. Presumptions of hiw 
 arc those conclusions which the court will adopt as incon- 
 trovertible ; or as uncontroviTted, tliouj^h not incontroverti- 
 ble, arising from rules of law. Presumptions of fact are 
 inferences of fact (h'awn from evidence not of the fact itself, 
 but of other facts which, according to the best conclusions 
 at wliich human reasoning is supposed capable of amving, 
 necessarily prove thi- fact presmned. 
 
 Of the former class there are many, some of them no 
 doubt very al)surd; for instance, that every one knows the 
 luw ; a presumption of law continually acted upon in decid- 
 ing on the construction of wills ; tliat every one (in the 
 absence of proof to the contrary) has acted rightly and 
 honestly ; a presumption acted upon very frequently in 
 equity, in determining on the conduct of persons m a fidu- 
 ciary character ; that the child born within the proper or 
 possible period, of parents having the possibility of access 
 to each other, is the legitimate child of those parents ; that 
 a deed thirty yeai's old, was executed by and between the 
 parties by and between whom it purports to be executed 
 (a point noticed alrea<iy, ante, p. 112) ; that a person proved 
 to have been living within some given period is still living, or 
 the contrary; that a person proved to have left the country, 
 and not heard of for seven years, is no longer living ; that 
 public officers have done all the formal acts which it is their 
 duty to do, as in Coombes v. Mansfield (3 Drew. 193), where 
 the court would not hear evidence to show that the proper 
 officer had registered a ship without seeing that she was in 
 such a state as required by the Ship Registry Acts, for the 
 purpose of registry ; that sealing and delivery of a deed 
 may be presumed on proof of its being signed. And a 
 variety of others, which it would be far beyond the limits of 
 this work to point out in detail. 
 
 Presumptive eviileuce of the kind above pointed out, is 
 evidence rather resting on judicial rules, or judicial custom, 
 by which certain facts being given, certain inferences are to be 
 taken to be true, than on any actual practical belief in the 
 mind of the judge, or, at common law of the jury, they are 
 actually true. 
 
 What are called presumptions of fact, to distinguish them 
 from presumptions so founded, are more projicHy tlie infer- 
 ences which the judge or the jury may lawfully draw from 
 certain facts. These are obviously more matter of discre- 
 tion ; but still they are not wholly uusubjectcd to rule and
 
 120 NEAV EQUITY PRACTICE. 
 
 custom. Of this class, for instance, is the presumption 
 against the truth of the whole of the evidence of a witness, 
 proved to have deposed falsely (and wilfully so) in some parts 
 of his evidence. Of the same class is the presumption that 
 an agent has done acts under the authority of his principal ; 
 a rule of evidence on which in fact rests the general rule of 
 law, that a principal is responsible for the acts of his agent. 
 This kind of presumption may sometimes be rebutted by 
 evidence, in which case, it is strictly presumption of fact ; and 
 sometimes it -will not be allowed to be so contradicted, and 
 then it is in reality a presumption of law. 
 
 Of hearsay and other inferior evidence. 
 
 There are classes of cases, in which hearsay and other 
 evidence of an inferior character, in the nature of presump- 
 tive e\idence, is admissible. Pedigree cases form a consider- 
 able portion of this class. In pedigree cases, from their very 
 nature, secondary evidence, and in particular, that class of 
 secondary evidence called hearsay, must be resorted to ; 
 for it is obvious, that when the matter to be proved is the 
 descent of a claimant from some person who has been dead 
 perhaps one hundred or one hundred and fifty years and 
 consequently the identity and family connexion of parties is 
 to be proved, most of whom have been dead for some gene- 
 rations, no evidence can be accessible as to many matters, 
 except the declarations of deceased persons ; and as to many 
 others, no evidence frequently is accessible, except that 
 species of writing which, proving collateral facts, leads to an 
 inference of the facts souglit to be established. Accordingly, 
 in pedigree cases, entries of vanous kinds (which would, in 
 proving a case where the facts could be proved by the tes- 
 timony of witnesses, be wholly rejected) are adimissible in 
 evidence. 
 
 Thus, entries in family bibles or prayer-books may be 
 given in evidence to prove links in the chain of descent ; 
 entries in a bible are evidence, without proof of the entry 
 having been made by a member of the fomily, because a 
 family bible is considered as in the nature of a taniilj- regis- 
 ter. But entries in prayer-books, almanacs, and other 
 family documents, not being fomily bibles, must be shown 
 to have been made by members of the family, or to have 
 been treated by members of the family as con-ect entries, 
 before they can be admitted as evidence. So, family corre- 
 spondence, in which one proved member of a family addresses 
 another person as a relation, is admissible in evidence.
 
 HEARSAY EVIDENCE. 121 
 
 Again, recitals in di-cds, either lieing family docinnents, 
 or being deeds to wliich a member of the family was a 
 j)arty, are admissible evidence ^ but this is properly evidence 
 in the nature of a declaration by a member of the family. 
 Engravings on rings, charts of pedigree, inscriptions on tomb- 
 stones, and on monuTuents, and the like, are also admissible ; 
 but such evidence is of the weakest in point of efieet. 
 
 Declarations of dead members of a family, that is, persons 
 connected with it by lilood or aflinity, as to who were their 
 relatives, are admissible. 
 
 Thus, having established that A. was a member of a 
 wiven family, proof that he had spoken of B. as his brotlier, 
 IS admissible. It was formerly doubted (and tlie ])()int 
 is even now not always clearly understooil) whetlier such 
 hearsari- may be double ; that is, whether proof of a de- 
 claration by A., a member of the family, that B., another 
 member of the family, had made statements as to the 
 pedigi'ce of the family (which is double hearsay) is ad- 
 missil;le : but it is clear that it is : [Monckton y. Attornei/ 
 General, 2 Russ. & Myl. 1G5.) 
 
 The declarations must, however, be by members of the 
 family; and declarations by servants, friends, or even medical 
 attendants, are not admissible. With respect to the evidence; 
 of persons connected only by aflinity, the admissibility of 
 declarations by such persons is confined to the declaration 
 of a husband as to his wife's pedigree. The declaration of 
 a man's wife's sister would not, for instance, be admissible to 
 prove the man's pedigree, although she is related to him by 
 affinity. 
 
 I have stated that tlie declarations must be by a proved 
 member of the family; the rule as to the proof on this is, that 
 the fact of the declarant being a member of the family must 
 he jyrovL'il aliunde, that is, by extrinsic evidence, and not out 
 of the declaration itself Thus, a declaration by A. that he 
 was the son of B., would be nothing in order to let in his 
 eviilence, if there were no other extrinsic proof that A. was 
 the son of B. 
 
 This rule is indeed so obviously founded on common 
 sense, that it is wonderful it should ever have been the 
 subject of solemn discussion. For, the value of a declara- 
 tion by a member of a family as to its state depending 
 on the supposed knowledge which he possesses as a member 
 of the family, of what force can that declaration be until it 
 is first ascertained, l)y something more than his own state- 
 ment, that he is a member of the family? The rule is well 
 settled, and admits of no exception. 
 [CII.] M
 
 122 NEW EQtlTr PRACTICE. 
 
 Such declarations, to be admissible, must have been made 
 before the commencement of the litigation in which thej 
 are tendered, the commencement of the litigation being 
 understood to mean, not merely the commencement of an 
 action or the Jiling- of a bill, but the commencement of the 
 dispute. But this does not exclude declarations made ex- 
 pressly to prevent a possible or anticipated dispute, provided 
 no dispute in the nature of a claim and resistance to it has 
 actually commenced. 
 
 There remains another class of evidence to be considered, 
 viz., the evidence of professional persons, or persons other- 
 wise of the class of experts in matters of science and skill. 
 Evidence of this kind is, in the general course of equity busi- 
 ness, by reason of its relating only to property, of more 
 limited use than at common law. In equity it is rarely 
 required, except upon questions of patent right, copyright, 
 engineering, building, or surveying, and sometimes in cases 
 of nuisance. 
 
 The general rule of evidence is that it must be as to facts; 
 but, in cases of the class above mentioned, evidence of 
 opinion is admissible. Thus, on a motion for an injunction 
 to restrain infringement of a patent, an engineer, or a patent 
 agent, or any person skilled in the art to which the invention 
 relates, may be asked whether, in his opinion, a particular 
 part is calculated to produce a given effect, or whether it is 
 different from an apparently corresponding, and apparently 
 similar, part in another mechanical process. And the evidence 
 of scientific persons swearing that they have never heard of 
 a certain invention before a given date has been admitted 
 as prirnd facie proof of novelty of the invention, throwing 
 the onus of proof of no novelty on the other side : (^Gallo- 
 way v. Bleaden, Webs. Pat. Cas. pp. 525, 526.) 
 
 So in cases of infringement of copyright of literarv' or musical 
 composition, the opinion of literary or musical men is admis- 
 sible in evidence, on the question of novelty and imitation. 
 
 And in oases turning upon the compliance of companies 
 in the execution of engineering works, with the terms of 
 the act of Parliament under which they claim, and are bound, 
 the opinion of engineers as to the suificiency or effect of 
 given works is admissible : (see Warner v. The North and 
 East Counties Jiailivay Company, 2 Rail. Cas. 380, in which 
 the mode of dealing with such evidence as to credibility is 
 shown.) 
 
 So, in cases of nuisance, the opinions of medical men, 
 chemists, and other persons whose occupations are such as 
 to raise a presumption that they are skilled in the particular
 
 AMICN'DIXG BILL?. 123 
 
 subject out of which the nuisance grows or is alleged to 
 grow are receivable in evidence. 
 
 The admissibility of such evidence does not extend beyond 
 its immediate bearing upon the subject of skill on which the 
 opinion is tendered. 
 
 XIX. Of amending Bills. 
 
 I have hitherto treated the subject of practice on the as- 
 sumption of the cause proceeding without collateral inter- 
 ruption, viz., supposing that, the bill being filed, and being 
 duly answered, no alterations are re(juisite, but that the 
 suit proceeds at once through the regular course of issue 
 being joined, and evidence being gone into, and then the 
 cause coming on for hearing. 
 
 It most usually happens that, by the effect of the answer, 
 when an answer is reciuired, or by reason of further informa- 
 tion irres])eetive of the answer, the bill recpiires amendment 
 before the plaintilT is prepared to proceed with the cause. 
 
 When a bill has been filed, the plaintilFmay amend it as 
 o/ cowrse as often as he likes before any answer has come 
 in: (64th Order, 8th May, 1845.) The order to amend is 
 obtained by a motion or petition of course, to be obtained 
 as pointed out ante: (see pp. 13 and 81.) 
 
 So, an order for leave to amend a bill, only for the pur- 
 pose of rectifying some clerical error in names, dates, or 
 sums, may be obtained at any time upon motion or petition, 
 without notice: (66tii Order, May, 184.5.) 
 
 And an order of course for leave to amend a bill, as the 
 plaintiff" may be advised (that is, to amend g('nerally) may 
 be obtained at any time before fding or undertaking to fde 
 replication, and within four weeks after the answer or the 
 last of several answers is to be deemed sufficient; but no 
 further order of course for leave to amend a bill is to be 
 granted after an answer has betm filed, unless in the case 
 provided for by the 65th Order of May, 1845 : (66th Order 
 of May, 1845.) It has been held under this orcler and the 
 16th of the same Orders, that after one of several defendants 
 has put in a sufficient answer, the plaintiff cannot obtain 
 more than one order to amend, although the other defen- 
 dants may not have answered : (Duncombe v. Lewis, 10 
 Beav. 27;}.) And although an insufficient answer is for 
 many purposes no answer, yet, when a defendnnt put iii an 
 insufficient answer, and the plaintiff obtained an order of 
 course to amend, and that the defendant might answer the 
 amendments and e.\ceptions together, and no amendment 
 M 2
 
 124 NEHV EQUITY PIIACTICE. 
 
 was made within the fourteen days, it was held tliat the 
 plaintiff could not obtain a second order of course to amend : 
 {Dolly V. Challin, 11 Beav. 61.) 
 
 An order for leave to amend after replication, by adding 
 parties where no new issue is thereby tendered, has been held 
 to be an order of course (Bryan v. Wastell, 1 Kay App. 
 47), but the 65th and 66th Orders of 1845 do not appear 
 to have been called to the attention of the court in that 
 case. 
 
 Except in cases within the above ordei's, a bill can only 
 be amended pursuant to special order, which is now, as 
 stated ante (p. 82), to be applied for by sumnionsin chambers, 
 and with such affidavits in support of the application, as are 
 referred to in the 68th and 69th Orders of May, 1845; as to 
 the requisites of which affidavits, see ante, p. 84. 
 
 Bills may be amended in various ways, either by the 
 insertion of different matter or new parties ; or by striking 
 out part of the matters originally alleged, or some of the 
 parties originally made, or by altering the complexion of the 
 matters alleged, and shifting the position of the parties ; but 
 the entire character of the bill must not be changed, under 
 the common order to amend, nor will, in general, leave 
 be given on a special application to make by amendment 
 any such total change of the character of a bill : (see 
 Thomson v. Judge, 2 Drew. 414.J 
 
 Formerly the rule as to amendment was, that nothing 
 could be introduced by way of amendment, which did 
 not e.xist at the time the hill u'as filed; matter subsequently 
 arising being matter for a supplemental or for some other 
 kind of bill, not being an amended bill. But now, by the 53rd 
 section of the 15 & 16 Vict, c 86, it is not necessary to 
 exhibit any supplemental bill for the purpose only of stating 
 or jnitting in issue facts or circumstances which may have 
 occurred after the institution of any suit ; but such facts 
 or circumstances may be introduced by way of amendment 
 into the original bill of com])laint in the suit, if the cause is 
 otherwise in such a state as to allow of an amendment being 
 made in the bill. There is another clause in tlie act relating 
 to bills of revivor and su])plement, wliich will be presently 
 noticed. Bills of revivor and supplement are, however, 
 still sometimes requisite, as will be shown in the succeeding 
 section of this work. 
 
 As to amendments by altering the state of parties, a bill 
 may, under an order of course for leave to amend, always be 
 amended by adding defemlants, or by striking out the name 
 of a defendant before he has answered. If, however, he has 
 
 I
 
 AMENDING BILLS. 125 
 
 appeari'd, he iiuist be paid his costs. So the phiinliU' may, 
 under the common order, amend liy striking out tlie name 
 of a co-plainlij/^ W uo dc'lendants have appeared ; but if any 
 defendant has appeared, leave for such an order to amend 
 nni.st be obtained by a special application; and on making 
 such an order, the court will take care to provide for the 
 costs of the defendants already incurred : (see Bi-oiim v. 
 Smver, 3 Beav. oD.S.) So in Fellowes v. Deere, (3 Beav. 353), 
 where liberty was given to amend, there being a great 
 number of plaintills, and the bill was amended by strdvin? 
 out the names of all the ])laintiils but one, who then sued 
 on behalf of himself and all the others, although the court 
 said the order was clearly irregular, it allowed the amended 
 bill to stand, security being given for costs. 
 
 The amendments and the original bill form together but 
 one record, viz., the amended bill. 
 
 Amendments, like the oinginal bill, must be signed and are 
 always drawn by counsel. And it is irregular ibr the solici- 
 tor either to insert amendments without the sanction and 
 signature of counsel, or having inserted them, to strike 
 them out again without obtaining the signature of counsel 
 for such further alteration : (see Biirch v. Rich, 1 Russ. & 
 Myl. loG.) The broad rule is, in fact, that the bill as it is 
 must be the bill of counsel. 
 
 The time allowed to a plaintilT to amend his bill is four- 
 teen days after the date of the order to amend (Kith Order, 
 May, 1845, ante, p. 34), if the order is not made without pre- 
 judice to an injunction ; but if the order is so nuide, the 
 amendment must be made within seven days from the date 
 of the order. An order to amend did not, however, before 
 the 15 & 16 Vict. c. 86, prejudice a special injunction, and 
 it was not necessary that the order should be exi)ressed to 
 be without prejudice, and the plaintilf had accordingly his 
 fourteen days, without prejudicing any special injunction ob- 
 tained V)y him. Now as the IGtli Order of May, 1845, applied 
 only to the common injunction, and as the connnon injuno 
 tion is now abolished, it would seem that the practice must 
 now be that, in all cases, that is, in cases of injunctions to 
 stay proceedings at law, as well as in the Ciise of any other 
 special injunction, the jjlaintitf will have fourteen days to 
 amend without j)rejudicing his injimction. The result of 
 not amending withhi the regular time is, that the bill stands 
 as to dismissal for want of prosecution, in the same position 
 as if the order to amend had not been made. 
 
 Amendments in the modern printed bills may be made in 
 writing on the sheet interleaved in the printed bill (7th 
 M 3
 
 126 NEW EQUITY PRACTICE. 
 
 Order of 7th August, 1852), without a reprint of the bill, 
 ])rovided that no single amendment exceeds two folios in 
 length ; and the amendments are copied in the printed bill filed, 
 and the bill so amended is filed by the Clerk of Records and 
 Writs. If any amendment does exceed that length of two 
 folios, the bill must be reprinted and the new printed bill 
 must be filed. Copies of the amended bill must in either 
 case be served, being first stamped, on the defendant or 
 defendants in the same manner as has been pointed out in 
 reference to original bills : (see ante. Sect. I., and also pp. 15 
 and 16.) 
 
 The order to amend on a special application for leave in 
 chambers follows the general principle pointed out in p. 22, 
 in reference to orders made in chambers; viz., it is the judge's 
 order and not the chief clerk's. If heard by the chief clerk, 
 and not brought before the judge witliin fourteen days for 
 his opinion, and only signed by the judge pro forma, the 
 judge will hear an appeal upon it b}' summons or motion to 
 himself. But if the parties, lieing dissatisfied with the clerk's 
 certificate, desire and take the opinion of the judge upon it 
 upon the clerk's certificate, before it is signed by the judge, 
 and then the judge signs it, the appeal is to the Court of 
 Appeal : (see ante, p. 85.) 
 
 As to obtaining leave to amend a bill after replication, 
 that is always a question of the greatest speciality, and the 
 court will not be too ready to give such leave. In almost 
 all cases it will only be granted on the terms of the plaintiff 
 putting the defendant, in pcnnt of costs, in the same situation 
 as if the bill h:id been originally right. That is, it will 
 make the plaintiff pay all the costs to which he has put the 
 defendant by so much of the steps taken by him as he wishes 
 to retrace, and the costs of the application (see Champneys 
 V. Biichan, 3 Drew. 5.) Tlie pjroper application in this 
 •state of things is, for leave to withdraw replication and 
 to amend. 
 
 When a plaintiff amends, he pays costs in the following 
 manner. Before any answer, he may amend without costs, 
 for in fact he occasicms, by then amending, no costs. After 
 answer, for the same reason, he may amend without costs 
 if he requires no further answer. But if, after answer, he 
 amends by order of course requii'ing an answer, then he 
 pays twenty shillings costs. On the obtaining of special leave 
 to amend, the costs to be paid are in the discretion of the 
 court ; they will generally be merely the costs of the ap- 
 plication, hut in special cases, such as when thecourt sees 
 that the defendant is, by the plaintiff's being permitted 
 
 \
 
 EFFECT OF AMENDMENTS. 127 
 
 to anu'iiil, put to costs vltra those of the apj>lioation, as in 
 Chumpneys v. Biic/ian, citeil supra^ tlie priiioii)l(! actod on 
 in that case would rcj.ndate the order as to costs. The 
 costs must i)e in all cases paid before the hill can he amended, 
 that is, before the amended bill can be rejrularly liled. If 
 there are any irrejiularities in the order to amend, the 
 defendant should take his objections to them before the pay- 
 ment of the costs, for, if he accepts the costs, he waives any 
 such irrcjiuhirities: (see Tarleton v. Dyer, 1 Kuss. & jVI.) 
 
 Ami-nding the bill has some important etU-cts on the 
 proceedinfrs technically, iiTespectively of any substantial 
 change in the suit. Thus, if a defendant is in a position to 
 move to dismiss for want of prosecution, the plaintiff, by 
 amending, and drawing up and serving his order bt-tore any 
 notice of motion to dismiss, precludes the defendant from 
 giving any such notice. But the order must be drawn up 
 and served, to produce this effect, on the general princijjle 
 of the coui't, that an order not drawn up and served, i.s 
 (except in certain special cases) no order binding on the 
 opponent. So, amending after an order to fake the bill 
 pro confesso has been held to destroy the effect of such 
 order: {Wci<>;htinan v. Powell, IS 1^. J. 71, Chan.) Again, 
 if a plaintiff amends his bill materially after answer, he 
 cannot move upon the answer to the original bill for jiro- 
 duction of documents, because the answer to the amended 
 bill might displace the eqviityfor production: {Harerjieldy. 
 Pyman, 2 Phil. -202.) Chidwick v. Pehhle (6 lieav. 2f)4), 
 which was not cited in Haverfield v. Pyman, appears op- 
 posed to this. The grounds of the judgment are not stated. 
 However, in the latter case the plaintiff had not actually 
 amended his bill, but only obtained an order to amend. 
 
 So, although the amendment of a bill does not prejudice a 
 special injunction between the same parties, yet, if the amend- 
 ment consists in introducing another plaintiff on the recorrl, 
 that does destroy the inj unction, because, the bill being totally 
 altere<l, it is impossilile for the defendant to do what he 
 is required to do in order to get rid of the injunction, 
 viz., answer the original bill : [Attorney General v. Mnrsh, 
 16 Sim. 572.) But. amending a bill after obtaining a ne 
 exeat, does not discharge the ne exeat, if the amendments do 
 not alter the substance of the case. But if they introduce 
 matter substantially new, semble, it wouldbe otherwise: ((//•««< 
 V. Grant, 5 Kuss. 189.) And it must be borne also in mind, 
 that if an injunction is moved for, and eitlier obtained or 
 not obtained, although on an appeal motion for the injunc- 
 tion, or on resisting a motion to dissolve by way of appeal,
 
 128 NEW EQUITY PRACTICE. 
 
 further evidence might be read for or against the original 
 bill, yet, if it has been in the mean time amended, new 
 evidence in support of the injunction cannot be grounded 
 on the allegations of the amended hill : {Prince Albert v. 
 Strange, 1 Macn. & Gord. p. 47.) 
 
 XX. 0/ Sills of Revivor and Supplement^ of Supplemental 
 Proceedings and Abatement generally . 
 
 A suit may be abated or rendered defective, so that it 
 cannot proceed in its existing state, by several events ; aa 
 the death, marriage, bankruptcy, or insolvency of any party 
 to the suit, or the birth of any person who, on coming in 
 esse becomes interested in the subject matter of it ; or the 
 happening of any event, which so far changes or affects the 
 interests of the parties, that if a decree were made in that 
 state of the suit, it would not clearly dispose of every particle 
 of interest in the suit ; such events will render it defective 
 either by what is technically termed abatement^ or simply 
 defective without being actually abated, and the defect must 
 then be cured before the suit can y)roceed. Defects of this 
 kind were formerly remedied by bills of revivor, or bills of 
 supplement in the nature of bills of revivor ; and the general 
 distinction was this : If the defect of the suit arose from the 
 death of a party whose interest was transmitted to his real or 
 personal representatives, so that the title of the new party when 
 the person was once ascertained could not be disputed, the 
 defect was to be cured by a bill of revivor simply. But if the 
 defect arose from the transmission of interest to persons not 
 claiming under the law, but under the acts of parties, as in 
 the case of the bankruptcy or insolvency of a party, or his 
 death, having devised real estate, then the method of cure 
 was by a supplemental bill in the nature of a bill of revivor. 
 
 Further, without having become defective after being 
 originally complete, a suit may be so affected by events 
 happening after the institution of the suit, that without the 
 events being brought before the court, complete justice could 
 not be done; and, under the old practice, no event so hap- 
 pening could be brought before the court by way of amend- 
 ment, but a supplemental bill, or a supplemental bill in the 
 nature of an original bill, was requisite. Matters of this 
 kind are now the subject of a section of the 15 & 16 Vict, 
 c. 86. 
 
 The 52nd section of the 15 & 16 Vict. c. 86, enacts that, 
 upon any suit becoming abated by death, marriage, or 
 otherwise, or defective by reason of some change or trans-
 
 REVIVOR AND SLTPLEMEN'T. 129 
 
 tnisslon of interest or linliility, it sliull not l>o iiooessarA- to 
 exhibit any bill of revivor or supjilenientiil bill in order to 
 obtain the usual order to n-vive such suit, or the usual 
 or necessary decree or order to carry on the proceedings ; 
 but an order to the effect of the usual order to revive, or 
 of the usual sup])leniental decree, may be obtained as of 
 course upon an alk'gation of the abatement of the suit, or 
 of the same havint; beci)me delective, and of the change or 
 transmission of interest or liability. And an order so 
 obtained, when served upon the party who, according to 
 the present practice of the court, would be a defendant to 
 the bill of revivor or supplemental bill, is fi-om the time of 
 such ser\-ice binding on such party, in the same manner in 
 every respect as if such order had been regularly obtained 
 ac^'ording to the existing practice of the court. 
 
 And the 53rd section enacts, that it shall not be necessary 
 to exhibit any supplemental bill in the said court, for the 
 purpose of stating or j)utting in issue facts or circumstances 
 which may have occurred after the institution of any suit ; 
 but such facts or circumstances may be introduci-d by way 
 of amendment into tlie original bill of complaint in the 
 suit, if the cause is otherwise in such a state as to allow 
 of an amendment being made in the bill, and if not, the 
 plaintifl" shall be at liberty to state such facts or circum- 
 stances on the record, in such manner and suljject to such 
 rules and regulations with respect to the proof thereof, and 
 the affording the defendant leave and opportunity of answer- 
 ing and meeting the same, as shall in that behalf be pre- 
 scribed by any General Order of the Lord Chancellor. 
 
 Nowfir^t as tort'c/i-wrand towliatkindofct)scsthe.5"2nd sec- 
 tion of the act applies. It has been decided that the court has 
 no power to go beyond ordering the suit to be revived, so that 
 it can be carried on as if the new parties had been originally 
 parties ; and hence when an order was granted to revive 
 against executors, the court refused to insert that they 
 might admit assets, or that the accounts of their testator's 
 estate might be taken: [Dean and Chnpfer of Ehj v. Edwards, 
 22 L. J. (i2!).) And so, when there were originally two plain- 
 tiffs and the defendant died, and one of the plaintiffs became 
 his representative, and the other sought to revive the suit 
 as against the representative of the deceased plaintiff, the 
 court said that could not be done under the .52nd section of 
 the act, as it recjuired more than the common order to 
 revive, or the usual supplemental decree. 
 
 "Where all the cliijdn'u of certain persons arc necessary 
 parties to a suit, and after decree one is born, and no pro-
 
 130 NEW EQUITY PRACTICE. 
 
 ceeilings taken since that birth, an order for the usual 
 supplemental decree under the 52nd section may be made : 
 Fullertun v. Martin^ 1 Drew. 238.) 
 
 But the 53rd section does not apply after decree, nor 
 before decree for bringing new parties before the court, but 
 only for bringing forward new facts between the same 
 parties. If new parties are to be brought forward, a sup- 
 plemental bill is requisite : (Commerell v. Hall, 2 Drew. 
 194.) 
 
 The 52nd section applies to cases where the rights of the 
 plaintiff are affected by a settlement executed after the in- 
 stitution of the suit : [Atldnson v. Parker, 2 De G., Macn. & 
 Gord. 221.) And under the same section in a creditor's suit, 
 a person found a creditor by the master is entitled to an 
 order to revive : (^Lowes v. Lowes, 2 De G., Macn. & Gord. 
 784.) 
 
 The order to revive merely is an order of course {Bonfil 
 V. Purchase, 16 Jur. 965); but an order for the usual sup- 
 plemental decree is made in open court : (see Martin v. 
 Hadlow, 9 Hare, App. 52.) The statement of the facts in 
 which the order to re\ive or the supplemental order is 
 made, is received on allegation without proof. 
 
 The course of practice is to draw up such statement, 
 intituled in the cause, as a collateral statement, which is 
 engrossed on parchment and filed in the AVrit and Record 
 Clerk's office. The order is to be served on the parties to 
 the suit, and appearance is entered as to a bill of revivor or 
 supplement : (52nd sect, of 15 & 16 Vict. c. 86.) Some 
 conllict of opinion appears to have existed on the question 
 whether, under an order to revive, appearance by the defen- 
 dants served is necessary: (HaJibury v. Ward, 18 Jur. 222; 
 Ward V. Cartwright, 10 Hare, App. 73 ; Cross v. Thomas, 
 17 Jur. 336; Foster v. Mengies, 10 Hare, 17 Jur. 657.) 
 But the act seems to be imperative: it provides that the 
 party or parties served shall '• thenceforth become a party or 
 parties to the suit, and shall be bound to enter an appearance 
 thereto in the office of the Clerk of Records and Writs 
 within such time and in such manner as if he or they had 
 been duly served with process to appear to a bill of revivor 
 or supplement filed against him." Now, under the old 
 practice, a defendant served with a subpoena on a bill of 
 revivor was bound to appear, and if he did not was liable to 
 the ordinary process of contempt, or the plaintiff might 
 enter an appearance for him as he might have done to an 
 original Iiill. 
 
 i aj)prehcnd, therefore, that the i)ractice recognised in
 
 PETITIONS. 131 
 
 the two last cases cited is the correct practice, and that 
 appearance to either an order to revive or the supplemental 
 order is reipilsite. 
 
 If the order is on matter supi)lcnicntal, and the party 
 obtaininjf it requires an answer, he must file intcrrofratories, 
 as he would on a bill, and the (k'li'udants must answer as 
 they would to interrogatories filed with a bill. 
 
 The parties to be served with an order to revive or a 
 supplemental order ai'e the parties who would have been 
 required to be served as defendants to a bill of revivor or a 
 supplemental bill. This, therefore, involves the (juestion of 
 the necessary parties to a suit, which is a question of pure 
 pleading, and will not be here discussed. 
 
 Any party under no disability, or under the disability of 
 coverture, served with an order to revive or a supplemental 
 order, may, within twelve days after service, apply to the 
 court by motion or petition to discharge such order upon 
 any ground which would have been open to him on a bill of 
 revivor or su])plemental bill. And any parties under any 
 disability, other than that of coverture, may apply within 
 twelve days after the ap])ointment of a guardian ad litem to 
 such parties. And until the twelve days have expired, the 
 order as against such last-mentioned parties is of no force : 
 (52nd sect, of the act, and 43rd Order of 7th August, 1852.) 
 
 XXI. Of Petitions. 
 
 I have in a preceding section jjointcd out the general 
 
 fyrinclple on which it is to be ascertained whether an inter- 
 ocutory application in a suit should be by motion or by 
 petition. 
 
 Petitions are in practice resorted to for a great variety of 
 purposes, such as to obtain the payment of money out of 
 court ; for stop orders upon fmuls in court; for the appoint- 
 ment of trustees of charities under Sir S. Romilly's Act, and 
 the 1 Will. 4, c. 60 ; for taxation of solicitors' bills of costs ; 
 for the maintenance of infants : for inquiries in a suit with 
 reference to compromises, where there are Infants in the 
 suit ; and many others. And here must be noticed an error, 
 though perhaps not a very material one, which Is to be found 
 in, I believe, all the books of practice, viz., that in vacation, 
 an Injunetion is to be obtained on petition. This Is stateil 
 on the authority of the Pract. Keg. 2.52 ; but it Is not, so far as 
 I am apprised, the practice. An injunction is unlvt'rsally in 
 practice applied for, in as well as out of vacation, on a bill 
 filed; and I am not aware of any modern instance In which
 
 132 NEW EQUITY PRACTICE. 
 
 it has been otherwise obtained, that is, in those cases in 
 which, if the court were sitting, a bill would be requisite. 
 
 Petitions are presented in suits or without suit, and first, of 
 petitions in suits. (I am here treating only of special petitions, 
 that is, petitions on which, whether opposed or unopposed, 
 the court exercises a discretionary jurisdiction in respect to 
 the order to be made.) Of petitions of course sufficient has 
 been said in previous parts of this work. 
 
 A petition may in general be presented by any party 
 to a suit. If it is on behalf of an infant or a married 
 woman, it is presented in the name of the infant by bis 
 guardian, or in the name of the married woman by her next 
 friend. But the guardian or the next friend, as the case 
 may be, is the party responsible for costs. It is entitled in 
 the suit. It is headed. The petition of A., B., &c. ; and is 
 marked for, and is to be heard before, the judge to whose 
 court the suit is attached. When the suit is at the Rolls, 
 the original petition is presented to the Master of the Rolls, 
 and answered by him ; if it is in the court of either of the 
 Vice Chancellors, it is presented to the Lord Chancellor, 
 and is answered by him. and is then set down to be heard 
 before the Vice Chancellor to whose court it is attached. 
 Petitions may be drawn either by the solicitor or by counsel, 
 or drawn by the solicitor and settled by counsel. But the 
 solicitor is not entitled to charge in costs any fee for haA-ing 
 a petition settled by counsel, the consequence of which is 
 that most petitions are dra^wn by the solicitor without 
 the assistance of counsel. 
 
 A petition siiould state succinctly all the facts on which 
 the prayer is founded, and shortly, if possible, the substance 
 of the documents on which it relies ; for, if it sets out at un- 
 necessary length deeds or other Avritings, the costs of such 
 unnecessary matter will not be allowed. It concludes by a 
 prayer for the relief to which the petitioner conceives him- 
 self entitled. When the draft is prepared, it is copied on 
 paper, and such copy is taken to the office of the sei,Tetary 
 of the judge to whom it is addressed, to be there left to be 
 answered ; and at the same time another copy must be left 
 with the secretary of the judge who is to hear it, for his use 
 before and at the hearing. When the petition is answered 
 (which answering consists in the fiat of the judge, marked at 
 the corner of the front page, that the parties do attend 
 him on a day named), a co\)y of the petition and answer is 
 served on all the parties who are interested in the subject 
 matter of it. As to what parties ought to be served, gene- 
 rally the same rule that is aj)plicable to motions is ecmally
 
 PETITIONS. 133 
 
 applicable to petitions ; viz., every person wlicsc interest 
 will be aiFected, however indirectly or remotely, by the order 
 asked, is entitled to be served. The service must be two 
 clear days before the day lixed tor hearing the petition, 
 exclusive of Sundays or other days on which the oflices 
 are closed, except Monday and Tuesday in Easter week : 
 (iGth Order, lb45, art. 47.) 
 
 The petition is set down to be heard by tlie direction of 
 the secretary of the judge, and usually particular days arc, 
 during the sitting of the court, set apart for petitions, for 
 which days a list of the petitions to be heard is made out 
 in the Registrar's Office, of which list any person may see a 
 copy in that office on the preceding evening ; and the 
 petitions are to be heard in the order in which tliey stand on 
 the list, though usually the court hears the unopposed first. 
 Care should be taken that in the judge's copy of the petition 
 there are no blanks for names, sums, or otherwise, as the 
 judge may, and sometimes will, if there are such blanks, 
 refuse to hear the petition when it is called on. Briefs on 
 petitions which are unopposed, may be delivered either to 
 senior counsel with or without junior counsel, or to junior 
 counsel only, that is, the costs of two bi'iefs to counsel will 
 usually be allowed. It is usual, and it is prudent, when 
 petitions are of a complicated character, whether opposed or 
 unopposed, to employ senior and junior counsel. 
 
 Petitions whether opposed or unopposed, nuist be sup- 
 ported by affidavits verifying all the material facts on which 
 the right to relief rests ; and if they involve questions of 
 pedigree, the usual verifications of births, deaths, marriages, 
 &c., by certificates and otherwise, and of the other facts 
 establishing the pedigree, must be produced. 
 
 All parties, in general, who are entitled to be served and 
 appear, are entitled to their costs, that is, where costs are 
 given at all. And when a petition is served upon jiarties 
 who have no claim or interest, they are, in general, entitleil 
 to appear and to have their costs. On this point, however, 
 there is not exact uniformity in the practice of the different 
 courts ; but if a party by claiming an interest which it turns 
 out he has not, makes it necessary to serve him with a 
 petition, he will be refused his costs : (see 1 Macn. iS: G. 
 85, and 2 Beav. 202.) 
 
 If a petition being brought on is found to be defective or 
 inaccurate in respect to some necessary statement, or is 
 otherwise irregular, the court may and usually M'ill permit 
 it to stand over to be amended, which is done by inserting 
 the amendments in the original petition, and procuring the 
 [CH.] N
 
 134 KE"W EQUITY PRACTICE. 
 
 amended petition to be signed by counsel. But if the 
 amendments would consist of the introduction of facts 
 subsequent to the answering of the petition, they cannot be 
 introduced by amendment, but either a new petition, or a 
 supplemental petition, must be presented. 
 
 It is a technical rule of the court that no declaration of 
 rio-Jits can be made on a petition. This rule must be thus un- 
 derstood, that you cannot on a petition in a cause obtain from 
 the court an order determining the very question in the 
 cause, and that you cannot by a petition not in a cause, 
 obtain the same extensive and complete determination of 
 rights which would be obtainable in a cause. But, in fact 
 and in practice the court continually does determine both in 
 cause petitions and in petitions not in a suit, very important 
 questions of right. Thus, for instance, in a suit to admi- 
 nister an estate, the court, on the appUcation by petition of a 
 party claiming to be entitled to a sum of money paid into 
 court, constantly determines the construction of a will or a 
 settlement, and most effectually concludes the rights of the 
 parties by ordermg the money to be paid out. So, in the 
 case of maintenance of infants, though the court makes 
 no specific declaration of rights, it makes a very substantial 
 disposition of rights on petition. And on petitions under 
 Railway Acts for the payment out of money paid in by the 
 companies by way of purchase money, the rights of parties 
 are in fact frequently ascertained and declared. AVhen an 
 order is made on a petition, it must be regularly drawn up, 
 passed and entered as any other order. And the order must 
 be served on the parties to be affected by it. 
 
 XXII. Hearing the Caxise. 
 
 When the evidence is closed on both sides, the plaintifi 
 should, withui four weeks from that period, set the cause 
 down to be heard, otherwise any defendant may either 
 move to dismiss the bill for want of prosecution (114th 
 Order, 1845), or he may himself set the cause down 
 to be heard. If the plaintiff sets the cause down, he 
 obtains and serves on each of the defendants a subpoena to 
 hear judgment. This is served usually on the soUcitors of 
 the parties, but it may be personal, and the service must be 
 ten days before the return of the subpoena: (16th Order, 
 184.'}, art. 46.) To set down a cause, the solicitor obtains 
 from the Clerk of Records and Writs a certificate that the 
 r-ausc is in a fit state for hearing. This certificate is to be
 
 HEARING. 135 
 
 taken to the secretary of the Master of the Rolls, if the 
 cause is before him ; and to the Registrar's Ollice, if it is 
 before one of the Vice Chancellors. And when the cause 
 has been set down and subpoena to hear judgment served, 
 the cause is put in the Registrar's OOice in the list of causes 
 to be heard ; and the solicitors on both sides must watch 
 from time to time the state of that list, as they are entitled 
 and ought to prepare and deliver their briefs when the 
 cause is in within twelve of the paper of the day, and not 
 before. When the plaintilF, on the answers coming in, is 
 satisfied with the evidence in his fiivour which they afford, 
 and accordmgly does not file any replication, he sets his 
 cause down upon bill and answer, for which the course is 
 the same as when it is set down upon evidence. 
 
 The plaintiff's brief, when the cause is to be heard on 
 evidence, consists of a copy of the bUl, of all the answers, 
 and all the evidence on both sides. The defendant's brief 
 should consist of a copy of the bill, of the answer of the 
 particular defendant only, and of all the evidence on both 
 sides. This seems to be now rendered requisite by the 
 doctrine laid down in Lo7-d v. Colvin (3 Drew. 222), in 
 which it was held that defendant may cross-examine co- 
 defendants as witnesses, and that when the evidence is taken, 
 whether it be examination-in-chief or on cross-examination, 
 the whole is common to all parties. 
 
 Upon the matters thus inserted in the brief, it is usual for 
 the solicitor to append a few brief sheets of observations, 
 pointing out to the attention of counsel, the principal 
 features of the cause; and the substantial interests of the 
 parties to be represented by the particular counsel. On the 
 preparation of the observations, the reader is referred to 
 the remarks made in p. 26 of this work. 
 
 If either party has any documents which the other side 
 desire to have produced, and to read in the progress of 
 the cause, the party desiring to use such evidence should 
 give notice to his opponent to produce it. If he does not 
 give such notice, not only can the opponent not be com- 
 pelled to produce the documents, but the party desiring to 
 use them cannot read secondary evidence of their contents. 
 But if the plaintiff has proved a document in the defendant's 
 possession, the latter must produce it at the hearing, 
 although he has not been served with an order to that effect : 
 {Wheat V. Graham^ 7 Sim. 61.) 
 
 Every matter to be proved which admits of cross-ex- 
 amination, must be regularly proved in the manner already 
 pointed out (ante, Sect. X.), but the mere execution of deeds 
 n2
 
 136 NEW EQUITY PRACTICE. 
 
 rcquirins nothing but proof of handwriting, may be proved 
 riiii voce at the hearing, as of right, under an order of 
 course for that purpose, which should be obtained before 
 the coming on of the cause ; or such documents may be 
 proved bv an allida\-it of the party who would prove them 
 vic(i voce. This might have been done before the 15 & 16 Vict. 
 c. 86, and may still be done ; and it may be done when a 
 cause is heard on bill and answer, as well as when it is heard 
 on e\-idence, when the instruments are neither admitted 
 nor denied by the answer: {Chalky. Rahie, 7 Hare, 393; 
 Roidand v. Sturgis, 2 Hare, 520. But see contra, Jones v. 
 Griffiths, 14 Sim. 262.) But now, in addition, the court may, 
 at the hearing of the cause, require the production and oral 
 examination before it of any witness or party in the cause, 
 upon substantial matters of evidence requiring or allowing 
 cross-examination. But this is discretionary- in tli€ court, not 
 of right in the party : (15 & 16 Vict. cap. 86, s. 3i>.) 
 
 The plaintiff should always be prepared, at the hearing of 
 the cause, with an affidavit of service of subpoena to hear 
 judgment upon the defendants ; if he is not, and the de- 
 fendants do not appear, the cause will be struck out of the 
 paper, whereas if he is so prepared, he will, on the de- 
 fendant's not appearing, be entitled to take a decree ; 
 not, however, a decree according to the prayer of his 
 bill without more ; but he must open his case and read the 
 evidence, and the court will give him such decree as it 
 thinks him entitled to. On the other hand, the defendants 
 should be also provided with an affidavit of having been 
 served : and then, if the plaintiff does not appear, the defen- 
 dants may have the bill dismissed with costs. 
 
 Tlie course of hearing a cause is thus : the plaintiff's 
 leading counsel states the nature of the case, and the facts 
 that will be proved, and reads or refers to so much of the 
 pleadings as he considers necessary to make his case clear ; 
 and he then argues upon the state of facts which he 
 assumes ; the junior counsel then reads so much of the de- 
 fendant's answer and of the plaintiff's evidence as it has been 
 determined to rely upon. If the defendant has cross-exa- 
 mined, his junior comisel reads the cross-examination, and 
 the ])laintiff's junior counsel reads the re-examination ; and 
 having done so, argues so much of the case as in his discre- 
 tion he thinks requisite. It is a question of some doubt, 
 whether junior counsel has a right to take a line of argument 
 in any degree opposed to that of his leader ; in practice no 
 cautious junior ever does adopt such a course. The plain- 
 tiff's counsel having concluded, the counsel for the defen-
 
 DECREE, 137 
 
 dants pursue the same course and in the same order ; and 
 then the plalntilTs senior counsel replies ; after which, the 
 court either at once pronounces judgment, or takes time to 
 consider its judgment. 
 
 When a cause is brought on for hearing, it frequently 
 happens that some defect of the record, or of parties, is 
 suggested. If such an objection is sustained, the usual course 
 is to direct the cause to stand over with liberty to amend, 
 the plaintiff paying the costs of the day, if the objection has 
 been brought to the attention of tht plaintill" by the defen- 
 dant's answers. But if it has not, the plaintiff will not be 
 in general ordered to pay them any costs. The costs of 
 the day are ten pounds, to be divided between all the defen- 
 dants, unless the court otherwise orders. But, although, in 
 anything approaching the character of a heavy case, ten 
 pounds for the costs of the day is very inadequate, the 
 court very rarely does othermse order. 
 
 Causes when put in the paper, are sometimes pursuant 
 to the original intention of the parties, sometimes by 
 reason of arrangements afterwards come to, heard as short 
 causes, that is without any argument, it being generally 
 understood that no cause can be heard as a short cause, 
 which requires more than the statement of the nature of 
 the case, and submitting the questions to the decision of 
 the court. 
 
 To set a cause down to be heard as a short cause, it is 
 necessary that the plaintiff's counsel should certify it to be 
 fit to be heard as a short cause, and the defendant's solicitor 
 must consent in strictness. But the usual course is that, 
 if the plaintiff's counsel certifies it as fit, it will be set 
 down ; and then at the time for hearing, unless the counsel 
 on the other side states at the bar that it is not, in his 
 opinion, fit to be heard, the court will so hear it. 
 
 XXIII. Of the Decree. 
 
 ^\^lat is called the original hearing of the cause, may be 
 divided into two classes. The hearing of a cause of a 
 nature to require as of course inquiries, and in which usually 
 nothing is determined at such original hearing ; and the 
 hearing of a cause in which all or most of the questions 
 may be disposed of at once on the materials before the 
 court. 
 
 The former class is much the most numerous in equity 
 proceedings. For instance, in suits by legatees and others 
 interested in the administration of the estates of deceased 
 n3
 
 138 NEW EQUITY PRACTICE. 
 
 persons, ihe original decree is rarely anything more than 
 preliminary ; viz., it directs accounts of property and in- 
 quiries as to classes of persons and otherwise, on which the 
 court must be satisfied, before the question of the rights of 
 the parties can be determined. 
 
 So, in creditors' suits, the original decree is in the first 
 instance for inquiries, viz., for an account of what is due 
 to the plaiutitif, and all other creditors of the deceased 
 debtor ; an account of the funeral expenses ; of the per- 
 sonal estate come to the hands of the defendant the personal 
 representative, or of any other person for him or by his 
 order ; of what parts, if any, of his personal estate are out- 
 standing ; and then a direction that his personal estate shall 
 be applied in a due course of administration, and further 
 consideration is adjourned. 
 
 So, in a suit for specific performance, the original decree 
 is in almost all cases, first for an inquiry whether a good title 
 can be made, and when it was first shown, and the further 
 consideration, that is the substantial question whether the 
 defendant should be compelled specifically to perform the 
 agreement is adjourned. And in other cases, too various to 
 be here enumerated, the court in the first instance does not 
 go beyond directing Lnquiries and accounts. 
 
 When the decree, whether preliminary or final, has been 
 pronounced, the first thing to be done is to get the minutes 
 passed and entered This is done by the solicitor of the party 
 interested in carrying the decree into eflect, leaving with the 
 Registrar of the day the briefs of his counsel ; and minutes 
 are then prepared at the Registrar's Office with the aid of 
 these briefs, and delivered out to the solicitors of the parties 
 on their bespeaking them. That being done, the solicitor 
 having the carriage of the decree, serves on his opponents 
 a notice of a day fixed with the Registrar for settling 
 minutes ; and then all parties attend before the Registrar 
 to settle the minutes; in fact, the terms of the decree. If 
 there is any difference between the minutes indorsed on 
 the briefs of counsel, the minutes taken down by the Re- 
 gistrar in court, will be the guide to determine what was 
 the decree pronounced, and the court as well as the Registrar 
 will in general rely upon them. It is, therefore, very im- 
 portant in many cases tliat the solicitor should take care, 
 before a cause is disposed of. to see that the Registrar has 
 taken down any direction that is considered material for his 
 client. 
 
 If, before the Registrar, the parties cannot agree with each 
 other or with him as to what the decree was intended to be,
 
 VARYING MINLTES. 139 
 
 the party or parties dissatisfied apply to the cotirt by motion 
 on notice to have the minutes varied, or obtain leave to put 
 the cause again in the paper, in order that it may be what 
 is termed " spoken to on the minutes." But vvhetlier on a 
 motion to vary minutes, or on speaking to minutes, the 
 court %vill never snhstuntiully vary the decree which it has 
 made ; nor will it depart in any material degree from the 
 Registrar's minutes, unless they arc plainly opposed to the 
 judge's own recollection of his decree. All that the court 
 will in general do, is to declare and work out by conse- 
 quential directions, what it intended to declare by the decree. 
 AH applications to vary a decree must be made to the 
 judge who pronounced it, no other judge will interfere with 
 it without rehearing the cause. When the minutes have 
 been finally settled, the decree is drawn up by the Registrar, 
 who delivers it to the party bespeaking it, and the other 
 ])arties are entitled to have copies. The decree is then to 
 be passed and entered ; to pass it, an appointment must bo 
 made with the Registrar for passmg, and the Registrar gives 
 notice to all the parties to attend the passing ; if they do 
 not attend, he will pass the decree by affixing his signature 
 to it without their presence. The decree has then to be en- 
 tered, for which purjiose the party having taken the origi- 
 nal decree leaves it with the entering clerk of the division 
 under which the letter of the name of the first plaintiff on the 
 record falls ; and he enters it accordingly. The decree is 
 taken to be entered from the date of its being left with the 
 entering clerk. Until the decree is entered, no proceedings 
 Ibunded upon it can in strictness be taken ; but in practice, 
 when it has been left for entering, office copies of it signed 
 by the Registrar may be obtained, and acted upon in the 
 suit. A decree founded on a bUl taken pro confesso, is to 
 be passed and entered like any other decree. All decrees, 
 orders, and dismissions must be enrolled within six calendar 
 months after being pi-onomiced^ and not at any time after, 
 without special leave of the court : (2nd Order, 7th August. 
 1852.) If any party is desirous to enrol a decree, order, or 
 dismission, after the expiration of six calendar months from 
 the time the same shall have been made, he must o])tnin an 
 order for that purpose ; and which order, unless made by 
 consent of the adverse party, or on motion and notice to all 
 the parties, will be a conditional order in the first instance, 
 but will become absolute without further order, unless 
 cause is shown against it within twenty-eight days after 
 service of the order: (3rd of the same Orders.) 
 A caveat against the enrolment of any decree must be
 
 J 40 NEW EQUITY PRACTICE. 
 
 prosecuted with effect, within twenty-eight days after the 
 docket of the decree has been left to be signed by the proper 
 officers, otherwise the caveat is of no force : (4th of the same 
 Orders.) And no enrohneiit of any decree shall be allowed 
 after the expiration of five years from the date thereof 
 (5th of the same Order?), unless the time is enlarged under 
 the 6th of the same Orders. 
 
 All proceedings necessary to be taken in the Court of 
 Chancery upon a decree, m;iy be taken as well without its 
 being enrolled, as after it has been enrolled ; but until en- 
 rolled, it is not in sti-ictness a record of the court, and will 
 not be taken notice of as such by other courts. So, until 
 it has been enrolled, it may be altered by the court which 
 pronounced it, on rehearing. But after it has been 
 enrolled, it can only be altered on appeal, or on a bill of 
 review ; and when a decree of the Master of the Rolls, or 
 of a Vice Chancellor has been enrolled, as for the purpose 
 of being so, it is signed by the Lord Chancellor, it becomes 
 technically his decree, and then an appeal only lies to the 
 House of Lords. It is therefore of importance where parties 
 desire to appeal direct to the House of Lords, passing by 
 the interme(iiate Court of Appeal, to proceed with all possi- 
 ble rapidity to get the decree enrolled. A party obtaining 
 an order from one of the Vice Chancellors under the Wind- 
 ing-up Acts, may enrol it so as to prevent the other party 
 from appeahng to the Lord Chancellor ; (7?e the Direct 
 London arid Exeter Railivay Company, 1 Macn. & Gord. 534. 
 
 Whether prelimmary decrees, that is, decrees directing 
 accounts and inquii'ies, and not determining the final rights, 
 can be enrolled, is a matter not quite clear ; the subject 
 is ably discussed by Mr. Daniell in his work on Practice, 
 p. 100.3, ct seq., to which work I refer the reader curious on 
 that point. In practice it is a point of very little importance, 
 as not in one such case out of a thousand, is there the slightest 
 benefit to either party from enrolling; and consequently en- 
 rolling such decrees is never for one moment thought of. Mr. 
 Daniell also discusses at some length, the question whether 
 the enrolment of a decree is yiecessary before it can be carried 
 up by way of appeal to the House of Lords, and suggests, as a 
 conclusion from the authorities, that it is not necessary. That 
 point, however, is now settled by Broadhurst v. Tunniclif, 
 9 CI. & F. 71, in which it was laid down that the House of 
 Lords will not hear an apj)eal against any order or decree 
 of the Court of Chancery that is not enrolled, if the objec- 
 tion is taken ; and in that case the decree appealed against 
 being ten years old, and no merits disclosed, the appel-
 
 ENFORCING DECREES. 141 
 
 lants were refused time to enrol, and the appeal was dismissed 
 with costs. 
 
 Either party, that is the i)hiinti(rs, or any defendant, may 
 enrol a decree. Any party desirous of preventing the 
 decree being ein-olled, enters a caveat against it, with the 
 secretary of decrees of the Master of the Rolls, if the decree is 
 at the Rolls; with the Lord Chancellor's secretary of decrees, 
 if it is a decree of any Vice Cliancellor. The caveat prevents 
 the signing of the decree for twenty-eight days from the 
 time when notice is given by the secretary of decrees to 
 the other parties of the docket having been presented for 
 signature within those twenty-eight days, as we have seen : 
 (4th Order of 7th August, 1852, cited supra.) The caveat 
 must be prosecuted Avith eifect, that is, the party having 
 entered the caveat must present his petition of appeal or 
 re-hearing, and get it answered, and an order to set it 
 down, and serve that order upon the other side {Groom v. 
 Stinton, 2 Phil. 38-4) ; and so in Dearman v. Wynch, 4 Myl. 
 & Cr. 550, a decree was enrolled after a petition of appeal, 
 and the appeal set down, but before notice of the appeal 
 was served on the party who enrolled the decree, and the 
 enrolment was held regular. 
 
 The enrolment of a decree may under certain circumstances 
 be vacated ; thus, it may be vacated on the ground of sur- 
 prise : {Ernaght v. Fitzgerald., 8 Dr. & War. 72. ) But it will not 
 be vacated on the gi'ound of mere surprise, that is, where 
 the party enrolling has not done anything to induce his 
 opponent to beheve the decree would not be enrolled : 
 (Lewis V. Hinton, 16 L. J. 268.) Thus, the enrolment of a 
 decree after an intimation given on the part of the defen- 
 dants to the plaintill"'s solicitor of their intention to appeal 
 forthwith, and a statement in reply that he was open to any 
 fair oiFer of aiTangement to prevent the necessity of an 
 apj>eal, is not such a surprise as will induce the court to 
 vacate the enrolment : {Balguy v, Charley., 1 !R1}I. & K. 
 640.) Nor wiU an enrolment be vacated merely because it 
 has been obtained with extraordinary haste : {Higher v. 
 Games, 2 Y. & Coll. 335.) 
 
 XXIV. Of enforcing Decrees. 
 
 Before a decree can be enforced under the process of the 
 court, there must be personal service of it: {Whistler v. 
 Aylward.1 re Fitton, Drew. 1 ,) 
 
 A decree or order may now be enforced either under the 
 Orders of the 26th August, 1S41, or of the 10th May, 1839;
 
 142 NEW EQUITY PRACTICE. 
 
 but it will be seen that the Orders of 1839 only provide 
 for decrees for payment of money, and that while those 
 Orders refer in express terms to any cause or matter, the 
 Orders of 1841 down to the 15th, do not in terms use 
 either the word cause or the word matter: they use the 
 word party, and therefore by implication appear to be 
 confined to the enforcing of decrees in a cause. Mr. S. 
 Smith, indeed, in his recent work, lays it down posi- 
 tively that "the present remedy by attachment is con- 
 fined to enforcing decrees and orders made in a cause, 
 and the provisions of the Orders of August 1841, do not 
 extend to orders made in a matter'''' (Smith's Pz'actice of the 
 Court of Chancery, 1855, p. 299), but he does not cite any 
 authority for the proposition ; and, as the 15th of those 
 Orders gives the same remedies to a person not a party in 
 any cause, as if he were a party to the cause, it would not, 
 I apprehend, be safe to say, in the absence of authority to 
 the contrary, that the remedies given by the Orders of 1841, 
 are not as applicable in a matter, as in a cause. 
 
 The 10th Order of 1841, abolishes the old writ of execu- 
 tion. The old writ of execution was simply a process of 
 the court necessary as a preliminary step, under its seal, 
 reciting the decree and requiring obedience to it : (see 1 
 li'ewl. Pract. 684.) After the issue of that writ, if the party 
 against whom the decree was made, paid no obedience to it, 
 he was then, on proof of service of the writ, liable to the 
 same process of contempt as would issue against a defendant 
 for not appearing, or not answering. The order directs that 
 no writ of execution shall hereafter be issued for the purpose 
 of requiring or compelling obedience to any order or decree 
 of the Court of Chancery ; but that the party requii-ed by 
 any such order or decree to do any act, shall, upon being 
 duly served with such order or decree, be held bound to do 
 anch act in obedience to the order or decree. 
 
 ^V^lat this order does, therefore, is merely to place the 
 party affected by the decree, in the same situation at once, 
 as he would have been in under the old practice, after 
 service of writ of execution. 
 
 The 11th of the same Orders directs, that if any party 
 who is by any order or decree ordered to pay money, or to 
 do any other act in a limited time, shall after due service of 
 such order or decree refuse or neglect to pay the same, 
 according to the exigency thereof, the party prosecuting 
 sucli order or decree shall, at the expiration of the time 
 limited for the purpose thereof be entitled to a writ or writs 
 of attachment against the disobedient party. And in case
 
 ENFORCING DECREES. 143 
 
 such party shall be taken or detained in custody under any 
 such writ of attachment without obeying the same order or 
 decree, then the party prosecuting the same order or 
 decree shall, upon the sheriir's return that the party has 
 been so taken or detained, be entitled to a commission of 
 seqnestrutlon against the estate and eilbctsof the disobedient 
 part}- ; and in case the sherilf shall make the return non est 
 inventus to such writ or writs of attachment, the party pro- 
 secuting the same order or decree shall be entitled at his 
 option either to a commission of sequestration in the first 
 instance, or otherwise to an order for the sergeant-at-arms, 
 and to such other process as he hath liitherto been entitled 
 to upon a return of non est inventus made by the commis- 
 sioner named in a commission of rebellion issued for the 
 non-performance of an order or decree. 
 
 The order, it has been held, does not apply to a case of 
 default by a party in producing deeds in the Master's office 
 pursuant to a decree, in which case the sergeant-at-arms 
 went upon a disobedience of the four-day order: (^Hobson v. 
 Sherwood^ 6 Beav. 63.) 
 
 Every order or decree requiring any party to do an act 
 thereby ordered, must state the time after service of the 
 order or decree within which the act is to be done ; and 
 upon the copy of the order or decree which shall be served 
 upon the party required to obey the same, must be indorsed 
 a memorandum to the effect foUowing : — 
 
 "If you the within named A. B. neglect to obey the order (or 
 decree) by the time therein limited, you will be liable to be arrested 
 under a writ of attachment issued out of the High Court of Chancery, 
 or by the Sergeant-at-arms attending the same coui't ; and also be liable 
 to have your estate sequestrated for the purpose of compelling you to 
 obey the same order or decree :" (12th of the same Orders. ) 
 
 By the 13th Order of 1841, it is ordered 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 it shall be entitled to an order for a 
 writ of assistance. 
 
 ^^ith regard to persons 7iot parties to a cause, the 15 th 
 Order provides " that every person not being a pai-ty in 
 any cause, who has obtained an order, or in whose favour 
 an order shall have been made, shall be entitlf'd to en- 
 force obedience to such order by the same process as if 
 he ive7-e a party to the cause ; and every person not being 
 a party in any cause, against whom obedicaice to any order 
 of the court may be enforced, shall be liable to the same
 
 144 NEW EQUITY PRACTICE. 
 
 process for enforcing obedience to such order as if he were 
 a party to the cause. 
 
 The process by attachment, sequestration, and the ser- 
 ceant-at-arms, is the same lor enforcing obedience to an 
 order, as for enforcing appearance or answer, mutatis 
 mutandis; and as to the process by attachment and of 
 obtaining and working a writ of sequestration, and as 
 to obtaining an order for the sergeant-at-arms, see ante, 
 pp. 7 and 24 ; and in a subsequent section, in which more 
 will be said of process of contempt generally. 
 
 The proceedings to enforce obedience to an order or decree 
 under the Orders of 1839, are confined to orders for the 
 pa}Tnent of any sum of money or any costs, 
 
 The 1st of these Orders prescribes that " every person to 
 whom in any causs or matter pending in this court, any sum 
 of money or any costs have been ordered to be paid, shall, 
 after the lapse of one month from the time when such order 
 for payment was duly passed and entered, be entitled 
 by his clerk in court to sue out one or more writ or writs 
 oi' fieri facias or writ or writs of elegit of the form herein- 
 after stated, or as near thereto as the circumstances of the 
 case may require : (for the forms of the writs see the Order 
 of the 10th May, 1839, and Beav. Orders, p. 138.) Q) 
 
 The writs when sealed, are to be delivered to the sheriff^ 
 and executed by him, and when returned, are filed at the 
 Writ and Record Clerks' Office 
 
 Kon the return of any such writ offi.fa. it appears that 
 the officer has seized but not sold the goods of the party 
 liable, the party to whom the money is payable may sue 
 out a writ of venditioni exponas : (see the form of the writs in 
 the General Order of May 10, 1839, and Beav. Ord., p. 154.) 
 
 A sequestrator is the officer of the court, and his position 
 is analagous to that of the sheriff seizing under a judgment 
 at common law. Consequently, his complete right does not 
 take ellect till actual execution of the wi'it, that is, actual 
 taking possession, and if between the time of delivery of 
 the commission and execution, a judgment creditor at law 
 takes possession, his right will prevail : (see in Ajigel v. 
 Smith, 9 Ves. 336.) 
 
 Sequestrators, as officers of the court, are entitled to all the 
 protection, and subject to the liabilities, of officers of the 
 court. 
 
 (') It will be recollected that, in such matters, the solicitors of 
 the parties are substituted tor the clerks in court by the 16lh Order ui 
 October, 1842.
 
 SEQUESTRATION. 14. "5 
 
 It is a contempt to disturb tlioir possession, however 
 ■wrongful the ordur for the sequi-stratiun may be shown to 
 be; and if the party ajiaiust whom setjuestration has issued, 
 disputes the validity of the title of the seijuestriition, his 
 course is not to disturb tlieir possession, hut to apply to the 
 court: (see Emjn'ingham v. Shorty .'5 Ilarc, 4(il ; luA Ilaw- 
 kias V. Gutlwrcole^ 1 Drew. 1'2.) The usual course is to 
 apply by motion for leave to bring ejectment, or to be ex- 
 amined pro interesse suo in the lands or goods sequestrated. 
 
 riie old examination pro interesse sua was conducted in 
 interrogatories before the examiner, and the process was, as 
 usual under the old system, somewhat complex. Tiie order 
 now directs that the party may be at liberty to come in 
 before the judge at chambers to be examined. I am not 
 aware of any case under this liead of the new practice. But 
 refei'riug to the general practice of inquiries directed before 
 the judge in chambers, it is presumed the practice will be 
 that the party so coming in will proceed by bringing in an 
 affidavit, on which he will be cross-examined, and re-examined 
 viva voce before the judge's chief clerk, who will thereupon 
 make his certificate in the usual course, and such certificate 
 will be open to objection before the judge, and to appeal, in 
 the same way as any other certiticate. If the court is 
 satisfied that the estate or goods sequestered ought not to 
 be so wholly or partially, it will discharge the writ of seques- 
 tration, or make such order restricting wholly or paitially 
 the execution of the writ, as it shall think fit. 
 
 Sequestrators, also, lilce other ofhcers of the court, are 
 liable to the authority of the court for any excess or irre- 
 gular exercise of their authority. But here there is lliis 
 distinction as to the right and course of conduct of the party 
 affected by their acts. If the thing complained of is the ille- 
 gality or irregularity of the order for sequestration, that is, the 
 title of the officer, it is a contempt to dis])ossess, or disturb, 
 or resist the sequestrator, with which the court must inte}'- 
 fere, because he is acting under the order of the court, which 
 must be obeyed until discharged. But if the irregularity is 
 in the personal conduct of the officer, then, althougli it is a 
 contempt to resist or disturb him, yet because his authority is 
 limited by the order, and if he goes beyond it he is pro tanto . 
 not an ofHcer of the court, it is one of which the court is not 
 bound to take notice, though it has power to do so : (see 
 Drew, on Inj., p. 127, e/se//., and the cases cited.) The autho- 
 rities seem, on the whole, to show that it is not prudent to 
 question either the title of the ofHcer of the court, or the re- 
 gularity of his execution, except by application to the court, 
 [cu.] O
 
 146 NEW EQUITY PRACTICE. 
 
 CHAPTER II. 
 
 I. Of carrying a decree into execution. 
 
 Whiiw the cause has arrived at the making and completion 
 of the decree, in a gi-eat variety of cases, it disappears for 
 some lime from the court, while the deci'ee is being worked 
 out in the judge's chambers. I shall fii-st discuss this class 
 of cases. 
 
 When a decree or decretal order directs accounts or 
 inquiries, the first step to be taken is for the solicitor pro- 
 secuting the decree, to leave a copy of it at the judge's 
 chambers, which he must certify to be a true copy of the 
 decree or order as passed and entered: (17th Order, October, 
 1852.) 
 
 Upon leaving a copy of the order, he takes out a sum- 
 mons to proceed with the accounts or inquiries directed, and 
 on the hearing of such summons, the judge jjives directions 
 as to the manner in which the accounts and inquiries are to 
 be prosecuted, the evidence to be adduced, the parties who 
 are to attend, &c. : (18th of the same Orders.) In practice 
 all this is done in the first instance before the judge's chief 
 clerk, who directs by whom and within what time the ac- 
 counts are to be brought in. 
 
 The plaintifi" serves that order upon the accounting party, 
 who must bring in his account within the time limited; if 
 he reiiuires further time, he takes out a summons for time, 
 and in a hostile case, he must support his application by 
 aflidavits showing satisfactory reasons why he cannot bring 
 in his account within the time fixed. It is scarcely necessary 
 to say that mere grounds of personal convenience are not 
 suflicient ; sul)Stantial difiiculty in making out the accounts, 
 ■as from their length, the incapacity or substantial difficulty, 
 occasioning delay, in procuring the necessary books or in- 
 formation, illness, or otiier personal incapacity, or the like, 
 will be requisite. If the accounting party, not obtaining 
 further time, persists in disobepng tlie order, the plaintiff's 
 solicitor obtains a peremptory order from the chief clerk, 
 which he has regularly drawn up, and then the party dis-
 
 CARRTINQ OUT DECREES. 147 
 
 obeying the order is liable to process of attachment under 
 the 11th Order of 1«41, above cited. 
 
 The defendant obeying tlie order, takes in an account 
 verified by affidavit ; tlie account, when the decree is in the 
 common form, is simply a debtor and creditor account, 
 stating the payments on one side, and the receipts on the 
 other ; and the affidavit verifying that the accounting party 
 has made all such payments, and that he has not, by himself 
 or by any person for liis use, received any further or other 
 sums than those stated; the items on each side of the accoimts 
 are to be numbered. The affidavit refers to the account as 
 an exhibit, and both are left in the judge's chambers. 
 
 If the plaintiff seeks to cliarge the accounting party with 
 more than he has admitted, lie gives him notice under the 
 30th Order of the HJth October, 1852, stating, so far as he 
 is able, with what furtlier he seeks to charge him, and the 
 particulars thereof, in a short and succinct manner, and takes 
 out a summons to hear the matter, whicli is then disposed of 
 by the chief clerk. 
 
 In taking such an account under the common decree, the 
 accounting party must prove by vouchers all his payments as to 
 all sums above 40s. ; as to sums under that, his affidavit, if 
 explicit, is sufficient. But under special circumstances the court 
 will, under the 15 & 16 Vict. c. 86, s. 54, give special direc- 
 tions with respect to the mode in which the account is to be- 
 taken and vouched either by the decree or by any subsequent 
 order ; and may direct that the; account books of the ac- 
 counting parties shall be taken as prima facie evidence of 
 the truth of the matters therein contained. (As to the extent 
 to which, and the circumstances under which, the court will 
 exercise this jurisdiction, see Ewart v. Williams, 3 Drew. 
 21.) It is not usual for any such direction to be given in 
 the decree in the first instance, but the judge will either on 
 application give such direction in chambers, or will hear the 
 matter in court : (see Attorney General v. Attwood, 9 Hare, 
 App. 56; and Ewart v. Williams, supra.) 
 
 And generally, if it appears to the judge after decree, 
 that it would be expedient that further accounts should be 
 taken or further inquiries made, he may order the same to 
 be taken or made accordingly; or, if desired by any party, 
 may direct the same to be considered in open court ; (20th 
 Order, 16th October, 1852.) 
 
 It has been held (though decision seemed scarcely re- 
 quisite on such a point) that the chief clerk has no authority 
 to give such a direction (JVeivbury v. Bemon, 23 L. J. 1003), 
 seeing that tlie act only gives power to the court, and 
 O 2
 
 lis NEW EQUITY rRACTICE, 
 
 bearing in mind, moreover, that, as already observed 
 {antp^ p. '2'l)i the chief clerk really never makes any 
 order at all, but every direction of the chief clerk derives 
 its force from its being signed by and becoming the order or 
 direction of the judge. This should always be borne in 
 mind as being the principle of the chief clerk's jurisdiction, 
 though, of course, in practice multitudes of orders or direc- 
 tions of the chief clerk are acted upon without being 
 reo-ularly made orders, where they would be made orders 
 as, or almost as, of course. The affidavit and vouchers 
 of the accounting party only vouch the fact of papnent; 
 the propriety of payment is another question, which may 
 be disputed by the party taking the account. 
 
 "When the accounts have boon fully rendered, and any 
 questions upon the propriety of payment by the accounting 
 partv have been allowed or disallowed, the cliief clerk 
 makes his certificate accordingly. The general form of the 
 certificate is regulated by the 46th Order of 16th October, 
 1852, and schedule E. thereto ; and the chief clerk states in 
 it what sums in dispute he has allowed and disallowed, and 
 sometimes the grounds of allowance and disallowance. If 
 on anv of these questions the party aggrieved desires to 
 have the opinion of the court, he t;'.kes out a sunnuons to 
 take the opinion of the judge in chambers, within four clear 
 davs after the certificate has been signed by the chief clerk : 
 (47th Order, October, 185-2.) And this is termed an ad- 
 journed summons, of which a list is made to be disposed of 
 by the judge when he sits in chambers. Many of these 
 summonses are by the judge adjourned to the court, of 
 whose business they now form a considerable part, and 
 usually in each court a particular day in each week is ap- 
 plied during the sittings to dispose of adjourned summonses. 
 
 If no party within the four days takes out a summons to 
 have what is in ellect an appeal to the judge on the chief 
 clerk's certifn-ate, or a re-hearing of the matter or part of 
 the matter of it, at the expiration of the four days the judge 
 signs it in the following form : — " Approved this day 
 
 of ; " and signs it, and then, and not till then, it 
 
 becomes the order of the judge. 
 
 I have observed in ibrnier passages, that from the 
 chief clerk's certificate the appeal lies to the judge of 
 the court in the first instance, if he has only signed 
 pro forma without having liimself heard the matter upon 
 objections, and to the Court of Appeal direct, if the matter 
 has been heard and substantially decided by the judge 
 himself. Ou this point there seems to be some slight uif-
 
 EVIDENCE IN CHAMBERS. 149 
 
 ference in form between the practice of the Rolls Court, and 
 that kid down by Vice Chancellor Kindersley in Saunders 
 V. Druce, 3 Drew. 139, thouirh, in substiince, the practice 
 seems uniform. The practice of the blaster of tlie Rolls 
 when he has heard personally and decided in chambers the 
 matter of the certificate, and thereupon signed it, is to re- 
 quire a motion to vary to be made in court, whereupon he 
 makes an order without hearing argument in court, allirming 
 the decision in chambers, to enable the parties to a])peal : 
 {York and North Midland Railway Compamj v. Hudson, 
 18 Beav. 70 ; see p. 73.) It is subuutted that, upon principle, 
 the course pointed out by Vice Chancellor Kindersley is the 
 correct one, inasmuch as the judge is the judge wherever he 
 sits, and his order upon hearing a case is of the same force 
 whether made in chambers or in court. Therefore, if upon 
 hearing objections in chambers he decides questions and 
 makes the certificate which is then his order acccordingly, 
 and then re-hcars it in court, even although he should do 
 so /;ro/onH«, there will have been already one re-hearing 
 in the nature of an appeal, so that the party could or might 
 be deprived of his right to appeal to the Lords Justices. 
 However, in Rhodes v. Ibbetson, 2 Eq. Rep. 77, the course 
 taken was this : the case was on objections to title, and the 
 Master of the Rolls heard and decided the objections in 
 court ; then the chief clerk's certificate was signed pro 
 forma by the Master of the Rolls ; then the defendant ap- 
 peared pro forma at chambers to vary it, and the Master of 
 the Rolls without argument refused the motion ; thereupon 
 an appeal motion to discharge the order was cari'ied to 
 the Lords Justices, which they heard and disposed of. 
 
 The mode of taking evidence in chambers is regulated by 
 the 15 & 16 Vict. c. 80, ss. 30, 31, and the ^Gth and •27th 
 Gen. Ord. of October, 1852, and by the general practice. 
 
 And fii'st, in proceeding under a decree, all evidence 
 read or entered as read at the hearing of the cause, may 
 be used by either party before the judge or the chief clerk 
 ill chambers. Also, further evidence may be brought in 
 support of or against claims made under the det;ree, by 
 affidavit, or, when directed by the judge, on interrogatories, 
 or viva voce ; and when a chief clerk is directed by the 
 judge to examine any witness, the practice and mode of 
 proceeding is to be the same as in the case of the examina- 
 tion of witnesses before the examiner, subject to any special 
 directions: (26th Order, October, 1852.) 
 
 If either party brings in affidavits, any of the other parties 
 may cross-examine viva voce the witnesses making the affi- 
 o 3
 
 loO NEW EQUITY PRACTICE. 
 
 davits, and then the party bringing in the affidavits may 
 re-examine. The examination is usually conducted before 
 the chief clerk, and then, as observed in a previous section. 
 Chapter I., the parties are not allovred to attend by counsel. 
 If they desire so to do, they must apply that the examination 
 be taken before the judge in person, and such an application 
 will not, in general, be refused. But, in costs, no fees for 
 the attendance of counsel in chambers will be allowed, unlesi 
 the judge certifies that it is a proper case for counsel to 
 attend ; and it is by no means of course for the judge to 
 give such certificate. 
 
 Affidavits intended to be used in the judge's chambers 
 must be filed in the Record and Writ Clerk's Office, and 
 office copies of them taken as on a motion in open court. 
 The party intending to use any affidavit, must also give 
 notice to the other parties of his intention : (■24th Order, 
 October, 1842.) And so, if any party intends to call and 
 examine or to cross-examine a witness viod voce, he must 
 give at least forty-eight hours notice to the other parties of 
 bis intention, pursuant to the 36th Order of August, 1842; 
 and see ante, Section X., Chapter I. 
 
 To procure the attendance of a witness or of a party to 
 be examined as a witness, the solicitor for the party desiring 
 his attendance takes out a summons directing him to attend 
 at the time therein mentioned, and serves the summons 
 personally on the person to be examined ; and if he does 
 not attend he is liable to process of contempt, in like manner 
 as a party or witness before the 15 & 16 Vict. c. 86, s. 31, 
 was lialilein default of attendance pursuant to a subpoena 
 duces tecum. As to a witness attending but refusing to 
 answer before the chief clerk, this course of practice was laid 
 down in Hai/wuodv. Hayivood, 1 Kay, App. 31, that the party 
 examining thereupon applies to the judge to examine the 
 witness In person, which the judge will do; and then, if the 
 witness persists, the judge can instantly commit him if he 
 thinks fit. 
 
 The judge's chief clerk usually fixes at some period of the 
 inquiry a time for closing the evidence, either of his own 
 accoril, or on the application by summons of either party. 
 When that time is about to arrive, any party not being pre- 
 pared to close his evidence, and requiring further time, 
 takes out a summons for further time, and supports his 
 application by evidence, usually by affidavit, and the 
 chief clerk will extend or refuse to extend the time at his 
 discretion, subject, however, like every other decision of 
 the chief clerk, to the decision of the judge on an applica-
 
 INQUIRIES IN CHAMBERS. I . j 1 
 
 tion by way of appeal. Oral evidence is taken down by 
 the chief clevk in the same manner as by one of the ex- 
 aminers of liie court with his own hand, in the form of 
 depositions, and not by way of question and answer ; and he 
 has just the same powers in respect to the evidence, as the 
 examiner, and no more: (see 15 & 1(5 Viet. c. 8G, s. 32, and 
 26th Order, October, 1852.) 
 
 Wlien the evidence is closed, that is, when all parties 
 have fully exhausted their evidence, or tlic time has an'ived 
 beyond which neither tlie chief clerk nor the judge will 
 allow any more evidence to be taken, the depositions and 
 other evidence are signed by the chief clerk, and transmitted 
 by him to the Writ and Record Clerk's Office, where they 
 are filed, and then any party may have a copy of the whole 
 or part thereof 
 
 Upon the prosecution of a decree, if documents In the 
 power of the accounting party have not been already pro- 
 duced, either pursuant to a summons, or upon a motion 
 made in court upon the answers, their production Lecomes 
 generally necessary after the decree : or, if documents have 
 been so produced, it may occur that further production is 
 requisite. In either case production of documents may be 
 obtained upon summons in chambers after as well as before 
 decree (3ril Order of 1st June, 1854), the party bringing 
 them in being bound to do so with an affidavit in the form 
 referred to arde^ p. 32. This portion of the subject has 
 been fully treated in Section VII., and need not be re- 
 peated here. 
 
 ^yhen a decree or order directs inquiries as to the state 
 of a fanill}', as for Instance, whether the testator had any and 
 what children, and which of them survived him ; and whether 
 any of them are dead, leaving any and what issue ; and who 
 were the next-of-kin of A. living at his death, and If any of 
 them are dead who are their personal lepresentatlves, or 
 the like ; inquiries which are most frequently combined in a 
 decree with directions for taking accounts, but are some- 
 times the sole subject of inquiry ; the preliminary course 
 as to leaving a copy of the decree In the judge's chambers, 
 and taking out a summons to proceed with the in(|uiries, Is 
 the same as already pointed out in reference to a decree for 
 an account. 
 
 In prosecuting the Inquiries, advertisements are Inserted 
 under the direction of the chief clerk, for tlie next-of-kin 
 or the heir-at-law as the case may be respectively. And 
 any person who believes himself to till the character inquired 
 for, may come in and make his claim, by bringing in a short
 
 lo2 NEAV EQUITY PRACTICE. 
 
 statement of his claim, and how he makes it out. And this 
 statement must of course be supported by the usual evidence 
 of births, deaths, marriages, relationship, and in fact all the 
 incidents of pedigree. 
 
 It may here be observed that, generally, nothing like the 
 statements of facts, charges and discharges tliat used to be 
 required in the Master's offices, are used in chambers. The 
 course is, in support of any claim to take in a concise state- 
 ment of the case on which the claim is made, with the 
 ori'nnal documents relied on, if they can be obtained, or, if 
 not, copies, abstracts, or extracts from them : (see 23rd 
 Order, October, 1852.) 
 
 When an order is made directing an account of debts, 
 claims, or liabilities, or an inquiry for next-of-kin, or other un- 
 ascertained persons, unless otherwise ordered, all persons who 
 do not come in and prove their claims within the time 
 which may be fixed lor that purpose by advertisement, are to 
 be excluded from the benefit of the oi-der (9th Order, Oct. 
 1852), unless on the day appointed for hearing claims under 
 advertisements, they are not disposed of, and they are ad- 
 journed to a future fixed day, under the 3Sth of the same 
 Orders : and then any claimant who has not entered his 
 claim may be heard on such adjournment day, provided he 
 enters his claim and files his affidavit tour clear days prior 
 to such day, and no certificate of debts or claims shall in 
 the mean time have been made : (39th of same Orders.) 
 
 When advertisements are required for any purpose, now 
 a peremptory and only one is to be issued, unless for any 
 special reason it may be thought necessary to issue a second 
 advertisement or further advertisements; and any advertise- 
 ment may be repeated as many times and in such papers as 
 may be directed. It is prepared by the solicitor, and to be 
 approved by the chief clerk, and signed by him. The ad- 
 vertisements for creditors and debtors must fix a time for 
 them to come in and prove, and appoint a day for hear- 
 ing and adjudicating on their claims ; and claimants coming 
 in pursuant to advertisement are to enter their claims at 
 the chambers of the judge in the Summons and Appointment 
 Books for the day appointed for hearing, and are to give 
 notice thereof, and of the affidavit filed, to the solicitors in 
 the cause, within the time specitietl in the advertisement for 
 bringing in claims : (see 33rd to 36th of the Orders of 
 October, 1841.) 
 
 With regard to persons claiming as creditors, those whose 
 debts are under five pounds need not attend at the day of 
 hearing, unless requii'ed to do so by notice from some party
 
 PROOF OF DEBTS. 153 
 
 (40th Order, October, 1852) ; and cliiiinants fding affidavits 
 need not take ollice cojiies, but the party prosccutincf the 
 decree takes ollice copies, ami in i)ractice he i'urni.slics the 
 other parties with copies at their own expense : (;37th 
 Order.) 
 
 Interest is conipntcd, ns of course, upon debts carrying 
 interest at the rate which they carry, and on debts not 
 carrying interest at four per cent. I'roni the date of the 
 decree: (10th Order, Oct. l,s5-2.) The ])hiintiir of course, 
 or if he is not prosecuting the decree, the party wliois doing 
 so, is entitled to attend on all claims. 
 
 Upon the ino<le of i)roof ofciainis some observations may 
 be useful, although of course in this, if the claims are dis- 
 puted, the solicitor conducting the nuitter must use hia 
 discretion, acting upon the general jjrinciples and practice of 
 evidence, of which I have treated in Section X., Chapter I. 
 
 No charge need be brought in, as already observed in 
 reference to the 23rd Order of October, 1852, but creditors 
 bring in their claims either in writing or viva voce, and sup- 
 port them by evidence, either l»y allidavits or by documents, 
 as the case may be. A mortgage tlebt, for instance, will be 
 proved by pro(hu,'tion of tlie deed, and an aflidavit verifying 
 Its execution and the amount remaining due, stating, how- 
 ever, not merely as a gross siun what is claimed, but shortly 
 an account of what lias be(;n received, and what remains 
 due, separating principal and interest. A debt on a bill or 
 note will be proved by proiliicing the bill or note, with an 
 affidavit verifying the consideration, and the nonpayment. 
 
 A judgnuMit debt will be proved by production of a veri- 
 fied copy of the judgment, and an aiUdavit verifying the 
 recovery of tlie judgment, and for what, and that the 
 amount claimed remains due, 
 
 A simple contract debt will be ju-oved by an affidavit 
 veritying the cause of debt, as for instance, for work and 
 labour (hme, and the amount, if any, paid, and the amount 
 remaining due. 
 
 It would be a waste of space to attempt to go into more 
 detail on such matters, as in each case the proof must be 
 according to the circumstances. The form of allidavit is 
 not material, provided it clearly and with suflieient facts 
 establishes that there Avas a debt, the grouiul of the 
 debt, and the fact of there being a residue remaining un- 
 paid. 
 
 Of course the party claiming must also show that he is 
 the person entitled to be paid. Thtu'efbre, if he is claiming 
 in a representative charactei', as an executor, or heir, or
 
 154 NEW EQUITY PRACTICE. 
 
 trustee, or assignee in bankruptcy or insolvency, or by 
 deed, he must produce the usual proof of his filling the 
 particular character. 
 
 A preliminary decree for accounts and inquiries frequently 
 directs a sale of real estate. This is conducted in the judge's 
 chambers. 
 
 The first thing to be done by the solicitor conducting 
 the prosecution of the decree, is to prepai'e an advertise- 
 ment which, when prepared, must receive the sanction and 
 signature of the chief clerk. It is then taken to the office 
 of the London Gazette, and inserted ; and usually copies are 
 inserted in some leading London paper, and in provincial 
 papers also, if the sale is of property in the country. 
 
 The plaintitf usually has the conduct of the sale, whether 
 he is really the party to make a title or not, but the judge 
 may otherwise direct. 
 
 After the advertisements have been prepared and issued, 
 the next step is to prepare conditions of sale, which is done 
 by the plaintiff or other party conducting the sale, and they 
 must be settled and approved by the chief clerk. 
 
 For the preparation of the conditions, I assume that the 
 reader is acquainted with the general framing of conditions 
 of sale ; and conditions of sale under a decree differ from 
 ordinary conditions only in expressing on the face of them 
 that the property is sold under a decree of the Court of 
 Chancery, and in taking care to reduce as much as is prac- 
 ticable the number of lots, as each lot throws its share of 
 expense on the estate under administration. 
 
 The judge, or the judge's chief clerk, may fix reserved 
 biddings and the amount of deposit, and appoint a person 
 to receive the deposits, and also to receive proposals by 
 private contract. 
 
 In a private sale it is often prudent, but in a sale under a 
 decree it is compulsory, before putting up for sale the 
 property ordered to be sold, to lay the abstract of the title 
 before one of the convening counsel of the court, to advise 
 thereon generally, and especially in respect to whether any 
 and what special conditions are requisite (15 & 16 Vict, 
 c. 86, sect. 56), unless the judge otherwise directs. 
 
 When these things have been done, and the conditions 
 settled, a sufficient number of cojjies of the particulars 
 and conditions are procured to be printed by the party 
 conilucting the sale, and copies given to all the parties 
 in the suit. A person is then to be appointed by the 
 chief clerk to conduct the sale, and the chii-f clerk at the 
 same time will deliver to the solicitor printed directions for
 
 SALES UNDER DECREE. lio'j 
 
 the person conducting the sale as to the manner in which he 
 is to conduct it. 
 
 The biddiunjs are verified by the person conducting th(^ 
 sale, by an alliduvit, the form of which is delivered with 
 the direction froui the judge's chambers to the solicitor. 
 
 And when the bidilings so verified are returned to the 
 chief clerk he thereupon will make his certificate of the sale. 
 
 Biddings are not at once conclusive; any person who within 
 eight days after the signing by the judge of the chief clerk's 
 certificate is willing to make an advance upon the bidding, 
 mayapplyl)y motion to the court upon the usual notice to the 
 parties in the cause, and on the bidder, to open the bidding; 
 that is, to become substituted as a purchaser for the original 
 bidder ; and if he makes such an advance as the court thinks 
 sufficient, he will be admitted as such new purchaser, pay- 
 ing of course the costs of the original pm'chaser. The costs 
 of the motion of the other parties, will be costs in the cause. 
 
 There is no general rule as to what is a sufficient advance, 
 but rarely less than ten per cent, will be accepted. How- 
 ever, the princijile is that on such motions the court con- 
 siders itself as the auctioneer of the estate, and will get as 
 much as it can. 
 
 Whoever is the purchaser, when the certificate of sale is 
 finally signed, will then, and not before, investigate the 
 abstract of title. If he is satisfied with it, he applies by 
 summons in chambers, on notice to the solicitor conducting 
 the sale, and on no other parties, for leave to pay in his 
 purchase money ; and if there be interest, the interest also, 
 by a given day, and to be from that day let into possession. 
 
 The proper order thereupon is, that the purchaser do pay 
 in such purchase money and interest by such day, the 
 account to be verified by affidavit, and that the same be 
 laid out in the purchase of Three per Cent. Annuities. 
 
 This order is carried out by the purchaser's solicitor, by 
 obtaining from the Accountant General's Office the usual 
 directions, and paying in the money at the Bank ; and when 
 that is done, the vendoi-'s solicitor attends at the Accountant 
 General's OlEce to direct the investment, which is accord- 
 ingly made. The purchaser then prepares his conveyance, 
 which is to be settled by the chief clerk, if the parties difTer 
 about the same. For that purpose it is usually referred to 
 one of the conveyancing counsel of the court, but it maybe 
 settled before the judge himself in chambers. As to the costs 
 of such proceeding, it is presumed that they will follow the 
 issue of the matter ; that is, if the judge or tiie conveyancing 
 counsel agrees to and adopts the matters insisted on by the
 
 156 KEAF EQUITY PRACTICE. 
 
 vendor, the purchaser will pay the costs ; if the deed is 
 settled as proposed by the purchaser, the vendor -will pay 
 the purchaser his costs, and have them over against the 
 estate, if his objections were reasonable ; and if some of the 
 objections prevail, and others do not, then each party will 
 pay his own costs. But there is not, as I am aware, any 
 fixed rule, and the matter will be in the discretion of the 
 
 J^^S^- . . . 
 
 If a purchaser does not himself apply withm the proper 
 
 time, that is, within eight days from the signing of the 
 certificate of sale, to pay in his purchase-money, the vendor's 
 solicitor takes out a sunnnons for an order that he may pay 
 in his purchase-money on or before a day named. If the pur- 
 chaser objects to the title, he appears on this summons, and 
 obtains a reference of the title ; and he is then directed to bring 
 his objections into chambers in writing, within a given time. 
 When they are brought in, they are usually laid before one 
 of the conveyancing counsel of the court, with the abstracts, 
 and he furnishes his opinion upon them, and the chief clerk 
 usually makes his certificate accordingly. But if a party ob- 
 jects, he takes out a summons to argue the objections before 
 the judge in chambers, and the judge either decides the 
 questions in chambers, or sometimes adjourns the case to be 
 heard in court. AVhen he has decided, he makes his certifi- 
 cate accordingly, and if it is in favour of the title, then, at the 
 expiration of eight days from the signing of such certificate, 
 the vendor's solicitor, if the purchaser has not moved to pay 
 in his purchase-money in the mean time, takes out a sum- 
 mons for an order that he do pay in his purchase-money. 
 Of course an appeal lies by motion on notice to the Lords 
 Justices from the judge's certificate. 
 
 If the judge's certificate is against the title, and there is 
 no appeal, the purchaser applies by summons to be dis- 
 charged, and he will be entitled to be so, with all his costs, 
 charges, and expenses incurred in the purchase. 
 
 If the purchaser, not having obtained a reference of title, or 
 having been defeated upon his objections and not having ap- 
 pealed, neglects to obey the order to pay in his purchase-money, 
 he is proceded against by pi'ocess of contempt, as if he Avere a 
 party to the suit, under the loth Order of 1841. When a 
 purchaser conceives himself entitled under the conditions of 
 sale to compensation, although he is satisfied Avith the title, 
 he may either stand upon that objection on appearing to the 
 summons to pay in his purchase-money, and then that 
 matter will be adjudicated upon l)y the chief clerk, subject 
 of course to the revision of the judge ; or the purchaser may,
 
 RECEIVER. 1.37 
 
 before waiting to be called upon to pay his purchase money, 
 hiniselt" initiate the question of" conipunsation, and take out 
 a sunnnons to apply lor couipensaliun, and then the question 
 is disposed of in like manner. 
 
 The usual rule hitherto has been, that if a title is douhiful, 
 though not clearly defective, the court will not force it upon a 
 purchaser; but 1 am informed that, in a very recent case at 
 the Rolls, not yet reported, the Master of the Kolls held 
 that the court willnot take any such distinction, but will 
 decide aye or no whether the j)urchaser must take the title. 
 The investigation of such (luestions belongs, however, rather 
 to the subject of jurisdiction than of practice, and would 
 be out of place here. 
 
 Of the proceedings in the appointment of a Receiver. 
 
 When the court has directed the appointment of a re- 
 ceiver, either by decree or upon a motion before decree (see 
 ante, p. 90), the party obtaining the order carries into 
 chambers a short proposal in writing of a person to be such 
 receiver, and of two other persons for his sureties ; and 
 stating also shortly the nature, extent, and income of, and 
 charges upon the property. The proposal is accompanied 
 by an affidavit verifying the material facts. All the parties 
 must be served with the summons taken out for this purpose, 
 and any party is at liberty to propose another pei'son for 
 receiver, and the matter will be then disi)Osed of. Any 
 person may be a receiver except a peer, a party to the 
 cause, a barrister or soHcitor engaged in it, or any person 
 being a trustee for any party to the cause. But, except a 
 peer who cannot be at all a receiver, any of the excepted 
 persons may be I'eceivers, by consent but without salary. 
 
 A receiver must take pjossession of the estate, and the; 
 tenants are bound to attorn to hira. If they refuse, the 
 plaintiff, or, if he vnW not, the receiver, applies by motion, on 
 notice, that they be ordered to attorn or to stand connnitted, 
 and the court will make such order, which will then he en- 
 forceable, if disobeyed, by the usual process of contempt ; 
 and the tenants must pay their rents to the receiver. If 
 there are rents in arrear which are not obtained, an appli- 
 cation should be made, by motion, for liberty for the receiver 
 to distrain. In general, indeed, the receiver ouglit not to 
 apply to the court himself, but should procure the plaintill 
 or other party interested to do so. The receiver accounts 
 annually for what he pays and receives. A receiver ought 
 not to pay anything without the order of the court, ile 
 [Cll.] P
 
 158 NEW EQUITY PRACTICE. 
 
 may let the estate, and may manage as well as set and let ; 
 but all this must be done with the approbation of the judere 
 in chamljors, and the course is for the receiver to bring in 
 at once, and without special order, before the chief clerk, any 
 proposals for letting or managing. 
 
 I have stated that a receiver ought not to pay money 
 without the direction of the court ; this is the general and 
 strict rule ; of course in practice it is not convenient that it 
 should be minutely adhered to. Thus, a receiver may pay 
 or allow for small and customary repairs, though he cannot, 
 if they are extensive, without the sanction of the judge in 
 chambers. Still, if he lays out money for even considerable 
 repairs, or for other proper purposes, he maybe allowed them, 
 if the judge, upon inquiry, thinks they were proper. In At- 
 turney General v. Vigor (11 Ves. 563), the Lord Chancellor 
 said, the court is not in the habit of permitting receivers to 
 apply the trust fund in repairs to any considerable extent, 
 without a previous application, but directed an inquiry to 
 the ^Master, on the application of the receivers to be allowed 
 lur repairs done, whether the repairs were reasonable. 
 
 It is probable that, now that the direction of the court 
 may be taken so speedily and cheaply on an application in 
 chambers, the rule will be more strictly adhered to than 
 formerly, and a receiver should not be advised to incur any 
 but very trifling liabilities out of the estate, without the 
 sanction of the judge. 
 
 The direction as to the bringing in and passing his accounts, 
 is made now by the judge in chambers on the final appoint- 
 ment of the receiver ; and he may, in accordance with the 
 63rd Order of 1828, then or at any subsequent time, in the 
 place of annual periods for the delivery of the receiver's 
 accounts and payment of his balances, fix a longer or a shorter 
 period at his discretion, and when such other periods are 
 fixed by the ^Master, the regulations and principles of the 
 Order of 23rd April, 1796, shall be in all other respects 
 applied to the receiver. 
 
 The receiver's accounts are brought in in a very simple 
 form; they are headed in the cause, and contain in separate 
 colunms the names of the tenants, the description of the 
 jneuiises, the rents, arrears due, the current rent due, the 
 rents received, and any observations. 
 
 There should be also an account of the disljursements, 
 including the receiver's poundage, and the costs of passing 
 his accounts. The account is verified by afiidavit. 
 
 These accounts are passed before the chief clerk; a fair 
 copy is left, and a summons to proceed is taken out, and is
 
 RECEIVER. 159 
 
 served on the solicitors of the parties to the suit interestod : 
 (31st and 3-2nd Orders of October, 1852.) When the ac- 
 count has l)een gone through and a balance struck, the 
 account is entered by the solicitor of the receiver in a book 
 called the Receiver's Hook, and in a duplicate book kept by 
 the receiver: (31st Order, October, 1852.) The book con- 
 taining the account verified is returned to the judge's 
 chambers, and the chief clerk issues his certificate, stating 
 the amount due from the receiver and when he is to pay it 
 in ; the certificate is filed, and is then forthwith to be acted 
 upon : (53rd Order, October, 1852.) The course of pro- 
 ceeding for l)aying in the money is the same as that already 
 pointed out for papng in purchase money, viz., the 
 solicitor of the receiver takes an office copy of the certificate 
 to the Accountant General's Office, where the usual direc- 
 tion to pay in is obtained, and that is to be taken to the 
 Bank, and the money paid. The mode of compelling a 
 receiver to bring in his account and j)ay in his balance is 
 by application in chambers for an order that he do bring it 
 in wdthin four days or stand committed. 
 
 If, when the certificate has been issued directing him to 
 pay in his balance, he neglects to do so, the course is to 
 apply in chambers for an order that he do so within a given 
 time ; and if, being served personally with this order, he 
 disobeys it, he may be proceeded against by the usual pro- 
 cess of attachment and its consequences, of which I have 
 already treated. 
 
 If a receiver does not bring in his acccount, or does not 
 pay in his balance pursuant to the chief clerk's certificate. 
 Lis sureties become liable ; but they cannot be proceeded 
 against imtil the receiver has been put in contempt, unless 
 the receiver has become bankrupt or insolvent. The sure- 
 ties are proceeded against by petition, or motion, on 
 notice, for leave to put their recognizances in suit against 
 them, and as the recognizances are now given to the Master 
 of the Rolls or the senior Vice Chancellor, the order gives 
 the party moving or petitioning liberty to use the name of 
 the Master of the Rolls or the Vice Chancellor, as the case 
 may be, in order to put the recognizances in suit against 
 the sureties. When a receiver has passed his final account, 
 and paid in his balance, his recognizances are vacated in 
 order to discharge his sureties. The order for this is ob- 
 tained on a summons at chambers. The order must be 
 regularly entered and drawn up, and when drawn up must 
 be marked by the secretary of the Master of the Rolls, and is 
 then enrolled in the Enrolment Office. 
 p 2
 
 160 NEW EQUITY PRACTICE. 
 
 II. The Master's Report and exceptions thereto. 
 
 I shall not treat with any degree of detail of the mode of 
 proceeding to obtain the direction of the court, either by 
 way of overruling or in furtherance of a report made by the 
 Master, where, in an old suit, the reference for accounts and 
 inquiries has been to one of the Masters instead of to 
 the judge in chambers, as proceedings before the Master are 
 becoming rapidly exhausted in old suits, and under the 
 15 & 16 Vict. c. 80, will soon cease to be known in the 
 practice of the court. For the details, therefore, of their 
 proceedings I must refer to the well-known works on the 
 old practice of the Court of Chancery ; but it will not 
 be wholly useless shortly to point out what those pro- 
 ceedings were, in order to show more clearly the distinction 
 between them and the proceedings now taken upon the 
 jndge's certificate in chambei's, which corresponds in effect 
 and substance to the Master's report under the old practice. 
 
 When the Master, being directed to make inquiries or to 
 take accounts, had done so, he made his report referring 
 to the states of foots brought before him, and to the 
 evidence brought in in support of them, and he reported, in 
 the form of a finding, those facts and circumstances which 
 were the result of the evidence, and sometimes, by way of 
 fact, the conclusions which he drew from all the matters 
 Ijefore him. The Master's finding or report was conclusive 
 on the parties, at least as to all findings of fact, if not ob- 
 jected to ; and, after being duly confirmed, was acted upon 
 by the court as conclusive on hearing the cause on further 
 directions. If any party was dissatisfied with the Master's 
 report, he might bring his objections to it before the court, 
 by filing exceptions. As a foundation for the exceptions, 
 it was, however, necessary, as a preliminary step, to carry 
 in objections before the Master, before he had finally signed 
 his report ; the objections and the exceptions were in reality 
 exactly and literalh- the same, but the theory was that the 
 Master would rehear the case, on which he had already 
 decided, upon the objections, so that he might, in fiict, vary 
 his decision upon his draught report, before it was finally 
 settled and signed ; but, in practice, the Master never, or very 
 rarely, did in fact hear the case re-argued, and rarely, if 
 ever, was attended upon the objections, except as a mere 
 matter of form. The oljjections were usually carried in 
 pro forma only, and as a matter of course disallowed. They 
 were, therefore, altogether a useless and superfluous pro-
 
 OBJECTIONS TO CERTIFICATE. 161 
 
 ceedin":. As to the substance of the exceptions, they might 
 be to the finding of the Master, either tliat npon the evidence 
 before him it was wrong, or that he liad admitted improper 
 evidence, or that he had rojected proper evidence ; bnt it 
 was absolutely necessary that they should ])oint out specifi- 
 cally the parts of iiis finding objected to, and then they usually 
 suggested what in the view of the exceptant the Master 
 ought to have found ; so far as the exceptions did not cover 
 any part of the Master's report, it remained conclusive. 
 When the exceptions had been filed, they were set down to 
 be heard (on a petition of course in the same manner as a 
 cause), and were argued and disposed of in court. If the 
 exceptions were altogether overruled, the elfect was that 
 the finding of the Master was established, and his report 
 would then be confirmed as a matter of course, and the 
 cause would then be set down to be heard on further direc- 
 tions ; that is, to have those questions and matters decided 
 by the court, which could not be decided until the informa- 
 tion furnished by the Master's answers to the inquiries sent 
 to him had been procured. If any of the exceptions were 
 allowed, the eifect might be simply to adopt the proposition 
 tendered by it ; but the court was frequently obliged, on 
 allowing exceptions, to refer it back to the Master to make 
 a further report. Now, the process is quite different ; the 
 certificate made by the chief clerk is conclusive, if unob- 
 jected to within eight days after it has been signed by the 
 judge, as fully ass wa a IMaster's report absolutely confirmed. 
 If any party objects to it, his course is, wiien the chief clerk 
 has made it, either to apply to the judge himself within 
 (four) days to hear it himself personally in chambers ; 
 and the judge will either so rehear it, or adjourn it, as an 
 adjourned summons, to be heard in court, and the certificate 
 then made by the judge will be conclusive, unless appealed 
 from : if oljjected to, it must be before the Lords Justices. 
 The appeal to the Lords Justices is made by motion on 
 notice to discharge or vary the certificate ; or, if the judge 
 has signed the certificate pro forma, any party objecting to 
 it may do so by taking out a summons by way of appeal, 
 within eight days from such signing before the judge in cham- 
 bers, to discharge or vary the certificate ; such sunuuonses 
 are almost always adjourned to the court. But, in either case, 
 no formal objections or exceptions analogous to those in the 
 Master's ofiiec are requisite; but tlie proceeding, whether in 
 chambers or in court, is in the nature of a motion to vary 
 or discharge the certificate, and any objections may be taken 
 to it upon the materials on which it is founded, or which 
 P 3
 
 162 NEW EQUITY PRACTICE. 
 
 were brought into the judge's chambers, as nearly as may 
 be in tlie same manner as under the ordinary practice of a 
 motion to discharge any order of the court, capable of being 
 discharged or varied on motion. 
 
 When the certificate is not objected to, or, having been 
 objected to, is finally settled by the judge or upon appeal, 
 the cause is then ripe to be heard upon what is now termed 
 further consideration^ instead of further directions^ and the 
 cause must be set down again to have those matters disposed 
 of which arise upon the facts certified, or the conclusions 
 decided upon the face of the certificate. 
 
 The cause may, upon the expiration of the eight days from 
 the filing of the certificate, and within fourteen days from 
 that date, be set down on the written request of the solicitor 
 of the pai-ty having the conduct of the decree, and, after the 
 fourteen days, at the request of the solicitor of any party to 
 the cause. The form of the request is given in the Orders of 
 March, 1853. 
 
 The cause, when set down, is not put in the paper of 
 causes for further consideration till ten days after the day 
 on which it was set down ; and notice must be given to 
 the parties in the cause of its being set down at least six 
 days before it is marked in the cause book for further con- 
 sideration. The form of that notice is given in the Orders of 
 March, 1853. 
 
 This notice should be served on the solicitors of the 
 parties and an affidavit of the service made and filed to be 
 used in court, if necessary, when the cause is called on, on 
 further considerations, for the same reasons that have been 
 pointed out in reference to the proof of having served 
 subpoena to hear judgment, when the cause was set down 
 to be originally heard. 
 
 On the hearing of a cause on further consideration, the 
 brief will consist, as regards all the parties, of tlie original 
 brief held on the original hearing of the cause ; and, in ad- 
 dition, of the certificate. The court will proceed only on the 
 facts found by the certificate, as, formerly, it would proceed 
 only as to facts upon the ^Master's report ; that is, no 
 evidence can be looked at to contradict or vary the facts 
 certified by the certificate. But if on the face of the cer- 
 tificate the facts found are not suOicientto enable the court to 
 decide, it will direct further inquiries in chambers, and post- 
 pone tlie further consideration. The hearing of the cause is 
 conducted much in tiie same way as the original hearing: 
 the ]ilaii)tifi^'s leading comisel opens the case, and refers to 
 so much of the original papers, of the original decree, and
 
 FURTHER CONSIDERATION. 163 
 
 of the certificate, as he thinks necessary, and then argues 
 the questions of law arising thereon ; he is followed by his 
 junior in the same course, and then thi- counsel of the defen- 
 dants procfi'd in the order in which their clients stand upon 
 the record ; and the plaintilF's senior counsel replies. 
 
 I have observed that no evidence will bo admitted on further 
 consideration, beyond the certificate itself. There is, how- 
 ever, this excej)tion, that under the 1.'5 & 14 Vict. c. 35, 
 proof may be made by allidavit that all proi)er parties are 
 before the court, and of all such matters as are necessary to 
 be proved for enabling the court to order payment of any 
 moneys belonging to any married woman, and of all such 
 other matters not directly in issue in the cause as in the 
 opinion of the court may safely and properly be so proved. 
 It was not usual in general, under the old practice, to furnish 
 counsel with the schedules to the Master's report, nor is it 
 the usual practice now to furnish them with the schedule or ac- 
 counts refen-ed to in the certificate ; and in cases where the 
 questions to be determined on further consideration are purely 
 questions of law, as to which it is innnaterial what deduc- 
 tions can be drawn from the figures, it is not necessary; but 
 when, as in many cases, the (]uestions are of mixed law and 
 computation, the accounts referred to should always form 
 part of coimsel's brief. The embarrassment produced on 
 the hearing of a cause by these matters being then for the 
 first time placed, if it is requisite to refer to them, in coun- 
 sel's hands, is sometimes excessive and highly prejudicial to 
 the interests of the parties. 
 
 In some classes of cases the finding of the certificate, as 
 was formerly the case with the Master's report, though in 
 terms a finding of facts, may in truth be a finding as to 
 the whole question, and shut out further consideration of the 
 question of law. Thus, in the case of Gregory v. Smith (9 
 Hare, p. 708), the testator gave his property subject to a life 
 estate to " the families of Gregory and Gear." The original 
 decree referred it, among other things, to the Master, to 
 ascertain who the testator intended by the families of Gregory 
 and Gear, and the Master found that the testator had known 
 certain persons of that name, and who were their descendants, 
 .and he found that the testator intended certain defendants 
 by the description of Gregory and Gear. The court, with 
 great difficulty, permitted the next-of-kin to contend that 
 the will was void for uncertainty, inclining strongly to hold 
 that the Master's report was conclusive in favour of those 
 persons, and that only questions of their rights inter se 
 could be argued. In all such cases great care should be
 
 164 NEW EQUITY PRACTICE. 
 
 taken by the solicitor of the parties interested to obtain the 
 certificate to be so worded, as to submit plainly the questions 
 of law to the court on the face of the certificate ; and, if they 
 cannot succeed in procuring it to be so worded, to take the 
 opinion of the judge upon it personally in due time, so as 
 not to conclude him by the certificate at the hearing on 
 farther consideration. 
 
 It is quite clear that when an original decree has been 
 appealed from and varied by the court above, and then 
 comes on, on further consideration, the further consideration 
 is to be heard by the court below, before whom the cause 
 originally was, and not by the Court of Appeal : {Flight v. 
 Marriott^ 12 Jur. 487.) It is, indeed, strange that the point 
 should ever have been doubted or misunderstood, bearing in 
 mind that the principle of a variation of a decree on appeal 
 is, that the Court of Appeal makes such decree as the court 
 below ought to have made, and that, when so varied, it is the 
 decree of the court below, and not of the Court of Appeal. 
 
 A question of great moment frequently arises, on further 
 consideration, with reference to the species of decree that 
 may be made against executors and other persons in a 
 fiduciary character ; and a regard to the rules on this subject 
 is, therefore, very necessary to be had in settling the original 
 decree. If the original decree directs simply an account of 
 what has come to the hands of trustees, and does not go 
 on to direct an inquiry as to what they might have received 
 but for their wilful default, the court will not, on further 
 consideration, charge them with, or direct a fvirther in- 
 quiry as to, wilful default. The court assumes, either 
 that the point was not raised by the plaintifi" on the original 
 hearing, and therefore he has concluded himself from 
 raising it afterwards, or that it was raised and that the 
 court disposed of it by refiising to direct the inquiry, and in 
 effect, therefore, decided against so charging the defendants. 
 But if the common account against executors or trustees has 
 been directed by the original decree, although the certificate 
 may not find them liable to interest on the balance in their 
 hands, yet the court will, on further consideration, so 
 decree against them, if the certificate aflfords the materials, 
 or will direct further accounts and inquiries, if necessary 
 for the purpose ; the principle of this is, that if the com- 
 mon decree for an account is properly taken, it must show 
 what balances were in the hands of the trustees from time 
 to time, and therefore the court will see that its decree is 
 ciffctuallv carried out : (see on this doctrine Jones v. Mor- 
 rall, 2 Sim. N.S. 241.)
 
 FURTHER CONSIDERATION. 165 
 
 The general principle is, in fact, this : the court will not, 
 on further consideration, do anything not intended and pro- 
 vided for by tlie original decree or the decree as varied in 
 chambers pursuant to the 20th Order of October, 1852 ; and 
 will assume that all that the parties desired to provide for was 
 duly provided for by the original decree. Therefore matters 
 neither decided, nor put in train of inquiry, nor reserved by 
 the original decree, will be treated as abandoned : (see Pcw- 
 singham v. Sherboni, 9 Beav. 424.) 
 
 In general, only the parties to a cause can appear and be 
 heard on further consideration, but to this there are excep- 
 tions. In legatee suits, and other suits of that class, for 
 administering the estate of the testator, persons not 
 parties to the suit having come In in chambers to establish 
 their claim, and being affected by the certificate, may appear 
 on further consideration, to support their claims If contested, 
 and will be in the same position as to costs as if they had 
 been parties to the suit. 
 
 It would be quite impossible, within the limits assigned 
 to a work of this character, to point out all the minute 
 directions and reservations for every conceivable state of 
 things which may be requisite in a decree on further con- 
 sideration. Thus, for instance, if the decree is to divide a fund 
 in certain proportions, it will direct payment to those com- 
 petent to receive and give a discharge ; but, if there are any 
 of the parties entitled who are not so competent, care 
 must be taken that the decree provides for carrying over 
 their portions of the fund to a separate account, entitled ac- 
 cordingly, with directions for Investment, and accumulation 
 or payment of the interest, as the case may require ; and 
 then the parties at the proper time will apply by petition to 
 have their funds paid out to them. So, if the decree is in 
 favour of payment to married women, it directs pa}Tnent to 
 their husbands, if the sums are under two hundred pounds, 
 and are not subject to any settlement ; but if they are ex- 
 ceeding that sum, or subject to a settlement, It directs that 
 they shall be carried over to the account of such married 
 women, subject to the further order of the court ; and then, at 
 any subsequent time, the married woman. If the fund is 
 not settled, may, on a petition, have the fund dealt with, 
 either by way of settlement, or by way of payment to her 
 husband, on her being examined in court by the judge, as 
 she may think fit, or in such cases, the married woman may 
 appear, and be examined on the hearing on further con- 
 sideration, and the court will decree accordingly. On an ap- 
 plication, whether by petition or at the hearing on further
 
 166 NEW EQUITY PRACTICE. 
 
 consideration, for pa}Tnent to the husband of a married 
 woman of a sum not settled and exceeding two hundred 
 pounds, there must be an affidavit by the husband and 
 wife, that there is not, and never has been, any settlement, 
 or agreement for a settlement, either before or since the 
 marriage. The usual terms of the affidavit are, " that no 
 settlement, provision or agreement whatsoever for asettlement 
 on our marriage, or in contemplation of our marriage, was, 
 or has ever been, entered into by us, either before or at the 
 time of, or at any time subsequent to, our marriage." If there 
 has been a settlement, but it does not affect the fund in ques- 
 tion, it must verify that fact. But the court, where there has 
 been a settlement, never relies exclusively on the affidavit, but 
 casts it upon the counsel for the married woman to read the 
 original settlement, and to state in open court that he has 
 so done, and that the settlement does not, in his opinion, 
 affect the fund in question ; and the practice is for the 
 counsel, if he feels any doubt on the construction of the 
 settlement, to read the passages in court on which he so 
 feels doubt, and to submit them to the court. 
 
 The examination of the married woman is conducted by 
 her coming into court, and being privately questioned by 
 the judge on the bench, or sometimes he requires her at- 
 tendance in his private room ; and the order made should 
 state the fact of her examination. As the examination is 
 always strictly private, of course no one ever knows precisely 
 what the natrn-e of it is. But as veiy frequently misunder- 
 standings take place, from the married woman being of 
 course ignorant of legal language, and perha])s not being 
 properly instructed, it may not be useless, to the young 
 practitioner at least, to state that, in general, the judge 
 does not put any leading questions, but satisfies himself, as 
 well as he can, that the marriedwoman knows and understands 
 her rights with relation to the fund, and puts it to her to say 
 what she wishes to be done with it. She should be there- 
 fore carefully informed, before she goes up, by her solicitor, 
 and made to understand what her rights are, and informed 
 how clearly to state her intentions. (') 
 
 (') The writer was in court when a married woman, petitioning to 
 Lave her fund paid to her husband, was examined, and the judge in- 
 formed counsel that she wished to have the fund settled. She returned, 
 after conference with lier solicitor, and it appeared that she misunder- 
 stood the terra, and meant she wished to have the matter settled by pay- 
 ment to lier husband. Such a misunderstanding, from want obviously 
 of previous explanation, might have led to serious delay, as the judge 
 might well have hesitated to accept her explanation, at least for a time.
 
 STATING PROCEEDINGS. 167 
 
 A decree made on further consideration must be drawn 
 up, passed, entered, and enrolled in tiie same manner as 
 pointed out in reference to a decree at the original hearing; 
 and the same consequences depend on its being or not being 
 so dealt with with reference to enforcing it ; and it may be 
 dealt with as to variation on motion, or on getting it set 
 down to be spoken to on the minutes, in tlie same manner 
 and to the same extent, but not further. When the tleci'ee 
 on further directions is complicated, it is not an unusual and 
 it is a very prudent course of practice, in order to avoid 
 dilHculties in di-awing up and settling the miimtes before the 
 Registrar, to arrange that, when the court has decided what 
 decree it will make, the cause shall stand over for a few 
 days, for minutes, prepared in writing in detail, to be settled 
 by the junior counsel on all sides, and then, on the day fixed, 
 to take the decree in detail according to those minutes as 
 finally corrected and settled by the judge in the presence of 
 all pajiies. 
 
 III. Appeals. 
 
 I come now to treat of appeals from decrees and orders, 
 but, first, of staying proceedings under a decree. 
 
 In general, the court will not stay proceedings under a 
 decree, and it is much easier to say under what circumstances 
 it will not, than under what cu-cumstances it will. 
 
 The mere pendency of an appeal is not suflicient ground , 
 as the court will always assume its decree to be right until 
 the Court of Appeal has decided it to be wrong, and it will 
 not, therefore, deprive the party claimmg under it of the 
 fruit of the decree. Irremediable danger that the execution 
 of the decree may so operate upon the fund as to deprive the 
 appellant of it, should he be successful, will not always do ; 
 thus, in Kifig of Spain v. Muchudo (1 Myl. & K. 85), where 
 the elTect of the decree was to pay money into the hands of a 
 foreigner about to leave the country, the court refused to 
 stay execution of the decree pending an appeal ; see also 
 Suisse V. Lowther (2 Hare, p. 438), where the court 
 refused to stay the execution of an order by which money 
 would be paid into the hands of the defendant, a foreigi or, 
 although the affidavits made a very strong case of probalility 
 that, if the order was carried into eifect, an appeal would 
 1)6 wholly fruitless. So in a recent case ( Wriglit v. Vernon 
 Vice Chancellor Kindersley, not yet reported), where m 
 application in the nature of a stay of execution, viz., an
 
 168 NEW EQUITY PRACTICE. 
 
 application for a receiver where real estate had been declared 
 to belong to the plamtitJi was made, the court would not Usten 
 to the circumstance that a petition of appeal was lodged, as a 
 reason for depriving the jjluintiif of the immediate fruit of 
 execution of his decree. 
 
 There are, indeed, some cases where execution of a decree 
 has been stayed pending an appeal, as where a demurrer had 
 been overruled by the Lord Chancellor, a stay of proceed- 
 ings to enforce an answer was granted pending an appeal 
 to the House of Lords, the party moving of course paying 
 the costs of the motion, which would be, indeed, almost as 
 of course, the rule being that any party coming to the court 
 for an indulgence must pay the costs of obtaining it. 
 
 So in a case of Attorney General v. Munru (12 Jur. 
 318), the court stayed the execution of a decree, the effect 
 of which would be to remove the minister of a church 
 and deprive the defendants, who were trustees, of the future 
 management of the trust property. On the former case, 
 and there are others of the same class, the observation 
 is, that the decree was not a final decree, nor a decree 
 deciding any rights ; but merely deciding that the defen- 
 dant ought to answer, and consequently, if he answered, 
 pending an appeal, the subject-matter of appeal was not 
 as in Walhum v. Ingelby, and Lowther v. Suisse, contin- 
 gently, but absolutely gone; and upon the Atturney General 
 V. Munro, though a stronger case, this observation occurs, 
 that the contest was really between trustees and one portion 
 of the cestuis que trit^t, and was not whether A. or B. was the 
 owner of property, but, in substance whether A. orB. should 
 execuie certain functions for C. and others ; the injury, 
 therefore, to the successful party by suspending his enjoy- 
 ment of the decree, was trilling in comparison to the injury 
 to the party against whom it was to be enforced, ii" he 
 should turn out, on appeal, to be right. 
 
 It will be gathered from the cases referred to, that there 
 is no positive rule on the subject, but each case must stand 
 on its own particular merits. Thus much, however, by way 
 of caution may be stated as the result of the authorities, and 
 of acquaintance with the general course of practice of the 
 court : — L That the court leans strongly against suspending 
 the execution of a decree ; LI. That it may be induced to 
 do so, where the decree or order has not positively decided 
 a right of enjoyment, but has only given some advantage 
 to one of the parties ; and, IIL That it will be ({uite the 
 exception for it to do so, when it has, by its decree or 
 order, finally decided a contested right of enjoyment of 
 property.
 
 APPEALS AND REHEARINGS. 169 
 
 The course of proceeding to slay the execution of a decree 
 or order is by motion on notice to all parties interested in 
 the decree ; it must be made in the first instance to the 
 judge who {jronounced the decree: (4Gtii Order of 1828.) 
 But from him an appeal will lie to the Lords Justices, and to 
 the House of Lords. If the motion is refused, it will be almost 
 of course with costs. If granted, it is presumed the appli- 
 cant will still pay the costs, on the ground of his asking an 
 exceptional indulgence, liut it is possil)Ie that the costs may 
 be made costs in the cause, on the ])rinciplc laid down in 
 Stevens v. Keating (1 Macn. &Gord. ()59), inasmuch as, it the 
 appeal should be successful, the result would be that the 
 decree ought never to have been made, and therefore that 
 the appellant was right in seeking to stay its execution. 
 
 An appeal lies from a decree or decretal order, as we 
 have already had occasion more than once to describe, to 
 the Lords Justices, if the decree has not been enrolled; but 
 if it has been enrolled, then, as the decree is the decree of 
 the Lord Chancellor, the only appeal is direct to the 
 House of Lords, or it may be re-heard by the same judge 
 who decided it. 
 
 I have stated the appeal as to the Lords Justices, because 
 that is the usual com-se. The structure of the Court of Ap- 
 peal is this : The Lord Chancellor and the Lords Justices 
 form together but one Court of Appeal : ( 14 & 15 Vict. c. 83, 
 ss. 1 and 11.) But either the Lord Chancellor sitting alone, 
 or the Lords Justices sitting together, may exercise the full 
 power of the court as a Court of Appeal, and in practice 
 the appeal is always to the Lords Justices, and is set down 
 before them, unless otherwise ordered. If parties desire 
 their appenl to be heard by the Lord Chancellor or by the 
 full court, they must apply to the Lords Justices for per- 
 mission to apply to the Lord Chancellor, and being provided 
 with their assent, they apply to the Lord Chancellor to hear 
 it alone, or in full court, as the case may be. But a special 
 case umst be made to induce the Lord Chancellor to allow 
 the case to be taken out of its regular course of being heard 
 by the Lords Justices. 
 
 The Master of the Rolls, or a Vice Chancellor, may re- 
 hear his own decree, but <annot re-hear a decree pronounced 
 by either of the others oi' those judges. But as to orders of 
 course made on petition or motion of course, made by any of 
 the judges including the Lord Chancellor, any one of tiie 
 judges of the court may re-hear, and vary or discharge such 
 an order. In such cases, the a])plication should be made to 
 the judge to whom special applications in the same cause or 
 [CH.] Q
 
 170 NETV EQUITY PRACTICE. 
 
 matter are made: (26th Order, November, 1850) Before 
 a cause can be heard on re-hearing or on appeal, the decree 
 must be drawn up. A decree in minutes only cannot be 
 appealed from. 
 
 To procure a re-hearing or appeal, a petition of re-hearing 
 or appeal must be prepared, and signed by two counsel; 
 usually they are the counsel who have conducted the case 
 below ; the junior prepares the draught, and signs it, and it 
 is then laid before the senior counsel, who peruses and signs 
 it. But it is not absolutely necessary that either of the 
 counsel should be the same who have appeared below, nor 
 need either of them be within the bar. 
 
 A petition of appeal is now very short : it recites merely 
 that by a decree dated ( ) made by (the judge below) 
 
 it was decreed (stating the decree), and then it states that 
 the petitioner feels himself aggrieved by the decree, if he 
 appeals from the whole of it, or by so much of the decree as 
 he appeals from (referring to it), and prays that the court 
 will be pleased to reverse or vary the decree, as the case 
 may be. The counsel sign a statement, at the foot of the 
 draught, that they conceive it to be a proper case to be 
 heard (or re-heard), as the case may be. 
 
 Some doubt seems to exist at the bar, as to the duty of 
 counsel on signing a petition of appeal, when they are 
 clearly or even strongly of opinion that an appeal cannot be 
 sustained ; and I have heard of cases where, under that feel- 
 ing, counsel have refused to sign. I have taken some pains 
 to inform myself of the strict practice, by consulting gentle- 
 men of great eminence and experience, and I believe the 
 rule is that counsel, if properly instructed, are bound to 
 draw and to sign apetitionof appeal, however much they may 
 believe the appellant has no case, or doubt or disapprove 
 of the righteousness of his case, of which the Court of 
 Appeal only is to be the judge; and that they are only at 
 liljerty to refuse to sign a petition of appeal, if they are of 
 opinion that the nature of the case is such that it is a scandal 
 to the court. 
 
 An appeal must be set down for hearing, and due notice 
 thereof given to the parties interested, within five years 
 from the date of the decree (1st Order, August, 1852), 
 unless the court enlarges the time. 
 
 The petition is copied on paper and left with the secretary 
 of the Lord Chancellor, who answers it by directing the 
 apj)eal to be set down on the petitioner subscribing the 
 petition, and consenting to pay such costs as the court shall 
 think fit to order, in respect of any proceedings since the
 
 APPEALS AND REHEARINGS. 171 
 
 decree, and on depositing twenty pounds with the Registrar. 
 The deposit should be made within a week after the petition 
 has been answered. 
 
 The order to set the appeal down is passed and entered, 
 and a copy of it served on the rrspondcnt or respondents. 
 As to the persons who siiouhl be served, all parties who are 
 interested in the decree, or the portion of it appealed from, 
 should be served. 
 
 The respondent procures for himself a copy of the petition 
 of appeal from the Registrar's Oihce. The appeal is set 
 down in its regular course by the Registrar, and comes on to 
 be heard in its turn. 
 
 The briefs on appeal are exact repetitions of the briefs 
 delivered on the hearing of the decree appealed from, or of 
 so much of those briefs, if the appeal is only partial, as 
 relates to the part appealed fi-om, and also of a copy of the 
 petition of appeal. 
 
 If the appeal is from the whole decree, the plaintiff's 
 counsel begin as they did in the court below ; but if the 
 appeal is only from part of the decree, the appellant begins. 
 
 Only the appellant's counsel can be heard in support of 
 the appeal ; but the counsel of all the parties interested in 
 supporting the decree may be heard. 
 
 It seems scarcely necessary to say, that, as at the hearing 
 of the cause in the court below, the appellant's solicitor 
 should have in court an affidavit of service on the respon- 
 dents of the order to set down the appeal ; and that, in like 
 manner, the respondents' solicitors should take care to be 
 furnished with affidavits of their having been served. 
 
 An appellant appealing only from a part of a decree is 
 confined in the first instance to the matter against which he 
 has appealed ; that is, so much of the decree as he has not 
 appealed against he is bound by. But with the respondent 
 it is different : he may re-open the whole case if the thinks 
 fit, and convert it into a re-hearing of the whole decree Of 
 course, then the! appellant has the same liberty, and the 
 court will then vary the decree, if it sees ground lor so doing, 
 ultra the variations sought by the appellant. 
 
 It is needless to observe tliat it must be an unusual case 
 in which such a course is prudent for a respondent ; as, in 
 addition to the danger that the Court of Appeal may take 
 from him the whole or a part of the decree which he had in 
 the court below; if he fails to induce the coiu't to vary the 
 part of the decree unappealed from in his favour, then as the 
 court treats it as a re-hearing of the whole case, it will 
 sometimes make him pay costs ; whereas, the general rule 
 Q 2
 
 172 NEW EQUITY PRACTICE. 
 
 of the court as to costs on appeal is, that though the court 
 may allow the appeal, and make a different order as to costs 
 below from that made by the court below, it will not make 
 the respondent in possession of the decree pay any costs of 
 the appeal. 
 
 As an appeal is considered as in the nature of a re-hearing, 
 it follows that the parties are in the same situation, as to the 
 evidence, as they would be if the court were hearing the 
 case, or so much of it as is the subject of appeal, for the 
 first time. Consequently each party uses as much or as 
 little of the evidence taken in the cause as he thinks fit, 
 at least so far as he might have done at the hearing below. 
 Evidence, read below, is not therefore made evidence on 
 appeal, if it is not then read or put in as read ; and on the other 
 hand, evidence not read below may be read on the appeal ; 
 but no new evidence taken since the decree can be read, 
 except such affidavits as fall within the 13 & 14 Vict. c. 35, 
 which may be read : {Fowler v. Reynal, 3 Macn. & Gord. 
 500.) And the Court of Appeal has the same power which 
 the court below had of examining parties and witnesses 
 orally, if it thinks fit, whether they were examined below or 
 not : (see the 15 & 16 Vict. c. 86, and Hope v. Threlfall, 
 23 L. J. 631.) 
 
 Appeals from orders made on motion by the Master of 
 the Rolls, or one of the Vice Chancellors, to the Court of 
 Appeal, do not require a petition of appeal. They are 
 made on notice of motion in the same manner as an original 
 notice of motion, and served in the same manner two clear 
 days before the day for which the notice is given. The 
 notice of motion is signed by the soHcitor of the appellant, 
 and addressed to the solicitors of the parties entitled to be 
 respondents. It is usually drawn by the solicitor, but is 
 sometimes settled by counsel. A fee to counsel for settling 
 a notice of motion is not as of course allowed, but may be. 
 and sometimes is, allowed in the taxation of costs. The motion 
 must be heard on the same evidence as the motion in the 
 court below, if it is to be treated strictly as an appeal motion ; 
 but either party may introduce new evidence, if he thinks fit 
 to convert the appeal motion into a new motion in the nature 
 of an original motion. The difference is this: on an appeal 
 motion proper, the Court of Appeal will only deal with the 
 order of the court below as to those portions against which the 
 appeal is, and will treat the other parts of the order as not ap- 
 pealed from, and conclusive ; but if it is converted into a new 
 motion, then the court will deal with the whole case, and 
 make such order on the whole, as it thinks fit.
 
 APPKALS AND RKHEAUIXGS. 173 
 
 In the Court of Appeal, motions arc not heard, as in the 
 court below, according to the seniority of the cotuisel 
 niovinpr, but a paper of appeal motions is made by the 
 Registrar, and the appeal motions are heard in their turn in 
 the paper. 
 
 An appeal from a decree or order, made on a motion lor a 
 decree, is also made by motion and not l)y petition of ap- 
 peal, and it follows, as to the preparation of the notice and its 
 service, the practice on ordinary appeal motions. But as the 
 hearing of a motion for decree is held to be the hearing of 
 a cause, so the appeal motion is dealt with in some respects 
 as an appeal from a decree in a cause, and such motions are 
 put into the paper of cause appeals. 
 
 I have already observed that, on motions before the 
 Master of the Rolls or the Vice Chancellor, oral evidence 
 cannot be taken on the hearing of the motion in court, 
 except by consent ; and the same rule prevails as to ordi- 
 nary motions in the Appeal Court. But I apprehend, on an 
 appeal motion against a decree made, or a motion for decree^ 
 it would be otherwise, that not being strictly a motion, but 
 an appeal from the hearing of a cause. 
 
 An appeal lies also fi-om any order made by the MavSter 
 in any matter arising under the Winding-up Acts ; and 
 such appeals are also conducted by way of motion on notice 
 to discharge or vary the order made by the Master. The 
 practice is also the same upon them as upon other appeal 
 motions. The evidence consists of the evidence by affidavit. 
 or by oral deposition, and the documentary matter made 
 evidence in the Master's Office. Appeal motions from the 
 Master are made to that branch of the court from which 
 the Winding-up Order emanated ; and they must be 
 made, that is, notice of motion l)y way of appeal must be 
 given, within fourteen days from the date of the Master's 
 order being signed. And if the party is dissatisfied vnih. 
 the decision of the Master of the Rolls or one of the Vice 
 Chancellors, and desires to appeal to the Lords Justices, 
 notice of motion of such appeal must be given within three 
 weeks from the date of the order being made. 
 
 A notice of motion for appeal from an order of the 
 JVIaster in a winding-up matter usually recites tlie order 
 made by the Master, and then goes on to state that the 
 court will be moved (on or before, &c. in the usual form), to 
 vary or discharge the said order, if the whole is appealed 
 from, or so much of the order as the appellant is dissatisfied 
 with, if his appeal is partial. 
 
 The certificate of the judge, made on hearing in chambers, 
 Q 3
 
 174 NEW EQUITT PRACTICE. 
 
 or made pro forma in chambers and afterwards affinned in 
 court, is also appealed from to the Lords Justices by motion, 
 without any petition of appeal. If the Court of Appeal 
 afhrms the certificate, it is then proceeded upon to the 
 hearing of the cause, in the same manner as if it had not 
 been objected to. If the Court of Appeal varies it so that 
 it does not require further inquiries, it will be proceeded 
 upon in the same manner. If the variation is such as to 
 require further inquiries, the matter must go back into 
 chambers, and a further certificate, consistent with the 
 decision of the Court of Appeal, must be made. 
 
 Appeals from orders made on petitions, are treated in the 
 same way, as to the initiation of the proceedings, as appeals 
 from decrees in a cause ; they must be made on a petition 
 of appeal, which recites the order only and prays that it 
 may be discharged or varied whoUy or in part, as the ap- 
 pellant requires; and the petition of appeal is signed like a 
 petition of appeal from a decree, only it is signed by one 
 counsel and the petitioner's solicitor. The briefs consist of 
 the same matter as the briefs in the court below, with the 
 addition of a copy of the petition of appeal. 
 
 Appeal to the House of Lords. 
 
 Generally, an appeal lies to the House of Lords from any 
 decree, or from any interlocutory order of the Court of 
 Chancery, as to a decree, as already mentioned, upon its being 
 enrolled ; but it will not lie for costs alone, nor against 
 decrees or orders taken by consent. But it must not be 
 understood that the House of Lords will never deal with 
 the costs below. 
 
 If an ap[)eal is brought on the merits, and not on colour- 
 able grounds of appeal, for the purpose of re-hearing the 
 question of costs, the House will not treat that as an appeal 
 for costs, but will even, in affirming the judgment below, 
 consider the question of costs ; and when there is hardship 
 on the appellant, reverse so much of the judgment below as 
 gave costs against him : (Liglis v. Mansfield, 3 CI. & Fin. 
 362.) 
 
 A petition of appeal to the House of Lords from any court 
 of equity must be presented within fourteen days from the 
 first day of every session or meeting of Parliament after a 
 recess, unless upon a decree made while Parliament is 
 actually sitting, in which case the party may present his 
 petition of appeal within fourteen days after the decree is
 
 APPEAL TO HOUSE OF LORDS. IT-'j 
 
 made and entered : (102nd of the Standing Orders, formerly 
 55.) 
 
 liy the 103rd Order (formerly 118) no petition of appeal 
 can be received after two years from the signing and enroll- 
 ing of the decree, and the end of fourteen days, to be counted 
 from the first day of the session or meeting of Parliament 
 next ensuing the said two years. Unk'ss the person entitled 
 to the appeal is under twenty-one, or covert, or non compos 
 mentis, or imprisoned, or out of Great Britain and Ireland, 
 in which case he may ])ring his appeal withhi two years after 
 the disability has ceased, and fourteen days from the com- 
 mencement of the session next ensuing the two years; but in 
 no case is a longer time than five years from the date of the 
 decree, on account of mere absence, to be allowed. 
 
 But the House of Lords will, under circumstances, give 
 leave to appeal, though the time prescribed by the 102nd 
 Order has elapsed, on a petition signed by the appellant, 
 if he is within reach, or his solicitor or agent, if he is not 
 accessible. Several cases of this kind are mentioned by 
 Mr. M'Queen in his treatise on the Appellate Jurisdiction 
 of the House of Lords, p. 100, et seq. ; but with the excep- 
 tion of Patterson v. Patterson, 16 Dec 1778, in which mere 
 ignorance by the Scottish agent of the standing orders was 
 allowed as an excuse, they are all cases of almost unavoid- 
 able impediment ; and not such as to afford any ground for 
 anticipating that, except under very unusual circumstances, 
 the House would give time for an appeal from the English 
 Court of Chancery. 
 
 Before presenting a petition of appeal, the party appealing 
 must give notice to the agent of the intended respondents 
 of the time when such petition of appeal is intended to be 
 presented, and the day on which such notice was given 
 or caused to be given, must be indorsed by the agent or 
 agents for the petitioner on the back of the appeal : (107th 
 Order.) 
 
 The petition of appeal is prepared by counsel. It is ad- 
 dressed to " The Right Honourable the Lords Spiritual and 
 Temporal, in Parliament assembled." It is entitled the 
 humble petition and appeal of A. B., with his description 
 and address. It states the institution of and proceedings in 
 the cause ; that the petitioner is advised that the decree is 
 erroneous, &c., and it prays that it may be reversed, Taried, 
 or altered ; and that an order may be issued requiring the 
 respondent or respondents to put in an answer to the peti- 
 tion, and that service of the order made on the respondent's 
 solicitor may be good service. The petition must be signed
 
 176 NKW EQUITY PRACTICE. 
 
 by two counsel, who must be the counsel who were of 
 counsel below, or who are to attend as counsel at the bar 
 of the House on tlie appeal, and the counsel certify that 
 in their judgment there is reasonable cause to appeal : 
 (105, formerly 58.) 
 
 The petition of appeal is engrossed on parchment and 
 delivered at the Parliament Office, and the officers of that 
 office will put it in train to be presented, and to obtain the 
 order requiring the respondents to answer. 
 
 The order must be served upon the solicitor of the re- 
 spondent, and the appellant should be provided with an 
 affidavit of the service. Within eight days after the appeal 
 has been received (that is, after the House has received itj 
 and an order made upon it, the appellant must give security 
 to the Clerk of the Parliament, by recognizances to the Crown 
 for four hundred pounds, by waj' of security for costs. 
 
 A petition of appeal may be amended. For that purpose 
 a petition must be presented to the House, stating what is 
 the error in the appeal petition, and praying leave to amend 
 it. Two clear days' notice of i^resenting the petition must 
 be given to the respondent. 
 
 A petition of appeal may be met, either by answer or by 
 preliminary objections. If the respondent is advised that 
 the appeal is irregular, he does not answer it, but presents 
 a petition to the House on two days' notice to the appellant 
 to dismiss the appeal. That petition will be referred to the 
 appeal committee, who decide on the matter, and either 
 dismiss the appeal, or dismiss the petition ; or in some cases 
 report to the House, and the House then hears the case 
 ;irgued by one counsel on each side. 
 
 Any objections which are not to the regularity, and there- 
 fore to the dismissal, of the appeal, but to its completeness, 
 as objections for want of parties, or the omission of some- 
 thing material to the decision of the case, should be taken 
 by way of petition to the House, praying that the appellant 
 may be ordered to amend the respondent's copy. And 
 these should be taken before putting in an answer, as it 
 cannot be at all confidently anticipated that the House 
 will, at the hearing, allow olijections to be taken which 
 might have been, and have not been taken before answering. 
 
 The petition being served, the rc:pondent, if making no 
 preliminary objections, answers it. The answer is usually 
 merely formal : it admits the decree and proceedings, but 
 refers to them for their precise contents, and submits that 
 the decree is right and ought to be affirmed. This answer 
 is engrossed on parchment, signed by the respondents'
 
 APPEAL TO HOUSE OF LORDS. 177 
 
 solicitors, and delivered to the Clerk of the rarliumciit 
 Ofiice. 
 
 ^^'ilen the respondent puts in his answer within the time 
 limited by the order, either party may move, by leaving at 
 the rarliament OlBce a motion paper, to have the cause set 
 down to be heard. 
 
 If the respondent does not duly answer, the appellant 
 moves, by delivering a motion paper at the Parliament 
 Office, upon affidavit of service of the order, that a 
 peremptory day shall be fixed for his putting in his answer 
 without any further notice to the respondent, and a 
 peremptory order is thereupon made : (Order 109, formerly 
 lOG.) 
 
 If the respondent does not comply with this order, the 
 course is, not to make any a])plication in the nature of an 
 application for contempt, but to apply by a motion paper 
 alleging the peremptory order, and that the res{)ondent 
 has not complied with it, to have the cause heard ex parte^ 
 and such order will be made as of course. 
 
 When matters have jjroceeded thus far, each party pro- 
 ceeds to prepare his printed case. The case should contain 
 a succinct statement of the proceedings below, and of all the 
 facts on which the party preparing it relies and intends to 
 prove. The best guide to drawing the case is in fact to 
 conceive oneself making the statement of the matter and 
 facts, at the bar of the House, which would precede argu- 
 ment on the questions of law. The evidence intended to be 
 relied upon is printed in extenso, and documents proved are 
 referred to in an appendix to the case. The case always 
 concludes with the reasons for the appeal, which should 
 exhibit succinctly the points on which the party relies. The 
 case is to be signed by one or more of the counsel who 
 attended at the hearing of the cause below, or who shall be 
 of counsel at the hearing before the House : (114th Order, 
 formerly 59.) 
 
 The printed case must be delivered to the Clerk of the 
 Parliament or clerk assistant, at least four days before the 
 hearing. It is usual to print five hundred copies, fifty of 
 which are left with the clerk of the tables, and three hundred 
 and fifty for the door keepers, and one hundred are kept for 
 the use of the counsel, solicitors, and parties, and for ex- 
 change with the other side, it being usual for ench party 
 to deliver to the other a certain number, agreed upon, of bis 
 own printed case. 
 
 Also, the House permits, and it is usual, in order to save 
 expense, for the appellant and respondent to prepare, a
 
 178 NEW EQUITY PRACTICE. 
 
 joint appendix. With regard to the evidence, it is a settled 
 rule that no evidence can be brought before the House, on 
 appeal, but that which was read or entered as read in the 
 court below ; nor can any evidence read below be objected 
 to, unless the admission of that evidence is one of the 
 grounds of appeal. But if new evidence is discovered since 
 the hearing of the cause below, the House will sometimes 
 remit the cause back, to give the party the oppoi'tunity of 
 introducing that evidence, and the court below will be 
 directed to hear the evidence. 
 
 When the cause is brought on to be heard, the course is 
 this : — The appellant's leading counsel begins, and states 
 and argues on the case ; his junior then reads the evidence 
 and argues ; then the respondent's counsel do the same ; 
 and the appellant's leading counsel replies. This is pur- 
 suant to the 127th Order (formerly 56), and by it, therefore, 
 and in practice, no more than two counsel are ever heard 
 by the House, unless, indeed, on the same side there are 
 distinct, and to some extent opposed, interests, and then the 
 House will sometimes, on special application, allow more 
 than two counsel to be heard on the same side. But either 
 party may instruct more than two counsel to appear, and 
 they may consult with and assist those who argue. 
 
 Both parties may be dissatisfied with the judgment of the 
 court below ; in that case the respondent to the appeal first 
 lodged may present a cross-appeal. A cross-appeal must 
 be presented within a fortnight after the answer put in to 
 the original appeal, otherwise it will not be received : (104th 
 Order, formerly 127.) 
 
 As a cross-appeal is in fact nothing more than an appeal, 
 it differs from it in its prosecution in no material particular. 
 It should be headed, however, in terms as a cross-appeal, 
 and when there are appeal and cross-appeal, the two are 
 heard as one cause. 
 
 Vi"\th regard to the costs of appeals to the House of 
 Lords, the 138th Order (formerly 215), provides that in all 
 cases in which the House shall make any order for the pay- 
 ment of costs by any party or parties in any appeal or writ 
 of error, without specif\-ing the amount, the Clerk of the 
 Parliament or clerk assistant shall, upon the application of 
 either party proceed to, the ta.xation of such costs, in 
 such manner as is directed by an act passed in the 7 & 8 
 Geo. 4, entitled " An act to estabHsh a Taxation of Costs on 
 private Bills in the House of Lords," and shall give a cer- 
 tificate thereof expressing the amount of such costs ; and 
 that the same fees shall be demanded from and paid by the
 
 SPECIAL CASES. 179 
 
 party applying for such taxation, for or in respect thereof, 
 as are now or shall be fixed by any resolution of the House 
 concerning fees made or passed in pursuance of the said 
 act or in relation thereto. Tlie clerk may either add or 
 dcchict the whole of such fees at the foot of his certificate ; 
 and the amount in money certified by him, after such addition 
 or deduction, sliall l)e the sum to be demanded or paid, under 
 or by virtue of the order Ibr costs. With regard to the 
 course of the House about costs, it is generally this : It 
 never gives the costs of an appeal to the appelhuit ; but it 
 will deal with the costs below as shown in the case cited ante, 
 p. 174. If a respondent does not answer, he will have 
 no costs, even though he be successful. But if he has con- 
 ducted his case regularly, he will usually have his costs. 
 
 The costs of interlocutory ajjplications are in the discre- 
 tion of the House, and no rule can be laid down about 
 them.(') 
 
 Of Special Cases 
 
 There is a certain class of cases which are conveniently 
 brought before the court for decision, by special case, under 
 the provisions of the 13 & 14 Vict. c. 35, commonly known 
 by the name of" Sir George Turner's Act." 
 
 By that act, persons interested or claiming to be interested 
 in any (juestion cognisable in the Court of Chancery, as to 
 the construction of any act of Parliament, will, deed, or 
 other instrument in writing, or any article, clause, matter, 
 or thing therein contained, or as to the title or evidence of 
 title to any real or personal estate, contracted to be sold or 
 otherwise dealt with, or as to the parties to, or the form of 
 any deed or instrument for carrying any such contract into 
 effect, or as to any other matters Jailing within the original 
 jurisdiction of tlte court as a court of equity^ or made subject 
 to the jurisdiction or authority of the court by any statute 
 not being one of the statutes relating to bankrupts, and 
 including among such persons all lunatics, married women, 
 and infants, in the manner and under the restrictions con- 
 tained in the act, may concur in stating such question 
 in the form of a special case for the opinion of the court, 
 and it shall be also lawful for all executors, administrators, 
 and trustees to concur in such case : (sect. I of the act.) 
 
 (') The orders above cited, are quoted from the Standing Orders 
 published in 1849 by the Queeu's Piiuters.
 
 180 NEW EQUITY PRACTICE. 
 
 \Mien there are but few parties, and those sui juris, 
 and the facts are not complicated, there is no great difficulty 
 in working a special case. But where the facts are com- 
 plicated, or the parties numerous, and particularly when 
 any of them are under disability, the course of proceeding 
 presents many difficulties. It must be clearly understood 
 also, before selecting this course of proceeding, that the 
 decision of the court in a special case is only binding as 
 between the parties to the same extent " as such a de- 
 claration would have been if contained in a decree made 
 in a suit between the same parties instituted by bill." It 
 is therefore wholly inapplicaV>le, and may occasion much 
 delay and expense if it is attempted to be resorted to in 
 a case in which material parties, the discussion of whose 
 interests may affect not only the rights of the parties to 
 the special case, as between them and the persons not 
 parties, but the rights of the parties to the special case 
 inter ge. An instance of this occurs in the case (A Etans v. 
 SoMnders, and Etans v. Evam, 2 Drew. 410 and 6.54. In 
 that case, the facts raised the question of the destruction 
 or exhaustion of a power. It came on originally as a 
 special case between the devisees of the will of Ann Evans, 
 and a purchaser under the devise, and a defendant who 
 claimed as tenant in tail. The case was elaborately argued, 
 and judgment given against the valid execution of the 
 power. It afterwards appeared that there was a suit 
 of EcaJVf V. Etans, invohing the rights of other parties 
 in the same question, who were not made parties to the 
 special case, and the court was compelled to hear the whole 
 matter over again. 
 
 Special cases are entitled aa in a cause between some or 
 one of the parties interested, or claiming to be interessted, as 
 plaintiffs or plaintiff, and the others or other of them as 
 defendants or dt-fendant In the title, lunatics and infants 
 must be described as such, and their committees, guardians 
 or special guardians most be namefi, and if a married woman 
 is named as a plaintiff, and her husband as a defendant, a 
 next friend of the married woman must be named in the 
 title. 
 
 The special case must concisely iFtate such facts and 
 documents as may be neceasarj- to enable the court to 
 decide the question ; and if only parts of, or the substance 
 of, documents are there stated, at the hearing the parties 
 may refer to the whole document ; and the court may draw 
 from the facts and documents any inference which it might 
 have drawn from them if proved in a cause.
 
 srKOlAI, CASK. IHl 
 
 II. imisl- sIjiIc linw llic i^ii.'inlian or sproi.'il o;iii\r(li;iii of ii 
 liinalit' wjis coiislitiitcd ; anil il a married wonian party toil 
 claims any iiitiMvsl, dislincl from licr liiishand, it must state 
 that slie fonciMs in tlio case in her own rij^ht. 
 
 An s|)i'cial eases an- not very tre(|iient, and 1 am not 
 awiiro ol' forms of tliem Ix'inL; i>rinted in any work on 
 priictice, it will he eonvenienl lo tiie |ir:ulitioner here to 
 insert a form. 
 
 li.'twi'ca A. ii., ('. !)., lUKJ I'l. K., i.liiinlill's, 
 
 iinil 
 
 (!. II., luiil 1. K., (li'l'inuliiats. 
 
 I(y rrrliiiii iiuli'iilun's of !t>iiso iiMii rt'lciiMdiiutoil tlio , tlio 
 
 rt'l('iis(> luiihK lirlwcoa {sditr imttiis), utter rt'oitiaf? (iiiitiTf thr iiialt'- 
 riii/ iiritdlx) it wiis wilnossuil thai (X.) j^rualuU iiiid roleiisoil to 
 (Ihc (liiiu'c iiad parci'ls. ) 
 
 Tlivn follows //if Siiiiif kin<i of sftitt'itwnt ofollirr miilvrial ihiuls, 
 s/wwin;/ /imp X, i/cii/l from liiiwlo timv with //ic In ml. 
 
 X. iimilc his hist will Mill! tcsiuniciil in writiag, tliiti>tl, nml which 
 wi(8, \(', .\iiil l.v the sail! will llic siiiil X. (stall' t/w iloviso ijivimj 
 tlio liiiiil to t/ii' /iliiiiilijis ill liiisl lor soil'. ) 
 
 X. (ii'pufti'tl this lifo tin tir iilniwl, \i'., without hiiviiit; iiltircd or 
 rovoki'd, Xc. 
 
 'I'lio suit! (iiliiintills) iici'('|ili'd tlio said trusts, \(>. 'I'ho iihiinlitls diii, 
 on tho doiitli of X,, ciilci' in llio iiossossioa or recoipt, iVc. (umi l/im 
 slatr t/w solf to tlir il,i/,iii!,iiif, I. /v.) 
 
 Thiin stiilti tliv fKHlu/riH' of i:. II., s/ioiriiii/ hotr ho rlaiiiis to In' 
 toiiiiut Ml tail of t/io liiiitl, ami alltyo its itvsci<iit uinmliim as sucli 
 iotioiit ill tail. 
 
 (1. II. is liviajr and is a di'lciuhinl, and ho couU'iids llmt ho is 
 untitled (stiiti- /loir.) 
 
 The plimilills us sueh ilevisoos iu trust as ul'oresuid, submit (statiiic/ 
 tho i/roaiitis ot thoir litli .) 
 
 'liie mieslioas suhaiitted for the opinion of the oourt nrens follows : — 
 
 I. W lather - 'I'lio i/iiiwtioiison w/iir/i t/ic iHiitios ilrsiro t/ii^ opinion 
 of tlio i-oiiit 1110 sUitoil HI iiumhorott iianiijiiiplis, if tlioie avo sovoral 
 (jHoations. (') 
 
 'I'lie speeial ease n»ust ln' signed, and is tlierelore 
 always tlrawii bv eoimsel. It mnst be signed by eoinisel 
 for all itarlies; it is, tlierefore, usn.ally »lrawn by eonnsel tor 
 the phnntills, and s(>ttled bv eonnsid tor the del'endants. It 
 is onorossed, and is to be liK-d in llu» same manner as bills 
 ari< lili'd; and the defendants may appear thereto in the same 
 manner as detendanis appear to bills. The plaintill t;d;<-s an 
 otliee eopy, bnt the defendants eannol lu' I'eipiired tt> i\o so. 
 
 If a Innatie is intere.ed, his eon\n\iltee may, on beino 
 ftiilhori/.ed by the Lord ( lianeellor, bnt not withont, eonenr 
 in the ease in his i>wn name, and in the\unne ot'tlie Innalie, 
 and on liii) behalf. 
 
 [r,..] 
 
 (>) Si)0 Also Ui'Wim V. iiouM, 1 Ui^w. <Vis. 
 U
 
 182 NEW EQUITY PRACTICE. 
 
 Where husband and wife are interested in the same right, 
 the liusband may concur in his own name, and in the name 
 of his wife ; if the married woman has a distinct interest, 
 she may concur in her own right, provided her husband also 
 concurs. 
 
 If an infant is interested, his guardian may concur in the 
 name and on behalf of the infant, unless he has an interest 
 adverse to that of the infant. 
 
 If a lunatic not so found by inquisition is interested, or 
 if an infant is interested, any person may, on behalf of the 
 lunatic or infant, apply by motion or petition to appoint a 
 fit person to be special guardian to the lunatic or infant, 
 and the court will thereupon make such order appointing 
 such person, who may then concur on behalf of the lunatic 
 or infant. The person tendered must be shown by affidavits 
 to be fit, and to have no adverse interest. This order is 
 obtainable without notice to any other pei'sons, unless the 
 court shall require notice to be given to any person. 
 
 If a special guardian to an infant is appointed without 
 notice to the regular guardian of the infant, the court may, 
 on the application of the regular guardian, by motion or 
 petition, discharge the special guardian, and may appoint 
 some other person to be special guardian. 
 
 When a special case lias been filed and the defendants 
 have appeared, the parties to it are subject to the jurisdic- 
 tion of the court, as if a bill had been filed and appearances 
 had been entered by the same parties ; and all the parties 
 except married women, infants, and lunatics, are at once 
 bound by the statements made in the case. But married 
 women, infants, and lunatics are not bound by such state- 
 ments till the court has given leave to set down the case. 
 
 Accordingly, when married women, infants, or lunatics 
 are parties, a motion must be made for leave to set down 
 the case, and of such motion notice must be given to every 
 executor, administrator, trustee or party in whom any pro- 
 perty in question is vested for the married woman, infant, 
 or lunatic ; and if the motion is not by the married woman, 
 infant, or lunatic-, but by some other person, notice of the 
 motion must also be given to the married woman and her 
 husband, or the infant, or to the lunatic and his committee. 
 If the statements in the case affect (as they of course 
 generally must), the interest of a married woman, lunatic, 
 or infimt party, the motion must be supported by affidavits 
 verifying those facts ; otherwise the court will refuse to let 
 the case be set do\vn, but it may, if not satisfied of the truth 
 of the statement, refer the matter for inquiry to the Master.
 
 SPECIAL CASE. ]83 
 
 The course would now be to direct inquiries in chambers, 
 and on the chief clerk's certificate signed by the jud^ro, tlie 
 judge Avouhl, on a fiirtlier motion made on the ci'rtilicate, 
 at his discretion, give or refuse k'ave to set tlie cause down. 
 
 If none of the parties are under disability, the special 
 case may, when the defendants have appeared, be set down 
 for hearing, upon the record and writ clerk's certificate that 
 it is in a lit state to be heard, and upon subpoena to hear 
 judgment being issued and served, as they would be for 
 hearing a cause. 
 
 When the special case is brought on to be heard, the 
 course is for the counsel for the plaintiff to be heard fii'st ; 
 then the counsel for the defendants in the order in which 
 they appear on the special case, and then for the plaintiff's 
 counsel to reply. The briefs will consist of the special case 
 and any documents referred to but not set out, and nothing 
 more, except such observations as the solicitor thinks fit to 
 append, in the same manner as with briefs on the hearing 
 of a cause. 
 
 What the court will do on hearing a special case is this : 
 It will, by its decree, declare its opinion upon the questions 
 submitted to it, and upon the rights of the parties ; but it 
 will not proceed to administer relief: (14lh clause.) 
 
 By the same clause it is empowered, if it thinks fit, to 
 send a case for the opinion of a court of law upon any of 
 the questions. 
 
 But by the 16th clause of the 15 & 16 Vict. c. 86, the 
 judges of the Court of Chancery are deprived of the power 
 cf sending, in any cause or matter^ cases for the opinion of a 
 court of law, and are to decide the legal question, if any, 
 themselves. But they may be assisted in that new jurisdic- 
 tion, under the 14 & 15 Vict. c. 83, s. 8, by which they are 
 authorized to sit with the assistance of a judge of the com- 
 mon law, if such judge .shall find it convenient to attend. (') 
 
 Now, Sir G. Turner's Act empowers the judge, on the hear- 
 ing of a special case, to send a case as above pointed out for 
 the opinion of a court of law. But, having regard to the lan- 
 
 (') Before that act, the Lord Chancellor had always power to sit 
 with the assistance of a judge of the common law, and frequently ex- 
 ercised it. Since the act, both the I^ord Chancellor, and llic Lord 
 Chancellor with the Lords Justices, and the Lords Justices without the 
 Lord Chancellor, have acted under it, and sat with the assistance of a 
 judfie of the common law. But I am not aware of an)' instance in 
 which the Master of the iioUs or a Vice Chancellor lias done so; and 
 cases have occurred in which a Vice Chancellor has been pressed to call 
 in. the assistance of a common law judge, and has declined to do so. 
 
 b2
 
 184 NEW EQUITY PRACTICE. 
 
 guage of the 61st clause of the 15 & 16 Vict. c. 86, it is sub- 
 mitted that the power given by Sir G. Turner's Act is taken 
 away, and that on hearing a special case, which is usually 
 treated as a cause, and if it is not a cause, is clearly a 
 matter, the court must decide itself any legal question, 
 with or without the assistance of a judge of the courts of 
 common law. 
 
 The court also, if it is of opinion that the questions raised 
 by the special case or any of them cannot properly be decided 
 in the case, may refuse to decide them : (s. 14 of the act.) In 
 this, the procedure on the special case differs from that in a 
 suit, on which the court must decide the questions regularly 
 presented to it. 
 
 By the 15th section of Sir G. Turner's Act, every execu- 
 tor, administrator, or trustee, or other person making any 
 payment, or doing any act in conformity with the declara- 
 tion contained in any decree made upon a special case, is in 
 all respects as fully and effectually protected and indemnified 
 by such declaration, as if such payment had been made, or 
 act done, under or in pursuance of the express order of the 
 court, made in a suit between the same parties instituted by 
 bill, save only as to claims or rights of any person in respect 
 to matters not determined by the declaration. But the 
 court has no power to bind the rights of the parties as on a 
 bin or claim. It has only power to decide questions of 
 doubtful construction, and therefore, there being a question 
 in dispute between the parties upon facts, the court refused 
 to decide it : {Bailey v. Cullett, 23 L. T. 230.) 
 
 As to the costs of special cases, it was for some time 
 apparently a matter of doubt whether the court could give 
 costs ; but the 32nd section of the act expressly provides 
 that, until rules or orders are made, and if not applicable 
 when made, the practice shall be according to the act and 
 the pract'ce of the court. The practice is now to hold that 
 the court has power to direct costs under that section ; at 
 any rate, the authority to direct costs is constantly exercised. 
 
 The decree made on a special case may, like any other 
 decree, be reheard or appealed fi'om, and if parties desirous 
 of having it reheard or appealed against, desire also, that in 
 the mean time the declaration may not be acted upon, the 
 court has express power, under the 16th section, on applica- 
 tion either at the time of the decree being made, or at any 
 time afterwards, and upon such conditions as it may think 
 fit, to order that the declaration shall not be acted upon for 
 such time as the court thinks just. 
 
 The act is silent as to the mode of application ; it is there-
 
 CLAIMS. 1S5 
 
 fore apprt'honilod that, if made after the decree, as a sub- 
 stantive iiiilependent ai)jtlication, it will be by motion on 
 notice to ail the parties to the special case. 
 
 When the evidence of any of the facts in a special case is 
 doubtful, the proper course is to state all the facts which 
 can be ascertained, and verity by allidavit, if reciuLi'ed, that no 
 further evidence can be given ; the court cannot adjudicate 
 on an allegation of doul)tful facts, nor direct an inquiry : 
 (^Doinville v. Liiiiib, U Hare, App. (!.5.) 
 
 The costs on a special case follow the general rule of 
 administration suits; they are payal)le out of the general 
 resiilue ; and if there be none, out of the property specifically 
 bequeathed : (Conkson v. JBingham, 17 Beav. 2G-2.) 
 
 Irom the above statement of the various and minute 
 precautions imposed by the act before a special case can be 
 heard, and the eircumstance that, after it has been heard, the 
 decision amounts only to a declaration of rights, and not to 
 any order for relief, it is ob\ious that, in a c:ise where there 
 are many persons under disability, with or without a compli- 
 cated state of facts, or even where the facts are complicated 
 or in the least degree doubtful, with or without the adjunct 
 of disabilities, the proceeding by special case is not, in 
 general, advisable, especially having regard to the 50th 
 section of the 15 & 16 Vict. c. 85, by which the court may, 
 if it thinks fit, make a declaratory decree, merely declaring 
 rights, without following it up by directing relief. So that in a 
 case where it is desired merely to ascertain the rights of the 
 parties, that olyect can be as well and as elfeetively attained 
 by a bill praying a declaration of rights, as by a special 
 case, and with this advantage, that as the suit must be 
 complete as to parties according to the regular practice of 
 the court, the declaratory decree so obtained is as eflcctually 
 binding as any other decree as to the 2)ersons bound. 
 
 Of the proceeding by Claim. 
 
 I proceed now to treat of claims, and I shall do so very 
 shortly, and without entering into much detail, because 
 claims are, and justly so, going rapidly out of use. They 
 were, for certain kinds of cases, a great improvement on 
 the old procedure ; but all their advantages have been 
 swept away by the improved proceeding by bill or summons 
 under the 15 & IG Vict. c. 86, and the orders made under 
 it. And I am not aware of any kind of case, unless of a 
 very exceptional character, in which a remedy under the 
 R 3
 
 1S6 NEW EQDIXr PRACTICE, 
 
 new practice may not he obtained as speedily, as cheaply, 
 and more conveniently, than under the proceeding by way 
 of claim. 
 
 A suit may be instituted by claim as well as by biU. 
 Claims are of two kinds : common claims, and special claims. 
 
 Common claims are those applicable to the cases expressly 
 pointed out in the General Orders of April, 1 850. They 
 are as follows : — I. Claims for the admiuisTi'ation of personal 
 estate by a creditor. II. For payment of legacies. III. For 
 an account and payment by residuary legatees. IV. For 
 account of personal estate, and payment by next-of-kin. 
 
 V. For administration by an executor or administrator. 
 
 VI. By a legal or equitable mortgagee or person entitled 
 to a lien as a security for a debt, seeking foreclosure, or 
 otherwise to enforce his security. VII. By a person entitled 
 to redeem any legal or equitable mortgage, or any lien, seek- 
 ing to redeem the same. VIII. By a person entitled to 
 specific performance of an agreement for sale or purchase of 
 any property seeking such specific performance. IX. By a 
 person entitled to an account of the dealings and transac- 
 tions of a partnership dissolved or expired, seeking such 
 account. X. By a person entitled to an equitable estate or 
 interest, and seeking to use the name of his trustee in 
 prosecuting an action for his own sole benefit. And, XI. By 
 a person entitled to have a new trustee appointed in a case, 
 where there is no power in the instrument creating the 
 trusts to appoint new trustees, or where the power cannot 
 be exercised, and seeking to appoint a new trustee. 
 
 These are the subject oi cormnon claims : (Order 1.) All 
 other causes fit to be dealt with at all, by way of claim, are to be 
 instituted by what is termed the special claim : (Order 11.) 
 
 A common claim is drawn in the form prescribed for the 
 particular class of case by the Orders of 1850 (see the 
 schedules to those orders), with such variations in the 
 language and statements as the nature of the circumstances 
 may require. 
 
 A special claim is not more limited in its language or state- 
 ments than a bill. It is, in fact, simjily a liill with a slightly 
 different frame and heading, and without interrogatories. 
 
 Claims, whether common or special, must be signed by 
 counsel. Common claims are frequently drawn by the 
 solicitor, and only perused and signed by counsel ; special 
 claims are and shoiild be always drawn as well as signed by 
 counsel. 
 
 A common claim may be filed as of course without leave ; 
 a special claim cannot be filed without special leave of the
 
 CLAIMS. 187 
 
 court, to be obtained by an ex parte application or motion, 
 and the court always rcfjuircs counsel to certify at tlie bar 
 on the motiou that the claim has been settled and signed by 
 counsel. 
 
 Claims, whether special or common, are filed like bills at 
 the Record and Writ Clerk's Oflice, Imt a special claim 
 must be indorsed by the Registrar with the leave given by 
 the court to file it. The solicitor should therefore always, 
 immediately after the leave has been oV'taincd, go to the 
 Registrar of the day with the claim, and get it indorsed at 
 once. 
 
 Claims are, since the 15 & 16 Vict. c. 86, and the orders 
 of 1852, printed like bills, on royal paper quarto, in pica 
 type, leaded, and the copy filed is to be interleaved with 
 paper of the same description. 
 
 Claims may be amended at any time before the hearing, 
 by an order of course, and although the claim has been set 
 down (see Potts v. Thames Haven Dock Company, \5 5ut. 
 762 ; and Gwynne v. British Peat Company^ 1 7 Beav. 
 7) ; and they may be amended at the hearing, by order, 
 the plaintiff paying the costs of the day. 
 
 An injunction cannot be obtained on a claim. This point 
 was much discussed in the beginning of the practice by claim, 
 but it has been long well settled. But a receiver may be 
 obtained on a claim, either at or before the hearing. 
 
 When a claim has been filed, the defendants are served 
 with a printed copy of it, with an indorsement thereon 
 pursuant to the 15 & 16 Vict. c. 86, but se/ni/e on the claim 
 the indorsement need not be printed; at any rate, if printed, 
 it may be altered before it is served, if the time for appear- 
 ance has been varied by order : (Bayrics v. Rigge^ 9 Hare, 
 App. 27.) 
 
 The service must be like that of a bill, and the court may, 
 as on a bill, order substituted service. 
 
 A defendant may, but is not compellable to enter an 
 appearance to a claim ; that is, if he docs not appear, he 
 cannot be proceeded against for contempt, nor can the 
 plaintiff enter an appearance for him : (Smith v. Corles, 
 15 Jur. 4.) The effect of his not appearing is simply that 
 a decree on the merits shown by the plaintiff on his claim 
 and evidence, will be taken against him by default, if he 
 neither enters an appearance, nor appears by his counsel or 
 in person at the hearing. 
 
 A claim is supported by the same kind of evidence as a 
 bill. Before the 15 & 16 Vict. c. 86, the evidence on claims 
 was exclusively by affidavit, unless the court otherwise
 
 188 NEW EQUITY PRACTICE. 
 
 ordered. But the 15 & IG Vict. c. 86, and the orders 
 founded upon it, apply to claims as well as to bills ; and 
 therefore now it is conceived a party may support his case by 
 affidavit, or by oral evidence, or by a mixture of the two ; and 
 the witnesses, and parties treated as witnesses, will be liable 
 to cross-examination on their affidavits in the Examiner's 
 Office, exactly as in the case of a suit commenced by bill, 
 
 No answers are or can be put in to a claim, whether 
 the defendant has or has not appeared : if he wishes to 
 support his case by evidence, he proceeds at once to file his 
 affidavits, or examine his witnesses orally, as the case may be. 
 The want of power to call for an answer was, indeed, before 
 the 15 & 16 Vict. c. 86, one of the great defects of claims, 
 because there was no method of obtaining discovery of 
 documents effectually, or in fact of obtaining any satisfactory 
 discovery. But the provisions of that act, and of the orders 
 relating to production in chambers of documents on affidavit, 
 apply as well to claims as to bills ; and a plaintiff or defen- 
 dant may now take out a summons in chambers before or 
 after decree on a claim : (of the practice on this point I 
 have already treated.) 
 
 The time within which, under the Orders of 1850, the 
 parties should in strictness close their evidence, is fourteen 
 days from the service of the claim. As a claim may be set 
 down for hearing by the Registrar (on production of the 
 Writ and Record Clerk's certificate of its being filed), imme- 
 diately after service on the defendants of the cojiy claim, 
 and it will then be put on the paper and heard in its turn, 
 of course where the case requires much evidence, and 
 especially if the examination of witnesses is oral, it will be 
 generally impracticable for either party to close his evidence 
 within the regular time ; and either party desiring further 
 time must apply, in the manner pointed out in the earlier 
 part of this work. 
 
 Claims used to be heard as motions on the seal day, but 
 that practice is abandoned, and claims are now treated for 
 most purposes as causes, and are put in the regular list of 
 causes and heard as such. 
 
 There is a difference as regards the practice of the bar 
 between claims and bills. In a suit commenced by bill, 
 senior counsel cannot, at the hearing, hold a brief without 
 a junior, because there are pleadings in point of form to be 
 opened, and senior counsel may not by reason of their 
 dignity open pleadings, But on claims, there are, or at 
 least on the defendant's side, no pleadings, strictly so called, 
 and therefore it has become now the settled rule that,
 
 CLAIMS. 189 
 
 on the bcarin<f of a claim, a briif maybe heldbysenior counsel 
 without a junior. 
 
 Brief's, however, to senior and junior counsel will, never- 
 theless, 1)0 allowed in taxation oi" costs ; and ii" the case is 
 not a trivial one, it is usual antl prudent, as in causes on bill, 
 to instruct two counsel. 
 
 The Orders of 1850 provide for the diminution of the 
 number of defendants on the record, by directing that, in 
 the first instance, the only person who need be named on 
 the record is the person ajiainst whom relief is directly 
 claimed; and that when an executor or administrator of a 
 deceased person seeks to have his personal estate adminis- 
 tered, any residuary legatee, and the co-executor or adminis- 
 trator of the plaintifl", may be, in the first instance, sole 
 defendants to the suit. 
 
 A trustee of real estate, and it would seem, of mere per- 
 sonal estate, cannot file a claim against liis co-trustee alone, 
 but must make some or one of the ccstuis que trust jjarties. 
 
 The Orders of 1850 gave, however, power to the Master, 
 proceeding under any order of reference, to summon before 
 him such persons not parties to the record, to attend the 
 proceedings, as he should think refjuisite ; that pov/eris now 
 exercised by the judge through his chief clerk in chambers ; 
 and the plaintiff' will l)e directed by an order in chambers to 
 summon such parties as the chief clerk thinks ought to 
 attend ; and those parties are entitled to notice of all pro- 
 ceedings, and to attend upon them. 
 
 During the great prevalence of claims for a year and a 
 lialf after the Orders of 1850, attempts were made to deal 
 with very intricate cases by claim ; but the court has, in 
 several instances, checked this practice so effectually, that it 
 is never now attempted, and therefore need not be discussed : 
 (see on this point Ecclcs v. Cheyne, 15 Jur. 744; and 
 Jacobs v. Richards, 18 Beav. 300.) 
 
 As the course which the court adopts, when a subject 
 matter, not fit, in its opinion, to be dealt with by claim, is 
 attempted to be so dealt with, is by dismissing the claim, and 
 ordering a bill to be filed ; and as in dismissing the claim it 
 may do so with costs, it is obvious that now the practitioner 
 will be incurring a very imnecessary risk who files a claim 
 in any but the most simple cases, viz., such as arc directly 
 within the Orders of 1850, on common claims, or so near 
 thereto as to be almost as simple. 
 
 It may here be mentioned with respect to what is ex- 
 cluded from the common claim for adiinnistrutinn, that 
 the common claim never applies when there is rtal estate.
 
 190 NEW EQUITY PRACTICE. 
 
 AVTien that occurs a special claim must be filed on that 
 ground. 
 
 Claims may be, and indeed (as they are now scarcely 
 ever used in contested matters), usually are, heard as short 
 causes. To hear a claim as a short claim, counsel must 
 certify, as in a suit commenced by bill, that it is fit to 
 be so heard and then the claim may be at any time put 
 into the short list, and will be heard as a short claim. Certain 
 days are usually set apart in each of the courts for short 
 claims, which are heard with or immediately after the short 
 causes. 
 
 Before a claim is brought on for hearing, the solicitors on 
 both sides should, as in the case of a bill, be provided, the 
 plaintiff with an affidavit of having served the defendants with 
 the copy claim, and of its having been set down to be heard ; 
 and the defendants with an affidavit of having been so served, 
 for the same reasons, and with the same effects as I have 
 pointed out in reference to the hearing of a cause upon 
 bill. The appeal from a decree made on a claim is not by 
 petition of appeal, but by motion on notice to the parties in 
 the cause. 
 
 Of the proceedings by Summons in the first instance. 
 
 The proceeding by summons in the first instance is so 
 extremely simple, that it requires little more than to refer 
 to the act of 15 & 16 Vict. c. 86, and the General Orders 
 thereunder 
 
 By the 45th section of the act, it is enacted, that a person 
 who claims to be a creditor, or a specific or pecuniary or 
 residuary legatee, or the next-of-kin, or some or one of the 
 next-of-kin of a deceased person, may apply for, and obtain 
 as of course, without bill or claim filed, or any other pre- 
 liminary proceedings^ a summons from judge's chambers, 
 requiring the executor or administrator, as the case may be, 
 of such deceased person, to attend before either the Master of 
 the Rolls or any of the Vice Chancellors, at the option of the 
 party taking out the summons at chambers, for the purpose 
 of showing cause why an order for the administration of the 
 personal estate of the deceased should not be granted. 
 
 And the 47th section provides, that any person claiming 
 to be a creditor of a deceased person or interested under his 
 will, may apply for and obtain, in a like summary way, an 
 order for the administrat ion of the real estate of a deceased 
 person, when the whole of such real estate is by decree 
 vested in trustees^ who are by the will employed to sell such
 
 PROCEEDINGS BY SUMMONS. 191 
 
 real estate, and authorized to give receipts for the rents and 
 profits thereof, and for tlie produce of the sale of such real 
 estate. 
 
 The first section, therefore, includes only personal estate, 
 in which creditors or legatees, or next-of-kin are interested, 
 and the summons can only be against executors or 
 administrators. 
 
 Tlie second clause extends to real estate, but gives the 
 right of summons only to creditors. So that persons not 
 creditors, cannot proceed by mere summons in respect of 
 real estate, but must proceed by bill or claim. 
 
 The form of the summons is given in schedule E. to the 
 Orders of the 7th August, 1852. 
 
 The sunuuons is obtained on anexparte application from the 
 judge's chief clerk, but it is signed by the judge. A copy 
 of the siunmons is filed in the Record and Writ Clerk's 
 Office, and a copy duly stamped at that office must be 
 served on the executor or administrator, seven clear days 
 before the return day : (5th Order of October, 1852.) 
 
 When the summons has been duly filed and served, then by 
 the forty-fifth section of the act, on proof by atlidavit of" 
 the due service, or on the appearance in person, or by his 
 solicitor or counsel, of the executor or administrator, and 
 upon proof by affidavit of such other matters, if any, as the 
 judge requires, he may, if in his discretion he think fit, 
 make the usual order for the administration of the estate of 
 the deceased, with such variations, if any, as the circumstances 
 of the case may require ; and the order so made has the force 
 and effect of a decree to the like effect, made on the heariiig of 
 a cause or claim between the same parties ; but the judge 
 may grant or refuse such order, or give an}- special directions 
 touching its carriage or execution, and in case of applications 
 for any such order by two or more different persons or 
 classes of persons, may grant tlie same to such one or more 
 of the claimants as he think fit ; and if the judge thinks 
 proper, the carriage of the order may subsequently be given 
 to such party interested, and upon such terms as the judge 
 directs. 
 
 The order made is usually the common decree for accounts, 
 which Avould be made in a bill stating no more than the 
 claim shown by the title of the party taking out the sum- 
 mons, with, as authorized by the clause of the act just 
 referred to, any special directions or inquiries that the judge 
 UKiy be sutisfied Ijy the applicant, ought to be included. 
 
 When made, all the subsequent incpiiries and proceedings 
 are just the same as they would be under such a decree in a
 
 192 NEW EQUITY PRACTICE. 
 
 cause ; the chief clerk makes his certificate on the result of 
 the inquiries, as he would under an ordinary decree ; the 
 certifit'ate is to be signed by the judge, and is open to 
 objections before the judge and appeal at the time, and in 
 exactly the same way as Lf it were made in pursuance of a 
 decree in a cause. And further consideration may be 
 reserved on the certificate, in which case the further 
 consideration will be heard and dealt with in the same 
 manner, as it would be in a suit instituted by bill. It is 
 unnecessary, therefore, to pursue this portion of the subject 
 into further detail. 
 
 Of Costs. 
 
 The subject of costs, although much has from time to 
 time been said upon it incidentally in these pages, in treating 
 of the different steps in a suit, requu'es some further notice. 
 
 Generally, the principle of the Comt of Chancery is, that 
 costs are in the discretion of the coiu-t, and will be dealt 
 ■svith, not according to the success or failure of the party, 
 but according to the view which the court in its judicial 
 discretion takes of his merits, other than, or in combination 
 with, the mere merit or demerit of being, as regards the 
 matters determined, right or wrong. But this principle 
 does not prevent the court adopting, as a subsidiary rule, 
 the holding the costs of a proceeding as properly to be 
 given to the party who is right in his procedure. In 
 Millington v. Fox (3 Myl. & Cr. 353), Lord Cottenham 
 laid down the rule thus: — "The question of costs in 
 Chancery is left to the discretion of the court ; that discre- 
 tion ought to be exercised as for as possible according to some 
 principle. And I am very much disposed, as a general rule, 
 to make the costs follow the result ; because, however, 
 doubtful the title may be, or however proper it may be to 
 dispute it, it is but fair and proper that the party who 
 really has the right, should be reimbursed, as far as 
 giving him the costs of the suit can reimburse him. But 
 then there is another object which the court must keep in 
 view, viz., to repress unnecessary litigation and to keep 
 litigation within those bounds which are essential to enable 
 the parties to vindicate and establish their rights." 
 
 In that case, although the court gave the plaintiff a 
 decree, yet, being dissatisfied with his conduct, it gave him 
 no costs. The combination of the two rules makes the 
 question of costs (always a very material one in Chancery 
 proceedings, and sometimes much more material than the
 
 COSTS. 193 
 
 original ground of suit), ;i matter of great diHiculty and 
 uncertainty. 
 
 There are, however, certain kinds of proceedings of wiiieh 
 the costs are quite of course, and others in wliich tiiey are 
 almost so. 
 
 If a plaintiff, for instance, amends his bill by an order of 
 course, after one defendant has answered, riMpiiring a further 
 answer, he ])ays him, as a fixed rule, twenty sliillings costs ; 
 if he so amends after several have answered, requiring an 
 answer from some defendants and not from others, he pays 
 twenty shillings costs to each of those from whom lie re([uires 
 answers, and no costs to those from whom he re(piires no 
 answers. 
 
 So, when there are several defendants who ought to join 
 in one defence, such as trustees or executors, or any persons, 
 in fact representmg in a fiduciary character one interest^ 
 though the court will not compel them to join in defence, 
 it will allow between them, as against the plaintiff, but one 
 set of costs. 
 
 So, where an objection is taken by defendants by their 
 answer for want of parties, and at the hearing, the court 
 allows the oljection, and the cause stands over to amend 
 the bill, it is always on the payment by the plaintiff", to 
 the defendants, of the costs of the day. 
 
 Of the mode of dealing with the costs of demurrers, pleas, 
 and exceptions to answers, I have sufficiently treated in 
 Chapter I. 
 
 Costs are divided into two principal classes ; costs as 
 between solicitor and client, and costs as between party and 
 party : the latter being taxed with a greater degree of 
 strictness than tiie former. They are also divided into costs 
 payable by one [)arty to another, and costs out of the fund 
 the subject of litigation. 
 
 Costs as between solicitor and client are allowed to trus- 
 tees, executors, and administrators, and other persons filling 
 a bona fide fiduciary character, thiit is, as between them and 
 their ce.stui.s que trust; for it must not be understood that if 
 A. files a bill against li., to which B.'s trustees are necessary 
 parties, and the bill is dismissed with costs, A. will have to 
 pay the trustees costs as between solicitur and client ; as to 
 him, they are stangers, and will only get their costs, as 
 between party and party, the court making y)rovision for the 
 trustees' extra costs, if it thinks fit, out of B.'s ti'ust estate. 
 
 Costs as between solicitor and client are also sometimes 
 allowed to all parties, in cases where all the costs are given 
 out of the estate, the subject of litigation. But that, on 
 [CH.] S
 
 194 NEW EQUITY PRACTICE. 
 
 examining the cases, will be found to be done in general, only 
 when the estate is absolutely or is substantially the estate of 
 all the puTties. 
 
 As to all other parties than trustees and fiduciary persons, 
 litigating between each other, costs are only given as between 
 party and party. 
 
 The exce{)tions to the rule of making the costs follow the 
 result of the suit are numerous. 
 
 Thus, for instance, when an heir-at-law is made a party 
 to a suit instituted for establishing a will, or for establishing 
 a right to real estate, or generally when the heir-at-law is 
 made a party to a suit in respect of his interest as heir 
 merely, he will be entitled to his costs whatever may be 
 the result of the suit, and that even though he cross-ex- 
 amines the plaintiff's witnesses ; but it seems, if he brings the 
 bill, and fails ; orbeingmade a defendant, examines his own 
 witnesses, then he shall not have his costs (see Luxton v. 
 Stephens, 3 P. ^Vms. 373 ; and Bidi'lph v. Bidulph, id. notes) ; 
 the principle is that the heir has the title cast upon him, 
 and cannot refuse it. Therefore, if he merely dtjhids the 
 title so cast upon him, he has his costs whether successful 
 or unsuccessful. But if he, not being in posse.'^sion, seeks to 
 enforce his title, he must take the common fate of a plaintiff 
 who fails. 
 
 So, when an heir-at-law is made a defendant to a suit to 
 establish a will, and the proof is not clear, he is entitled as 
 of course, to have an issue at law to try the validity of the 
 will ; and whether the verdict is for or against him he Avill, 
 in general, be entitled when the cause comes back and is 
 disposed of, to his costs of the issue as well as to his costs of 
 the cause : (see Wright v. Wright, 5 Sim. 449 ; and Beames 
 Costs, 94.) If, however, in a suit for establishing the will, 
 he makes and argues any untenable ])oint, and fails, he 
 will not have his costs: (Rasldegh v. Master, 1 Ves. jun. 
 ■201.) The distinction between his defending and initiating 
 proceedings is very clearly shown by Webb v. Cluverden, 
 (■2 Atk. 4-24.) In that case, the heir filed his bill charging 
 fraud in obtaining the will, and insanity in the testatrix, 
 and a trial was directed, and the verdict must have been 
 against the plaintiff; the Lord Chancellor made him pay 
 the costs so far as controverting the will ; but said, if an heir- 
 at-law were defendant, and an issue directed to try fraud or 
 insanity, although the will should be sustained, the heir 
 should pay no costs, and frefiuently would have his costs. But 
 if even being a defendant, he sets up an inicpiitous defence, 
 as where a bill was filed to establish a will alleging that A.
 
 COSTS OUT OF THE ESTATR. 19o 
 
 was the heir-at-law, ami lie admitted he was, and defended 
 and took an issue, and alterwanls it turned out that he 
 knew at the time the bill was iiled that his elder brother 
 had left children, and that they were livinji;, he was refused 
 his costs both at law and in equity : (^Roberts v. Scoones^ 
 7 Sim. 418.) 
 
 In a very recent case (i?«ier^s v. Kerslake, W. R. 1854-5, 
 p. 61G), the heir-at-law, defendant in a devisavit vel nov^ 
 had set u|) insanity in tlie testator, and tlie verdict was 
 against him ; Vice Chancellor Wood said, if the heir set 
 up such a defence fairly, reasonably, and bona Jide, he 
 would not be deprived of his costs : in the case before him, 
 the defence so set up was not of that description, and the 
 heir-at-law did not have his costs. 
 
 So, in the ease of vendor and purchaser, where the 
 vendor, if he show a good title before the institution of the 
 suit, and obtains a decree, is, in general, entitled to costs, 
 yet, if he makes false representations, which fairly put 
 the purcliaser upon in(piiry, and so occasion the suit, he 
 will not have his costs ; nor will he, if he 'has made the 
 ground of his suit, contrary to the fact, that the purchaser 
 has accepted the title : (Sidebotham v. Burriugton, 5 Beav. 
 261.) Again, on the same principle (viz., that if the plain- 
 tiff's own conduct renders the litigation necessary, though 
 he obtains a decree, he shall not have costs) the court 
 acted in Blunt v. Cumyn (2 Ves. sen. 3.31.) There, money 
 was raised to fit out a privateer; thirty shares remained 
 unsubscribed for at the time of the capture of some prizes, 
 and the question was whether the defendants, who had 
 bought those shares after the capture, had an exclusive 
 right to them, or whether the other subscribers, the plain- 
 tiffs, were to be let in with them ; the Lord Chancellor 
 dismissed the bill ; but because the act of the defendants 
 m bujTug the shares after the capture might give occasion 
 for the litigation, he dismissed it without costs. 
 
 Costs out of the Estate. 
 
 With regard to the cases in which the court gives costs 
 out of the estate the subject of litigation, it is a rule almost 
 without exception, that the general costs of a suit occasioned 
 by the act of the party through whom all the parties claim, as 
 in the case of suits to determine the rights of claimants under 
 a will, the costs of all parties, without reference to their 
 success, are paid out of the estate. 
 
 So, in creditors and other suits for the administration of 
 S 2
 
 196 NEW EQUITY PRACTICE. 
 
 the estates of deceased persons, the general costs, that is, 
 the costs of and incident to the administration, come out 
 of the estate, and are the first charges upon it ; that is, there 
 is no division of the corpus till all the costs are paid; the 
 result of which is, not unfrequently, there i-eraains very little 
 to divide. The broad rule as to administration costs is this : 
 that the plaintiff has one set of costs, and each defendant or 
 set of defendants representing one distinct claim or set of claims 
 on the estate, that is, one share in the estate, has one set of 
 costs. But if there are several defendants representing claims 
 upon a share, they will have between them and the party whose 
 share they partially represent as assignees of or incumbrancers 
 upon it, hut one set of costs out of the estate. Thus, when 
 a bill is tiled by the executor of a deceased person, under whose 
 ■will three claim shares, and on each of the three shares there 
 are charges making the incumbrancers necessary parties, 
 the plaintiff will have one set of general costs, and the 
 defendants three sets of general costs between them, and 
 no more ; (see on this point Greedy v. Lavender, 1 1 Beav. 
 417.) Though a plaintiff, claiming to be aresiduary legatee, 
 fails in a suit for administration, he will have his costs out 
 of the estate, if the claim Is set up on fair grounds : (^Turner 
 V. Frampton, 2 Coll. C. C. 331.) 
 
 So in Johnston v. Todd. (8 Beav. 489), where a suit was 
 instituted by persons claiming as next-of-kin, for administra- 
 tion, and upon a very complicated set of inquiries and facts, 
 it ultimately turned out that they were not the next-of-kin: 
 and that other persons not parties were, the court, con- 
 sidering the investigation necessary for the administration, 
 gave the plaintiffs as well as other parties, their costs out of 
 the estate. 
 
 AVhere the estate is ample for the costs, of course no 
 difficult)' arises. But sometimes it is not so : when that is the 
 case, the executors' costs of the administration suit are paid 
 in priority to those of the other parties : {Tanner v. Dancey, 
 9 Beav. 339.) In a creditors' suit for admiiiistration, after 
 payment of the executors' costs, the plaintiff is entitled to be 
 paid his costs out of the estate before any other payment : 
 (see Barker v. Wardle, 2 Alyl. & K. 818.) In that case 
 the bill was by simple contract creditors to have the testator's 
 estate administered and the debts paid. Under the decree 
 several specialty creditors came in and proved debts to an 
 amount exceetling the value of the assets received. The 
 question was, whelher the plaintiffs should receive their 
 costs before the specialty debts, and Sir C. Pepys, M. K., 
 gave the plaintiils their costs out of the fund, as between
 
 COSTS OUT OF THE KSTATK. 197 
 
 solicitor and client. So, in a previous case, Larkins v. Paxton 
 (2 M}1. & K. 320), the sanu' judge in a case of exactly 
 the same character then laid down the rule that "it is 
 contrary to rea.>-on anil to the unilorin practice of tlie court, 
 that specialty creditors who come in to take the bencht of a 
 suit institutcil hy a simple contract creditor, should tlirow 
 the burthen of the costs of the suit upon the sim])le c«jntract 
 creditor, where the assets prove insullicient for the full 
 satisfaction of their claim." 
 
 So, in Wi'dirwood v. Adams {% Beav. 103), Lord Langdale 
 said, "iftlnough the exertions of a plaintitf, the court is 
 enabled to distribute a fund, or if it makes a declaration of 
 rights necessary for its administration, then, although the 
 plaintiU' may tail in tlie claim, tiie court will not permit other 
 parties to carry oil" the fruits of his exertions, without defray- 
 ing his costs out of the fund." But this argument was not 
 allowed to prevail in a case in which one of the parties had 
 taken proceeilings in the Ecclesiastical Court necessary for 
 establisliing the will, and thus forming a foundation for the 
 administration suit ; tiie court would not treat those costs 
 as etjual or paramount to the costs of the executor, and 
 postponed tiiem. 
 
 But though, in general, the costs of all parties to a suit 
 rendered necessary by the doubtful language of a testators 
 will, will be given out of the estate, yet, where parties had 
 acted on an assumed construction of a will for nine years, 
 and then some of them fded a bill to have the will construed 
 by the court, the court, altiiough thinking the case one of 
 great doubt, and a very fit one to be tried, yet, on account 
 of the long accpiiescence, refused to give any costs out of 
 the estate, and dismissed the bill simply, without costs. 
 
 The rule that the doubts created by a testator throw the 
 costs on the general estate is thus modified : If a fund is 
 separated from the bulk of the testator's estate, and then a 
 ([uestion arises about it, tluit fund ])ays the costs. But if 
 tlie (luestion is who is entitled to the fund in the first 
 instance, that (piestion is raised by the testator himself, and 
 his estate nuist bear the costs. Tlierefore, when a testator, 
 by his will, gave a legacy to the trustees of the London 
 Orphan Asi/lum, in the City lioad, and two distinct cliarities 
 claimed the legacy, the court gave the costs of both parties 
 out of the general estate: (^Wilson v. Squire^ 13 Sim. 212.) 
 
 Tiie order in which costs are jiaid out of the estate in an 
 
 administration suit are well sliown in the case of Tipping v. 
 
 Poii'rr (1 Hare, 40').) In that case the i)l:iintitr was a 
 
 simple contract creditor, who was also an eijuitablc mort- 
 
 S 3
 
 19<S NEW EQUITY PRACTICE. 
 
 gagee by deposit, and the V)ill was against the executors and 
 devisees of the testator and the parties beneficially interested 
 in the estate for administration ; the debts and the costs 
 considerably exceeded the assets. It was held, that the plaintiff 
 was, as e(juitable mortgagee, entitled to the proceeds of the 
 sale of the mortgaged premises. Then, out of the general 
 assets, the executors were first entitled to retain the debts 
 due to them ; then, the costs of the executors, as between 
 solicitor and client ; next, the costs of the plaintiff as simple 
 contract creditor ; then, the costs of the defendants, the 
 beneficiaries ; and lastly, the debts due to the plaintiff and 
 other creditors. 
 
 But if a simple contract creditor, being informed by the 
 legal personal representative, that there are no assets for the 
 payment of simple contract debts (and that statement turns 
 out at the hearing to be true), will institute a suit for 
 administration, he will have to pay the costs of the suit : 
 {King V. Bnjant, 4 Beav. 460.) 
 
 I have stated that, in general, trustees, executors, and 
 persons filling a fiduciary character will, as between them- 
 selves and their cestuis que trust, in any suit relating to the 
 trust estate, be allowed their costs out of the fund as between 
 soli'-itor and client. 
 
 This admits of several exceptions : 1st, Trustees, &c. who 
 have misconducted themselves, will not, in general, have 
 their costs. Thus, if executors institute a suit in itself 
 unnecessary and improper, they will have no costs : {Richard 
 V. Attorney General of Jamaica, 13 Jur. 197.) So where, in 
 a creditors' suit, the administrator pending the reference for 
 accounts became bankrupt, and it turned out that he was in 
 def.iult, it was held, that neither he nor his assignees were 
 entitled to any costs : (11 Beav. 415.) And so if trustees, 
 having sullicient information before suit, still put parties to 
 a suit, instead of receiving co*ts they will pay co.sts. Thus in 
 Lancashire v .Lancashire ( 1 De G. & Sma. 2.S8), the plaintiff 
 claimed as heir-at-law ; previously to the institution of the 
 suit, he submitted to the trustees' defendants his pedigree 
 and proofs ; and the court thought that they were such as 
 ought to have satisfied the trustees of his heirship. And the 
 court made the trustees ])ay the costs of the suit, including 
 the costs of the genealogical evidence. 
 
 If, however, a defaulting trustee is ordered to pay the 
 costs up to the hearing, and pays them, he will be entitled 
 to his subsequent costs : {Hewett v. Foster, 7 Beav. 348.) 
 
 There are some distinctions, too, as to what is such default 
 as to deprive trustees of their costs. There may be enough
 
 COSTS OUT OF THE ESTATK. 199 
 
 to remove trustees, and yet not enough to ilcj»rivt' them of 
 their costs ; thus, where trustees were removed because they 
 UUed a character incompatible with their duty as trustees, 
 tliey were removed; tlie bill contained charges airainst them 
 of fraud, which were not proved, and tliey were held entitled 
 to their costs : [Passing/uun v. Slwrhorn^ I) Beav. 424.) So, 
 where an executor was charged with interest for a sum of 
 money in his hands, j)rior to putting in Ids answer, and not 
 thereby accounted for ; yet it was said he mav often have his 
 costs : "( Wwidlu-ud v. Marriott, C. P. C. llei)". 62.) 
 
 And though, as I have stated, trustees appearing by 
 dilferent solicitors will not, in general, have more than one 
 set of costs, yet, if they fill dillerent characters, as m a case 
 where A. and B. were trustees under one deed ; D. E. and 
 B. were trustees under another deed ; and A. B. and F, 
 were trustees under a will ; and B. E. and F. put in 
 separate answers and appeared by different solicitors, they 
 were all allowed their costs as between solicitor and client : 
 {Kcnnpff v. Junes, C. P. C. Rep. 13.) 
 
 The general rule is, that executors are entitled to have 
 the guidance of the court on the construction of a will at 
 all doul)tful ; and of course to have their costs out of the 
 estate; but if they put the estate to the expense of a suit 
 when the will is plain, they Avill not only have no costs, but 
 be ordered to pay costs : (Harneij v. Hdrvey, .'5 Jur. 919.) 
 But wliere trustees resisted a claim by the assignee of the 
 e(|uitable interest in a term., on the ground that they were not 
 trustees of it ; and the fact of their jjcing so was not made 
 out till the hearing, they were held entitled, not to costs 
 merely as between party and party, but to trustees' costs. 
 
 And a trustee may be entitled to part of the costs of a 
 suit, and made to pay other part. Thus, where there was 
 a suit for charging a trustee with breacli of trust, for neg- 
 lecting properly to invest, and for accounts and ascertaining 
 the rights of the parties generally, the trustee was charged 
 with the costs of so much of the suit as consisted of inquiries 
 showing in the result that he was in that particular liable 
 for wilful default ; but he had his general costs of the suit. 
 
 In charity cases, trustees are simply refused costs, or made 
 to pay them, according to the circumstances, though there 
 liave been Ijreaches of trust. 
 
 In The Attoi-ney General v. Chrisfs Hospital (4 Beav. 73), 
 where the trustees and their predecessors had for a long 
 course of years administered the funds erroneously ; but 
 being called upon duly to administer them, they insisted 
 on their own rights adversely and tailed, they were made
 
 200 NKW EQUITY PRACTICE. 
 
 to pay the costs, notwithstanding the usage of their pre- 
 decessors. And see also, Attorney General v. Drapers' 
 Company (4 Beav. 67.) But in that case it was said that if 
 trustees have by accident, and without wilful default, com- 
 mitted an error, which they took the first opportunity to 
 correct, and have not set up their rights adversely, the court 
 will not charge them with costs, if there is a fund out of 
 which the costs can be paid. 
 
 It would be useless further to multiply cases on the 
 question of the right of trustees to costs, and how they may 
 lose that right. The general rules to be deduced from a 
 vast multitude of cases seem these : 
 
 I. That trustees, &c., will always have their costs, as 
 between solicitor and client, out of the trust fund, if their 
 behaviour has been consistent with the trusts. 
 
 II. That they may have their costs in many cases, if their 
 conduct has been bona fide^ even though the decree may be 
 against them. 
 
 III. That when their conduct has been either greatly 
 inconsistent with the trusts, or when they have rendered 
 litigation necessary, by unnecessarily casting all discretion 
 on the court, they will not receive, and will sometimes be 
 made to pay, costs. 
 
 The next class of cases in which the rules about costs are 
 somewhat special and important, are those of mortgagees 
 and incumbrancers generally. 
 
 As between mortgagor and mortgagee, in a suit for fore- 
 closure or sale, the mortgagee is, as a general rule, entitled 
 to his principal and interest, and costs^ in all cases, before 
 the mortgagee can redeem, unless there has been in his 
 conduct in the suit something extraordinarily reprehensible ; 
 and that, even though some of the costs have been caused 
 by the act of the mortgagee ; thus, a mortgagor's estate 
 was held liable to pay the costs of a petition and order 
 under the Trustee Act, for reconveying the mortgaged estate, 
 although they were rendered necessary by the mortgagee 
 having devised the mortgaged estate to three trustees, one 
 of whom could not be found : {King v. Smith, 6 Hare, 473.) 
 But where a mortgagee filed a bill of foreclosure, and 
 pending the suit, transferred the mortgage to A. B. who 
 transferred it to C. D., the extra costs thus occasioned 
 were not thrown on the mortgaged estate: {Coles v. Forrest, 
 10 Beav. 55-2.) 
 
 If there are first mortgagee and several puisne mortgagees 
 defendants, they are entitled to their costs in the order of
 
 mortgagee's costs. 201 
 
 their ])rioi'iti('s ; that is. the first imist be j)iiiil his (]el)t and 
 costs ; then the seeoml Iiis (U^bts and costs, and so on : 
 (see Uppcrton v. Hurrison^ 7 Sim. 444, and the cases there 
 cited.) This point should he clearly understood as Avell 
 settled, as it is not uncommon to find practitioners con- 
 founding this kind of suit with administration suits, and 
 sujjposing that the costs of all parties will, in the first 
 instance, come out of the estate ; and that then only will 
 the mortgaire debts and interest be i)ayable in the order of 
 their priorities; but the practice is as I have stated it, and 
 if the principle of the rule is attended to, it will, at once, 
 fix the rule in the memory. The principle is one of real 
 property law, and not of mere procedure, and is tliis; that a 
 mortgagee as against any subsequent luortgugec, is dealing 
 with the repi'esentative of the mortgugoi\ that is, with the 
 equity of redemption, and has a right to foreclose, unless he 
 is redeemed by the mortgagor or the party who represents 
 the equity of redemption, his principal, interest and costs. 
 
 But if a mortgagee, instead of being the plaintiff seeking 
 to be paid, is defendant to a suit by a subsequent incum- 
 brancer, to ascertain priorities, &c., and instead of insisting 
 on being redeemed, or being dismissed with his costs, which 
 he has a right to do, he consents to a sale, then he adopts 
 and takes the benefit of the suit, and the costs of all parties 
 must be first paid out of the fund, before any of the mort- 
 gage debts are satisfied : {White v. Bishop of Peterborough, 
 Jac. 40-2.) 
 
 A mortgagee may also deprive himself of his right to 
 costs by his misconduct. Thus, a solicitor, defendant to a 
 suit for redemption, having taken a mortgage ibr his bill 
 without any settlement of accounts, and having, after the 
 l)ill was filed, caused great delay and litigation before any 
 account could be got from him ; and finally, his demand 
 having been reduced, on in(piiry, more than one-sixth, the 
 court gave him his costs down to the answer ; it made him 
 pay the costs of the inquiry what was due from him, and as 
 to the rest of the costs after the answer gave him no costs : 
 {Detillen v. Gale, 7 Ves. 583.) So, if the mortgagor 
 tenders the money before suit, and appropriates the money 
 by paying it into the bank, and the mortgagee refuses that, 
 he will have to pay the costs: (see the case of Shuttlewoi'th 
 V. Lowthcr, cited by the Lord Chancellor, 7 Yes. oS6.) 
 
 And it is the same if a second mortgagee makes a tender 
 of all that is due for principal, interest, and costs : (Smith v. 
 Green, 1 Col. 555.) Hut tlie tender must be either (if the 
 specific sum due for principal and interest, and of all costs.
 
 202 NEW EQUITY PRACTICE. 
 
 or of a greater sum than was due : (see Rober-ts v. Williams, 
 4 Hare, 129.) So in Wilson v. Cluer., 4 Beav. 214, where 
 a mortgagor had tendered forty pounds, and ulthnately it 
 turned out, on taking the accounts, that before that tender, 
 the mortgage was in fact paid off, and a balance was due 
 from the mortgagee ; he was ordered to pay the costs. 
 
 Before quitting the subject of mortgagees' costs we must 
 notice those cases where a puisne mortgagee, or the assignees 
 of an insolvent or bankrupt mortgagee, are made parties to 
 a mortgage suit, and disclaim ; as to when they will, and 
 when they will not, be entitled to be dismissed with their 
 costs, or be paid their costs by the plaintiff. The rx;le is 
 now well settled, that a puisne mortgagee, or his assignees, 
 if they disclaim before suit, will be dismissed with their 
 costs ; but if they do not disclaim till the answer, the 
 plaintiff is entitled to bring them to a hearing, without 
 paying their costs: {Ohrly v. Jenkins, 1 De G. & Sma. 
 543.) In Lock v. Lomas, 15 Jur, 162, the defendants, 
 assignee of a party to the mortgage, swore by their 
 answer, that before the bill was filed, they had offered 
 to the plaintiffs to disclaim by deed all, &c., but that the 
 offer had been refused by the plaintiffs, and by their 
 answers they also dis(;laimed in the usual form ; they were 
 held entitled to be dismissed with their costs. The dis- 
 claimer by deed, or offer to disclaim by deed, must of course 
 be proved as well as sworn to by the answer, if the plaintiff 
 goes into evidence to prove the contrary. But if the plain- 
 tiff goes into no evidence, the answer may, as in Lock v. 
 Lomas, be read as evidence. 
 
 The disposal of the costs of a suit for specific performance 
 are sometimes a little complicated. 
 
 First, if the vendor files a bill for specific performance, 
 and fails entirely, that is, if the certificate of title is against 
 the title, and is upheld by the court, the bill will be dis- 
 missed icith costs. 
 
 So, if the certificate is against the title, and the plaintiff 
 does not except to it, and the reference of title was before 
 decree, the defendant may obtain an order to dismiss the 
 bill ivith costs. And in a case where the purchaser demurred 
 to the vendor's bill for specific performance, and his demurrer 
 was overruled: then he took objections to title in the Master's 
 office, and a case was sent to law, and the court of law 
 decided against him, but ultimately the bill was dismissed ; 
 the purchaser had not only his costs of the suit in equity, but 
 of the proceedings at law : {Forbes v. Peacock, 12 Sim. 528.)
 
 COSTS AS BETWEEN VENDOR AND PCRCIIASER. 203 
 
 But if the bill is by the jjiircliascr, and tiu' (li'fi'ndant (the 
 vendor) oannot iiiako a title, the bill will be dismissed with- 
 out costs. 'I'he reason of this distiin-tioii is that in the one 
 case, that is, where the vendor files the l)ill, it is wholly the 
 fault of the plaintitl' that a decree cannot be made- In the 
 other, wdiere the vendor is a defendant, thoujrh the court can 
 make no decree, it is the fault of the delendant that the 
 court cannot do so, and theretbre the court will not, though 
 it dismisses the bill, make the ])laiiitiir pay any costs to the 
 defaulting defendant. 
 
 Tlie decree of reference of title, in a suit by a vendor, 
 always directs an in([uiry, not only whether the vendor can 
 make a good title, but wdien a good title was first shown. 
 If the cei'tificate shows that a good title was made before 
 the Institution of the suit, the decree for specific perform- 
 ance will be ivith costs ; but if it shows that a good title was 
 not shown till afterwards, then, although the plaintiff is 
 entitled to a decree, he will, in general, have to pay the 
 costs of the whole suit. IJut this is not a rule of inflexible 
 api)lication ; the question always is, did or did not the 
 objections which were removed for the first time in the 
 Master's office occasion the suit? If the case is, that the 
 duty which the vendor has undertaken, to make out a good 
 title, is interrupted by some claim or demand on the part of 
 the purchaser which cannot be sustained, and which gives 
 rise to a suit, the consequence of which is, that something 
 remains to be done which is not done until the suit gets 
 into the Master's office, but which the vendor would have 
 done without suit, if an opportunity had been aflbnled him ; 
 in such a case the fact of the title iiaving been perfected in 
 the Master's office does not determine the cjuestion of costs 
 {Srouups V. Mori-ell., 1 Beav. ^51) ; in which case the court, 
 although the title was not made out till it went into the 
 Master's oflice, made the purchaser pay the costs of the suit. 
 
 A purchaser may make a fair ol)jection to title without 
 liaving to pay costs. Thus, in Aistubie v. liice (3 Mad. 
 251)), where the objection was whether a power of limitation 
 and appointment was a springing use, or an executory 
 devise, or a mere power to appoint by way of contingent 
 remainder ; and there were also other questions ; tlie court 
 directed a case, which was twice argued, and ultimately 
 the Court of Common Pleas gave its certificate in favour of 
 the i)laintifl. The court thereupon directed specific per- 
 formance, but without costs. 
 
 But it ninst be a substantial and fair objection. So that 
 when a purchaser took an objection founded upon an attempt
 
 204 NEW EQUITY PRACTICE. 
 
 to distinguish the case from those subject to a well settled 
 rule, which distinction the court thought wholly without 
 foundation, he was made to pay the costs : {Bishop of Win- 
 chester V. Paine., 11 Ves. 194.) If both parties have relied 
 upon imtenable grounds, although a specific performance is 
 decreed, it may be without costs : {Sidebotham v. Hu7'rington, 
 5 Beav. 261 ) 
 
 The general rule is undoubtedlj' that the coui't ■will not 
 compel a purchaser to take a doubtful title: (see Sug. Cone. 
 View, 280, 281.) In such cases the court will, in general, 
 dismiss the bill without costs, and expressing no opinion on 
 the title: (^Willcox v. Bellairs^ Turn. & Russ. 491.) 
 
 It is a settled rule that the Crown never pays costs. But 
 the Crown may or may not receive costs. The Crown nuiy 
 receive costs in a case in which, had it been a private 
 person, he could not have been made to pay costs. 
 But if, being a private person he might have been made to 
 pay the costs, then he cannot receive costs. Thus, in Attor- 
 ney General v. Corporation of London, where exceptions 
 were taken to the answer by the Attorney General proceed- 
 ing ex officio, the blaster allowed the exceptions, and the 
 Master of the Rolls affirmed his decision, and overruled 
 exceptions to the JNIaster's report, with costs; then the 
 defendants appealed against the decision of the Master of the 
 Rolls, and the Lord Chancellor, dismissing the appeal, in- 
 cluded in the appeal the question of costs, on the ground 
 that it was a case in which, if it had been the case of a 
 private individual — being in possession of the IMaster's deci- 
 sion — he could not have been made to pay costs: (^Attorney 
 General \. Corporation of London, 2 Hall & Twells, 1.) (') 
 
 Some of the cases in Avhich the Crown has been refused 
 costs, seem inconsistent with the rule thus laid down 
 by the Lord Chancellor. Thus, in Burney v. McDonald 
 (15 Sim. 6), the suit was by tlie testator's trustees to have 
 the rights of the parties ascertained, and the Attorney General 
 was made a party in respect of a trust alleged to be 
 created for an alien. The court decided the rights, ex- 
 cluding the claim of the Crown, and gave to all parties, 
 except the Crown, their costs out of the estate ; but to the 
 Crown no costs. Now this was a case in which it is clear 
 
 (*) This applies only now to suits instituted before the 18 & 19 Vict, 
 c. 90 ; as to suits instituted since that act, the Crowu may pay and 
 receive costs as a subject would.
 
 COSTS IN CHARITY CASES. 205 
 
 that if the Attorney (loneral liad hoen a private person, hv 
 could not have been, uikUt any eirennistances, made to pay 
 costs. In Perkins y. Brudlry (\ Ilarc, 219), the ease was 
 different : there tlie Crown, in a suit for enfbreinjf the elairas 
 of a ])urehaser for vahuible consideration against the trustee 
 of the vendor and tlie ])urchaser, insisted on its title against 
 the purchaser, on tlie ground that the vendor was a felon 
 convict, and failed ; and Sir J. Wigram refused to give the 
 Attorney-CJeneral his costs. In that case, it is clear, that 
 if the claim iiad ])een by a private person so failing, he 
 might have had to pay costs, and therefore, on the prin- 
 ciple laid down by the Lord Chancellor, he could not 
 receive costs. 
 
 In charity cases the court is, in general, more lenient on 
 the sul)jcct oi" costs than in ordinary cases. Thus, in a case 
 where there had been misapplication of the funds of a charity 
 for a long time, on a wrong construction of the deed, but no 
 imputation on the trustees, and it was not contended that 
 the misapjilied fund should be brought back, the court, 
 although removing the trustees, allowed their costs out of 
 the fund : (^Attorney-General \. Druimnond, 2 Con. & Law, 
 98.) 
 
 So, in Attorney- General \. Cuius College {2 K. 150), there 
 had been long misappropriation, that is, for two centuries, 
 but no improper motives in the trustees, and they had, by 
 their economy, effected considerable accumulation of the 
 funds ; the court would not remove them, and gave them 
 their costs out of the fund. 
 
 So, in a case where a lease had been granted for ninety-nine 
 years of a charity estate, which would be bad without proof 
 of its being for the charity, the court, under circumstances 
 of long possession permitted, and that the defendant was 
 only the representative of the lessee, set it aside without 
 costs, the defendant making no further opposition : (Attorney- 
 General v. Owen, 10 Ves. 355.) It is true the court said 
 it was to be no precedent ; but the course of the court, since, 
 has been consistent with that case. 
 
 Relators, in general, have their costs, charges, and 
 expenses: {Attorney- General v. Corporation of Winchester^ 
 C. P. Coop. 502.) But if the relief obt;aiued on an informa- 
 tion might have been obtained on petition, sonhle, the court 
 will give no costs to the relators: (Attorney- (iCJieral v. 
 Holland, 2 Y. & Col. 6s3.) So, in Attorney- (Jeneral v. 
 Berry (11 Jur. 114.) And if the information is altogether 
 wrong and causeless, the relators will have to pay costs : 
 (Attorney -General v. Smart, 1 Ves. 72.) 
 [CU.] T
 
 206 NEW EQUITY PRACTICE. 
 
 It seems scarcely necessary to say that parties guilty of 
 improper conduct, or vexations or improper procee< lings in 
 the cause, may be liable to pay costs in respect of such con- 
 duct. Thus, in a cause heard on original bill and bill of revivor, 
 the defendants had a decree against them with costs ; but 
 the bill of revivor impropei'ly stating the facts of the original 
 bill at great length, the plaintiff had to pay the costs occa- 
 sioned by that course of proceeding, and the Taxing Master 
 was to settle the amount: {Horsley v. Fawcett^ 11 Beav. 
 .565.") So, where a suit was instituted to remove trustees, 
 charging them with fraud and all kinds of misconduct, all of 
 which charges failed ; though the trustees were removed, but 
 not on the ground of misconduct, and so far the bill was 
 right, the plaintiif was made to pay the costs : (Passingham 
 v. Sherborn, 9 Beav. 424.) 
 
 And if a plaintiff goes into a great deal of unnecessary 
 evidence, although he obtains a decree, he will only get costs 
 up to replication: (Harvey v. Mounts 8 Beav. 439.) 
 
 So, in petitions, if they are of vexatious length, the court 
 has directed the Master, on taxing the costs, to have regard 
 to the length : {Canning v. Bell, 13 L. J. 304, Ch ) What 
 is improper length in a petition is not an easy matter to 
 determine. It is generally received, however, in practice, 
 that petitions should not set out verbatim clauses of public 
 acts, nor long clauses of deeds. 
 
 When costs are vexatiously occasioned by the party having 
 the right, so that, though deciding for him, the court will 
 make him pay those costs, it sometimes will itself make 
 pro^^sion for them, sometimes will leave it to the Taxing 
 Master. When the matter can be clearly distinguished in 
 the proceedings before the court, it will at once make 
 provision for the costs thus to be paid by the successful 
 party. If it cannot distinguish, it will be left to the Master, 
 {Farroiv v. Rees, 4 Beav. 18.) 
 
 Where a plaintifi" moves for production of documents, and 
 pavment of money into court upon the answer, the possession 
 of both being admitted, he ought to make but one motion. 
 If be splits the matter into two motions, he will have to pay 
 the extra costs occasioned (Haicke v. Kemp, 3 Beav. 288) ; 
 and if a party, moving for production on the answer, chooses 
 to mix up in the motion matters as to which the right of 
 production is clear, with other matters which are in contest, 
 and fails in the latter, although he gets an order for some 
 production, he will pav the costsof the motion: (Murray v. 
 Walter, Cr. & Thil., see p. 114.)
 
 SECURITY FOR COSTS. 207 
 
 Security for Costs. 
 
 In certain cases, a plaintifTwill be oblij^cd to give security 
 to the defendants for the costs wliich may be payable by 
 him. A [)Iaintiir lining abroad is, in general, required to 
 give security for costs ; and in a case where a plaintiff 
 gave up his house in England, and resided abroad, as he 
 stated, /'or a toiijmrarij purpose., but left it andiiguous 
 whether and when he intended to return, he was considered 
 so far living abroad as to be required to give security for 
 costs: (Kcnnaivai/ v. Tripp. 11 lieav. 5S8.) 
 
 A plaintilFougiit, in the bill, to be described so that the 
 defendant may know where to find him. The description 
 should, or may, be of his halntual or best known place of 
 residence ; it need not be of the place where he is actually 
 for the time when the bill is filed. Thus, in Hurst v. 
 Padmck (12 Jur. 21), where the plaintilfhad long lived at 
 Horsham, and had property there, and in a bill filed in 
 September described himself as of Ilorsliam, but had sold 
 his property and left. Horsham in August, and had, in 
 September, no fixed place of residence, the court refused to 
 require security for costs. In Sibbcring v. Balcarras 
 (1 De Gex & hm. 683), the plaintiif described himself "as 
 formerly of Blackwood, in the county of Lancaster, but now- 
 working on the line of railway between Sheffield and 
 Manchester, labourer," the court thought the description 
 insulKcient, but doubted whether it was a proper case for 
 security for costs, or whether it should not have been met 
 by den)urrer. The motion stood over to amend. 
 
 But if a plaintiif, whose description is correctly given in 
 the bill, changes his residence frecpiently after the filing of 
 the bill, he will bo ordered to give security for costs : {Player 
 V. Anderson., 15 Sim. 104.) If a plaintifi", ordered to give 
 security, gives an insuiiieient security, he will be ordered to 
 give another within a limited time, and if he does not do it 
 then, a jjeremptory order will be made that he shall do so 
 within a further limited time, and if default made, that the 
 bill should starul dismissed with costs : ( Giddings v. Giddings, 
 10 Beav. 29.) In this case the time fixed was six months. 
 And where the surety for costs of a jdaintilf residing abroad, 
 became bankrupt a few days alter a flecree dI^missing the 
 bill with costs, the court would not allow a petition of 
 rehearing presented by the plaintifi' to go on until he had 
 found a new surety : {Lautour v. Jlolcoinbe, 1 Phil. 2G2.) 
 
 Security for costs, on the ground of residence abroad, 
 T 2
 
 208 NEW EQUITY PRACTICE. 
 
 Avill oiilv he required where such residence is voluntary, 
 that is, where it is not a compulsory incident of duty. Thus, 
 security for costs will not be required of a seafaring man 
 (^Gowran v. Burnett, Sau. & Sc. 651, note), nor of a surgeon 
 in the army residing abroad with his regiment (^Wright v. 
 Evei-ard, ibid.), nor of a naval officer on half-pay, residing in 
 a colony and there holding an official appointment {Evelyn 
 V. Chippendale, 9 Sim. 497), nor of a colonial judge residing 
 as such in one of the colonies : (^Thornton v. Wilson, 1 Hog. 
 '10.) But an officer on half-pay, resident abroad, and not 
 holding any appointment requiring his residence abroad, is 
 not exempred : {Long v. Tottenham. 1 Irish Chan. Rep. 127.) 
 
 It seems scarcely necessary to say, though the point has 
 been the subject of discussion and decision, that a plaintiff 
 may, instead of security, deposit money. To fix the proper 
 amount was referred to the Master ; probably the court 
 would now at once do that in court ; if not, it would be 
 referred to chambers, and there be fixed by the chief clerk : 
 Felloives V. Deere, 3 Beav. 353.) 
 
 If a plaintiff, originally resident in this country when he 
 filed his bill, goes abroad to attend to his affairs, and not to 
 avoid his creditors, and with intention to return, he will not 
 be ordered to give security : {Hume v. Thojnpnon, Sau. 
 & Sc. e2-2.} 
 
 But if a party ordered to pay costs goes abroad, and it 
 is shown to the satisfaction of the court that he has gone 
 abroad to avoid the payment, he will be ordered to give 
 security for costs, and proceedings in the suit will be in the 
 meantime stayed : {Busk v. Beetham, 2 Beav. 557.) 
 
 Of course, if a plaintiff on the face of his bill misstates his 
 place of residence, he will be ordered to give security for 
 costs: (Sandys v. Long, 2 Myl. & K. 48.) 
 
 Taxation of Costs. 
 
 The taxation of costs in suits is of course : a direction to 
 
 tax forming always part of the decree or order. When matters 
 have arrived at that stage of the cause, that a provision for 
 the costs can be made, the reference to tax is now to the 
 Taxing Masters, who perform all such duties as were befoi'e 
 referred to or performed by thcMastersiii Chancery in relation 
 to the taxation of costs ; and have, in such matters, all their 
 powers and authorities to administer oaths, to examine 
 witnesses and parties, to order the production and inspec- 
 tion of books, papers, and documents, to proceed de die in
 
 TAXATION OF COSTS. 209 
 
 diem to make separate reports and certificates, to require 
 that any party be represented by a separate solicitor : 
 (9th Onlor, 184-2.) 
 
 The references are made to the Taxing ^Masters in rotation; 
 or, if there has been au}- former taxation in tlie same cause 
 or matter, then to the Taxing Master before whom such 
 former taxation has taken place : (10th of same Ordi^rs.) 
 
 The taxation is practically carried on thus : the solicitors 
 of the parties in the cause take into the office of the Taxing 
 Master tlieir bills of costs copied on foolscap, with a margin, 
 and a copy of the decree. The clerk will tlien get the name 
 of the Master in rotation mai'ked on the bill of costs. The 
 bill of costs is then left with the clerk of that Master, and a 
 warrant to tax taken out, which must be served on the 
 other parties. 
 
 I have already observed that there are two modes of 
 taxing costs, one as between solicitor and client, the other 
 as between party and party. The minutia3 of the ditference 
 between these two methods of taxation are a species of law 
 only known in the Taxing Masters' offices, and to a few very 
 experienced solicitors, and are too minute to ]je subjected 
 to any general rule. All that can be said upon it as a guide 
 is this, that in taxing, as between party and party, there are 
 certain fixed procee<Jings for which charges may be made by 
 the solicitor of a fixed amount, and no more than that 
 amount will be allowed to be charged against the party 
 having to pay costs, under any circumstances. Thus, for 
 the instructions for a bill, the one pound fourteen shillings 
 of schedule A. of the Orders of 7th August, 1S5-2, and no 
 more, will be allowed, whether the preparation of those 
 instructions was very difficult, and occupied three days, or 
 whether they consist of a page, and occupied as many hours. 
 So, in the taxation as between party and party, if the solicitor 
 thought fit, under the old practice, to pay to counsel lor 
 settling a bill more than two guineas for thirty folios, three 
 guineas for sixty folios, and so on, he would not be allowed 
 the excess in taxation as against his opponent. Under the 
 new system of pleading, tlie length of pleadings being so much 
 diminished, and their difiiculty increased, this rule is 
 obviously inapplicable, and I believe in practice the Taxing 
 Masters do not a<lhere to it. 
 
 In taxation, as between solicitor and client, every charge 
 that a solicitor might fairly make ami l)e allowed in a matter 
 purely between himself and his client, that is, in a matter 
 not in court, will not as a matter of course be allowed. 
 Thus, to take an instance quoted bv Mr. Daniell, p. 1311. 
 T 3
 
 210 NEW EQUITr PRACTICE. 
 
 from Mr. Smith's original work, where a defendant, 
 by his own dehiy, allows himself to be put in contempt, 
 although clearly his solicitor would, as against him, he 
 entitled to cliarge the costs incurred, the defendant would 
 not, in taxation, as between solicitor and client where the 
 costs are to be paid out of a common fund, be allowed those 
 costs out of the fund. The taxation as between solicitor and 
 client is, in fact, somewhere between the taxation as between 
 party and party, and what it would as between a party 
 disputing his solicitor's bill, and his solicitor. 
 
 And here I may, in passing, notice a point of costs arising 
 under the new practice, recently settled, viz., the costs that 
 will be allowed for fees to counsel acting as special examiner. 
 The rule laid down by the Master of the Rolls in a recent 
 case, not reported, is this :— No fee will be allowed to 
 counsel for perusing the pleadings laid before him, under 
 the 31st section of the 15 & 16 Vict. c. 86. The fee to be 
 allowed for examining, is five guineas for each sitting *, and it 
 is understood that a sitting means the period during which the 
 court is accustomed to sit, viz,, five hours, unless the whole 
 examination is completed in less time, in which case the 
 sitting would of course be a complete sitting, and the fee of 
 five guineas would be allowed in taxation. This rule is 
 understood to apply to sittings in London, and to refer to 
 taxation as between party and party. Whether for sittings in 
 the country at any distance, or on taxation as between 
 solicitor and client, any larger fee would be allowed, is 
 unsettled. 
 
 Upon the general practice of what is allowed in taxation, 
 either as between party and party, or between solicitor and 
 client, for fees paid to counsel with briefs (a very material 
 question always to the solicitor), there is no fixed rule ; as 
 the fees which will be allowed dej.'end much on the nature, 
 importance, and difficulty of the suit. It may, however, 
 be safely a-ssumed that even as between p;irty and party, 
 one guinea for three brief sheets to leading counsel, and two 
 thirds or three fifths of that to junior coimsel, will be 
 allowed. 
 
 For fees to counsel on the hearing on further considera- 
 tion, although the original brief is always delivered with the 
 new brief, and, although, in practice, it is necessary for 
 counsel to read the origmal brief, whether he held it or not, 
 yet, in taxation of costs, no fee to counsel with the original 
 brief is allowed ; but a fee somewhat larger than that due 
 to its mere length, will be allowed on the brief on further 
 consideration.
 
 TAXATION OP COSTS. 211 
 
 In tiixiition, as lietween party anil party, the Taxing 
 Master may allow to the party entitK-d to receive such costs, 
 all such just and reasonable ex[)enses as api)ear to have 
 been properly incurred in — 
 
 The service and execution of writs and the service of 
 orders, notices, petitions, and warrants. 
 
 Advising with counsel on pleadings, evidence, and other 
 proceedings in the cause, y)rocuring counsel to settle and 
 sign pleadings and such petitions as may appear to have 
 been proper to be settled by counsel, yiroruring consultations 
 with counsel, procuring the attendance in the Master's oilice 
 upon (questions relating to pleadings or title : (this is of 
 course nearly obsolete, and as applied to procuring the 
 attendance of counsel before the judge in cinunbers, it will 
 be subject to the oCJth Order of October, lJS.5-2.) Procur- 
 ing evidence by deposition or aflidavit, and the attendance 
 of witnesses, and supplying counsel with copies of, or extracts 
 from, necessary documents: (120th Order, 184.5.) 
 
 As to what scale or amount of fees to counsel for attend- 
 ing the judge in chambers will be allowed, there is no very 
 settled rule. 
 
 Under the 10th of the Order of June, 1850, in all pro- 
 ceedings before the Master when he is attended by counsel, 
 the allowances on the taxation of costs, in respect of the fees 
 to such counsel, are to be regulated upon the same principle 
 as if the proceedings were before the court. And this 
 principle, I believe, is considered to be applicable in taxing, 
 in reference to the attendance of counsel before the judge 
 in chambers. But as the proceedings in chambers are very 
 different from those in court, that is, as summonses have to 
 be frecjuently adjourned from day to day, whereas causes 
 rarely require that, it is not an easy matter to apply the 
 rule. 
 
 The payment of costs, whether by a party to the cause, 
 or a person not a party but ordered to pay, may be enforced 
 either by attachment under the 11th and 15th Orders of 
 August, 1841, or inuler a writ of ^. _/'a. or e/^^--/?, in pur- 
 suance of the Orders of 10th iVIay, 1839. To obtain such 
 pa}Tnent, the party entitled, when he has obtained the 
 Taxing ]\laster's certificate of costs, and filed it, and pro- 
 cured an office copy, if the party liable, on ap])lication, re- 
 fuses or neglects to pay the costs, issues a subpoena for costs, 
 and serves it upon him personally, at the same time demand- 
 ing the costs. If the party liable to pay makes dei'ault, an 
 attachment issues against him as of course. The execution 
 of the attachment is the same as of an attachment for default
 
 212 NEW EQUITY PRACTICE. 
 
 of appearance, of which I have treated in a preceding part 
 of tills work. 
 
 The other mode of enforcing payment of costs, under the 
 Orders of 1 839, by fieri facias^ or elegit, and venditioni 
 exponas^ is pursued in the same manner as in enforcing the 
 payment of any other money ordered to be paid l)y a decree 
 or order of the court, of which course of proceeding 1 have 
 also ah'eady treated. 
 
 Payment into and out of Court. 
 
 One of the most frequent steps required during the pro- 
 gress of a suit, for the protection of the funds in litigation 
 or for other reasons, is the payment or transfer of money or 
 stock into court. 
 
 Payment into court will, in genend, be ordered where the 
 party holding the money admits that he has it in his pos- 
 session, and adnaits the title of the plaintiff to it vvholl}' or 
 partially, that is, admits his title to have it secured. Thus, all 
 persons who admit the possession of money, and admit that 
 they are clotlied in respect of it with a character directly or 
 indirectly fiduciary, will, in general, be ordered, pending the 
 litigation, to pay it into court. 
 
 With reference to the essentials for supporting a motion 
 that a party may pay money into court, that is, for obtain- 
 ing payment into court before decree, the new procedure 
 under the 15 & 16 Vict. c. 86 and the Orders, does not seem 
 to be materially diflerent from the old procedure. Such a 
 motion must proceed entirely upon the answer ; and there- 
 fore, whenever a bill is filed with a view to secure as well as 
 to adjudii ate upon the ri^ht to any sum of money, interro- 
 gatories sh'uld be filed, and an answer required. 
 
 Money will not l)e ordered to be paid in by a defendant, 
 unless the plaintiff's title is clearl\- admitted by the answer; 
 it need not be iin absolute admission of title, but an admis- 
 sion shewing a high prol)ability of title. In the case to 
 which I shall refer, the plaintifi alleged herself to be next- 
 of-kin to A. the defendant : the trustee for the next-of-kin 
 admitted he had been informed, and believed, that the 
 plaintiff had claimed for ten years to be one of such next- 
 of-kin, but that, on incpiiry directed by the court, she had 
 failed to make out her claim ; and he denied belief that 
 she was sole next-of-kin. lie admitted the possession of the 
 trust fund. The court held there was no sufTicient admis- 
 sion : (^M- Hardy v. Hitchcock, 11 Beav. 73.) So, in Dubless
 
 PAYMENT INTO COCUT. 213 
 
 V. Flint (4 ]\IyI. & Cr. ;jO-2), the phiintifF asserted liis title 
 as lic'ir-at-law of A., of'wlioin tlie defendant was a trustee. 
 The defendant said he did not knowwhetlier A. left theplaintid' 
 her sole heir-at-law, or whom siie left her heir-at-law ; and 
 Lord Cottenhaiu refused a motion for payment of money 
 into eourt. 
 
 The answer must also elearly admit the receipt or pos- 
 session of the money, and the admission must be of a clear 
 sum, that is, if the defendant admits he has money, but 
 does not say how much, or if he admits, what is the same 
 thin<j in eilect, that he has received moneys, and made pay- 
 ments, and does not admit a specific balance, a motion 
 cannot be sustained. Tims, in F7'eeinnn v. Fairlie (-"i Mer. 
 32), the defendant admitted that the trust funds remained 
 vested in the public securities in India, either in his name or in 
 the name of his house of business, but whicli, in j)artieular, 
 he coujil not set forth, but subject to his disposal, unless some 
 part of the produce is in the hands of the said house at interest, 
 which he apprehends may he the case. The court somewhat 
 indignantly said, there was not an admission of possession of 
 the money in his hands sufficient to order payment into 
 court. 
 
 In Boschetti v. Power (8 Beav. 98), Power, Auriol, and 
 Shea were called uj)on to transfer into court a specific sum 
 of consols, being trust money alleged to be standing in their 
 joint names. Power admitted it was standing in the names 
 of the three; the two others admitted that there was a large 
 sum standing in the three names, but did not specify the 
 amount. 
 
 Tlie court held there was not a sufficient admission, and 
 refused the moticm. 
 
 The motion must be grounded on the admission alone ; 
 the plaintiff cannot produce evidence to contradict, or even 
 to explain, the answer. Thus, in Boschetti v. Power, the 
 plaintiff tendered evidence to supply the detect of the 
 answer, consisting of affidavits of the two defendants them- 
 selves sworn in another matter in tlie same suit, and an 
 affidavit by the plaintifPs solicitor, that he had inquiretl, 
 and been informed, by the chief accountant of the? Bank 
 that there was the alleged sum standing in the names of 
 the trustees. But the court refused to proceed on anything 
 but the answer, and refused, as we have seen, the motion. 
 
 So, the same doctrine was finally well established in 
 Edwards v. Jones (1 Phil. 501), and to its utmost extent, 
 going so fiir as this, that even when the answer neither 
 admits nor denies facts relating to the title of the plaintiff,
 
 214 NEW EQUITY PRACTICE. 
 
 but ignores them, evidence by affidavit cannot be let in 
 to supply the defect. ITiat was, it is true, a case of pro- 
 duction of documents ; but the rule as to obtaining); pay- 
 ment of money into court upon the answer, has always 
 been at least as stringent against the plaintiif, as that on 
 production of documents. 
 
 The persons against whom such motions are most fre- 
 quently made are trustees, executors, and other persons in 
 a fiduciary character. But it is not in every case where 
 there is a trust, that the money will be ordered into court. 
 Thus, though a party, having a contingent interest in a fund, 
 has in a proper case a right to have it brought into court ; 
 yet, where in such a case there was no allegation or pretence 
 of danger, and the plaintiff owed a debt to the estate, 
 which more than covered his interest, and other cestuis que 
 trust resisted the application, the court refused to order the 
 money into court : {Ross v. Ross, 12 Beav. 89.) Nor will 
 the court order money into court which an executor swears 
 by his answer he has retained in satisfection of a debt due 
 to him from the testator : [Middleton v. Poole, 2 Col. 236.) 
 But in Bartlett v. Burtlett (4 Hare, 631), where the plaintiff 
 was entitled only to a contingent interest in a sura, in which 
 others were interested, and opposed the motion, and without 
 allegation of danger, the court ordered the whole sum to 
 be brought into court. 
 
 But if a trustee has had a fund in his hands, and has 
 misapplied it by improper investment, or otherwise, he will 
 be ordered to bring it into court. Thus, in Htnde v. Blake 
 (4 Beav. 597), where an administrator admitted in his ex- 
 amination before the Master, that he had possessed himself 
 of stock belonging to the intestate, and said he had since 
 sold it out, and obtained and taken " in lieu thereof other 
 securities or property," but without saying what, the 
 Master of the Rolls ordered the transfer of the sum into 
 court, giving the defendant time to say in what he had 
 invested the money, and to call it in. So, in Bourne v. 
 Mole (4 Beav. 417), two sureties being authoi'ized to invest 
 money on good security, one of them received a sum of one 
 thousand five hundred pounds, and invested it in his own 
 name on mortgage of leasehold property, of which he was 
 the lessee ; the property was of insufficient value, and being 
 sold only produced two hundred and fifteen pounds. The 
 court would not determine the right of the defendant so 
 to inves^t on motion, and ordered the money into court. 
 
 The practice applies as well to implied, as to actual 
 trustees. Thus, in Leigh v. Macaulay (1 Y. & Col. 260),
 
 PAYMKNT INTO COURT. 215 
 
 it was held, that if once a Court of Equity traros out trust 
 niouey in tlic liaiuls of a person who lias not jiriniu fucie a 
 ri<riit to holil it, the money will be liroujj:ht into eourt. So, 
 where there was a bill for speeiiic perl'orinance by the 
 vendor, and the auctioneer who had a considerable deposit 
 in his hands was made defendant, the court held, on a motion 
 for ])aying the money into court, that the auctioneer being 
 a mere stakeholder, the court would secure the stake 
 pending the litigation, and deducting the amount of the 
 auctioneer's claim, he was ordered to pay the rest into court: 
 {Yntea v. Fairhrother, 4 ]\lad. 23.) 
 
 As between partners, too, sometimes in suits for winding- 
 up partnerships, or taking the accounts of dissolved pai'tner- 
 ships, money in the hands of one partner will be ordered to 
 be brought into court. 
 
 In general, a pai'tner, insisting by his answer that the 
 balance of the account is in his favour, is not obliged to 
 bring into court what is in his hands ; but, if he has received 
 money contrary to good faith, he will be ordered to bring it 
 in. Thus, in Foster v. Donald (1 Jac. & W. 'IH'I)^ the 
 partners having agreed to dissolve, one of theui, under 
 pretence of going to London to consult friends, went round 
 to customers and collected delits due from them ; he was 
 ordered to pay in what he had received. 
 
 So witliout any fraud, under circumstances, the money in 
 the hands of a partner may be ordei'ed to be brought into 
 court. Thus, where a partnership of A. an<l B. was dis- 
 solved and succeeded by that of B. & C, who took upon 
 themselves to adjust the affairs of the former partnership ; 
 B. died, and his executors filed a bill against C. for an 
 account of the partnership dealings of B. and C The court 
 having directed an account of both partnerships, and C. 
 admitting, by his answer, that he had received money on 
 account of the partnership of A. and B., it was hehl, that 
 he must yjay that money into court : (Touhnlii v. ('oj/land, 
 3 Y. & Cof. 6-25.) 
 
 When purchase money will be ordered to be paid in 
 in suits for specific performance, is rather a (picstion arising 
 on the law of vendor and purchaser, and (he nature of the 
 particular contract, than one of practic-e. 
 
 The proceeding for obtaining an order to bring money 
 or stock into court, is by motion on notice ; and all the 
 parties interested in the fund ought to be before the 
 court. When the order has been obtained, it must be 
 served on the defendant personally, and if the party on 
 whom it is made refuses or neglects to obey it, he will
 
 216 NEW EQUITY PRACTICE. 
 
 be liable to process of attachment, as in the case of any 
 other order. 
 
 The solicitor of the party ordered to pay the money in, 
 and desiring to comply with the order, pursues the same 
 course as that already pointed out in reference to other 
 kinds of orders for paying in money. 
 
 Executors and trustees, desiring to free themselves from 
 the liabilities .-.rising out of the possession of the trust 
 moneys, may, in certain cases, pay them into court under 
 the Legacy Act. the 36 Geo. 3, c. 52, s. 32, or the Trustees 
 Relief Act, the 10 & 11 Vict. c. 96. 
 
 The former act enacts, that -when by ren son of the infancy, 
 or absence beyond seas of any person entitled to any legacy, 
 or to the residue of any personal estate, or any part thereof, 
 chargeable with the legacy duty, the person or persons 
 having or taking the burthen of any will or testamentary in- 
 strument, or the administration of such personal estate, cannot 
 pay such legacy or some part thereof, although they may 
 have the same in their hands, such persons may pay such 
 legacy or residue, or any part thereof, after deducting the 
 duty chargeable thereupon, into the Bank of England, with 
 the privity of the Accountant- General, to be placed to the 
 account of the persons or person for whose benefit the same 
 shall be jtaid ; for payment of which money, the Accountant- 
 General is to give his certificate, as usual, on production 
 of the certificate of the Commissioners of Stamps that the 
 duty thereon has been duly paid ; and such pajanent is to 
 be a sufficient discharge for the money so paid in, provided 
 the duty be also paid ; and such money, when so paid in, 
 is directed to be laid out by the Accountant-General. with- 
 out any formal request for that purpose, in the purchase of 
 three per cent, consols, which, with the dividends thereon, 
 are to be transferred and paid to the persons entitled 
 thereto, or otherwise applied for their benefit, on applica- 
 tion to the court by petition or motion, in a sunmiary way. 
 
 For paying money in under this act, no order is requ'site; 
 for transferring stock, an order, which will be of course 
 ex parte, is requisite. 
 
 The executor may retain his costs out of the interest, and 
 pay in the balance.
 
 SERVICE. 217 
 
 IV. Oj Service 
 
 In causes regularly conducted, and in matters not requir- 
 ing personal service, the usual and suilicient service of all 
 proceedings re(juiring service is on the solicitor of the party 
 at his place ot" business. 
 
 The 17th Order ot" 1842 prescribes that every solicitor of 
 a party suing or defending by a solicitor, shall cause to be 
 indorsed or written upon every writ which he shall sue out, 
 upon every information, bill, demurrer, plea, answer, or 
 other pleading or proceeding, and all exceptions which he 
 may leave with the Clerks of Records and Writs to be filed, 
 and upon all instructions which he may give to the Clerks 
 of Records and Writs for any appearance or other purpose, 
 his name and place of business, and also (if his place of 
 business shall be more than three miles from the Record 
 and AVrit Clerks Office), another proper \Aace (to be called 
 his address for service), which shall not be nu)re than three 
 miles fi-om the said office, where writs, notices, orders, 
 warrants, rules, and other documents, proceedings, and 
 written communications may be left for him. And where 
 any such solicitor shall only be the agent of another solicitor, 
 he shall add to his own name or fn-m and place of business 
 the name or firm and place of business of the principal 
 sohcitor. 
 
 By the 19th, where a party sues or defends by a solicitor, 
 and no address for service of such solicitor shall have 
 been indorsed or added, pursuant to the directions of the 
 17th Order, all writs, notices, orders, warrants, rules, and 
 other documents, proceedings, and written communications 
 not requiring personal service on the party to be alfected 
 thereby, and which have heretofore been served upon the 
 sworn clerks or waiting clerks, shall, unless the court shall 
 otherwise direct, be deemed sufficiently served upon the party 
 if served upon his solicitor at his place of business ; but if an 
 address for service of such solicitor shall have been indorsed 
 or added as aforesaid, then all such writs, notices, orders, 
 warrants, rules, and other documents and written communi- 
 cations shall be deemed sufficiently served u])on such party 
 if left for his solicitor ai such address for servitie. 
 
 The 20th re(|uires thut a party proceeding in person shall 
 indorse his name, residence, and address lor service on all 
 proceedings. 
 
 And the 2 1 st, that Avhcn the party sues or defends in person, 
 and no address for service of such party shall have been in- 
 [CH.] U
 
 218 NEW EQUITY PRACTICE. 
 
 dorsed or written, pursuant to tte direction of the 20tb Order, 
 
 and in cases where any party has ceased to have a solicitor, 
 all writs, notices, warrants, rules and other documents, pro- 
 ceedings, and written communications not requiring personal 
 service upon the party to be affected thereby, shall, unless 
 the coiu't shall otherwise direct, he deemed to be sufficiently 
 served upon the party, if served upon him personally, or at 
 his place of residence ; but if an address for service of such 
 party shall have been indorsed or added as aforesaid, 
 then all such writs, notices, orders, warrants, rules and 
 other documents, proceedings, and written communications 
 shall be deemed sufficiently served upon such party, if left 
 for him at such address for service. 
 
 All services not requiring personal service must be 
 served before eight o'clock in the evening, otherwise it 
 shall Jje deemed service on the next day, excluding Sundays : 
 (•22nd Order.) 
 
 When a solicitor has caused an appearance to be entered, 
 or an answer, demuri'er, plea, or replication to be filed, he 
 must, on the same day, give notice thereof to the solicitor of 
 the adverse partv, or to the party himself if he acts in person : 
 (2;3rd Order.) 
 
 Where exceptions for scandal or insufficiency are filed, 
 notice thereof nmst be given, the same day, to the solicitor of 
 the adverse party, or to the party himself: (24th Order.) Ex- 
 ceptionsfor impertinence are, as we have already had occasion 
 to notice, abolished by the 15 & 16 Vict. c. 86, s. 17. 
 
 Service of a bill or claim substituted for the service of 
 subpoena to appear and answer, is by serving a printed copy 
 of the bill or claim, with the indorsement prescribed by the 
 15 & 16 Vict. c. 86, s. 3. 
 
 A copy of an amended bill or claim, whether upon an 
 amendment by a reprint, or by such alterations and additions 
 as mentioned in the 7th Order of August, 1852, is to be served 
 on the defendant or his solicitor, and the copy must be 
 stamped with the proper stamp by the Writ and Kecord 
 Clerk: (9th Order, August, 1852.) And whenever, under 
 the old practice, service of subijcena to appear and answer 
 on amended bill might be made on the defendant's solicitor, 
 service on the defendant's solicitor of the printed copy is 
 good ser\-ice : (10th same Orders.) 
 
 'N^Tien the defendant defends in person, service at his 
 address for service is good service : (11th same Orders.) 
 
 Unless the court gives special leave to the contrary, there 
 must be two clear days between the service of any notice of 
 motion, or any petition, and the day named or appointed for
 
 SERVICR. 2 If) 
 
 hearing the motion or petition. In the computation of sueh 
 two clear (hiys, Sunthiys and other days on whieli tiie oHices 
 arc closed, except IMonday and Tuesday in Easter week, 
 are not to be reckoned : (IfJth Order, 1845, No. 47.) 
 
 The court will sometimes jfive leave, on ex parte applica- 
 tion, to serve short notice of motion ; that is, notice with 
 less than two clear days between the notice and the hearing ; 
 when that is done, the notice must express on the face of it 
 that it is by h\ave of the court, and should state the date of 
 the leave, and the date for which the hearing is appointed. 
 
 Service of a bill has frequently to be made abroad. 
 
 By the 33rd Order of 184o, the court, upon applica- 
 tion supported by such evidence as shall satisfy the court 
 in what place or country the defendant is, or may probaljly 
 be found, may order that the, subpoena to appear, or to appear 
 and answer the bill, may lie served on such defendant in 
 such ])lace or country, or within such limits, as the court 
 thmks fit to direct. And now the court orders the printed 
 copy bill or claim to be served xmder this order. 
 
 The order limits such time (depending on the place or 
 country within which the printed copy bill is to be served) ; 
 after service of the printed copy bill, within which such 
 defendant is to appear to the bill, and also (if an answer be 
 requii'ed), a time within which such defendant is to plead, 
 answer, or demur, or obtain from the court any further 
 time to make his defence to the bill. 
 
 The 3rd article of the above Orders, prescribes that at the 
 time when such subpoena shall be served, the plaintiff is also 
 to cause the defendant to be served with a copy of the bill, 
 and a copy of the order giving the plaintiff leave to serve 
 the subpoena. As now the service of the printed copy has 
 the same effect as service of the subpoena had, an additional 
 copy of the bill is unnecessary ; but a copy of the order 
 giving the leave will be still requisite. Such an order is 
 obtained on an ex parte application, supported by affidavits 
 verifying the locale of the defendant ; and the affidavit 
 ghould also verify so much of the status of the defendant, 
 with reference to the suit, as will explain to the court the 
 nature of his interest and responsiljility. 
 
 It is unnecessary to go into a recapitulation or analysis of 
 the cases on this subject, as to the time the court will give ; 
 as it is entirely a matter of discretion, and the coiu't limits 
 always such a time as, having regard to the nature of the suit, 
 the locality of the defendant, and the publicly known or 
 
 firoved state of the means of transit to and fi'om that 
 ocality, it mav deem to be reasonaljle. 
 u 2
 
 220 NEW EQUITY PRACTICE. 
 
 Service of subpoena to hear judgment was, under the 
 16th Order of 1845, No. 45, to be within four weeks after 
 publication had passed. As there is now no such thincr as 
 publication passing, the subpogna will be served within four 
 weeks of the time when, under the orders of the court, the 
 evidence is closed. 
 
 It must be served at least ten days before the return 
 thereof, and is not to be returnable at any less time than 
 one month from the teste of the writ. Service of it on the 
 defendant's sohcitor is good service: (26th Order, 1845.) 
 
 A copy of the subpoena should be served on each defen- 
 dant, producing to him at the same the original. 
 
 When an injunction has been obtained, in strictness the 
 party affected should be personally served with a copy of 
 the writ of injunction. In practice, the party enjoined is 
 rarely served with anything more than a copy of the order 
 made by tbe court, and no writ is sued out. 
 
 In general, service of a decree or order should be by 
 personal service of a copy, but in certain cases the court 
 will permit substituted service. With regard to the service 
 of summonses for attendances in chambers ; by the 4th 
 Order of 16th October, 1852, in cases of applications 
 under the 15 & 16 Vict. c. 86, s. 45, applications for 
 guardianship and maintenance of infants, originating in 
 chambers, and of all other applications originating in 
 chambers, a duplicate of the summons is to be filed in the 
 Record and Writ Office ; and m cases where service is 
 required, the copies served are to be stamped in the manner 
 provided by s. 46 of the act. 
 
 By the 5 th Order, in cases where proceedings originate in 
 chambers, the original summons is to be ser\'ed seven clear 
 days before the return thereof. All other summonses, not 
 being summonses referred to in the second of the same 
 orders, are to be served two clear days before the return 
 thereof. 
 
 As service cannot be always effected upon the party who 
 ought to be served, the court, in a variety of Instances, allows, 
 what is termed substituted service, that is, service upon 
 some other person, which Is to have the same effect as if the 
 service had been upon the right person. 
 
 With regard to service of a printed copy bill or claim 
 under the 15 & 16 Vict. c. 86, the act (5th section), ex- 
 pressly reserves to the court liberty to direct substituted 
 service In such manner and In such cases as it shall think fit. 
 I have already, In treating of bills, discussed the cases, 
 and pointed out the principle on which substitution of a
 
 ATTACHMENT, 221 
 
 person to receive service iu lieu oftlie rip;lit person is l);ise(l, 
 and it is unnecessary here to treat of it further, as every ease 
 subject to that general princii)lu stands on its own circum- 
 stances. 
 
 Of Attachment generally. 
 
 I have already pointed out, that attaching a party is the 
 principal j)raetical step taken to compel a party to do that 
 which, under the General Orders, or practice, or under 
 special orders of the court, ho ouglit to do ; and I have 
 pointed out many of the cases in which, and the mode in 
 which, this process is applied. It remains to state some 
 matters generally connected with the subject. 
 
 And first, as to when an attachment may and when it 
 may not be issued. 
 
 An attachment issues, in general, against a oarty not 
 appearing or not answering, or the like, in due tune, as of 
 course. But as against a married woman, leave must be 
 obtained, and according to Graham v. Fitch (2 De Gex & 
 Sma. 246), such leave cannot be obtained ex parte. Attach- 
 ment under the 11th Order of 1841, is not the course, where 
 a party upon a taxation not in a cause is found debtor to 
 his solicitor ; there the old practice must be followed : {Re 
 Lowell, 9 Beav. 3;52.) 
 
 An attachment may issue against a minor ordered to con- 
 vey, and if a party intei-feres to prevent his obeying the 
 order, that is a contempt: {Thomas v. Gwynne^ 8 Beav. 
 312.) 
 
 ^Micn an attachment is issued for want of an appearance, 
 there must be, on obtaining it, an affidavit of service of the 
 copy bill, and if for default of answer, an affidavit of service 
 of a copy of the interrogatories. But the attachment is not 
 bad because the affidavit on which it was obtained was 
 made fifteen months before, unless something has occurred 
 since which alters the state of the case : ( Wroe v. Clayto-ii, 
 16 Sim. 183.) 
 
 The affidavit must, however, be precise. An affidavit, 
 therefore, of service of subpoena to appear and answer, 
 which did not clearly show where the service was, was held 
 insufficient, and an attachment obtained on such an affidavit 
 was discharged : (Bickford v, Skewes, 9 Sim. 428.) 
 
 An attachment, though regularly issued, may be dis- 
 charged, if the obtaining of It was against good faith, as 
 where the defendant had reasonable ground for thinking 
 that an answer would not be required without previous 
 u 3
 
 222 NEW EQCITY PRACTICE. 
 
 intimation, attachments for want of answer were discharged, 
 the defendants pacing the costs : {Siderfield v. Thatcher, 
 11 Beav. 201.) 
 
 And when there was proof of the defendant's inability, by 
 reason of ilhiess, to put in his answer, proceedings of con- 
 tempt were stayed : {Hicks v. Lord Alvanley^ 9 Beav. 163.) 
 
 The effect of an attachment is generally to prevent the 
 party from taking any active step till he has cleared his 
 contempt. But a party against whom an attachment has 
 issued for disobeying an order may move to discharge it : 
 (Broam v. Newnll, 2 Myl. & Cr. 558.) But if an attach- 
 ment has issued against a defendant for want of answer, he 
 cannot tile an answer and demurrer ( Viger.s v. Lord Audley^ 
 2 Myl. & Cr. 49), nor can he demur : (^Taylor v. Sheppard, 
 1 You. & Col. 94.) 
 
 If an attachment is issued for costs, it does not deprive 
 the party issuing it of any lien or right of set-off he may 
 have for the payment : (Bawbree v. Watso7i, 2 K. 713 ; and 
 Davies v. Bush, You. 358.) 
 
 When an attachment has issued, and the party has been 
 taken, and is entitled to his discharge in consequence of the 
 neglect of his opponent of some necessary step, and he re- 
 mains voluntarily in prison, another attachment may be 
 issued, and he will be lawfully detained under the second 
 attachment : (see Woodward v. Coneheer, 1 Hare, 297 ; and 
 Miles V. Wdliams, 9 Jur. 1030.) 
 
 The writ of attachment is prepared by the solicitor of the 
 party seeking to issue it, or by tlie party himself, if he sues 
 or defends in person : (16th Order of 1842 ; the forms are 
 kept printed at law stationers.) The writ must be indorsed 
 with the name and address of the solicitor, or of the party, 
 if acting without a solicitor ; and the nature of the writ is 
 stated by indorsement on the back. It is to be presented 
 to the Clerk of Records and Writs in vihose division the 
 cause is, and he seals it : when the writ is lefr for sealing, a 
 praecipe must be left with it. The praecipe is a direction 
 in writing to the Clerk of Records and "VViits to seal the 
 attachment. It states the title of the cause, the ground of 
 the attachment, and the county into which it is to issue. 
 
 Of Taxation of Solicitor's Bills of Costs, 
 
 The taxation of a sohcitor's bill of costs depends on the 
 practice of the court, founded on its inherent jurisdiction, 
 and on the provisions of the 6 & 7 Vict, c 73. 
 
 Of the taxation of costs for the business done in a suit
 
 TAXATION OP COSTS. 223 
 
 under the ordinary practice of the court, I liave already 
 treated in discussiiifr the subject of costs generally, liut 
 tliat portion of the subject relates only to tlie case of the 
 costs payable by the a<lverse party, or out of a fund charged 
 ■with the costs as l)et\veen solicitor and client. There re- 
 mains to be considered the rights of the solicitor and client, 
 on the subject of costs as betwci^n themselves ; for there are 
 many charges which the solicitor may be entitled to make 
 to his client in a suit, whether the costs are taxed as be- 
 tween party and party, or as between solicitor and client, 
 and there is, in addition, the subject of bills of costs for 
 business done either partly in a suit and partly not in a suit, 
 or altogetlier not in a suit. In all these cases the solicitor's 
 bill is, under certain regidations, liable to taxation. 
 
 The 37th section of the (5 & 7 Vict. c. T.'J, j)rovides that 
 no attorney or solicitor, nor any executor or administrator, 
 or assignee of any attorney or solicitor, shall commence or 
 maintain any action or suit for the recovery of any fees, 
 charges, or disbursements for any business done by such 
 attorney or solicitor, until the expiration of one month 
 (which is by s. 48 to be a calendar month) after such attorney 
 or solicitor, or executor, administrator, or assignee of such 
 attorney or solicitor, shall have delivered unto the party to 
 be charged therewith, or sent to the party, or left for him 
 at his counting-house, office of business, dwelling-house, or 
 last known place of abode, a bill of such fees, charges, and 
 disbursements, and which bill shall be either subscribed with 
 the proper hand of such attorney or solicitor (or in the case 
 of a partnership by any of the partners, eitlier with his own 
 name or with the style or name of such j)artnersljip), ac- 
 companied by a letter subscribed in like manner, referring 
 to such bill. 
 
 And upon the application of the party chargeable by such 
 bill within such month, it shall be lawful in case the business 
 contained in such hill., or any part thereof., shall have been 
 transacted in the High Court of Chancery, or in any other 
 Court of Equity, or in any matter of bankruptcy or lunacy, 
 or in case no ])art of such business shall have been transacted 
 in any court <flaic or equity, for the Lord High Chancellor 
 or the Master of the Rolls ; and in case any part of such 
 business shall have been transacteii in any other court, for 
 the Courts of Queen's Bench, Common IMims, Exchequer, 
 Court of Common Pleas at Lancaster, or Court of Pleas at 
 Durham, or any judge of either of them, and tliey are hereby 
 required, to refer such bill, and the demand of such attorney 
 or solicitor, executor, administrator, or assignee thereupon
 
 224 NEW EQUITY PRACTICE. 
 
 to be taxed and settled by the proper officers of the court 
 inSwhieh such rei'erence shall be made, without any money 
 being brought into court. And the court or judge making 
 such reference shall restrain such attorney or solicitor, or 
 executor, administrator, or assignee of such attorney or 
 solicitor, from commencing any action or suit touching such 
 demand pending such reference. And in case no such ap- 
 pUcatiou as aforesaid shall be made within such month as 
 aforesaid, then it shall be lawful for such reference to be 
 made as aforesaid, either upon the application of the attorney 
 or solicitor, or the executor, administrator or assignee of the 
 attorney or solicitor whose bill may have been, as aforesaid, 
 deUvered, sent, or left, or upon the application of the party 
 chargeable by such bill, with such directicms, and subject to 
 such conditions, as the court or judge making such reference 
 shall think proper : provided that no such reference as 
 aforesaid shall be directed upon an application made by the 
 party chargeable with such bill, after a verdict shall have 
 been obtained or a writ of inquiry executed in any action 
 for the recovery of the demand of such attorney or solicitor, 
 or executor, administrator, or assignee of such attorney or 
 soUcitor, or after the expiration of twelve months after such 
 bill shall have been delivered, seid, or left as aforesaid, except 
 vnder special circumstances to be proved to the satisfaction of 
 the court or judge to whom the application for such reference 
 shall he made. And upon every such reference, if either the 
 attorney or solicitor, or executor, administrator, or assignee 
 of the attorney or solicitor, whose bill shall have been 
 delivered, sent, or left, or the party chargeable with such 
 bill, having due notice, shall refuse or neglect to attend such 
 taxation, the officer to whom such reference shall be made 
 may proceed to tax and settle such bill and demand ex 
 parte j and in case any such reference as aforesaid shall be 
 made upon the application of the party chargeable with 
 such bill, or upon the application of such attorney or solicitor, 
 or the executor, administrator, or assignee of such attorney 
 or solicitor, and the party chargeable with such bill shall 
 attend upon such taxation, the costs of such reference shall, 
 except as hereinafter provided for, be paid according to the 
 event of such taxation ; that Is to say, if such bill, when 
 taxed, be less by a sixtli part than the bill delivered, 
 sent, or left, then such attorney or solicitor, or executor, 
 administrator, or assignee of such attorney or solicitor, shall 
 pay such costs. And if such hill, when taxed, shall not be 
 less by a one- sixth part than the bill delivered, sent, or left, 
 then the party chargeable with such bill, making such ap-
 
 TAXATION OF COSTS. z2o 
 
 plication or so attc-ntlinu:, sliali pay sucli custs. atnl every 
 order to l)e made fur such reference as aforesaid, shall 
 direct the oflicer to whom such reference shall be made to 
 tax such costs of such reference to be so j)aid as aforesaid, 
 and to certify what, upon such reference, shall be found to 
 be due to or from such attorney or solicitor, or executor, 
 administrator, or assignee of such attorney or solicitor, in 
 respect of such bill and demand, and of the costs of such 
 reference, if ])ayable. Provided that such ofhcers shall, in 
 all cases, be at liberty to certify specially any circumstances 
 relating to such l)ill or taxation, and the court or judge 
 shall be at liberty to make thereupon such order as such 
 court or judge may think right, respecting the costs of such 
 reference. Provided also, that it shall be lawful for the 
 said superior coui'ts and judges, in the same cases in which 
 they are respectively authorized, to refer a bill which has 
 been so delivered, sent, or left, to make such order for the 
 delivery by any attorney or solicitor, or the executor, ad- 
 ministrator, or assignee of any attorney or solicitor, of such 
 bill as aforesaid, ami for the delivery up of deeds, docu- 
 ments, or papers in his possession, custody, or power, or 
 otherwise touching the same, in the same maimer as has 
 been heretofore done as regards such attorney or solicitor 
 by such courts or judges respectively, when any such busi- 
 ness has been transacted in the court in which such order 
 was made. Provided that it shall not be necessary, in the 
 first instance, for such attorney or solicitor, or the executor, 
 administrator, or assignee of such attorney or solicitor, in 
 proving a compliance with the act, to prove the contents of 
 the bill he may have delivered, sent, or left, but it shall 
 be sudicient to prove that a bill of fees, charges, or dis- 
 bursements, subsci'ibed in the manner aforesaid, or inclosed 
 in, or accon)panied by such letter as aforesaid, was de- 
 livered, sent, or left in manner aforesaid ; but, nevertheless, 
 it shall be competent for the other party to show that 
 the bill so delivered, sent, or left was not such a bill as 
 constituted a bu7id fide compliance with the act. Pro- 
 vided also, that it shall be lawful for any judge of the 
 superior courts of law or equity to autliori/e an attorney or 
 solicitor to commence an action or suit for the recovery 
 of his fees, charges, or disbursements against the pa^ty 
 chargeable therewith, although one month shall not have 
 expired from the delivery of such bill as aforesaid, on proof, 
 to the satisfaction of the saiil judge, that there is probable 
 cause for believing that such party is about to c[uit England." 
 The 3Sth section empowers a person not the party chai'ge-
 
 226 NEW EQUITY PRACTICE. 
 
 able -witliin the meaning of the 37th clause, who shall be 
 liable to pay or shall have paid any such bill, to apply for a 
 reference of taxation, as if he were the party chargeable. 
 And if, in such case, the case is one in which, under the 
 37th section, application could not be made except under 
 special circumstances, the court may take into consideration 
 any sjK'cial circumstances applicalile to the person actually 
 making the application, though they might not be appli- 
 cable to the person strictly under the 37th section charge- 
 able with the hill. The 39th section authorizes the Lord 
 Chancellor or Master of the Rolls, in cases in which trustees, 
 executors, or administrators have become chargeable, to 
 refer the bill, on the application of a party interested in the 
 property^ out of ivhich the trustee^ executor, or administrator 
 muy have paid., or he entitled to pay the hill. 
 
 By the 48th section, the court may order, for the purpose 
 of any such reference, the solicitor or attorney, &c., to deliver 
 to the party making the application a copy of the bill, on 
 his paying the costs of the copy. 
 
 B}' the 41st section, it is provided that the paj-ment of 
 any such biU as aforesaid shall in no case preclude the 
 court or judge to whom application shall be made from re- 
 ferring such bill for taxation, if the special circumstances 
 of the case shall, in the opinion of such court or judge, 
 appear to require the same, upon such terms and conditions, 
 and subject to such directions as to such court or judge shall 
 seem right, provided the application for such reference be 
 made within twelve calendar months after payment. 
 
 Applications, made under the act. are to be made in the 
 matter of such attorney or solicitor: (sect. 43.) 
 
 In general, it will have been seen by the act, that no 
 application to tax can be made more than twelve months 
 after the delivery of the bill, or if it has been paid, twelve 
 months afterpayment, unless there are special circumstances. 
 What are special circumstances has been the subject of much 
 discussion. 
 
 A residuary legatee applied, more than twelve months after 
 payment, to tax the bill brought against the executor. It 
 was refused, notwithstanding there had been some agree- 
 ment between the legatee and the solicitor, and that payment 
 had been afterwards made behind the back of the legatee : 
 {Re Bees, 12 Beav. -JoG.) 
 
 Overcharge alone is not sufficient, but overcharge and 
 surpnse or pressure combined, may amount to such circum- 
 stances as will entitle the client to tax a bill paid; the appli- 
 cation being within twelve months ©f the payment. Thus,
 
 TAXATION OF COSTS. 227 
 
 where a meeting was appointed to settle important matters 
 on the twenty-third of August, and the costs were ilw.n to 
 be i)aid by A. li., and the l/iU of rusts was only dL-lIverod 
 the niylit before, and payment was then insisted on, tiiough 
 the bill was objected to : on evidence of overcharge, taxation 
 was ordered after the payment : (Re Elinslie, 12 IJeav. 538.) 
 Eut where taxation was sought on the ground of over- 
 charge in abstracts containing less than ten folios per page, 
 but there was no pressure or surprise, the taxation was 
 refused : (lie Walsh, Vl Eeav. 490.) 
 
 In Re Welchmun (11 Beav. 319), the question what was 
 undue pressure came under consideration. In March, 1847, 
 a railway company agreed to purchase some property and pay 
 the vendor's costs; in May, 1847, possession was delivered. 
 The bill of costs of the vendor's solicitor was delivered on 
 the 13th June, 1848, and a meeting to complete the purchase 
 took place between the solicitors on the 20th June, when 
 objections were made to the bill, and the solicitor otiered 
 to refer it to any respectable solicitor. The bill was then 
 paid under protest, and with an intimation that a petition 
 for taxation would be presented. It was held there was no 
 sufficient pressure to justify taxation. So, in Re Drew 
 (10 Beav. 368), a bill of costs was delivered on the 21st, and 
 the party objected strongly to it ; on the 2()th the solicitor 
 demanded payment ; on the 30th the client paid it, and then 
 he presented a petition for taxation. Held, that there was no 
 suiHcient pressure, and the taxation was refused. That 
 overcharge alone will not do (see Re Stirke, 1 1 Beav. 304) ; 
 there must be overcharge and pressure. 
 
 Where^there is a doubtful special agreement for costs, the 
 court has no jurisdiction on petition for taxation to construe 
 it : (Re Beale, II Beav. 600.) But the court will take the 
 effect of a special agreement, in itself clear, into consideration 
 on the question of taxation, vmder a common order for taxa- 
 tion : (Re Eyre, 10 Beav. 5G9.) 
 
 And under the common order, the ^Master may take 
 an account of sums received by the sohcitor for his client in 
 the ciiaracter of soli'jitor, and which are connected with the 
 items in the bill ; but he cannot take a general account 
 between the parties: (^Cooper v. Eumrt, 15 Sim. 564.) 
 
 A special jietition for taxation of a paid bill, must set 
 forth the special circumstances ; but it need not mention the 
 specific items objected to. Thus, in Ex parte Andrews (13 
 L. T. 222), the petition stated that the solicitors had re- 
 fused to allow certain deeds to be examined till their bill of 
 costs had been paid; but it did not refer to the items
 
 228 NEW EQUITY PRACTICE. 
 
 oV)jocted to. The Lord Cliancellor said, the allegation 
 amounted to a special circumstance within the meaning of 
 the a<.'t, and if the petitioner had relied on that only, he 
 should have made the order. Unfortunately, in that case, 
 the petitioner went further, and in his affidavit fixed on par- 
 ticular items, which he thought the most objectionable, but 
 which the court thought sufficiently explained, and the order 
 was therefore refused. 
 
 But in lie Bennett (8 Beav. 4G7), where a cestui cjue trust 
 sought to tax the bill paid by his trustee, the court said, 
 that when you seek to have taxation of a bill paid, on the 
 ground of overcharges, the specific items must be alleged 
 in the petition and proved In the evidence. In that case, 
 however, the petitioner did not even allege any special cir- 
 cumstances^ but merely that the bill contained many improper 
 and extravagant charges. 
 
 The act expressly provides that a bill may be taxed, though 
 the whole of it is for business out of court, but it must be 
 business connected with the attorney's profession of an 
 attorney. In other words, it must be business arising out 
 of the relation of attorney and client : {Allen v. Aldridge, 
 5 Beav. 401.) 
 
 A petition for taxation of a bill of costs, within the month, 
 is what is termed a petition of course, and the order is as of 
 course ; that is, no opposition can be made to it. The 
 petition is therefore ex parte, like anj' other petition of 
 course, and the order is made as of course. The petition 
 then only states the employment of the solicitor, as such ; 
 that the solicitor delivered the bill, and that the petitioner 
 submits to pay it upon taxation. But after payment, or after 
 the month, the application is special, and must be served on 
 the respondent, and is heard in court ; an ex parte applica- 
 tion in such a case is irregular: (^lie Becke, 5 Beav. 406.) 
 
 But an order of course for taxation will be discharged 
 with costs, if the solicitor denies the employment : {Re 
 Eldridge, 12 Beav. .387.) 
 
 If a solicitor is employed by three jointly, two may present 
 a petition for taxation, though the third will not concur ; 
 but the third must be served : {Re Hair, 10 Beav. 187.) 
 
 It has Vjeen stated, that to obtain taxation after payment, 
 there must be pressure and overcharge. But if there is 
 pressure, slight overcharge will be sufficient, and it is not 
 necessary the overcharge siiould amount to fraud: {Re 
 Wells, 8 Beav. 416.) In that case, the whole bill was only 
 nineteen pounds one shilling and tenpence, the overcharges 
 amounted to two pounds four shillings, and the solicitor
 
 TAXATION OF COSTS. 229 
 
 obtainotl his costs of the prtitlon and of the, taxation. To 
 this case the reporter appends an instructive note, that " the 
 respondent's costs alone of these jjroceedings, which ended 
 in sti'iking oil" two jiounds four shillings from a bill of nine- 
 teen pounds one shilling and tenpence, were taxed at forty- 
 five pounds nine shillings." 
 
 It has been very mut-h the practice to present petitions for 
 taxation at the Rolls, and not elsewhere, but it is ([uite 
 settled that such petitions may be dealt with by any Vice- 
 Chancellor, as well as by the Alaster of the Rolls. 
 
 AVith regard to the necessity of signature by the solicitor 
 to his bill of costs, that is intended by the act for the pro- 
 tection of the client, not of the solicitor ; and therefore, 
 though the solicitor cannot sue for his bill, unless he has so 
 authenticated it, the absence of the authentication docs not 
 prevent the client presenting a petition for taxation : (i?e 
 Pender, 2 Phil. 69.) 
 
 The payment of the bill is, prima facie, an admission of its 
 correctness. Hence it is that the client, desiring afterwards 
 to tax it, must show special circumstances. Those special 
 circumstances are usually, as we have shown, pressure and 
 overcharge. The case of Re Wells shows that, if there is 
 pressure proved, very slight ovei'charges are sufficient. And 
 lie Harding (10 Beav. 250), seems to show, on the other 
 hand, that if there is evidence of overcharge amounting to 
 fraud, that is, overcharges so gross that they must be con- 
 sidered fraudulent, very little evidence of pressure will do. 
 Re Drake (8 Beav. 1'23) shows clearly that one of the 
 circumstances alone will not do. In that case, the petition 
 alleged that the bill had been paid under protest, and speci- 
 fied overcharges amounting to over half the bill. The pay- 
 ment was not proved to have been made under protest, and 
 the court dismissed the petition, expressing, at the same time, 
 its dissatisfaction with the correctness of the items, and on 
 that ground giving no costs. 
 
 [CII.]
 
 APPENDIX. 
 
 15 & 16 Vict. cap. 86. 
 
 All Act to amend the Practice and Course of Proceeding in 
 the High Court of Chancery. 
 
 Be it enacted — 
 
 Sect. I. Practice of engrossing hills on parchment discontinued, and 
 a printed hill to he fled instead. — From and after the time hereinafter 
 appointed for the commencement of this act, the practice of engrossing 
 on parchment hills of complaint or claims to be filed in the said court, 
 and of filing such engrossment, shall he discontinued ; and the Clerks 
 of Records and Writs of the said comt shall receive and file a printed 
 bill of complaint or claim, in lieu of an engrossment thereof, in like 
 manner as they now receive and tile such engrossment. 
 
 A printed bill in ■which a party had been described by the christian 
 name of Maria Constaiitia, instead of Constantia Maria, and which 
 had been altered by the plaintiff's solicitor, by transposing the words, 
 striking out ilaria, before, and writing it in ink after Constantia, was 
 ordered to be filed though not wholly printed. The court observing 
 that such an order would not be made extending to sanction any exten- 
 sive or important alteration in the printed document, or any alteration 
 which would ailect its legibility: (^Yeatmaii v. Moulseg, 16 Jur. 
 1004.) 
 
 II. Writs of suhpasna and summons to be abolished. — The writ of 
 subpoena to appear to and answer a hill of complaint, in the said court, 
 and the verit of summons upon a claim shall respectively be abolished. 
 
 III. Defendants to he served with a printed hill in lieu of the writs of 
 stihpcena and summons. — In lieu of serving the defendant to a hill of com- 
 jjlaint in the said court with a writ of subpoena to appear to and answer 
 the same, and in lieu of serving the defendant to a claim in the said court 
 with a writ of summons upon .such claim, in the mode and according to the 
 practice now adopted in the .said court with reference to such writs re- 
 spectively, the defendant shall be served with a printed bill of complaint or 
 claim, with an indorsement thereon, in the form or to the effect set out in 
 the schedule to this act, with such variations as circumstances may require, 
 such printed bill of complaint or claim so to be served being previously
 
 15 & 16 Vict. cap. 86. 231 
 
 stamped with a proper stamp by one of the Clerks of Records and Writs, 
 indi(^Uing the filing of such bill of complaint or claim, and the date of 
 the filing thereof. 
 
 The iiiilorsement on a bill or claiiu, if printed, may be 
 altered before It is served, when the time for appearance has 
 been enlarj^ed or varied by the order of the court. Quare, 
 ■whether it is nt'cessary that the indorsement on a bill or claim 
 should b(! printed : {Bdijnes v. Itidge, 9 ILire, App. 27 ; 
 and see Chutjidd v. Berchtoldt, 9 Hare, App. 28.) 
 
 IV. ThefiJinfi and service of a printed bill or claim to have the same 
 effect as the fdiwj and issuing of writs of subpoina and summons. — 
 The filing of a printed bill of complaint or claim in the said court 
 shall have the same effect as the filing of a bill of complaint or 
 claim in the same court, and the issuing of a subprona or writ of sum- 
 mons thereon respectively now have, and the service upon the defendant 
 of a printed bill of complaint or of a claim so filed with such indorse- 
 ment thereon, so stamped as aforesaid, shall have the same effect as the 
 service on him of a writ of subpoena or writ of siuamons respectively 
 now has, and shall entitle the plaintifl' in such suit to such remedies for 
 default of appearance and otherwise as he is now entitled to in case 
 of due and proper service of a subpoena to appear to and answer a bill 
 of complaint, or of a writ of summons upon a claim. 
 
 V. As to service of printed bill. — The service upon any defendant of a 
 printed copy of a bill of complaint or of a claim in the said court shall 
 be effected in the same manner as service of a writ of subpcena to appear 
 to and answer a bill of complaint is now effected, save only that it shall 
 not be necessary to produce the original bill or claim, which will be on 
 the files of the court ; provided that the com-t shall be at liberty to 
 direct substituted service of such printed bill or claim, in such manner 
 and in such cases as it shall think fit. 
 
 VI. Written copies of bills may be served in certain cases, upon 
 plaintiff undertaking to fie a jmnied copy in fourteen days. — 
 Notwithstanding the provisions hereinbefore contained, the Clerks of 
 Records and Writs of the said court may receive and file a written 
 copy of any bill of complaint praying a writ of injunction or a writ of 
 ne exeat regno, filed for the purpose either solely or among other things 
 of making an infant a ward of the said court, upon the personal under- 
 taking of the plaintiff or his solicitor, to file a printed copy of such 
 bill within fourteen days, and every bill of complaint so filed shall be 
 deemed and taken to have been filed at the time of filing the written 
 copy thereof; and a written copy of aiiy such bill of comphiiiit, stamped 
 as aforesaid, may be served on any defendant thereto, and such servicf^ 
 shall have the same eft'ect as the service of a printed copy. 
 
 A plaintiirvvho has filed a written copy of his bill under 
 the statute, may file interrogatories under section 12, not- 
 withstandino: the time allowed for filing the printed copy 
 has not expn-ed, and he has not filed such printed copy : 
 (^Lambert v. Lomus, 9 Hare, App. 29.) 
 X 2
 
 232 15 & 16 Vict. cap. 86. 
 
 VII. Plaintiff" to deliver printed copies or bill of claim at rate pre- 
 scribed bi/ Lord Chancellor. — The plaintiff in any suit to be commenced 
 in tlie siiid court after the time hereinafter appointed for the commence- 
 ment of this act, shall be bound to deliver to the defendant or his solicitor, 
 upon application for the same, such a number of printed copies of his bill 
 of complaint or claim as he shall have occasion for, upon being paid for 
 the same at such rate as shall be prescribed by any General Order of 
 the Lord Chancellor in that behalf. 
 
 VIII. Provisions as to filing, c^c., prints of original hill extended to 
 amendments — In certain cases a printed bill may be tvholli/ or par- 
 tially amended. — Upon the amendment of any bill of complaint or claim, 
 to be filed in the said court, after the time hereinafter appointed for 
 the commencement of this act, the provisions hereinbefore contained 
 with respect to filing and serving, and delivering .printed copies thereof 
 shall, so far as may be, extend and be applicable to the bill or 
 claim as amended : provided that where, according to the present 
 practice of the said court, an amendment of a bill or claim may be 
 made without a new engrossment thereof, or under such other circum- 
 stances as shall be prescribed by any General Order of the Lord 
 Chancellor in that behalf, a bill or claim may be wholly or partially 
 amended by written alterations in the printed bill of complaint or 
 claim so to be filed as aforesaid. 
 
 Where more than two folios In one place are introduced 
 by amendment in a bill, it must be reprinted : (^Stone v. 
 Davies, 3 De Gex, Macn. & Gord. 240.) 
 
 IX. Power to Lord Chancellor to revive the present practice as to 
 filing of bills, tfc— It shall be lawful for the Lord Chancellor from time to 
 time to make any order or orders directing that the provisions hereinbefore 
 contained as to printing or otherwise shall be discontinued or suspended 
 until further order, and to direct that all or any of the present practice 
 as to the filing of bills and claims, and the issuing and service of sub- 
 poenas and writs of summons, may be revived and come into operation 
 as if this act had not passed. 
 
 X. Bills of complaint to contain concise narrative of material fcucts, 
 (fc. divided into numbered paragraphs, but not to contain interroga- 
 tories. — Every bill of complaint to be filed in the said court after the 
 time hereinafter appointed for the commencement of this act shall contain 
 as concisely as may be a narrative of the material facts, matters, and 
 circumstances on which the plaintiff relies, such narrative being divided 
 into paragraphs numbered consecutively, and each paragraph containing, 
 as nearly as may be, a separate and distinct statement or allegation, and 
 shall pray specifically for the relief which the plaintiff may conceive himself 
 entitled to, and also for general relief: but such bill of complaint shall 
 not contam any interrogatories for the examination of the defendant. 
 
 It is not necessary now, in every case, to insert a charge 
 of documents in a bill, as a foundation lor the usual interro- 
 satories concernino; them. 
 
 Exceptions to an answer to an uiterrogutory concerning
 
 15 & 16 Vict. cap. 86. 233 
 
 documents, arc now ini necessary, because the discovery may 
 be enforced in chambers : {Perry v. Turpin, Kay, App. 49.) 
 
 XI. Person whose name is used as next friend of uvy infant, ifc.i 
 in any suit, i/c, to sign a written aitthorili/. — Hefore the name of any 
 person shall be used in any suit to be instituted in the said court, as 
 next friend of any infant, married woman, or other party, or as relator in 
 any information, such person shall sign a written authority to the solici- 
 tors for that purpose, and such authority shall be filed with the bill, 
 information, or claim. 
 
 XII. Interrogatories to be filed in Record Office hy plaintiff within 
 time prescribed. — Within a time to be limited by a General Order of the 
 Lord Chancellor in that behalf, the plaintiff in any suit in the said 
 court commenced by bill, may, if he requires an answer from any 
 defendant thereto, file in the Record Office of the said court interroga- 
 tories for the examination of the defendant or defendants, or such c)f 
 them from wlioiu he shall require an answer, and deliver to the defen- 
 dant or defendants so reijuired to answer, or to his or th(>ir solicitor, 
 a copy of such interrogatories, or of such of them as shall be applicable 
 to the particular defendant or defendants: and no defendant shall be 
 called upon or required to put in any answer to a bill unless interroga- 
 tories shall have been so filed, and a copy thereof delivered to him or 
 bis solicitor, within the time so to be limited, or within such further time 
 as the court shall think fit to direct. 
 
 Delivery of a copy of the interrogatories to a bill by 
 leaving it at the ofHce of the defendant's solicitors, without 
 being served on the solicitor personally, held sufficient under 
 this section : (Bowen v. Price, 2 De Gex, Macn. & Gord. 
 899 ; see also the case in the note to section 6.) 
 
 XIII. Defendants may answer without leave within the time now 
 allowed, though not required so to do by plaintiff; but after that time 
 defendant must have leave. — Whether the plaintiff in any suit in the said 
 court commenced by bill does or does not require any answer from the 
 defendant oranyoneor more of the defendants to tlic bill, such defendant 
 or defendants may, without any leave of the court, ])ut in a plea, answer, 
 or demurrer to the plaintiff's bill, within the time now allowed to the defen- 
 dant for demurring alone to a bill, or within such other time as shall 
 be fixed by any General Order of the Lord (chancellor in that behalf ; 
 but after that time a defendant or defendants not required to answer 
 the plaintiff's bill, shall not be at liberty to put in a plea, answer, or 
 demurrer to the bill, without leave of the court : provided that the 
 power of the court to grant further time for pleading, answering, or de- 
 murring, to any bill upon the application of any defendant or defendants 
 thereto, whether required to answer the bill or not, shall remain in full 
 force, and shall not be in any wise prejudiced or affected : provided als^ 
 that if the court shall grant any further time to any defendant for 
 pleading, answering, or demurring to the bill, the plaintiff's right to 
 move for 4 decree under the provisions hereiuafter contained, shall, in 
 the meantime be suspended. 
 
 X 3
 
 234 15 & 16 Vict. cap. 86. 
 
 XIV. Defendant's answer may contain not only anstcer to interroga- 
 tories, hut statements material to his case. — The answer of the defendant 
 to any bill of complaint in the said court, may contain not only the answer 
 of the defendant to the inteiTojratories so filed as aforesaid, but such state- 
 ments material to the case as the defendant may think it necessary or 
 advisable to set forth therein, and such answer shall also he divided into 
 paragraphs, numbered consecutively, each paragraph containing as nearly 
 as may be a separate and distinct statement or allegation. 
 
 XV. Plaintiff may, on expiry of time for ansu-ering, but bejbre 
 replication, move for a decree or decretal order — Affidavits may he 
 
 filed. — The plaintifi" in any suit commenced by bill shall be at liberty, 
 at an}' time after the time allowed to the defendant for answering the 
 same shall have expired (bnt before replication), to move the coml, upon 
 such notice as shall in that behalf be prescribed by any General Order • 
 of the Lord Chancellor, for such decree or decretal order as he may 
 think himself entitled to ; and the plaintiff and defendant respectively 
 shall be at liberty to file affidavits in support of and in opposition to 
 the motion so to be made, and to use the same on the hearing of 
 such motion ; and if such motion shall be made after an answer filed in 
 the cause, the answer shall, for the purposes of the motion, be treated aa 
 an affidavit. 
 
 After filing a traversing note against one defendant, the 
 plaintiif can proceed by motion for decree as though the 
 traversing note were an answer : (^Maniere v. Leicester, 
 Kay, App. 48.) 
 
 A plaintiff in a suit commenced by bill, before as well as 
 after the 15 & IG Vict. c. 86, may move for a decree under 
 the 15th section : (Cousins v. Vasey, 9 Hare, App. 31.) 
 
 Notice of motion for a decree, under the 15th section of 
 the act, may be served on a defendant out of the jurisdic- 
 tion. The order for leave to serve the notice out of the 
 jurisdiction is to be drawn up and served, and is to specify 
 the time allowed for filing affidavits in reply : (Meek v. 
 Ward, 10 Hare, App. 55.) 
 
 X\' I. Covrt may refuse or grant such motion, or make order for fur- 
 ther prosecution, cfc. — Upon any such motion for a decree or decretal 
 order it shall be discretionary with the court to grant or refuse the 
 motion, or to make an order giving such directions for or with respect 
 to the further prosecution of the suit as the circumstances of the case 
 may require, and to make such order as to costs as it may think right. 
 
 XVII. Practice of excepting to hVU, ansicers, ipc, for impertinence 
 aholishf.d — Prociso as to costs. — The practice of excepting to bills, 
 answers, and other proceedings in the said court, for impertinence, shall 
 be and the sime is hereby abolished : provided always, that it shall 
 be lawful for the court to direct the costs occasioned by any impertinent 
 matter introduced into any proceedings in the said court to be paid by 
 the party introducing the same, upoa application being made to the 
 court for that purpose.
 
 15 & IG Vict. cap. 86. 235 
 
 X VITI. Court or judge may order defendant to produce documents, cfr. 
 on onth. — It sliall be lawful for the court, upon the application of the 
 plaintiff" in any suit in the said court, whether commenced by bill or by 
 claim, and as to a suit commenced by bill, whether the defend^int may or 
 may not have been required to answer tlic bill, or may or may not iiavo 
 been interrogated as to the possession of documents, to make an order 
 fur the production by any defendant, upon oath, of such of the docu- 
 ments in his possession or power relating to matters in question in the 
 suit, as the court shall think right; and the court may deal with such 
 documents, when produced, in such manner as shall appear just. 
 
 The 18th section of tlie act does not enable a phiintiff to 
 read an allubudt ou a motion to produce documents, to sub- 
 stantiate the possession of" documents not specifically ad- 
 mitt(5d by the answer to be in the defendant's possession : 
 {Lamb v. Ortun, 1 Drew. 414 ; see also the note to section 6.) 
 
 Exceptions for insufficiency of answers to interrogatories 
 as to books and papers under the new practice, generally 
 discouraged. Whether a company or corporation, answenng 
 under their common seal, is a defendant against whom an 
 order may be made under the ISth section of the act, 
 qucere : {Law v. London^ ^c, 10 Hare, App. 20.) 
 
 XIX. In certain cases defendant, after answer, may file interroga- 
 tories for exdmination of plaintiff — Defendant may exhibit a crossbill 
 instead of jiliiig interrogatories. — It shall he lawful for any defendant in 
 any suit, whcliier commenced by bill or by claim, but in suits commenced 
 by bill which the defendant is required to answer, not until after he shall 
 haveput in a sufficient answer to the bill, and without filing any cross bill 
 of discovery, to file in the Record Office of the said court, interrogatories 
 for the examination of the plaintiff^, to which shall be prefixed a concise 
 statement of the subject on which discovery is sought, and to deliver 
 a copy of such interrogatories to the ])laintitt' or his solicitor; and such 
 plaintiff' shall be bound to answer such interrogatories in like manner as 
 if the same had been contained in a bill of discovery filed by the defen- 
 dant against him, on the day which such interrogatories shall have 
 been filed, and as if the defendant to such bill of discovery had on the 
 same day duly appeared, and the practice of the court with reference to 
 excejjtini; to answers for insufficiency or for scandal, shall extend and be 
 applicable to answers pnt in to such interrogatories, provided that in 
 determining the materiality or relevancy of any such answer, or of any 
 exception thereto, the court is to have regard in suits commenced by 
 bill, to the statements contained in the original bill, and in the answer 
 which may have been put in thereto, by the defendant exhibiting such 
 inlenog.itories for the examination of the plaintiff', and in suits com- 
 menced by claim, to the statements therein, and in any aflBdavits 
 which may have been filed either in support thereof, or in opposition 
 thereto; provided also, that a defendant, if he shall think fit so to do, 
 may exJiibit a cross bill of discovery against the plaintiff, instead of 
 filing interrogatories for his examination.
 
 236 15 & 16 Vict. cap. 86. 
 
 XX. Upon application of defendant after answer, plaintiff may he 
 required to produce documents on oath. — It shall be lawful for the court, 
 upon the application of any defendant in any suit, whether commenced by 
 bill or by claim, but as to suits commenced by bill, where the defendant 
 is required to answer the plaintiff's bill, not until after he has put in 
 a full and sufficient answer to the bill, unless the court shall make any 
 order to the contrary, to make an order for the production by the plaintiff 
 in such suit on oath of such of the documents in his possession or power 
 relating to the matters in question in the suit, as the court shall think 
 right ; and the court may deal with such docum.ents, when produced, in 
 such manner as shall appear just. 
 
 The 20tb section of the statute does not extend to enable 
 a defendant to obtain an order for the production of docu- 
 ments in the possession of co-defendants ; in such a' case, 
 a cross bill may still be necessary : [Attorney -General v. 
 Clapham^ 10 Hare, App. 68.) 
 
 No affidavit Is necessary to support an application for 
 production of documents on oath under the 20th section of 
 the act, whether the application be by the plaintiff or by the 
 defendant: (Rochdale Canal Company v. King, 15 Beav. II.) 
 
 XXI. Practice of issuing commissions to take answers, cfc, within 
 the jurisdiction of the court abolished. — The practice of the said court, 
 of issuing commissions to take pleas, answers, disclaimers, and examina- 
 tions in causes and matters pending in the said court, shall, with 
 respect to pleas, answers, disclaimers, and examinations taken within 
 the jurisdiction of the court, be, and the same is hereby abolished; and 
 any such plea, answer, disclaimer, or examination may be filed without 
 any further or other formality than is required in the swearing and filing 
 of an affidavit. 
 
 The 21st section does not Involve any alteration in the 
 form of the oath to be administered to a defendant on 
 putting in his answer: {Attorney- General v. Hudson, 9 Hare, 
 App. 63.) 
 
 XXII. Pleas declarations, cfc, in CJuincery, how to he sworn and 
 taken in tScotland, Ireland, the Channel Islands, ^x. — All pleas, answers, 
 disclaimers, and examinations, declarations, affirmations, and attestations 
 of honour in causes or matters depending in the High Court of Chancery, 
 and also acknowledgments required for the purpose of enrolling any deed 
 in the said court, shall and may be sworn and taken in Scotland or Ireland, 
 or the Channel Islands, or in any colony, island, plantation, or place under 
 the dominion of Her Majesty in foreign parts, before any judge, court, 
 notary public, or person lawfully authorized to administer oaths in such 
 country, colony, island, plantation, or place respectively, or before any of 
 Her Majesty's consuls or vice-consuls in any foreign parts out of Her Ma- 
 jesty's dominions; and the judges and other officers of the said Court of 
 Chancery shall take judicial notice of the seal or signature, as the cas3
 
 15 & 16 Vict. cap. 86. 237 
 
 may be, of any siich court, judge, notary public, person, consul, or vice- 
 consul uttaclied, appended, or subscribed to any such pleas, answers, 
 (lisolaiuiers, examinations, affidavits, affirmations, attestations of honour, 
 declarations, acknowledgments, or other documents to be used in the 
 said court. 
 
 Affidavits may still be sworn before notaries public in 
 foreign countries, notwithstanding this section : (JItis,^gett v. 
 Inijf: 1 Jur. (N. S.) 36 ; and see 1 Jur. 41), on appeal.) 
 
 Tliis section does not enact that the judge of the Court of 
 Chancery shall take judici;d notice of the signature of a 
 person who is a public oflicer in a colony, but is not a judge 
 or notary public, and is not lawfully authorized to adminis- 
 ter oaths in such colony : {JBa/l/ie v. Jackson, 17 Jur. 170.) 
 
 Affidavits taken in the colonies previously to the passing of 
 the act iu the ])resence of a person lawfully authorized to 
 administer oaths, are receivable in this country under this 
 section, without verification of the signature of the person 
 before whom they have been taken : (Butenum v. Cook, 
 •3 De Gex, Macn. & Gord. 39.) 
 
 XXIII. Penalty for false swearing, £fc. — All persons swearing, 
 declaring, affirming, or attesting before any person authorized by this act 
 to administer oaths and take declarations, affirmations, or attestations of 
 honom" shall be liable to all such penalties, punishments, and conse- 
 quences for any wilful and corrupt false swearinir, declaring, affirming, 
 or attesting contained therein as if the matter sworn, declared, affirmed, 
 or attested had been sworn, declared, affirmed, or attested before any 
 court or persons now by law authorized to administer oaths, and take 
 declarations, affirmations, or attestations upon honour. 
 
 XXIV. Pentdly for forging signature or seal of judge, rfc, em- 
 powered to administer oatlis under this act. — If any person shall forge 
 the signature or the official seal of any such judge, notary public, or 
 other person lawfully authorized to administer oaths under this act, or 
 shall tender in endence any plea, answer, disclaimer, examination, 
 affidavit, or other judicial or official document, with a false or counterfeit 
 signature or seal of any such judge, court, notary public, or other person 
 authorized as aforesaid attached or appended thereto, knowing the same 
 signature or seal to be false or counterfeit, every such person shall be 
 guilty of felony, and shall be liable to the same punishment as any 
 offender under an act passed in the eiffhth and ninth years of the reign of 
 Her present .Majesty, intituled An Act to facilitate the Admission in 
 Evidence of certain Official and other Documents. 
 
 XXV. Answers, i/c, to be fled without oath of messenger. — 
 Pleas, answers, disclaimers, or examinations, whether taken by com- 
 mission out of the jurisdiction of the said court or otherwise, may be 
 filed without the oath of a messenger, and any alterations made therein 
 previously to the taking thereof shall be authenticated according to the 
 practice now in use with respect to affidavits.
 
 238 lo & 16 Vict. cap. 86. 
 
 XX^^. Issue may be joined hj filing replication as at present. — 
 In suits in the said court con.menced by bill, where notice of 
 motion for a decree or decretal order shall not have been given, or, 
 having been given, where a decree or decretal order shall not have been 
 made thereon, issue shall be joined by filing a replication in the form 
 or to the effect of the replication now in use in the said court: and 
 where a defendant shall not have been required to answer and shall not 
 have answered the plaintiff's bill, he shall be considered to have traversed 
 the case made by the bill. 
 
 Notice of filing replication under this section and the 28th 
 General Order of August allowed to be inserted in the 
 Gazette, and in two newspapers of the county in which the 
 defendant was known to have last resided ; see a case in 
 which the plaintiiFhad entered an appearance for the defen- 
 dant, and no place had been fixed for service of the notices ; 
 (Ba?-tonv. Whitcomhe, 9 Hare, App. 87.) 
 
 When a defendant has not apjjeared and cannot be found, 
 and no answer is reqtiired, the plaintiflf, after filing replica- 
 tion, should insert advertisements in the London Gazette, 
 and in two newspapers, of the fact of replication having 
 been filed, and will tlien have the usual time fii'om the date 
 of the advertisements for going into evidence ; after which, 
 he may obtain an order for substituted service to hear judg- 
 ment : {Jenkijn v. Vanghan, 3 Drew. 20.) 
 
 XXVII. Defendant not having heen required to answer, and not 
 answering, may move for dismissal of bill for vsant of prosecution. — 
 MTiere a defendant to a suit in the said court commenced by bill 
 shall not have been required to answer the bill and shall not have 
 answered the same, such defendant shall be at liberty to move to 
 dismiss the bill for want of prosecution, at such times, and under such 
 circumstances, and subject to such restrictions as shall be in that behalf 
 prescribed by any General Order of the Lord Chancellor. 
 
 XXVIII. Practice of court as to, and mode of examining witnesses, 
 abolished — Court may order particular witnesses to be examined upon 
 interrogatories as now practised. — The mode of examining ivitnesses in 
 causes in the said court, and all tlie practice of the said court in relation 
 thereto, so far as such practice shall be inconsistent with the mode herein- 
 after prescribed of examining such witnesses, and the practice in relation 
 thereto, shall, from and after the time appointed for the commencement of 
 this act, be abolished; provided always, that the court may, if it shall 
 think fit, order any particular witness or witnesses within the jurisdiction 
 of the said court, or any witness or witnesses out of the jurisdiction of the 
 said court, to be examined upon inteiTogatories in the mode now practised 
 in the said court, and that with respect to such witness or witnesses 
 the practice of the said court in relation to the examination of witnesses 
 shall continue in full force, save only so far as the same may be varied 
 by any General Order of the Lord Chancellor in that behalf, or by any 
 order of the court with reference to any particular case.
 
 lo & 16 Vict, cap. 86. 239 
 
 XXIX. Plaintiff, where suits by hill at issue, may give notice to 
 dt/erid^mt to adduce evidence orally or by ajjiduvit. — Wlien any 
 suit co'Timenced by bill shull be at issue, tliu phiiiitiff shall, within 
 such time thereafter as shall be prescribed in that behalf by any 
 General Order of the Lord Chancellor, give notice to the defendant 
 that he desires that the evidence to be addiiceii in the cause shall 
 be taken orally or upon affidavit, as the cuse may be; and if the 
 plaintirt'siiall desire the evidence lo be adduced upon affida\it, and the 
 defendant, or some or one of the defendants, if more than one, shall not, 
 within such time as shall be prescribed in that behalf by any General 
 Order of the Lord Chancellor, give notice to the jilaintift" or his solicitor 
 that he or they desire the evidence to be oral, the plaintiffs and defen- 
 dants respectively shall be at liberty to verify their respectivo cases by 
 affidavit. 
 
 In a suit by a mortgagee to redeem prior mortgages, and 
 for a sale, the mortgagor by his answer disputed tlie validity 
 of the phiinliir's mortgage on the ground that the execu- 
 tion of it by the mortgagee had been obtained by a fraud 
 concocted between one of the attesting witnesses to the deed 
 and other persons, and without the phiintilf knowing the 
 contents of it ; the defendant had elected to have the 
 evidence in the case taken orally. The plaintiff, not being 
 able to obtain an appointment before the examiner for 
 some time, moved that he might be at liberty at the hearing 
 to prove his mortgage deed by ailidavit. Held, that as the 
 answer impeached the deed in this manner, it could not be 
 proved as an exhibit at the he:!ring, and as the witnesses 
 would probably be cross-examined, no tjjne would be saved by 
 the proposed course ; and therefore motion refused, and as, if 
 granted, it would have been an indulgence, it was refused 
 with costs. The advantage of having witnesses ])rodnced for 
 examination, and seeing their demeanour, is a right of which 
 the court will not deprive the parties : (^Hitchcock v. Carew, 
 Kay, App. 14.) 
 
 XXX. Evidence may be tahen orally if required, hut the court may 
 in certain cases make an order, (j'c. — When any of the parties to any suit 
 commenced by bill desires that the evidence should be adduced orally, 
 and f^ives notice thereof to the opposite juirty as hereinbefore provided, 
 the same shall be taken orally, in the maimer hereinafter provided; 
 provided, that if the evidence be required to be oral merely by a party 
 without a sufficient interest in the matters in cpiestion, the court may, 
 upon application in a summary way, make such order as shall be just. 
 
 XXX L Witnesses to be examined by one of the examiners of the court 
 in the presence of the jiarties. — All witnesses to be examnied orally under 
 the provisions of this act shall be so examined by or before one of the 
 examiners of the court, or by or before an examiner to be specially ap- 
 poiiiti'd by the court, the examiner being furnished by the plaintiff with
 
 240 15 & 16 Vict. cap. 86. 
 
 a copy of the bill, and of the answer, if any, in the cause; and such 
 examination shall take place in the presence of the parties, their counsel, 
 solicitors, or agents, and the witnesses so examined orally shall be sub- 
 ject to cross-examination and re-examination ; and such examination, 
 cross-examination, and re-examination shall be conducted as nearly as 
 may be in the mode now in use in courts of common law with respect 
 to a witness about to go abroad, and not expected to be present at the 
 trial of a cause. 
 
 XXXII. Depositions to be taken down in writing and read over to 
 the icitness, tcho shall sign the same in presence of the parties, but if he 
 refuse to sign, examiner may, and state any special matter he may think 
 fit. — The depositions taken upon any such oral examination as afore- 
 said shall be taken down in writing by the examiner, not ordinarily 
 by question and answer, but in the form of a nan-ative, and when com- 
 pleted shall be read over to the witness, and signed by him in the 
 presence of the parties, or such of them as may think fit to attend: 
 provided always, that in case the witness shall refuse to sign the said 
 depositions, then the examiner shall sign the same, and such examiner 
 may, upon all examinations, state any special matter to the court as he 
 shall think fit: provided also, that it shall be in the discretion of the 
 examiner to put down any pai-ticular question or answer, if there should 
 appear any special reason for doing so; and any question or questions 
 which may be objected to shall be noticed or referred toby the examiner 
 in or upon the depositions, and he shall state his opinion thereon to the 
 counsel, solicitors, or parties, and shall refer to such statement on the 
 face of the depositions, but he shall not have power to decide upon the 
 materiality or relevancy of any question or questions; and the court 
 shall have power to deal with the costs of immaterial or irrelevant 
 depositions as may be just. 
 
 The examination of -witnesses de bene esse is to be taken 
 orally, according to the mode prescribed by sections 30, 31, 
 and 32 of the statute : {Cook v. Hall, 9 Hare, App. 20.) 
 
 Plaintiff moved that a solicitor cannot be appointed to 
 examine witnesses residing more than twenty-eight miles 
 from London. Held, the application might be by motion in 
 court instead of at chambers, and that the old practice in 
 case of witnesses residing so far from London was unchanged, 
 but the evidence in the case being special, a barrister chosen 
 by both parties must be the examiner : costs to be costs in 
 the cause: (Reed v. Prest, Kay, App. 14.) 
 
 Examiners are bound under the act to take down the 
 depositions in their own handwriting : {Hobact v. Todd, 
 18 Jur. 618.) 
 
 XXXIII. If parties refuse to be sworn or to answer any laisful 
 questions, the same course to be pursued as is now adopted — Proviso as to 
 witness demurring to questions. — If any person produced before any such 
 examiner as a witness shall refuse to be sworn, or to answer any lawful
 
 lo & 16 Vict. cap. 86. 241 
 
 question put to him by the examiner, or by cither of the parties, or 
 by liis or tiieir counsel, solicitor, or agent, the same course shall be 
 adopted with respect to such witness as Is now pursued in the case of a 
 witness produced for examination before an examiner of the said court, 
 upon written iiiterrof;atories, and refusing to be sworn, or to answer 
 some lawful question: provided alwuys, tli;it if any witness shall demur 
 or object to any question or ([uesiions which may be put to him, the 
 question or questions so put, and the denuirrer or objection of the 
 witness thereto, shall be taken down by the examiner, and trans- 
 mitted by him to the Heeord Otlice of the said court, to be there filed ; 
 and the validity of such demurrer or objection shall be deciiled by the 
 court ; and the costs of and occasioned by such demurrer or objection 
 shall be in the discretion of the court. 
 
 XXXIV. Or'uj'uial depositions to be transmitted to the Record Office, 
 and Jilcd. — When the examination of witnesses before any examiner 
 shall have been concluded, the original depositions, authenticated by 
 the signature of such examiner, shall be transmitted by him to the 
 Record Otlice of the said court, to be there filed, and any party to the 
 suit may have a copy thereof or of any part or portion thereof upon 
 payment for the same in such manner as shall be provided by any 
 General Order of the Lord Chancellor in that behalf. 
 
 XXXV. Commission for exuminallon af witnesses dispensed with, 
 and examiner empowered to administer oaths. — It shall not be neces- 
 sary to sue out any commission for the examination of any witnesses 
 within the jurisdiction of the said court; and any examiner appointed 
 by any order of the court shall have the like power of administering 
 oaths as commissioners now have under commissiona issued by the 
 court for the examination of witnesses. 
 
 XXXVI. Affidavits as to particular /acts, cfc, mai/ be used. — Not- 
 withstanding that the plaintitl' or the defendant in any suit in the 
 said court may have elected that the evidence in the cause should be 
 taken orally, affidavits by particular witnesses, or aftidavits as to par- 
 ticular facts or circumstances, may, by consent, or by leave of the court 
 obtained upon notice, be used nn the hearing of any cause, and such 
 consent, with the approbation of the court, may be given by or on the 
 part of married women or infants or other persons under disability. 
 
 The 36th section requires special reasons to be shown to 
 the court ailecting either party, witnesses, or particular facts : 
 {Rogers v. Hooper., 2 Drew. 97.) 
 
 When tlie evidence in a cause is taken orally, a general 
 application under the 36th section of the act, to be at liberty 
 to use at the hearing, afhdavits already filed, is irregular, 
 The particular facts and circumstances propose<l to be proved 
 by alHdavit should l)e specified both in the notice of motion 
 and in the order : [luison v. Grussoit, 17 Beav. 321.) 
 
 Case in which a plaintiff was held not to be entitled to 
 take the evidence of a witness in his behalf by ailidavit under 
 the 36th section of the act: (9 Hare, App. i«.J 
 [CH.] r
 
 242 15 & 16 Vict. cap. 86. 
 
 Appointment of an examiner to take orally the evidence 
 of a witness residing out of the jurisdiction : {Crofts v. 
 Middleton, 9 Hare, App. 18.) 
 
 XXXVI I. Affidavits to be divided into paragraphs numbered. — 
 Every affiilavit to be used in the said court shall be divided iuto 
 paragraphs, and every paragraph shall be numbered consecutively, and, 
 as nearly as may be, shall be confined to a distinct portion of the 
 subject. 
 
 XXXVIII. Evidence, oral or by affidavit, on both sides, to be closed 
 within time prescribed by General Order — Witnesses by affidavit to be 
 subject to oral cross-examination, and afterwards to re-examination — 
 Witnesses bound to attend — As to expenses attending cross- examinor- 
 tions, ifc. — The evidence on both sides in any suit in the said court, 
 whether taken orally or upon affidavit, shall be closed within such time 
 or respective times after issue joined as shall in that behalf be pre- 
 scribed by any General Order of the Lord Chancellor, but with power 
 to the court to enlarge the same as it may see fit; and after the time 
 fixed for closing the evidence no further evidence, whether oral or by 
 affidavit, shall be receivable, without special leave of the court previously 
 obtained for that purpose: provided always, that any witness who has 
 made an affidavit filed by any party to a cause shall be subject to oral 
 cross-examination within sucli time after the time fixed for closing the 
 evidence as shall be prescribed in that behalf by any order of the 
 Lord Chancellor, by or before an examiner, in the same manner as if 
 the evidence given by him in his affidavit had been given by him orally 
 before the examiner, and after such cross-examination may be re- 
 examined orally by or on the part of the party by whom such affidavit 
 was filed; and such witness shall be bound to attend before such 
 examiner to be so cross-examined and re-examined, upon receiving due 
 and proper notice, and payment of his reasonable expenses, in like 
 manner as if he had been duly served with a writ of subpceiia ad testifi- 
 candum before such examiner; and the expenses attending such cross- 
 examination and re-examination shall be paid by the parties respec- 
 tively, in like manner as if the witness so to be cross-examined were 
 the witness of the party cross-examming, and shall be de med costs in 
 the cause of such parties respectively, unless the court shall think fit 
 otherwise to direct. 
 
 An examiner, before whom witnesses who have made 
 affidavits are being cross-examined for the purpose of 
 obtaining evidence on an interlocutory motion, is at hberty 
 to retmni part of these depositions at a time. But if the 
 evidence is being taken for the liearing of the cause, it seems 
 he cannot return any till the examination is closed. Pro- 
 fessional witnesses have a right to demand compensation for 
 loss of time at the rate of a guinea a day, before they sub- 
 mit to be examined, though residing in the town where the 
 examination is conducted: {Clarke v. Gill, 1 Kay & J. 19.)
 
 15 & 16 Vict. cap. 86. 243 
 
 After the time for closing the evidence in a cause has 
 expired, the court will not, under this clause, extend it 
 except under special circumstances. Botli parties may 
 abstain from filing their aOidavits till immediately before the 
 expiration of the lime fixed for closing the evidence : 
 {Thompson v. Partridge, 4 De Gex, Macn. & Gord. 794.) 
 
 XXXIX. Court may require the production and oral examination 
 before itself of any witness, cfc, and determine payment of the costs. — 
 Upon the hearing of any cause depending in the said court, whether 
 commenced by bill or by claim, the court, if it shall see fit so to do, 
 may require the production and oral examination before itself of any 
 witness or party in the cause, and may direct the costs of and 
 attending the production and examination of such witness or party, to 
 be paid by such of the parties to the suit or iu such manner as it may 
 think tit. 
 
 A failure in establishing the case of the plaintilfin a claim, 
 is not, since the statute, a gi-ound for giving him liberty to 
 file a bill, for on a proper case, the court, under the 3i)th 
 section of the statute, will direct a further and oral examina- 
 tion of the parties as witnesses, rather than leave the parties to 
 further proceedings : ( Wilkinson v. Stringer, 9 Hare, App. 
 23.) 
 
 Attendance of the plaintift' and another witness for oral 
 examination ordered under the 39th section ofthe act, at the 
 hearing of a claim founded on a legal demand, where, before 
 the statute, the court would have given liberty to bring an 
 action : {Deaville v. DeuviUe, 9 Ilare, App. 22.) 
 
 The Court of Appeal has jurisdiction to require the pro- 
 duction and examination before itself of a party to a cause, 
 although he may not have been examined in the court below. 
 The expression " upon the hearing " means wherever and 
 whenever a cause is heard : {Hope v, Threlfull, 23 L. T. 
 631.) 
 
 XL. Any party in a cause may by sttbpcena require attendance of 
 any witness before an examiner. — Any party in any cause or matter 
 depeudnig in the said court may, by a writ of subpostia ad teslifcandum 
 or duces tecum, require the attendance of any witness before an examiner 
 ofthe said court, or before an examiner specially appointed for the 
 purpose, and examine such witness orally, for the purpose of using his 
 evidence upon any claim, motion, petition, or other proceeding before 
 the court, in like manner as such witness would be bound to attend and 
 be examined with a view to tlie hearing of a cause; and any party 
 having made an affidavit to be used or which shall be used on any 
 claim, motion, petition, or other proceeding before the court shall be 
 
 t2
 
 244 15 & 16 Vict. cap. 86. 
 
 bound on being served with snch writ to attend before an examiner, 
 for the purpo!>e of being cross-examined; provided always, tliat the 
 court shall always have a discretionary power of acting upon such 
 evidence as may be before it at the time, and of making sucli interim 
 orders, or otherwise, as may appear necessary to meet the justice of 
 the case. 
 
 Upon a motion for a decree, after the affidavits on both 
 sides had been filed, and the plaintiff had made an affidavit 
 in reply, the defendant was permitted to cross-examine the 
 plaintiff under the 40th section. An order for the special 
 appointment of an examiner may be obtained by summons 
 at chambers: (17 Jur. 434.) 
 
 A moti'in for a decree is a proceeding within the meaning 
 of the 40th section, and therefore, for the purpose of such a 
 motion, a defendant may cross-examine the plaintiff: (^Wil- 
 liams V. Williams, 17 Beav. 156.) 
 
 Where further evidence is necessary after a decree, a 
 special order of the court is not necessary for the oral ex- 
 amination of witnesses before the examiner : [Anon. 23 L. T. 
 
 A motion for an injunction was ordered to stand over, 
 with liberty to bring an action Held, that a witness who 
 had made an affidavit on the occasion, might afterwards, 
 and before the trial, be cross-examined under this section : 
 {Lloyd V. Whitty, 19 Beav. 57.) 
 
 Application under this act and the 15 & 16 Vict. c. 80, 
 to examine a defendant viva voce in the Master's office 
 refused, the decree ha\ing directed the examination on 
 Interrogatories: (Routh v. Tomlinson, 16 Beav. 251.) 
 
 On a motion to dissolve an injunction to stay proceedings 
 at law, the plaintiff in equity has no right, under the 40th 
 section, to require that the motion shall stand over, in order 
 that he might examine orally, witnesses who have made affi- 
 davits for the defendant: {Normanville v. Stunning, 10 
 Hare, App. 20.) 
 
 Upon a motion for an injunction, defendant asking for 
 time to answer affidavits was put on terms to file his affidavits 
 in two days, an interim injunction being granted until the 
 next seal. He then applied for an order appointing a special 
 examination, and directing the plaintiff who had made an 
 affidavit in support of the motion to attend on the next day 
 without further notice before the special examination to be 
 cross-examined on his affidavit. Motion granted, and held 
 that the jjlaintiff should have the like lil)erty of cross-ex- 
 amining defendant on an affidavit bv him dennng a simple 
 fact alleged by the plaintiff, and nAide for the purpose of
 
 15 & 16 Vict. cap. 86. 245 
 
 gaining time, and tliat the dofi'mlant would not be prevented 
 by sueli cross-examiiiatioii, and his own re-e.\aniination from 
 afterwards filing t'urtiier uilidavits : {JJcsciiicrcs v. Bcsemeres 
 Kay, App. 17.) 
 
 XLI. Evidence subsequent to Jiearing to be taken the same as prior 
 to hearing. — In cases where it shall be necessary for any party to any 
 cause depeiidini^ in the said court to go into evidence subseciuently to 
 the hearing of such cause, such evidence shall be taken as nearly as may 
 be in the manner hereinafter provided with reference to the taking of 
 evidence with a view to such hearing. 
 
 XLIl. Defendant not to take objectinn fur want of parties in any 
 case to ichich rules herein set forth shall extend.— It shall not be com- 
 petent to any defendant in any suit in the said court to take any 
 objection for want of parties to sucli suit, in any case to whicli the rules 
 next hereinafter set forth extend; and such rules shall be deemed and 
 taken as jiart of the law and practice of the said court, and any law or 
 practice of the said court inconsistent therewith shall be and is hereby 
 abrogated and annulled. 
 
 Kule 1. Any residuary legatee or next-of-kin may, without serving 
 the remaming residuary legatees or next-of-kin, have a decree for 
 the administration of the personal estate of a deceased person. 
 Kule 2. Any legatee interested in a legacy charged upon real estate, 
 and any person interested in the proceeds of real estate directed to 
 be sold, may, without serving any otlier lei;atee or person interested 
 in the proceeds of the estate, have a decree for the administration 
 of the estate of a deceased person. 
 Rule 3. Any residuary devisee or heir may, without serving any co- 
 residuary devisee or co-heir, have the like decree. 
 Rule 4. Any one of the several cestuis (jue trust under any deed or 
 instrument may, without serving any other of such cestuis que 
 trust, have a decree for the execution of the trusts of the deed or 
 instrument. 
 Rule 5. In all cases of suits for the protection of property pending 
 litigation, and in all cases in the nature of waste, one person may 
 sue on behalf of himself and of all persons having the same 
 interest. 
 Rale 6. Any executor, administrator, or trustee may obtain a decree 
 against any one legatee, next-of-kin, or cestui que trust for the 
 administration of the estate, or the execution of the trusts. 
 Rule 7. In all the above cases the court, if it shall see fit, may 
 require any other person or persons to be made a party or parties 
 to the suit, and may, if it shall see fit, give the conduct of the 
 suit to such person as it may deem proper, and may make such 
 order in any particular case as it may deem just for placing the 
 defendant on the record on the same footing in regard to costs as 
 other parties having a common interest with him in the matters in 
 question. 
 
 T 3
 
 246 15 8e 16 Vict. cap. 86. 
 
 Rule 8. In all the above cases the persons wbo, according to the 
 present practice of the court, would be necessary parties to the 
 suit, shall be served with notice of the decree, and after such 
 notice they shall be bouna by tl.e proceedings in the same manner 
 as if they had been originally made parties to the suit, and they 
 may by an order of course have liberty to attend the proceedings 
 under the decree; and any party so served may, within such time 
 as shall in that behalf be prescribed by the General Order of the 
 Lord Chancellor, apply to the court to add to the decree. 
 
 Eule 9. In all suits concerning real or personal estate which is vested 
 in trustees under a will, settlement, or otherwise, such trustees 
 shall represent the persons beneficially interested under the trust, 
 in the same manner and to the same extent as the executors or 
 administrators in suits concerning personal estate represent the 
 persons beneficially interested in such personal estate ; and in such 
 cases it shall not be necessary to make the persons beneficially 
 interested under the trusts parties to the suit; but the court may, 
 upon consideration of the matter, on the hearing, if it shall so think 
 fit, order such persons, or any of them, to be made parties. 
 
 An equity of redemption was granted by deed to trustees 
 on trust for certain parties, some of wliom were infants ; 
 the mortgafjee filed a bill for foreclosure against the trustees 
 of the settlement and the adult cestuis que trust only as 
 defendants ; the court, on motion for a decree for sale, made 
 the decree in the absence of the infant cestui que trust, and 
 of the representative of a deceased defendant, on an affidavit 
 by the trustee that it would be for the benefit of the infants : 
 the proceeds ordered into court : (Slffken v. Davis, Kay, 
 App. 21.) .... 
 
 As to servmg an mfant with notice of decree under the 
 8th rule of sect. 42, see 9 Hare, App. 13. 
 
 Where an estate is to be sold under the decree of the 
 court, the general rule (with a possible exception in some 
 cases of extreme difficulty) is that all the parties interested 
 in the proceeds must, to secure a proper and ailvantageous 
 sale, and protect the title of the purchaser from being open 
 to inquiry or impeachment, lie p;irties to the suit, or be 
 served with notice of the decree under the Slh rule of the 
 42nd section : [Doody v. Iliggins, 9 Hare, App. 32.) 
 
 On a bill for the execution of the trusts of a will, 
 tlirecting the sale and distribution of the j)roceeds of real 
 estate, framed according to the old practice, and bringing all 
 the residuary devisees and legatees before the court, held, 
 that the trustee of a settlement of the share of one of the 
 residuary legatees, made on her marriage, ought to be parties ; 
 but that the children of the marriage would be sufficiently
 
 15 & 16 Vict. cap. 86. 247 
 
 represented by such trustees : {Deiisem v. Elworthy, 9 Hare, 
 App. 4-2.) 
 
 In a suit for foreclosure apainst the infant heir-at-law of 
 the mortjragor, the court refused to act on the 4'2n(l section, 
 dispensing with the parties ])eneficially interested in the 
 equit}' of redeniption of the mortgaged premises, where the 
 devisees in trust, under the will of the mortgagee, had dis- 
 claimed, and there were not before the court any adult 
 parties who could be In possession of funds to redeem the 
 estate: {Youjif; v. Wurd^ 10 Hare, App. ;j«.) 
 
 Representation of cestuis qve trust of real estate by the 
 trustees, under the 9th rule of section 42, in suits against 
 them for foreclosure or sale, extended to the case of infant 
 cestuis qua trust, and to trustees of subordinate interests, 
 under settlements of shares of children In remainder, but 
 not otherwise to adidt cestuis que truest: (^Goldsmid v. Stone- 
 hewer, 9 Hare, App. 38.) 
 
 Where, In a suit referred to the Master, it is desired to 
 obtain the advantage of the new powers conferred upon the 
 court b\' the recent statutes, the proper course is to apply 
 for a transfer of the proceedings to the judges' chambers. 
 The statutes do not give the court power to authorize the 
 Master to avail himself of their provisions : [Morrell v. 
 Tinkler, 9 Hare, App. 50.) 
 
 The 9th rule of the 42nd section applies not only to ad- 
 ministration suits, but to all suits where the interest of the 
 cestui que trust is represented by, and Jiis powers are vested 
 in, the trustee : {Fowler v. Bayldon, 9 Hare, App. 78.) 
 
 Decree for appointment of new trustees and conveyance 
 of the trust estate In a suit by some cestuis que trust against 
 the devisee of the last survivor of the former trustees, notice 
 of decree to be served on the other cestuis que trust: {Jones 
 V. James, 9 Hare, App. 80.) 
 
 Where, In a suit instituted to foreclose an estate vested in 
 a trustee, in trust tor four persons, who were not parties to 
 to the suit, the court held, that the pro])er course, notwith- 
 standing the suit, was to make them parties. : {^Cropper v. 
 Mellersh, 1 Jur. (N. S.) 299.) 
 
 Where a foreclosure suit was Instituted before the act, 
 and stood over In order that the cestuis que trust, under the 
 mortgagor's will, might be made parties, held, that after 
 the act, the suit might proceed in their absence, the trustees 
 and executors of the mortgagor rei)resenting them sufli- 
 ciently : {Sale v. Kitson, 3 De Gex, Macn. & Gord. 1 19.)
 
 248 15 & 16 Vict. cap. 86. 
 
 XLIII. Practice of setting down a came on objection for want of 
 parties abolished. — The practice of the said court of setting down a 
 cause merely on an objection for want of parties to the suit shall be 
 abolished. 
 
 XLIV. Court may proceed in any suit, (^-c, without representative oj" 
 deceased person, or may appoint one. — If in any suit or other proceeding 
 before the court it shall appear to the court that any deceased person 
 ■who was interested in the matters in question has no legal personal 
 representative, it shall be lawful for the court either to proceed in the 
 ahsence of any person representing the estate of such deceased person, 
 or to appoint some person to represent such estate for all the purposes 
 of the suit or other proceedinjr. on such notice to such person or persons, 
 if any, as the court shall think fit, either specially or generally by 
 public advertisements; and the order so made by the said court, and 
 any orders consequent thereon, shall bind the estate of such deceased 
 person in the same manner in every respect as if there had been a 
 duly constituted legal personal representative of such deceased person, 
 and such legal personal representative had been a party to the suit or 
 proceeding, and had duly appeared and submitted his rights and 
 interest to the protection of the court. 
 
 A defendant died, and a contest as to one of his testamen- 
 tary papers prevented probate being granted : the court, on 
 motion, appointed the executors named in his will to repre- 
 sent the deceased's estate in the cause, under the 44th section : 
 {Hele V. Lord Bexley, 15 Beav. 340.) 
 
 The 44th section of the act does not apply to the case 
 where the estate to which It is desired to appoint a represen- 
 tative, Is the estate being administered by the court : {Silver 
 V. Stein, 1 Drew. 295.) 
 
 A foreclosure decree gave to seven persons, or any of 
 them, the right to redeem within a certain time. Before 
 that time, one of the seven died, and there was difficulty 
 about obtainingletters of administration to him. The Eccle- 
 siastical Court at length gave administration to a creditor, 
 but, before the proceeding was perfected, another creditor 
 entered a caveat. The court made an order under the 44th 
 section of the act appointing the former creditor to represent 
 the estate of the deceased after a week's notice to the op- 
 poshig creditor ; or, if the former creditor should refuse to be 
 such representative, then, upon evidence by affidavit of such 
 refusal, api)ointing the other creditor to be such represen- 
 tative. Section 44 Is only intended to apply to cases where 
 there is a difficulty In obtaining representation, owing to the 
 insolvency of the deceased or some such cause : {Lo7ig v. 
 Storie, Kay, App. 12.) 
 
 A motion upon notice, and an order thereupon, pursuant
 
 lo & 16 Vict. cap. 86. 249 
 
 to the 44tli section, that a suit by creditors interested in the 
 property comprised in a trust deed made for their benefit, 
 might proceed ajrainst the trustees without a personal 
 representative of tiie de-'cased debtor, the autlior of the 
 trusts -wliere no such represent, itive existed, and the estate 
 was insolvent: {Clmffers v. lliuidlam^ !» Hare, App. 4().) 
 
 The court will not, mider the 44th section, disjiense witli 
 the personal representative of a trustee, when such personid 
 representative has necessarily active duties to peribrni in the 
 case of the trust : {Fowler v. Bmjldon^ 9 Hare, App. 7S.) 
 
 The court will not, under the 44th section, in a suit for 
 the administration of an estate, dispense with a personal 
 representative, constituted in the ordinary way, of the testator 
 or intestate whose estate is to be administered in the suit : 
 {Silver v. Stein, 1 Drew. "295.) 
 
 A personal representative of a deceased party entitled to 
 a small sum of money, not dispensed with under the 44th 
 section, by euiibling the solicitors of the deceased party to 
 receive it: {lidu-lius v. M'Mafion, 1 Drew. 225.) 
 
 On a petition by the heir-at-law of one who was entitled, 
 upon the death of the tenant for life, to lands which had 
 been talien under the INIanchester Improvement Act, for 
 payment out of court of the purchase-money of such lands ; 
 the executors named in the will of the deceased party, 
 but who had not proved the will, were, under the 44th 
 section, appointed to represent his personal estate for the 
 purpose of the proceeding ; {Ex parte Cramer, 9 Hare, 
 App. 47.) 
 
 After an order on a claim for administration by residuary 
 legatees, R. S. a defendant, one of the executors, and who 
 was also a residuary legatee, and who had not taken out 
 probate or possessed assets of the testator, died. Upon 
 affidavit that the deceased had left a widow and several 
 children, and that the widow had said her liusband liad left 
 nothing, and she would not administer, and upon aflidavit 
 that it would cost the plaintiiT thirty pounds to procure 
 administration to the estate of the deceased, ordered that 
 the suit might proceed without making the personal repre- 
 sentative of R. S. a party thereto ; and th(> court directed 
 the inrpiiries and accounts directed l)yt]ie(Jrder of 21st April, 
 1852, to he prosecuted and taken in like manner as if a legal 
 personal representative of the late defendant R. S. liad ])een 
 served with a writ of sunnnons, and had entered his a[)j)ear- 
 ance witli the Clerk of Records and AV'rits as a defendant : 
 {Rogers v. Jovcs, IG Jur. 968.) 
 
 Case in which executors of a father who survived and
 
 250 15 & 16 Vict. cap. 86. 
 
 became sole next-of-kin of his deceased children, may be 
 appointed by the court, imder the 44th section, to represent 
 the estates of the deceased children, for the purposes of the 
 suit : {Swidluw v. Binns, 9 Hare, App. 47.) 
 
 A mortgagee having filed his claim against the heirs in 
 gavelkind of the deceased mortgagor who had died intestate, 
 prayed a sale of the mortgaged premises, and the application 
 of the proceeds, so far as it would extend, in payment of his 
 debt, and the administration of the personal estate and the 
 other real estate of the debtor, for the benefit of the plaintiff 
 and the other unsatisfied creditors ; but there was no per- 
 sonal representative of the deceased mortgagor, except an 
 administrator ad litem. Held, that the suit could not pro- 
 ceed under the 44th section, in the absence of a personal 
 representative of the intestate, when the object was to 
 administer his estate ; and that a testator or Intestate whose 
 estate was to be administered, was not intended to be in- 
 cluded in the words of the act, and that neither was the ad- 
 ministrator ad litem a sufficient representative, where the 
 object was not merely to bind but to administer the estate : 
 {Goors V. Levie, 16 Jur. 1061.) 
 
 XLV. Creditor, cfc, mai/ summon exeaitor, ^-c, to show cause why 
 an order for administration of personal estate should not he granted 
 — Power to judge to order administration of such estate. — It shall 
 be lawful fur any person claiming to be a creditor, or a specific 
 pecuniary or residuary legatee, or the next-of-kin, or some or one of 
 the next-of-kin of a deceased person, to apply for and obtain as of 
 coarse, without bill or claim filed, or j)ny other preliminary proceed- 
 ings, a summons from the Master of the Rolls or any of the Vice- 
 Chancellors requiring the executor or administrator, as tlie case may be, 
 of such deceased person, to attend before him at chambers, for the 
 pai^Kjse of showing cause why an order for the administration of the 
 personal estate of the deceased should not be granted; and upon proof 
 by affidavit of the due service of such summons, or on the appearance 
 in person or by his solicitor or counsel of such executor or administrator, 
 and upon proof by affidavit of such other matters, if any, as such judge 
 shall re(juire, it shall be lawful for such judge, if in his discretiou he 
 shall think fit so to do, to make the usual order for the administration 
 of the estate of the deceased, with such variations, if any, as the cir- 
 cumstances of the case may require ; and the order so made shall have 
 the force and effect of a decree to the like etfect made on the hearing of 
 a cause or claim between the same parlies: provided that such judge 
 have full discretionary power to grant or refuse such order, or to give 
 any special directions touching the carriage or execution of such order, 
 and in the case of applications for any such order by two or more 
 different persons or classes of persons, to grant the same to such one or 
 more of the claimants or of the classes of claimants as he may think
 
 15 & IG Vict. cap. 86. 251 
 
 fit; and ifthe judf^e sliall tliiiik proper, tlic carnage of the order may 
 subsequently be given to such party interested, and upon such terms as 
 the judge may direct. 
 
 An order was made against an executor in cliambers, for 
 taking the accounts, the executor insisted on a release. llehJ, 
 that there being no jurisdiction to set aside the release on 
 summons, the order was irregular: (Acaster v. Anderson, 
 19 Beav. 1()1.) 
 
 The Master of the Rolls or a Yice-Chancellor has juris- 
 diction, uiider this section, to make an order in chambers, 
 upon sunmions, to administer the eifects becjueathod by 
 a married woman under a power contained in a deed: {Seivell 
 V. Ashley, 3 De Gex, JNIacn. & Gord. d'SS.) 
 
 XLVI. Copi/ of summo7is to be filed in Record Office of court. — 
 A duplicate or copy of such summons shall, previously to the service 
 thereof, be filed in the Record Office of the said court; and no service 
 thereof upon any executor or administrator shall be of any validity 
 unless the copy so served shall be stamped with a stamp of such 
 office indicating the filing thereof; and the filing of such summons 
 shall have the same effect with respect to lis pendens as the filing of a 
 bill or claim. 
 
 XLVII. Creditor, (fc, may obtain an order for administration of 
 real estate. — It shall be lawfnl for any person claiming to be a creditor 
 of any deceased person, or interested under his will, to apply for and 
 obtain in a summary way, in the manner hereinbefore provided with 
 respect to the personal estate of a deceased person, an order for the 
 administration of the real estate of the deceased person where the whole 
 of such real estate is by devise vested in trustees who are by the will 
 empowered to sell such real estate, and authorized to give receipts for 
 the rents and profits thereof, and for the produce of the sale of such real 
 estate ; and all the provisions hereinbefore contained with respect to the 
 application for sucli order in relation to the personal estate of a deceased 
 person, and conse(juent thereon, shall extend and be applicable to an 
 application for such order as last hereinbefore mentioned with respect 
 to real estate. 
 
 Distinction as to the necessity of making persons bene- 
 ficially interested in real estate, parties in suits by mortgagees 
 for foreclosure or sale of moi-tgaged estates, against persons 
 having the legal interest only, when such persons are execu- 
 tors of the mortgagor, and when they are merely trustees of 
 settlements of the mortgaged property : (Hamnan v. Riley, 
 9 Hare, App. 40.) 
 
 . XLVIII. Cou7't may direct sale of mortgaged jn-oj^erly instead of 
 a foreclosure on such terms as it may think Jit. — It shall be lawful
 
 252 15 & 16 Vict. cap. 86. 
 
 for the court in any suit for the foreclosure of the equity of redemp- 
 tion in any mortgaged property, upoQ the request of the mortgagee, 
 or of any subsequent incumbrancer, or of the mortgagor, or any 
 person claiming under them respectively, to direct a sale of such 
 property, instead of a foreclosure of such equity of redemption, on 
 such terms as the court may tliink fit to direct, and if the court 
 shall so think fit, without previously determining the priorities of in- 
 cumbrances, or giving tiie usual or any time to redeem ; provided that 
 if such request shall be made by any such subsequent incumbrancer, or 
 by the mortgagor, or by any person claiming under them respectively, 
 the court shall not direct any such sale, without the consent of the 
 mortgagee or the persons claiming under him, unless the party making 
 sucli request shall deposit in court a reasonable sum of money, to be 
 fixed by the court, for the purpose of securing the performance of such 
 terms as the court may think fit to impose on the party making such 
 request. 
 
 The court has no jjower to order a sale, under the 48th 
 section of the Chancery Improvement Act, on an interlocu- 
 tory application, but only where, before the act, foreclosure 
 would have been decreed: (Wapi v. Leivis, 1 Drew. 127.) 
 
 Directions for sale of an infant's estate in a foreclosure suit, 
 showing it clearly to be for the benefit of the infant, without 
 giving time to redeem : (10 Hare, App. 51.) 
 
 Application by the mortgagee, for sale instead of fore- 
 closure, form of order for foreclosure taken by consent 
 without accounts : {Boydell v. Manby, 9 Hare, App. 53.) 
 
 A sale of mortgaged premises consisting of freehold and 
 leasehold premises, and a policy of life insurance, ordered in 
 a foreclosure suit at the request of the mortgagee. The 
 mortgagors were bankrupt, and the suit was against 
 their assignees and against incumbrancers subsequent to the 
 plaintiff. The decree directed the account of what was due 
 to the several incumbrancers, and directed the proceeds of 
 the defendant's property to be distinguished : (Cates v. 
 Reeves, 16 Jur. 1004.) 
 
 An order for sale made in a claim for foreclosure at the 
 request of the mortgagee ; such sale to be one month after 
 the judge's clerk shall have made his certificate of the 
 amount of principal, interest, and costs due to the mortgagee, 
 if such amount shall not be paid: {Staines v. Rudliii, 16 Jur. 
 965.) 
 
 The court refused, on the application of the mortgagee, 
 after a decree of fin-eclosure had been made, to vary the 
 decree by directing a sale under the 48th section: {Girdle- 
 stone V. Lavender, 9 Hare, App. 53.)
 
 15 & 16 Vict. cap. 86. 253 
 
 XLIX. Suit not to he dUmissed for misjoinder of pluiiiliffs, hut 
 court may modifi/ its decree, according to special circumstances. — 
 No suit ill the said court shall be (li^tnis.s(.•d by reason only of the 
 misjoinder of ])Crsoiis as ])l!iiiititl's therein, but wherever it shall 
 appear to the court that, notwithstanding the cunliict of interest in the 
 co-plaintitfs, or the want of interest in some of the plaintifis, or the 
 existence of some ground of defence affecting some or one of the plaintiffs, 
 the plaintiffs, or some or one of them, are or is entitled to relief, the 
 court shall have power to grant such relief, and to modify its decree, 
 according to the special circumstances of the case, and for that purpose 
 to direct such amendments, if any, as may be necessary, and at the 
 hearing, before such auicndnicnts are liiade, to treat any one or more of 
 the plaintiffs as if he or they was or were a defendant or defendants in 
 the suit, and the remaining or otlierplaintiff or plaintiffs was or were the 
 only plaintiff or plaintiffs on the record; and where there is a misjoinder 
 of plaintitls, and the plaintiff having an interest shall have dieil leaving 
 a plaintifJ" on the record without an interest, the court may, at the 
 hearing of the cause, order the cause to stand revived as may appear 
 just, and proceed to a decision of the cause, if it shall see tit, and to 
 give such directions as to costs or otherwise as may appear just and 
 expedient. 
 
 L. No suit to be objected to because only declaratory order sought. — 
 No suit in the said court shall be o[ien to objection on the ground 
 that a merely declaratory decree or order is sought thereby, and it shall 
 be lawful for the court to make binding declarations of right without 
 granting consequential relief. 
 
 Case in which the court made a declaratory decree under 
 this section : {Fletcher v. Rogers, 10 Hare, App. 13.) 
 
 This section does not give the court jurisdiction to make 
 a decree merely declaratory of a h'gal ri^ht : {Trusiees of 
 Birkenhead, Sj-c. v. iMircl, 4 De Gex, Macn. & Gord. 732.) 
 
 A lease was granted by A. to two partners, the covenants 
 being only joint at law. Bill liU-d by the representative ol' 
 one of the lessees, deceased, against the lessees, alleging 
 that the lessee claimed to have a right under the covenants 
 against the plalntifT, if a breach should arise, and praying 
 merely a declaration that the dt^fendant had no right. A 
 demurrer to this bill was allowed : {Jackson v. Turidey, 
 1 Drew. 617.) The meaning of this section is only to remove 
 the objection that a plalntiif who might have coiise<juentIal 
 relief, prays merely a declaration of right ; it does not mean 
 to entitle a person to have' a declaration as to a claim which 
 may be made another under circumstances which may or 
 may not happen. 
 
 LT. Court may decide heticeen some of the parties without making 
 others interested parties tv the suit — Proviso. — It shall be lawful for 
 [on.] Z
 
 254 15 & 16 Vict. cap. 86. 
 
 the court to adjudicate on questions arising between parties notwith- 
 standing that they may be some only of the parlies interested in 
 the property respectinfj ■o'hich the question may have arisen, or that 
 the property in question is comprised with other property in the 
 same settlement, will, or other instrument, without making the other 
 parties interested in the property respecting which the question may 
 have arisen, or interested under the same settlement, will, or otber 
 instrument, parties to the suit, and witjiout requiring the whole 
 trusts and purposes of the settlement, will, or other instrument to 
 be executed under the direction of the court, and without taking the 
 accounts of the trustees or other accounting parties, or ascertaining 
 the particulars or amount of the property touching which the question 
 or questions may have arisen : provided always, that if the court shall 
 be of opinion that the application is fraudulent or collusive, or for some 
 other reason ought not to be entertained, it shall have power to refuse 
 to make the order prayed. 
 
 Case of a decree for the purpose of carrying into effect an 
 arrangement as to part of the estate of a testator, without 
 administering the estate, or executing the trusts of the will 
 generally : [Prentice v. Prentice, 10 Hare, App. ■22.) 
 
 The 51st section of the act which empowers the court to 
 adjudicate on questions between some, only, of the parties, 
 does not render the decision binding on the absent parties, 
 as the 42rid section does, where notice of the decree has been 
 served under the 8th rule : (^Doody v. Higgins, 9 Hare, 
 App. 32.) 
 
 LII. In case of abatement, 4'C-i if suit an order may he made, which 
 shall have same effect as a bill of revivor. — Upon any suit in the 
 said court becoming abated by death, marriage, or otherwise, or defected 
 by reason ot some change or transmission of interest or liability, it shall 
 not be necessary to exhibit any bill of revivor or supplemental bill in order 
 to obtain the usual order to revive such suit, or the usual or necessary 
 decree or order to carry on the proceedings; but an order to the eli'ect of 
 the usual order to revive or of the usual supplemer.tal decree may be 
 obtained as of course upon an allegation of the abatement of such suit, 
 or of the same having become defective, and of the change or transmis- 
 sion of interest or liability; and an order so obtained, when served upon 
 the party or parties who according to the present practice of the said 
 court would be defendant or defendants to the bill of revivor or supple- 
 mental bill, shall from the time of such service be bindirg on such party 
 or parties in the same manner in every respect as if such order had been 
 regularly obtained according to the existing practice of the said court ; 
 and such party or parties shall thenceforth become a party or parties to 
 the suit, and shall be bound to enter an appearance thereto in the office of 
 the Clerks of Records and Writs, within such time and in like manner as 
 if he or they had been duly served with process to appear to a bill of 
 revivor or supplemental bill filed against him: provided that it shall be 
 open to the party or parties so served, within such time after service as
 
 15 i^ IG Vict. cap. 86. 25'> 
 
 sliall be in that behalf prescribed by any General Order of the Lord 
 Chancellor, to apply to the court by motion or petiti'in to disciiar^e 
 such order on any i;r()iin(i wliicli would have been open to him on a biil 
 of revivor or supplemcnt.d bill, stitinsj the previous proceedinss in the 
 suit and the allesred cliant;e or transmission of interest or Habilily, and 
 praying the usual relief consP([uent thereon: provided also, that if any 
 party so serve'l shall be under any disability other than coverture, 
 such order shall be of no force or edect as against such party nntii a 
 guardian or guardians iid litem shall have been duly apjiointed for such 
 pjrty, and such time shall have elapsed thereafter as shall be prescribed 
 by any General Order of the Lord Chancellor in that behalf. 
 
 One of two creditors, pliiintiiFs in a creditors' suit, upon 
 an abatement by the deatli of an executor of the trustees, 
 obtained letters of achninistration de bonis non to the estate 
 of the testator, and leave was given to the other creditor to 
 file a supplemental claim against him and the executors of 
 the deceased executor, the case not being within the 52nd 
 section of the 15 & 16 Vict. c. 86. which gives to an order 
 on motion the effect of a supplemental decree: {Tate v. 
 Leithead, 9 Hare, App, 51.) 
 
 Order on motion ex parte by the plaintiff, to revive and 
 carry on ])roi'eedings in an administration suit upon abate- 
 ment, by the death of the executor, under the 52nd section 
 of the act, upon allegation without proof of the facts con- 
 stituting the abatement: {Martin v. Iladlow, 9 Hare, App. 
 52.) 
 
 Where the case is one in which the order to revive only 
 is necessary, and not an order to the effect of a supplemental 
 decree, the motion is of course, and does not retpiire to be 
 mentioned to the court : {Boii/il v. Purchase, 9 Hare, 
 App. 52.) 
 
 An order to the effect of a supplemental decree made 
 under the 52nd section of the act, where the interest of an 
 infant plaintiff has been transmitted to the trustees of a 
 settlement, made under the direction of the court in con- 
 sequence of her marriage: (Atkinson v. Parker, 16 Jur. 
 1005.) 
 
 A creditor, who had proved his debt in the cause, applied 
 for and obtained an order under the 52nd section, for the 
 order to revive and cany on the proceedings, the suit 
 having abated by the death of the plaintiff, the court being 
 of opinion that tiie benefit of the claim was not confined to 
 the parties to the suit: {Lowes v. Lowes, 16 Jur. 689.) 
 
 The birth of one of a class entitled as such after the insti- 
 z 2
 
 256 15 & 16 Vict. cap. 86. 
 
 tution of a suit, is within the 52nd section of the act, and 
 justifies an order for the usual supplemental decree: {Fuller- 
 ton V. Martin, 1 Drew. 238.) 
 
 Order in the nature of a supplemental decree, for a creditor 
 who had proved his debt, to carry on a creditors suit where 
 the original plaintiff had become bankrupt : {English v. 
 Hayman, 9 Hai-e, App. 88.) 
 
 The .52nd section enables the court to make an order to 
 the effect of the usual supjjlemental decree, where the object 
 is to bring before the court the trustees under a settlement 
 of the property of an infant plaintiff, made after the institu- 
 tion of the suit : {Atkinson v. Parker, 2 De Gex, Macn. & 
 Gord. 221.) 
 
 llevivor of a suit before decree to be by bill, and not by 
 order under the 52nd section : (]0 Hare, App. 31.) 
 
 Order giving leave to the plaintiff to enter an appearance 
 for the assignees of a bankrupt defendant, made parties 
 under the 52nd section, after due service of such order and 
 non-appearance: (Cross v. Thomas, 17 Jur. 336.) 
 
 After sulstituted service of an order to revive, obtained 
 under the 52nd section, and made upon the solicitor of the 
 defendant, under an order of the court for that purpose, the 
 defendant being out of the jurisdiction, the court, on the 
 application of the plaintiff, ordered an appearance to be 
 entered for the same defendant who had not ajjpeared : 
 (Foster v. Menzies, 17 Jur. 657.) 
 
 Upon service on the defendant of an order to revive, 
 obtained by the plaintiff under the 52nd section, after decree, 
 the suit may proceed without an appearance by such defen- 
 dant : (Wa?-(l V. Cartwright, 10 Hare, App. 73.) 
 
 Order made, under the 52nd section, for the prosecution 
 of a suit against the assignees of a defendant become bank- 
 rupt after appearance, but before answer, with liberty for 
 the assignees to answer if they should be so advised : (Lash 
 v. Miller, 4 De Gex, Macn. & Gord. 841.) 
 
 LIII. New facts, cfc, after commencement of suit, to he introduced 
 as amendments to hill, efc. — It shall not be necessarj' to exhibit any 
 supplemental bill in the said court for tlie purpose only of stating or 
 puttiiijj in issue facts or circumstances whit'h may have occurred after 
 the institution of any suit; but such facts or circumstances may be 
 introduced by way of amemlnient into the original bill of complaint in 
 the suit if the cause is otherwise in such a state as to allow of an 
 amendment being made in the bill, and if not, the plaiotifF shall be at 
 liberty to state such facts or circumstances on the record, in such manner 
 and subject to such rules and regulations with respect to the proof 
 thereof, and tho affording the defendant leave and opportunity of
 
 15 & 16 Vict. cap. 86. 257 
 
 answering and meeting the same as shall in that behalf be prescribed 
 by any General Order of the Lord Chancellor. 
 
 The <lofcMiflant, although he has the conduct of the decree, 
 is not, tlieri'lori', entitled, undertlie .5.'}rd section oi'tiie statute 
 and 44th General Order of August, 1S5-2, to fde a statement 
 of facts or circumstances occiu-ring after the institution of 
 the suit to be annexed to the bill : (Zee v. Zee, 9 Hare, 
 App. 91.) 
 
 Semble, in some cases a child born after decree in a suit 
 may be brought before the court by supplemental order 
 without a su[)plemental bill : {Notley v. Palmer, 1 Jur. 
 (N. S.) 221.) 
 
 The 53rd section has no application after decree, nor 
 before decree for bringing new psirties before the court, but 
 only fur bringing forward new ficts between the same 
 parties. If new parties are to be brought before the court, 
 there must be a supplemental bill : (^Conimerill v. Hall., 
 2 Drew. 194.) 
 
 \AY. Where account required to be taken, court may give special 
 directions as to the mode of taking same. — It shall bo lawful for tlie 
 court, in any case wlmre any account is required to be taken to give 
 .such special directions, if any, as it may think tit with respect to the mode 
 in which the account should be taken or vouched, and such special 
 directions may be siveu, either by the decree or order directing such 
 account, or by any sul)sequent order or orders, upon its apjjearing to 
 the court that the circumstances of the case are such as to require 
 such special directions ; and particularly it shall be lawful for the court, 
 in cases where it shall think fit so to do, to direct that in taking tlie 
 account the books of account in which the accounts required to be 
 taken have been kept, or any of them, shall be taken as prima facie 
 evidence of the truth of the matters therein contained, with liberty to 
 the parties interested to take such objections thereto as they may be 
 advised. 
 
 The meaning of this section is, that where vouchers have 
 been lost, or the accounts cannot be taken in the ordinary 
 way, the court may give special directions, but such direc- 
 tions will not be given unless it appears that the ordinary 
 evidence cannot be had, or merely to save expense. Semble, 
 that tlie section does not operate retrospectivelv : (Lodge v. 
 Pritchard, 3 De Gex, Macn. & Gord. 906.) 
 
 Where plaintiffs were brokers, having transacted business 
 for the defendants, and the clerk of the plaintills had made 
 entries in his books of matters transacted by the phiintifTs, 
 communicated to him innneiliately after their transaction, 
 the clerk being dead, and there being proof external and 
 
 z a
 
 258 15 & 16 Vict. cap. 86. 
 
 i nternal that the books were regularly kept, they were ad- 
 mitted under the 54th section as prima facie evidence : 
 (Ewart V. Williams, ii Drew. 21.) 
 
 LV. Court may order real estate to be sold, if required. — If after 
 a suit shall have been instituted in the said court in relation to any 
 real estate it shall appear to the court that it will be necessary or 
 espelieiit that the said real estate or any part thereof should be 
 sold for the purposes of such suit, it shall be lawful for the said conrt 
 to direct the same to be sold at any time after the institution thereof, 
 and sui^h s^ile shall be as vahd to all intents and purposes as if 
 directed to be made by a decree or decretal order on the hearing; of such 
 cause; an^ any party to the suit in possession of such estate, or in 
 receipt of the rents and profits thereof, shall be compelled to deliver up 
 sui^h possession or receipt to the purchaser or such other person as the 
 court shall direct. 
 
 This section is applicable only to cases in which, for the 
 protection of property or other like cause, it is necessary to 
 apply to the court for a sale ; and it was not intended to 
 enable parties in a contested suit to obtain upon an inter- 
 locutory application before the hearing a decision upon the 
 question in contest : (Prince v. Cooper, ]6 Beav. .546.) 
 
 This section only gives power to direct a sale, before the 
 hearing iti those cases in which the court could, under the 
 old practice, have given such directions at the hearing : 
 {Mandeno v. Mandeno, Kay, App. 2.) 
 
 LVI. Bi'fure sale ofeatate abstract of title to be laid before some con- 
 veyancing counsel — Time for delivery of abstract to be specified in con- 
 ditions of snh. — Before any estate or interest shall be put up for sale 
 under a decree or orler of the Court of Chancery, an abstract of the title 
 thereto shall, with the approbation of the court, be laid before somecon- 
 veyancinp; counsel to be approved by the court, for the opinion of such 
 counsel tiiereon, to the intent tiiat the said court may be the better 
 enable! to give such directions as may be neces-^ary respecting the 
 conditions of sale of such estfite or interest, and otlicr matters connected 
 with the sale thereof; and when an estate or interest shall be so 
 put up for sale, a time for the delivery of the abstract of title thereto 
 to the purchaser or his solicitor shall be specified in the said conditions 
 of sale. 
 
 LVII. Where real or personal proper!/^ is the suhject of proceedings, 
 
 court may allow to parties part or the whole of the nnnurd income. 
 
 Where any real or personal jiroperty sh;dl form the subject of any 
 proceedings in the Court of Chancery, and the court shall be satis- 
 fied thit the same will be more than sufficient to answer all the claims 
 thereon which ought to be provid<'d for in such suit, it shall be lawful 
 for the said court at any time alter the conmieiuement of such pro- 
 ceedings to allow to the parties interested therein, or any one or more of 
 Uiem, ihe whole or part of the annual income of such real property, or
 
 lo & 16 Vicr. CAP. 86. 259 
 
 a part of such personal property, or a part or tlie whole of the income 
 thereof, up to such time as tiie s:iid court shall direct, and for that 
 purpose to make such orders as may appear to the said court necessary 
 or expedient. 
 
 An allowance of income ;7enr/f'«/<? lite, under this section, 
 will only he made upon tlie admission hy the executors of 
 assets: (Knight v. Knight, 1(J Beav. 35«.) 
 
 LVIII. Practice as to injunctions to stay proceedings at law to be 
 assiiniltted to practice as to special injunctions. — The practice of the 
 Court of Oliancery with respect to injunctions for llie stay of proceed- 
 ings at law shall, so far as the nature of the case will admit, bo 
 a.ssimilated to the practice of such court with respect to special injunc- 
 tions generally, and such injumtions may be granted upon interlocutory 
 applications supported by aflidavit, in like manner as other special 
 injuuctions are granted by the said court. 
 
 Practice under the statute in cases of injunctions to stay 
 proceedings at law. 
 
 Though a party may now at law examine his opponent, 
 he is still entitled to discovery in eijuity in aid of his case 
 at law. 
 
 Where the plaintiff, in a l)ill of discovery in aid of a defence 
 at law, has a bond fide case, verified by aflidavit, showing 
 that information may be given by the answer, which may 
 assist him in wlioUy or partially destroyinir the case made 
 against him at law, he is entitled to that discovery, and to 
 an injunction until the discovery is given : {Lonell v. Gal- 
 loway, 17 IV-av. 1.) 
 
 The practice as to common injunctions is not in all respects 
 assimilated to that in cases of special injunctions. A prima 
 facie CISC, suj)ported by aflidavit, is now re([uired to entitle 
 a plaintiff to the common injunction. And, although that 
 case be met by affidavits of the defendant, denying the 
 equity of the bill, still the plaintiff is entitled to an injunc- 
 tion to stay proceedings at law until answer, in order to 
 secure to him the benefit of a full discovery, in aid of his 
 defence at law : {Senior v. Pritclaird, IG Beav. 47^.) 
 
 LIX. Answer of defendant, on mntioii, for injunction or receioer, 
 <^c., to be rerjarded as an affidavit. — U[)on a]iplication by motion or 
 petition to the court in any suit depending therein for an injunction or 
 a receiver, or to dissolve an injunction, or discharge an order appointing 
 a receiver, the answer of the defendant shall, for the purpose of evi- 
 dence on such motion or petition, be regarded merely as an affidavit of 
 the defendant, and afEJavits may be received and read in opposition 
 thereto.
 
 260 15 & 16 Vict. cap. 86. 
 
 LX. In case directions as to practice, <fc., not foUawed, court may 
 make order and award costs. — In case any of the directions herein con- 
 tained with respect to the practice ar.d course of proceeding in the said 
 Court of Chancery, shall by mistake of parties fail to be followed in 
 any suit or proceeding in the said court, it shall be lawful for the said 
 court, if it shall think fit, upon payment of such costs as such court 
 shall direct, to make such order giving effect to and rectifying such pro- 
 ceedings as may be justified by the merits of the case. 
 
 LXI. Court of Chancery not to direct cases to be stated for opinions 
 of Court of Common, Law, but to decide the same. — It shall not be 
 lawful for the said Court of Chancery, in any cause or matter, to 
 direct a case to be stated for the opinion of any Court of Common 
 Law, but the said Court of Chancery shall have full power to determine 
 any questions of law, wiiich in the judgment of tiie said Court of 
 Chancery shall be necessai-y to be decided prewmsly to the decision 
 of the equitable question at issue between the parties. 
 
 LXII. Court may determine legal title of party seeking relief without 
 requiring parties to lyroceed to law. — In cases where, according to the 
 present practice of the Court of Chancery, such court declines to grant 
 equitable relief until the legal title or right of the party or parties seek- 
 ing such relief shall have been established in a proceeding at law, the 
 said court may itself determine such title or right without requiring the 
 parties to proceed at law to establish the same. 
 
 LXI II. Lo7-d Chancellor and judges to make General Rules and 
 Orders for carrying pur/Mses of this act into effect. — The Lord Chan- 
 cellor, with the advice and assistance of the Master of the Rolls, the 
 Lords Justices of the Court of Appeal in Chancery, and the Vice- 
 Chancellors, or any three of them, may and they are hereby required 
 from time to time to make General Rules and Orders for carrying the 
 purposes of this act into effect, and for regulating the times and form 
 and mode of procedure, and generally the practice of the said court, 
 in respect of the matters to whicii this act relates, and for regulat- 
 ing the fees and allowances to all otScers of the said court and solicitors 
 thereof in respect to such matters and so far as may be found ex- 
 pedient for altering the course of proceeding hereinbefore prescribed 
 in respect to the matters to which this act relates, or any of them; 
 and such rules and orders may from time to time be rescinded or 
 altered by the like authority; and all such rules and orders shall take 
 effect as General Orders of the said court. 
 
 LXI v. Such. General Rules and Orders to be laid before Parlia- 
 ment. — All General Rules and Orders of the Lord Cl;ancellor, with snch 
 advice and assistance as aforesaid, shall immediately after the making 
 and issuing thereof be laid before both Houses of Parliament, if Parlia- 
 ment be then sitting, (r if Parliament be not then sitting, within five 
 days after the nest nit-eting thereof: provided always, that if either 
 of the Houses of Parliament shall, by any resolution passed witbin 
 thirty- six days after snch rules or orders have been laid before such 
 Houses of Parliament, resolve that the whole or any part of such rules 
 or orders ought not to continue in force, in such case the whole or 
 such part thereof as shall be so included in such resolution, shall, 
 from and after such resolution, cease to be binding.
 
 lo & 16 Vict. cap. 86. 261 
 
 LXV, Power to Lord Chancellor to increase salaries of examiners — 
 If examiner decline to continne. Lord Chancellor may order a certain an- 
 nuity to he paid to him. — Atiil wlicreas the present cxaiiiiiiers of the court 
 have been lieretdforo appninted for the purpose only of taking the deposi- 
 tions of witnesses in private, and upon written interrogatories prepared 
 by counsel : and whereas the pubhc examination of witnesses orally, uuder 
 the provisions of this act, will materially alter the nature of the duties 
 and increase the responsibility of the sai<l examiners: be it therefore 
 enacted, that it shall be lawful for the Lonl riiancellor and he is hereby 
 empowered to order and direct a sum to be paid to each of tlie said 
 examiners, out of the fund intituled " 'i'lii- Suitor's Fund," from and 
 after the first of November one thousand eight hundred and fifty-two, 
 such a sum as siiall together with the sums now payable make up the 
 annual sum of one thousand five hundred pounds: provided always, 
 that if eitlier of the present examiners should feel liiinself unable or 
 should decline to continue his services in the same office upon the con- 
 ditions proviiled under this act, it shall be lawful f<jr the Lord Chan- 
 cellor to order to be paid to such examiner retiring an annuity of an 
 amount not exceeding three-fourtlis of the salary which he has liitherto 
 received. 
 
 LXVI. Construction of terms. — In the construction of this act the 
 words ''bill of complaint" shall mean also and include information; 
 the word "'affidavit" shall mean also and incluie affiiination; the 
 exjtression ''Lonl Chancellor" shall mean and include the Ijord Chan- 
 cellor, Lord Keeper, and Lords Commissioners of the Great Seal of 
 the United Kingdom for the time being ; and the expression " General 
 Order of the Lord Chancellor" shall mean General Order of the Lord 
 Chancellor with such advice and assistance as aforesaid. 
 
 LXVI I. Commencement of act. — This act shall commence and tako 
 eflfect from and after tlie first day of November one thousand eight 
 hundred and lit^y-two ; provided that it shall be lawful for the Lord 
 Chancellor, with such advice and assistance as aforesaid, to make and 
 issue any such (Jeneral Rules or Orders as aforesaid al any time after 
 the passing of this act, so as tlie same be not made to take eflect before 
 the time appointed for the comniencemet of this act. 
 
 Cases on the statute generally. 
 
 On the examination of witnesses orally under this act, if a 
 (locuiiu'iit is put into the hands of a witness by a party ex- 
 aniiniiio; lijm, the other side may retjuire to see the document. 
 
 I. It' the witness is examined on its contents <icnerally; or 
 if, althongli the document is orioiually shown to the witness 
 merely to refresh his memory, questions are atterwards put 
 relatiiif.' to its contents. 
 
 II. He m:iy not require to see the docuiuent. If the docu- 
 ment is merely put into the hands of the witness to refresh 
 his memory. Nor If he is examined merely to prove the 
 handwriting: {Lord v. Coluin., 2 Drew, 200.)
 
 262 15 & 16 YiCT. CAP. 86. 
 
 Amenilnipnt of a petition the necessity for which was 
 created bv the mamage of the petitioner, without a fresh 
 stamp : [Bithimon v. Harrison, 1 Drew. 307.) 
 
 Evidence of the propriety of a sale of an estate by private 
 consent, will be heard and approved of in court, without a 
 reference to chambers : (Pimm v. Insall, 10 Hare, App. 74.) 
 
 The examiner of the court, or a special examiner, will be 
 appointed to take the examination of a sick witness as occa- 
 sion may require: (Pillan v. Thompson, 10 Hare, App. 7(».) 
 
 Application for appointment of a guardian to concur in a 
 special case made in court and not by a summons in cham- 
 bers: (T/iornhill v. Coplestone, 10 Hare, App. 67.) 
 
 It is at the option of a party, who is dissatisfied with a 
 certificate of the Chief Clerk, to have his objections to it 
 argued before the judge in chambers, or in open court. But 
 where objections have been argued before a judge in cham- 
 bers, no rehearing will be allowed in open court, except 
 under special circumstances: (Yoj-k and North Midland 
 Railway Company v. Hwlxon, 17 Jur. 1090.) 
 
 Parties out of the jurisdiction must be served with notice 
 of the decree in a suit commenced by summons out of cham- 
 bers : (Strong v. Moore, 22 L. T. 917.) 
 
 The 22nd section of the Common Law Procedure Act, 
 18.')4, authorizing a party to discredit his own adverse witness, 
 applies to the Court of Chancery, and to an examination 
 not in court, but before an examiner ; but the leave to pro- 
 duce counter evidence must be given not by the examiner, 
 but by the judge on special motion. 
 
 An examiner in Chancery has no authority to detennine 
 questions as to the relevancy or adverse nature of the evi- 
 dence of a witness, but when the question as to his being 
 adverse is likely to be raised, the examiner should take down 
 the questions as well as the answers, upon which counter evi- 
 dence may be required : {Buckley v. Cook, 1 Kay & T. 29.) 
 
 Mode of appealing from the certificate of a judge's chief 
 clerk made in conformity with an opinion expressed by the 
 judge : {Rhodes v. Ihhetson, 4 De Gex, Macn. & Gord. 787.) 
 
 The court refused to direct the oial examination of a 
 party to the cause under a decree which had been made 
 directing accounts ami incjuiries before the new Procedure 
 Act came into operation: [Shericood v. Vincent, 9 Hare, 
 App. 19.) 
 
 An application to enlarge publication, seeking also other 
 directions, made in court ; if it had been to enlarge time only 
 it should be in chambers : {Atkinson v. Oxford, ^-c. Railway 
 Company, 9 Hare, App. 19.)
 
 l.j & 16 Vict. cap. 80. 263 
 
 No ilirertion is now necessary in a decree for liberty to 
 state special circumstances : ( Williiiinson v. Jeffreys^ 9llare, 
 App. 5(i ; Attornfy-deneral v. Attwond, ibid.) 
 
 Form of order appoiiUinji an examiner in several colonies 
 in Australia: {Crofts v. Middlcton, i) Hare, App. 7o.) 
 
 Numerical statements in bills may be printed in figures 
 and not in words at length : {Anon. 9 Hare, App. 8.'}.) 
 
 Cases in which inquiries in chambers may be prosecuted or 
 made with or without an order of" the court having l)een 
 drawn up directing such incjuiries : {Kelson v. Kelson., 9 Ilarc, 
 App. 80.) 
 
 15 & IG Vict. cap. 80. 
 
 Ari Act to aholish the Office of Master in Ordinanj of the 
 High Court of Chancery .1 and to mahe prorision for the 
 more speedy and efficient de.^putch of Business in the said 
 Court.— [SOth June, 1852.] 
 
 I. Office of Masters in Ordinary in Chancery abolished. — The office 
 of Master in Ordinary of the High Court of Chancery shall be and the 
 same is hereby abolished, but reserving and subject to the execution by 
 the present Masters in Ordinary of the said court, as sucli, of the duties 
 hereinafter provided for; and until they are released under this act 
 they shall, for the performance of such duties, continue to have all the 
 powers conferred upon them by any act of Parliament, or otherwise 
 vested in them. 
 
 II. Vacancies in office of Masters not to he filled vp. — No vacancy 
 which h,is already occurred or may hereafter occur in the office of 
 Master in Ordinary of the said court shall be filled up, nor shall any 
 future accountant-general be made or become one of the blasters in 
 Ordinary. 
 
 III. Two of the Masters in Ordinary released from their duties on 
 first day of Michaelmas Tenn, 1852, (fc. — Proviso as to certain inatters 
 
 depending before the said Masters. — On the first day of Michaelmas 
 Term one thousand eight hun<lred and fifty-two, .James William Farrar, 
 Esquire, and William Brougliam, Esquire, two of the Masters in Ordi- 
 nary of the said court, shall be released from their duties as such Masters ; 
 and as often tiiereafter as, in the judgment of the Lord Chancellor, 
 from the state of business in the said court, any other Master or Masters 
 can be spared, it shall be lawful for the Lord Chancellor to release any
 
 264 15 & 16 Vict. cap. 80. 
 
 such JIastcr or blasters at such time or times as to him sliall seem 
 meet: provided always, that notliing in this act contained shall extend 
 to release, or to authorize the Lord Chancellor to release, any of the 
 Masters from attendanc^i upon the House of Lords without the order of 
 the House: provided also, that if, from the nature of any paiticular 
 matter or matters depending before either of the said Masters herein- 
 before respectively named, it shall in the opinion of the Lord Chancellor 
 be desirable that such matter or matters should be worked out by or 
 before the same Master before whom the same shall be depending, it 
 shall be lawful for the Lord Chancellor to direct such Master to continue 
 the prosecution of such matter or matters, and such Master shall pro • 
 secute the same accordingly, hi the same manner and with the same 
 powers in every respect as if he had not been released from his duties 
 under this act. 
 
 IV. Option to ^fnslers to retire according to seniority, <fc. — Power 
 to Lord Cliancelhir to release remuinivg Masters. — Every Master to be 
 released by the Lord Chancellor shall have the option to retire tendered 
 to him according to his seniority in office; and if any such blaster shall, 
 for one calendar month after such option tendered to him, neglect or 
 decline to avail himself thereof, then the Lord Chancellor may tender 
 the like option to the nest in succession in seniority in office, and so 
 toties quoties ; but when the Lord Chancellor shall be of opinion that 
 the services of none of the ]\Iasters are any longer necessary for the due 
 execution of the business of the said court, it shall be lawiul for 1dm to 
 release every remaining Master. 
 
 V. blasters salaries and compensation allowance continued hy way 
 of retiring pensions, (fc. — Each one of the Masters to be so released 
 on the first day of Michaelmas Term one thousand eight hundred and 
 fifiy-two, shall nevertheless continue entitled to receive during his life, 
 by \\-.\y of retiring pension, the full amount of his salary as such blaster, 
 including the amount of the compensation allowance payable to him as 
 such Master; and every Master who may be so released subsequently 
 to the same first day of Michaelmas Term one thousand eight hundred 
 and fifty-two, shall also continue entitled to receive by way of retiring 
 pension the full amount of his salary as such Master. 
 
 VL Retiring pensions, cjc, to be paid in the same manner as present 
 salaries. — The salaries or retiring pensions and compensation allowances 
 payable to the .Masters so to be released shall continue or be payable 
 out of the same funds, on the days, and in the same manner in all 
 respects, as their present salaries and compensation allowances respec- 
 tively. 
 
 VI !. Poirer to 3Iaste.rs to summon parties, (fc, and to settle and 
 wind vp proceedings before them. — In oider as expeditiously as may be 
 to wind up all the causes, matters, and things which may from time to 
 time bo depending befire or have beeu referred to the Masters in 
 Ordinary of the said court, it shall be lawful for every Ala.iter, at any 
 time after the passing of this act, to summon as he shall deem fit all 
 or any of the parties to any cause, matter, or thing so deper.ding, or 
 their solicitors, and thereupon to proceed with such cause, matter, or
 
 15 8c IG Vict. cap. 80. 265 
 
 tiling, anil {;ive sucli directions and niiike such order as lie may think 
 necessary for the purpose of settlitii; and wiiidinfj up the same; hut any 
 such order shall he subject to be discharpcd or varied by the court upon 
 application made for that purpose: and the Jlastcr shall be at liberty to 
 proceed for the purposes aforesaid in the absence of any of the parties 
 or solicitors neglecting or refusing to attend the summons. 
 
 VIH, Power to court, ujwti Master's r<port or certificate, to make 
 order for prosecution 01' final disposal of any suit, ifc, and for pay- 
 ment ofcotits, (fc. — In case the Master shall bo unable, by reason of 
 the conduct of parties, or otherwise, to finally dispose of any cause, 
 matter, or thing, he shall be at liberty to dispose of any part thereof 
 within his power, and to report and certify on the whole of the case; 
 and upon such report or certificate the court shall make such order as it 
 shall think proper on all or any of the parties, for the further prosecu- 
 tion of the suit or matter, or for the final disposal thereof, and for the 
 payment of the costs thereof, including any of the costs which may 
 have been incurred by reason of the conduct of the parties. 
 
 IX. On neglect of parties to bring Master's report before the court, 
 siilicitor to Suitor s Fee Fund to do so, and his costs prondedjor. — In 
 the event of the parties in any ciuse, matter, or thing, or their solicitors, 
 refusing or neglecting, within a time to be fixed by the Master, to bring 
 the Master's report or certificate before the court, the same may, by 
 direction of the Master, be brought before the court by the solicitor for 
 the time being to the Suitors' Fund ; and the court is hereby em- 
 powered to order payinen: of the costs and expenses of the solicitor to 
 the Suitors' Fund out of such of the funds in the cause, matter, or 
 tiling, or by such parties as to the court shall seem just; and in case 
 payment thereof cannot be obtained by any of the means aforesaid, the 
 same, by the direction of the court, may be paid out of the Suitors' Fund. 
 
 X. No fresh references to Masters, except in cases already before 
 them, and 171 matters wider Winding-tip Acts. 1848 and 1849 — Until 
 all the Masters are released fro7n their duties, those remaining shall 
 prosecute all the business depending — Power now vested in Masters 
 reserved to them for such purposes. — From and after the first day of 
 Michaelmas Term one thousand eight hundred and fifty-t^vo no refer- 
 ence shall be made to any of the Masters in Ordinary of the said court, 
 except in cases in which, from some previous reference made in the 
 cause or matter, or in some other cause or matter connected therewith, 
 the court may think it expedient to make such reference, and except in 
 matters arising under the Joint Stock Companies \\ inding-np Acts, 
 1848 and 1849: provided always, that until all the Ma.^ters in Ordinary 
 of the said court shall have been removed by resignation, death or 
 otherwise, or have been released from their duties under this act, such 
 of the Masters in Ordinary of the said court as shall for the time being 
 remain in office, and shall not lie released from their duties under this 
 act, shall prosecute all the business which on the first day of Michaelmas 
 Term one thousand eight hundred and fitty-two shall be dejcnding 
 before the Masters, and also all the references which before the said 
 first day of Michaelmas Term one thousand eight hundred and fifty-two 
 shall have been made under decrees or orders of the court, or which 
 
 [CH.] 2 A
 
 266 15 & 16 Vict. cap. 80. 
 
 on or after the same first day of Mirhaelmas Term shall be nia<le 
 in relation to such excepted matters as aforesaid ; and the same, if 
 iiecessary, shall be distributed amongst such reinaining blasters in such 
 manner as the Lord Cliaiicsllor shall direct; aiid the powers and 
 authorities now vested in them are hereby reserved to them for the 
 purpose of executing and peiforming all the duties, matters, and things 
 which may be still refein.d to them, or which they may be lawfully 
 called upon to perform. 
 
 XI. Power to Master of the Rolls and Vice- Chancellors to sit at 
 chambers for the despatch of business, cfc. — From and after the first 
 day of Jlichaelmas Term one thousand eight hundred and fifty-two it 
 shall be lawful for the Master of the Rolls and the Vice-Oiancellorsfor 
 the time being and they are hereby required to sit at chambers for the 
 despatch of such part of the business of tbe said court as can, witiiout 
 detriment to the jtublic advantage arising from the discussion of questions 
 in open court, be heard in chambers, according- to the directions herein- 
 after in that behalf specified or referred to; and the times at and during 
 which they respectively shall so sit shall be from time to time fixed by 
 them respectively. 
 
 XII. Power to Lord Chancellor to provide chambers for the Masters 
 of the Rolls and Vice-Chancellors. — The chaml)er business of the 
 Master of the Itolls and oi every Vice-Chancellor shall be carried on in 
 conjunction witii his court business ; but as no rooms are attached to the 
 courts of the Vice-Chancellors in whicii such chamber business can be 
 transacted, it shall be lawful for the Lord Chancellor to cause chambers 
 to be provided for every of them respectively for that purpose until 
 courts with proper rooms attached can be provided for them. 
 
 XIII. Judges to have same power and jurisdiction as in open court, 
 —The Master of the Rolls and every of the Vice-( Chancellors respec- 
 tively when sitting in chambers shall have the same power and jurisdic- 
 tion in respect of the business to be brought before them, as if they 
 were respectively sitting in open court. 
 
 XIV. Orders made in chambers to be ordinarily draum up by judges 
 clerk, but judges may direct them to be drawn up by registrars of the 
 court, and may require their attendance at chambers for the purpose. — 
 The orders made by the Master of the Rolls and Vice-Chancellors re- 
 spectively when sitting in chambers shall ordinarily be drawn up there 
 by their respective clerks, to be appointed as hereinafter mentioned, but 
 with power to each of such judges to direct any of such orders to be 
 drawn up by the registrar of the said court in like manner as orders 
 made by a judge of the said court in open court are drawn up, for which 
 purpose the registrars of the said court shall, when required, attend the 
 Master of the Rolls and the Vice-Chancellors respectively when sitting 
 at chambers in such order and manner as shall be found most convenient 
 for furthering the business of the said court, and as the Lord Chancel- 
 lor, with the concurrence of the Master of the Rolls and Vice-Chan- 
 cellors, or any two of them, shall from time to time by any general 
 order direct. 
 
 XV. Orders made at chambers to have same force as orders of court, 
 4'C. — All orders of the Master of the Rolls or of any Vice-Chancellor,
 
 15 & 16 Vict. cap. 80. 267 
 
 made by him at chambers, shall, liave the force and oflVct of orders of 
 the Court of Chancery, and such orders may he signed and enrolled in 
 like manner. 
 
 XVI. Power to judges to appoint two Chief Clerks to each court to 
 assist ill the business of the court. — It shall be lawful for the Master of 
 the Kolls, and every of the Vice-Chancellors for the time heinjj respec- 
 tively, with the approbation of the Lord Chancellor, to appoint two 
 Chief Clerks each to be respectively attached to each judire and his 
 successors in office, for the purpose of assistinjij in the peneral business 
 of each court, and the causes and matters belonging thereto, and on any 
 vacancy in such office of Chief Clerk to supply such vacanc)'. 
 
 XVII. Chi'tf Chrk to judges to have been Chief Clerks to Masters 
 in Ordinary, or solicitors or altonieys of Un years' practice — Certain 
 Chief Clerks to be Chief Clerks of three o/' the equity judges. — No person 
 •shall be appomted Chief Clerk to the Master of the Rolls or any Vice- 
 Chancellor unless he shall have been Chief Clerk to one of tiic Masters 
 in Ordinary of the said court, or have been adnuttid on the roll of 
 solicitors or attorneys in one of the ccurts at Westminster Ilall, and 
 practised as such solicitor or attor uey for the pcrioij of ten years at least 
 immedi.itely preceding his appointment: provided always, that George 
 Whiting and Henry Leman, the present Chief Clerks of the said Masters 
 hereby released as aforesaid, and Charles Pugh, Chief Clerk in the 
 office of the Master now vacant, shall on the said first day of Jlichaelmas 
 Term one thousand eight liundied and tifty-two become and they are 
 hereby appointed Chief Clerks of three of the said equity judges, and 
 their respective successors in office, 
 
 XVIII. Power to judges to appoini junior clerks. — It shall be lawful 
 for the judge of each court to appoint a junior clerk to each Chief Clerk 
 of his court, and on any vacancy in such office to supply such vacancy. 
 
 XIX. Power to Lord Chtincellor to remove any officer appointed 
 under this act engaging in other employment or accepting any fee or 
 emolument whatever other than his salary.- If any person who shall 
 accept any office under this act shall engage in any other employment 
 whatever whilst he holds such office, or shall receive any sum of money 
 or benefit other than his salary and what may be allowed or directed to 
 be taken by him under any act of Parliament or order of the said court 
 or of the Lord Chancellor, for any act done or pretended to be done, or 
 any attendance given or pretended to be given, either with or without 
 the consent or direction or pretended consent or direction of the judge, 
 in relation to or arising out of any proceeding in his office, or in any 
 office of or connected with the Court of Chancery, or if such person, being 
 or having been a solicitor or attorney, shall directly or indirectly receive 
 or secure to hini.self any continuing benefit from any business or firm in 
 which he may have been engaged previously to his appointment to such 
 office, the person so offending may be removed from liis office by order 
 of the Lord Chancellor, and shall be rendered inc,ipa!)!e of afterwards 
 holding any office, situation, or emjiloynieiit in the said court. 
 
 XX. Solicitors, (^c, appointed to any ojfice vnder this act to be struck 
 ojf the rolls. — Kvcry solicitor or attorney who shall l)e apjiointed to ana 
 shall accept any office under this act sh.dl cease to be an attorney or 
 
 2 A 2
 
 268 15 & 16 Vict, cap. 80. 
 
 solicitor, and shall forthwith procure himself to be struck off the roll of 
 solicitors of the His;h Court of Chancery, and off the roll of any of Her 
 Majesty's Courts of Record at Westminster on which his name may be. 
 
 XXI. Chief Clerks to hold office during good behaviour. — Every such 
 Chief Clerk bhall hoM his office during his good behaviour, and so long 
 as he siiall personally give his attendance upon his duties, and shall 
 conduct himself honestly and faithfully in tiie execution of the duties of 
 his ortice, but subject to the power hereinafter contained to remove any 
 Chief Clerk for any cause which the Lord Chancellor and judges re- 
 moving may think sufficient. 
 
 XXII. And clerks during pleasttre. — Every such junior clerk shall 
 hold his office at the pleasure of the judge in whose court he shall be 
 attached. 
 
 XXIII. Chief and junior clerks to be under control and direction of 
 judges. — Such Chief Clerks and junior clerks shall be respectively under 
 the control of the judge to whose court they shall respectively be at- 
 tached, and shall attend at such places, during such time, and for such 
 hours in each day, and perform such duties, as such judge shall from 
 time to time direct. 
 
 XXIV. ChieJ and junior clerks subject to same penalties, cfc, a» 
 imposed, cfc, wider act 3 cj' 4 Will. 4, c. 94, as lespects officers of the 
 Court of Chancery. — Every Chief Clerk and every junior clerk to be 
 appointed under this act shall be subject and liable to such and the 
 same prohibitions, prosecutions, penalties, and punishments, as are by 
 an act passed in the session holden in the third and fourth years of the 
 reign of King William the Fourth, chapter ninety-four, imposed and 
 directed with respect to persons holding any office, situation, or employ- 
 ment in the said Court of Chancery, or under any of the judges or 
 officers thereof, in the same manner as if the enactments therein con- 
 tained relating to such officers of the said court respectively were here 
 repeated. 
 
 XXV Power to Lord Chnncellur, ictth concurrence of judges, to re- 
 move Chief Clerks. — It shall be lawful for the Lord Chancellor, with the 
 concurrence of the Master of the Rolls and Vice-Chancellors for the time 
 being, or any two of them, by any order to remove any Chief Clerk to 
 be appointed under this act from his office, without stating any cause 
 for such removal, 
 
 XXVI. Business to be disposed of in chambers by the judges. — The 
 business to be disposed of by the Master of the Rolls and Vice-Chan- 
 cellors respectively while sitting at chambers shall consist of such of the 
 followins; matters as the judge shall from time to time think may be 
 more conveniently disposed of in chambers than in open court; videlicet, 
 appHcations for time to plead, answer, or denmr; for leave to amend 
 bills or claims; for enlarging publication; and also applications for the 
 production of documents ; applications relating to the conduct of suits or 
 matters; applications as to the guardianship and maintenance of infants; 
 matters connected with the manaiiement of property; and such other 
 matters as each sucli judire may from time to time see fit, or as may 
 from time to time be directed by any General Order of the Lord 
 Chancellor-
 
 lo & 16 Vict. cap. 80. 269 
 
 The 26th section cannot be read disjunctively, and there- 
 fore, when a dofondant has boon required to answer, and has 
 not answered, the plaintill's liill. and the time fur putlinjjfin 
 suoh answer lias expired, tiie old ])raetii'e of fiiin^i a travers- 
 ing note must l)eadoj)ted: (llcatlt v. L(;wis, 17 Jur. 10;)0.) 
 
 Under these statutes, one Viee-Chancellor has jurisdic- 
 tion to hear a petition for another Vice-Chancellor : (^Hul- 
 loiouy V. Phillips, 17 Jur. 87o.) 
 
 A plaintilf having given notice of motion for decree, may 
 obtain an order of course to amend liis bill alter the defen- 
 dant has liled aOidavits in opposition to the motion for 
 decree : {Gill v. Kayuer, I Kay & S. J595.) 
 
 An order of course may be obtained, after replication, to 
 amend by adding parties, where no new issue is tendered 
 thereby : (Bryan \. Austell, Kay, App. 47.) 
 
 A judge in ehambers is not autiiorized under this section, 
 to entertain applications with reference to funds paid into 
 court under the acts for relief of trustees : sueli applications 
 must originate in and be founded upon a petition presented 
 to the court : (Re Hodge, 4 De Gex, IMacn. & Gord. 491.) 
 
 XXV'II. Judges may adjourn from open court to chambers, and vice 
 versa, the consideration of any matter. — It shall be lawful for the 
 Master of the Rolls and every of the Vice-ChancpUors respectively when 
 sitting in open court to adjourn for consideration in chambers any matter 
 which, in the opinion of such judge, may be more conveniently disposed 
 of in chambers, or, when sitting in cliambers, to direct any matter to be 
 heard in open court wiiich he may think ought to be so heard. 
 
 XX V 1 1 1. Afode of proceeding before judges at chambers to be by sum- 
 mons as at common law. — The mode of proceeding before the .Master of 
 the Rolls and Vice-Chancellors respectively at chambers shall be by 
 summons, and as near as may be according to the form now adopted 
 by the judges of the Superior Courts of Connnon Law when sitting at 
 chambers. 
 
 XXIX. Power to the judges to direct what matters, (fc, shall be 
 heard and investigated by themselves, and what by their Chief Clerks — 
 Right to suitor to bring any point before the judge. — From and after the 
 first day of Michaelmas Term one thousand eight hundred and fifty-two 
 the Master of the Rolls and the Vice-Chancellors respectively shall have 
 the sole power (subject to any rules which may be made by the Lord 
 Chancellor with the advice and assistance of them or any two of them) 
 to order what matters and things shall be investig:ited by and before 
 their respective Chief Clerks, either with or without their direction, 
 during their progress, and what matters and things shall be heard and 
 investigated by themselves ; and particularly, if the judge shall so 
 direct, his Chief Clerks respectively shall take accounts, and make such 
 inquiries as have usually been prosecuted before the Chief Clerks of the 
 present Masters ; and the judge shall give such aid and directions in 
 
 2 A 3
 
 270 15 & 16 Vict. cap. 30. 
 
 every or any such account or inquiry as be may think proper, but sub- 
 ject nevertheless to the right hereinafter provided for the suitor to bring 
 any particular point before the judge himself. 
 
 XXX. Power to Chief Clerks to issue advertisements and summonses, 
 to administer oaths, (^-c., as the judge shall direct. — Each Chief Clerk 
 shall, for the purpose of any proceedings directed by the Muster of the 
 Rolls or any Vice-Chancellor to be taken before him, have full power 
 to issue advertisements, to summon parties and witnesses, to administer 
 oaths, to take affilavits and a knowledtiments, other than acknowledg- 
 ments by married women, to receive affirmations, and, when so directed 
 by the judge to whose court he is attached, to examine parlies and wit- 
 nesses either upon interrogatories or viva, voce, as such judge shall 
 direct. 
 
 XXX r. Parli's, cfc, not attending liable to process oj" contempt and 
 to penalties for false swearing, tfc. — Parties and witnesses so summoned 
 shall be bound to attend in pursuance of any such summons, and shall 
 be liable to process of contempt, in like manner as parties or witnesses 
 are now liable thereto in case of disobeilience to any order of the said 
 court, or in case of defiiult in attendance, in pursuance of any order of 
 the said court, or of any writ of subpoena ad testfcnndum ; and all 
 persons swearing or affirming before any such Chief Clerk shall be liable 
 to all such penalties, punishments, and consequences for any wilful and 
 corrupt false swearing or affirming contained therein as if the matters 
 sworn or affirmed had been sworn and affirmed before any person now 
 by law authorized to administer oaths, to take affidavits, and to receive 
 affirmations. 
 
 XXX II. Result of proceedings before Chief Cleric to he embodied in 
 form of short certificate, i^c. — The directions to be given by the Master 
 of the Rolls or any Vice-Chancellor for or touching any proceedings 
 belore his Chief Clerk shall require no particular form, but the result of 
 such proceedings shall be stated in the shape of a short certificate to the 
 judge, and shall not be embodied in a formal report, unless in any case 
 the judge sliall see fit so to direct; and when the judge shall approve 
 ot such certificate or report he shall sign the same in testimony of his 
 adopting the ^ame. 
 
 XXXIII. No exceptions to lie to certificate, (fc. — Parties at liberty 
 to take opinion of judge upon any particular puint. — No exceptions shall 
 lie to any certificate or report of the Chief Clerk, although signed and 
 adopted by the judge ; but any party shall, either dining the proceed- 
 ings before such Chief Clerk, or within such time after such proceedings 
 shall have been concluded, and before the certificate or report shall have 
 been signed and adopted, as the Lord Chancellor sliall by any general 
 order direct, be at liberty to take the o]iinion of tin' judge upon any 
 particular point or matter arising in the course of the proceedings, or 
 upon the result of the whole proceeding when it is brought by the Chief 
 Clerk to a conclusion. 
 
 XXXiV. Certificate, (fc, signed and adopted by judge, binding on 
 all parties unless discharged or varied. — When any certificate or report 
 of the chief clerk shall have been signed and adopted by the judge the 
 same shall be filed in like manner as reports are now tiled, and shall
 
 lo & 16 Vict. cap. 80. 271 
 
 thenceforth be binding on ail tlie parlies to the proceedingB, unless dis- 
 charged or varied, either at cliaiiiUers or in open court, accdnliiiR to the 
 nature oi' tlie case, upon npplieation by .summons or motion within sucii 
 time as sliull he prehcrilied in tliat belialt' by any G«ncral Order of the 
 Lord Ciiancelior; and notliing iierein contained shall prejudice or afl'ect 
 the power of tlie court al any time to open any sucli certificate or report 
 upon the same or the like grounds as any rejjort of the Master of the 
 said court which lias been absolutely confirmed may now be opened. 
 
 After a certificiite of puivhnse, under a sale by the court, 
 has beiome biudiiio; by the liijise of ei^rht days since the 
 signature by the judge, the purchaser is consiilered to be so 
 far the absolute owner, that he may sell at an advanced 
 price for his own benefit : (1 Kay & John. 324.) 
 
 XXXV. Sections 13, 14, ami 15 f/3 ^- 4 Wilf. 4, c. 94, repealed.— 
 From and .-it'ier the first day of Michaelmas Term one thousand eight 
 hundred and fifty-two, the ihirteenth. fourteenth, and fifteenth sections 
 of the act passed in the session of Parliament hulden in the third and 
 fourth years of the reign of His Majesty King William the Fourth, 
 chapter ninety-four, shall be repealed. 
 
 XXX\'I. All powers possessed by Masters to be exercised by judges. 
 — From and after the first day of Michaelmas Term one thousand eight 
 hundred and fifty-two, all or any of the powers, anllnirities, and juris- 
 diction given to the Masters in OriJiiiary of the said court by any act 
 or acts then in force may be exercised by the Master of the Rolls and 
 Vice-Chancellors respectively. 
 
 XXXVII. Power to judges to exercise the powers yiven by sections 
 7, 8, and 9 of this act, and to dispose of any cause, (fc, in open court. 
 — From and after the first day of Micliaelmas Term one thousand eight 
 hundred and fifty- two tlie powers given to the Masters in Ordinary of 
 the said court, and to the court by sections seven, eif;ht,and nine of this 
 act, may be exercised by the ]\Iaster of the Rolls and Vice-Chancellors 
 respectively with respect to causes, matters, and things which may be 
 depending before them respectively in chambers ; and if and when any 
 sucli judge shall be of opinion that any cause, matter, or thing so 
 depending ought to be finally disposed of, unless the parlies or some of 
 them can show good cause to the contrary, he shall direct the same to 
 stand in his paper in open court, giving .such notice thereof, if any, as 
 he shall deem right, and jiroceed to di>})Ose thereof accordingly. 
 
 XXXVIII. Power to Lord Chancellor, with advice, tj'c. of judges to 
 make rules and orders for reyiihting the mode of jirocedure at chambers, 
 payment offe<s, ifc. — It shall be lawful for the Lord ("hancellor. with 
 tlie advice and consent of the Master of the Rolls and Vice-Chancellors, 
 or any two of thein, and they are hereby required, forthwith to make 
 and issue General Rules and Orders for regulating the limes and fonn 
 and mode of procedure before the Master of the Rolls and Vice-Chan- 
 cellors respectively, sitting at chambers, and thiir respective Chief Clerks, 
 and generally the practice of the said court in respect of tiie nrialters 
 to which this act relates, and for regulating the lees and allowances to
 
 272 15 & 16 Vict. cap. 80. 
 
 solicitors of tlie said court in respect to such matters, and also for regu- 
 lating' the fees to be payable by suitors of the said court to the offi,?er8 
 thereof in respect of the business to be conducted before the Master of 
 the KoUs and Vice-Chancellors respectively sittint; at chambers, and 
 their respective Chief Clerics ; and such rules and regulations may from 
 time to time be rescinded, altered, varied, or added to by the like 
 authority ; and all such rules and regulations as aforesaid shall take 
 effect as General Orders of the said court: provided always, that no 
 greater amount of fees shall be payable by the suitors of the said court 
 to the officers thereof, in respect of the business to be conducted before 
 the JIaster of the Rolls and the Vice-Chancellors respectively sitting at 
 chambers, and their respective Chief Clerks, than is now levied in 
 respect of similar or analogous business in the Masters' offices. 
 
 XXXIX. Easiness in Masters' offices to he conducted in the same 
 manner as similar business is conducted by jud^/es, cfc. — From and after 
 the said first day of Michaelmas Term one thousand eight hundred and 
 fifty-two the course of practice and proceeding in the offices of the 
 Masters in Ordinary of the said court, so far as the same may be incon- 
 sistent with the rules and regulations to be so as aforesaid made by the 
 Lord Chancellor with such advice and consent as aforesaid, shall be 
 abolished ; and the ilasters in Ordinary of the said court shall, with 
 reference to the proceedings before them, adopt all such rules and regu- 
 lations, and shall conduct the business of their respective offices, as nearly 
 as may be, in the manner in which similar business shall be conducted 
 by the Master of the Rolls and Vice-Chancellors respective'y, save only 
 that tha Master, instead of communicating directly with the judge, is to 
 report shortly the result of his inquiries to the court. 
 
 XL. Power to judges at chambers to take opinion of conveyancing 
 counsel in certain matters — Parties may object to snch opinion, which 
 may be disposed of in chambers or optn court. — From and after the 
 first day of Michaelmas Term one thousand eight hundred and fifty-two 
 it shall be lawful for the court or for any judge thereof when sitting at 
 chambers to receive and act upon the opinion of conveyancing counsel 
 in actual practice, to be nominated as hereinafter mentioned, in all cases 
 in which, according to the present practice of the court and of the 
 Master's office, it has been usual for the Master to require or receive the 
 opinion of conveyancing counsel for his aid and as'-istance in the inves- 
 tigation of the title to an estate, with a view to an investment of money 
 in the purchase or on mortgage thereof, or with a view to a sale thereof, 
 or in the settlement of a draft of a conveyance, mortgage, settlement, 
 or other instrunient, or otherwise, and in such other cases as the Lord 
 Chancellor shall by any General Order direct ; but it shall be competent 
 for any party to object to any opinion of any such counsel when he 
 shall deem it open to objection, and thereupon the point in dispute shall 
 be disposed of by the court, or by the judge sitting in chambers, accord- 
 ing to the nature of the case. 
 
 'Ho .special or substantive order will be made in ordinary- 
 cases for a reference to conveyancinij counsel, under this 
 section, but the court will adjourn the case, in order that
 
 15 8c 16 Vict. cai-. 80. 273 
 
 the opinion of counsel may be taken in tlie nie;in time : 
 (form of order under sucli :i reference, llarvcij v. Brooke, 
 17 Jur. 1.) 
 
 Under this act tlie court cannot act on tlie opinion of the 
 coMvevaneiiifj counsel in tlie case of an e.xcliaiige: {Thoni- 
 hill \. Thurnhill, 17 Jur. 25-2.) 
 
 XLI. Power to Lord Chancellor to nominate not less than six con- 
 veyancing counstl often years practice, tj-c. — It shall be lawful for tlie 
 Lord Chancellor to nominate any nuniher of convi-yancing counsel in 
 actual practice, not less than .six, who .shall have practised as such for 
 ten years at least, to be the conveyancing; counsel upon whose opinion 
 the court, or any judge thereof, may act in any of the cases last before 
 mentioned, and to supply vacancies in such list from time to time, and 
 to distribute the business amoni; such counsel in such order and manner 
 as to the Lord Chancellor shall seem fit. 
 
 XLI I. Power to obtain the assistance of accountants, merchants, cfc. 
 — It shall be lawful for tlie said court, or any judpe thereof, in such way 
 as they may tliiiik tit, to obtain the assistance of accountants, merchants, 
 engineers, actuaries, or other scientific persons, the better to enable such 
 court or judsrc to determine any matter at issue in any cause or pro- 
 ceedin;;, and to act upon the certilicate of such persons. 
 
 The 42nd section of the Masters' Abolition Act, 15 & 16 
 Vict. c. 80, docs not authorize the court to delegate to the 
 Master the power of caliino; in scientific aid. lint where, 
 before the act, a complicated chtim for a debt requiring such 
 aid had been referred to the ISlaster, and liberty had been 
 given to the claimant to bring an action, and it appeared 
 that such action, ifbrought, must go to arbitration, the court 
 ordered the matter to be disposed of in cliambers, wliere the 
 judge would call in such scientific aid as he should think fit : 
 {Mildmay v. Lord Methuen, 1 Drew. 216.) 
 
 XFJII. Taxing Master to regulate fees to conveyancing counsel, (f-c, 
 subject to ap/ieal. — The allowances in respect of fees to such conveyanc- 
 insi counsel, accountants, merchants, enf;ineers, actuaries, and other 
 scientific persons shall be rejjulaled by the Taxing Master of the said 
 court, subject to an appeal to the judge to whose court the cause or 
 matter shall he attached, whose decision shall be final. 
 
 XLIV. Salary of 1.2001. to be paid to each Chief Clerk, and 2501. 
 to each junior clerk, with poioer to the Lord Chancellor from time to 
 time to increase same to 1,500/. and ZOOl. respectively. — There siiall be 
 psid to every Chief Clerk of the Master of the Kolls and Vice-Chancel- 
 lors respectively the net yearly salary of one thousand t>\u hundred 
 pounds, and to every junior clerk to be appointed under this act the net 
 yearly salary of two iiundred and fifty pounds ; and it shall be lawful 
 fur the Loid Chancellor from time to time by any onler to direct that 
 the salary of any such Chief Clerk as aforesaid may be increased from
 
 274 15 8s 16 Vict. cap. 80. 
 
 time to time until the same shall amount to the net yearly sum of one 
 thousand five hundred pounds, and to direct that the salary of sucii 
 junior clerk may be increased to the net yearly sum of three hundred 
 pounds: provided always, that no such increase shall be made to any 
 such Chief Clerk until he shall have been in office for three years nur 
 to such junior clerk until he shall have been in office five years, nor in 
 either case without a certificate from the judge to whose court such 
 Chief Clerk or junior clerk shall be attached, that he has conducted 
 himself in such office to the entire satisfaction of such judge; provided 
 also, that the salary to such Chief Clerk siiall not be increased at any 
 one period by any greater amount than the sum of one hundred pounds. 
 
 The 44th section of the act does not apply to paying 
 money out of court: {Rawlins M'Mahon^ 1 Drew. 728.) 
 
 XLV. Pensions to Chief and junior Clerks in cases of permanent 
 hifirmity. — It shall be lawful for tlie Lord Chancellor, with the consent 
 of the Commissioners of Her Majesty's Treasury, by any order made on 
 a petition presented to him for that purpose, to order (if he shall think 
 fit) to be paid to any person executing the office of Chief Clerk or 
 junior clerk to the Master of the Rolls or any of the Vice-Chancellors, 
 who shall be afflicted with some permanent infirmity disabling him from 
 the due execution of his office, and shall be desirous of resigning the 
 same, an annuity not executing two-third parts of the yearly salary 
 which such person shall be entitled to at the time of presenting such 
 petition, to be paid and payable at the same time and out of the same 
 funds as compensations under this act are directed to be paid. 
 
 XL\'I. On retirement of Masters, their Chief Clerks to be entitled to 
 retiring pensions of same amount as salary. — It shall be lawful for 
 every person who on the first day of Hilary Term one thousand eight 
 hundred and fifty-two held the office of Chief Clerk to any of the 
 Masters in Ordinary of the said Court of Chancery, and who is not 
 hereby appointed a Chief Clerk to the Master of the Rolls or to one of 
 the Vice-Chancellors under the authority of this act, upon the Master 
 to whom he shall he such Chief Clerk being released from the duties 
 as such Master under the authority of this act, or upon the death or 
 resignation of any such blaster previously to his being so released, to 
 continue to be entitled to receive during his life, by way of retiring 
 pension, the full amount of his salary as such Chief Clerk, such salary 
 to be paid and payable out of such funds and in such manner as herein- 
 after in that behalf directed. 
 
 XLVII. Compensation to junior clerks on retirement of Masters. — 
 It shall be lawful for any person who on the said first day of Hilary 
 Term one thousand eight hundred and fifty-two, held the office of junior 
 clerk to any Master ifi Ordinary of the said Court of Chancery hereby 
 released, or who shall be released by the Lord Chancellor under the 
 authority of this act, to make a claim for compensation to the Commis- 
 sioners of Her Majesty's Treasury for the time being, at any time after 
 tlie Master in whose office he shall have been employed shall have been 
 released; and such commissioners are hereby required, within the space 
 of six calendar months alter every such clahn shall be made, by ex-
 
 W) 8c 16 Vict. cap. 80. 275 
 
 aminatini npnii (latli or otiierwise, which oath they iind every of them 
 are and is hwcby authorized to administer, to iiuiuire whetiier any, and, 
 if any, what compensation ousrlit to be made tu such jicrsun elaimiiip 
 such com]i(nsation; and in all cases in which it shall a|)p<'ar to the 
 said coiiimissioners that compensation oujjht to be ^.'ranted, it shall 
 be lawfiil lor the said commissioner;., by warrant under tlieir hands, to 
 order and direct that such annual compensation shall be made to the 
 persons claiming such compensationB as aforesaid, or any of them, 
 as to the said connni^sioners in their discretion shall seem just and 
 reasonable; and all such compensations shall be paid and payable out of 
 such funds and in such manner as hereinafter in that behalf directed: 
 provided always, that an account of all such compensations shall, wiihin 
 fourteen diys next after the; same shall be so granted, be laid on the 
 table of the House of Commons, if Parliament shall be then assembled, 
 or if Parliament shall not be then assembled, then within fourteen days 
 afier the meeting of the Parliament then next following. 
 
 XI^VIII. /Salaries, <fc., to be paid (juarterly out of the Suitors' Fee 
 Fund Account. — Except as herein otherwise jirovichd, all salaries under 
 this act shall grow due froyn day to dMV, but shall be payable, under an 
 order of the Lord Chancellor, on the third day of February, the third 
 day of May, the third day of August, and the third day of November in 
 every year, or on such other days as the Lord Chancellor shall from 
 time to time by any order direct, and shall be paid to the parties entitled 
 thereto, or their respective executors or administrators, out of tlie fund 
 standing in the name of the Accountant-General of the Court of Chan- 
 cery, to the account intituled " The Suitors' Fee Fund Account," but 
 subject and without prejudice to the payment of all salaries and other 
 sums of money by any former act or acts now in force directed or 
 authorized to be paid thereof. 
 
 XLIX. Payment of compensations to be made quartcrli/ out of Par- 
 liamentary securities. — Except as herein otherwise provided, all com- 
 pensations under this act shall grow due fmni day to day, but shall 
 be payable on the third day of February, the third day of 51ay, the third 
 day of August, and the third day of November in every year, or on suih 
 other days as the Lord Chancellor shall from time to time by any order 
 direct, and shall be paid to the parties entitled thereto, or their res- 
 pective executors or administrators, out of the interest and dividends of 
 the Government or Parliamentary securities now or hereafter to be 
 placed in the name of the Accountant-General of the Court of Chancery 
 to the two accounts intituled '• Account of Moneys placed out for the 
 Benefit and better Security of the Suitors of the High Court of Chan- 
 cery," and " Account of Sureties purchased with surplus interest arising 
 from Securities carried to an Account of Moneys placed out for the 
 Benefit and better Security of the Suitors of the Court of Chancery," 
 or either of them, by the Governor and Company of the Bank of 
 England, by virtue of any order or orders of tl;e Lord Chancellor to be 
 made trom time to time for that purpose, without any draft from the' 
 Accountant-General, but subject and without prejudice to the payment 
 of all salaries and other sums of money by any former act or acts now 
 in force directed or authorized to be paid thereout.
 
 276 15 & 16 YiCT. CAP. 80. 
 
 L. On appointment of Masters or clerks to (office or employment 
 under the Crown, the retiriiiff pension or compensation under this act to 
 be regulated by the salary, (fc, of such office or employmenl. — If at any 
 time liereafter any of llie Masters in Ordinary of the said court or any 
 of theii- chief or junior clerks, ^l^all be appointed to and shall accept 
 any office or employment connected with any Court of Law or Equity, 
 or under the Crown, or in any public department under the Crown, and 
 if the salary attached to such office or employment, or any retiring 
 pension or allowance in respect thereof, shall equal or exceed in amount 
 the retiring pension or compensation payable to such Master or such 
 clerk under this act, such last-mentioned retiring pension or compensa- 
 tion shall, during the continuance of such Master or such clerk in such 
 oiBce or employment, or so long as he shall be in the receipt of any 
 retiring pension or allowance in respect thereof equal to or greater than 
 his retiring pen.'-ion or compensation under this act, cease to be payable 
 to such Master or such clerk, as the case may be ; and if the salary 
 attached to such oHice, or the retiring pension or allowance in respect 
 thereof shall be less than the amount of such Master's retiring pension 
 or such clerk's compensation under this act, such retiring pension or 
 such clerk's compensation under this act, such retiring pension or com- 
 pensation under this act shall he reduced by the amount of such salary 
 or of such retiring pension or allowance as the case may be. 
 
 LI. Appropriation of the Masters' offices in Southampton-buildings. 
 — Such of the Masters' offices in Southampton-buildings, Chancery- 
 lane, as shall not be assigned by the Lord Chancellor as chambers for 
 the Master of the Rolls and Vice Chancellors respectively, or shall not 
 be required for the blasters, shall be a])propriated to any other purposes 
 connected with the Court of Chancery as the Lord Chancellor may 
 from time to time direct, or the same may be let as chambers, and the 
 rent tliereof paid to the Suitors' Fund; and when all the Masters have 
 resigned, died, or have been released under this act, the offices may be 
 sold by order of the Lord Chancellor, an.l the proceeds of such sale paid 
 to the Suitors' Fund, in such manner and to such particular account as 
 the Lord Chancellor shall by any order direct; and it shall be lawful 
 for the Lord Chancellor by any order to direct that the premises so to 
 be sold, and the fee simple and inheritance therenf. shall vest in the 
 purchaser or purchasers of the same, his or their heirs and assigns, or 
 as he or they shall direct; and such order shall have the effect of 
 vesting the same accordingly, without any conveyance or other assurance 
 from Her Majesty, in whom the same are now vested by virtue of an 
 act passed in the thirty-second year of the reign of King George the 
 Third, chapter forty two. 
 
 LIT. Power to Her Majesty to appoint a Vice- Chancellor as successor 
 to Sir G. J. Turner. — And whereas by an act passed in the iifth year 
 of the reign of her present ^Majesty, scs>ion one, chapter live, Her 
 Majesty was by section nineteen empowered to appoint, by letters patent 
 under the Great Seal, two fit persons to be additional judges assistant 
 to the Lord Chancellor in the discharge of the judicial functions of his 
 office, each of such additional judges to be called Vice-Chaticellors; and 
 by section twenty-one it was provided, that nothing therein contained
 
 15 & 16 Vict. cap. 80. 277 
 
 should authorize the appointment of a successor to the Vice-Chancellor 
 secondly appointed under the autliority of the said act: and whereas by 
 an act passed in tlie session holdon in tlio fourteenth and fifteenth 
 years of the reign of her present Majesty, chapter four, Her Majesty 
 years of the reign of her present Majesty, cliapter four, Her Majesty 
 was by section one empowered to ap]i()int, by letters patent under the 
 Great Seal, a fit person to be an additional judge assistant to llie Lord 
 Chancellor, in discharge of the judicial functions of liis office, in the 
 place of the Kight Honourable Sir James Wigram, Knight, who was 
 the Vice-Chancellor secondly appointed under the authority of the said 
 act of the fifth year of Her Majesty, and who had resigned the office 
 of V ice-Chancellor to which he had been so appointed: and whereas the 
 Right Honourable Sir GeorgeJames Turner, Knight, is the Vice-Chancellor 
 appointed under the said last-mentioned act: and whereas by section 
 nine of the same act it was provided, that nothing therein contained 
 should authorize the appointment of a successor to the Vice-Chancellor 
 appointed under the authority thereof; and whereas by virtue of this 
 act additional duties will devolve upon the judges of the said court, 
 and it is expedient that any vacancy which may occur in the said office, 
 of Vice-Chancellor should be supplied: be it therefore enacted, that it 
 shall be lawful for Her Majesty, from time to time when and as any 
 vacancy siiall occur in the office of Vice-Chancellor now held by tJie 
 said Sir George James Turner, by the death, resignation, or removal 
 from office of the said Sir George James Turner, or his successor for 
 the time being, it shall be lawful for Her Majesty, by letters patent 
 under the Great Seal of the United Kingdom, to appoint a fit person, 
 being or having been a hamster of fifteen years standing at the least, 
 to supply such vacancy. 
 
 LIII. Sitch Vice-Chancellor to have same poioer, tfc, a^ Sir G. J. 
 Turner has. — The Vice-Chancellor to be appointed under this act shall 
 have all the same powers and privileges, and the same rank, and shall 
 be subject to the same provisions, duties and observances, as the said 
 Sir George James Turner shall, at or immediately before his death, 
 resignation, or removal from office, have or be subject to under the said 
 act of the fourteenth and fifteenth years of her present JIajesty, 
 chapter four, and this act, or any other act or acts then in force, except- 
 ing that, as between himself and the other Vice-Chancellors or Vice- 
 Chancellor for the time being, he shall have rank and precedence next 
 after the Vice-Chancellors or Vice-Chancellor, if any, who may be 
 senior to him in appointment to office. 
 
 LIV. Officers and attendants to Vice-Chancellor. — Such Vice-Chan- 
 cellor shall have a secretary, usher, and trainbearer, to be from time to 
 time appointed and removed by him at his pleasure ; and the secretaries, 
 registrars, and other officers appointed to attend the Lord Chancellor 
 shall attend such Vice-Chancellor when sitting for the Lord Chancellor, 
 and also when sitting in his separate court or in chambers, iis circum- 
 stances shall require, and as the Lord Chancellor shall order and direct. 
 
 LV. Salaries of Vice-Chancellor and his officers to be as at present. 
 — The salary of such Vice-Chancellor, and the salaries of his secretary, 
 nsher, and irainbcarer, shall be of the same amounts, and paid out of 
 [CH.] 2 B
 
 27H 15 & 16 Vict. cap. 80. 
 
 the same funds, and in like manner, as the salaries of the said Sir 
 George James Turner his secretary, usher, and trainbearer, respectively, 
 shall be payable at or immediately before his death, resignation, or 
 removal from office. 
 
 LVI. Her Majestrj may grant retiring pension to Vice- Chancellor so 
 appninied. — It shall be lawful for Her Majesty, by letters patent under 
 the Great Seal of the United Kingdom, to grant to auy person executing 
 the office of Vice-Chancellor in pursuance of this act, on his resig- 
 nation of or bis ceasing to execute his office, an annuity of the same 
 amount, after the same period of service, under the same circumstances, 
 subject to the same conditions, and payable out of the same fund, as the 
 annuity authorized to be granted to each of the Vice-Chancellors ap- 
 pointed under the said act of the fifth year of Herilajesty, chapter five. 
 
 LVII. l.ord Chancellor may appoint court-heepers. — It shall be 
 lawful for the Lord Chancellor to appoint one or more person or persons, 
 removable at pleasure, for the purpose of keeping order in the court of 
 the Vice-Chancellor to be appointed under this act; and the salary of 
 the person or persons appointed or to be appointed, under this act or 
 under any act or acts now in force, to keep order in the court of the 
 Vice-Chancellor to be appointed under the authority of this act, shall be 
 of such amount, not exceeding the yearly sum of eighty pounds, as the 
 Lord Chancellor may think reasonable; and such salary shall be paid 
 to each such person so to be appointed, out of the same funds, and at 
 the same time, and in like manner as the salaries of hke persons have 
 heretofore been paid. 
 
 LVIII, Rights and establishments of the present Masters to continue 
 until released in pursuance of this act. — Nothing herein contained shall 
 in anywise prtjudice or affect the title of the present Masters in Ordinary 
 of the said court to the salaries payable to them as such masters unless 
 and until they shall be respectively released under this act, or the power 
 of the Lord Chancellor to order a retiring allowance to any of them or 
 any of their clerks -who may be or become afflicted with some permanent 
 infirmity disabling him from the due execution of his oflace, and who 
 shall be desirous of resigning the same ; and every of the present 
 Masters in Ordinary of the said court, until released under this act, shall 
 have the same establishment of clerks, whose salaries and compensations 
 shall be payable out of the same funds as the salaries and compensations 
 of theii- clerks are now payable; and all the expenses attending the 
 establishment of the Masters offices shall be pai^ in like manner as such 
 expenses are now paid. 
 
 LIX. Nothing to affect the rights ^-c, of Accountant- General as a 
 Master in Ordinary. — Nothing herein contained shall pnyudice or affect 
 the rights, duties, or privileges of the Accountant-General of the said 
 Court of Chancery as a Jlastcr in Ordinary of the said court, or any 
 salary or other payment payable to the said Accountant-General as such 
 Master in Ordinary, or his right or title to any retiring allowance under 
 any act or acts of Parliament now in force, nor shall the said Ac- 
 countant-General be called upon or required to do or perform any duties 
 or services as such Master in Ordinary, other than such as are now 
 usually performed by him.
 
 lo & IG Vict. c\v. 80. 279 
 
 LX. The retiring Lord Chancellor may deliver written judyments 
 within six weeks after his resignation. — Whereas it li:us fre(iueiitly hap- 
 pened tliat after cases have been fully heard by thi- Lord Chancellor in 
 the Court of Chancery and arc standing for judjimcnt, the Lord Chan- 
 cellor has delivered up tho Great Seal without being able by reason ol 
 other urgent public business, to deliver judgment therein, and much 
 inconvenience and expense to the parties has been thereby occasioned : 
 
 For remedy thereof be it enacted, tiiat in every such case it shall lie 
 lawful for the person wlio has so delivered up the Great Seal, within 
 six weeks after he shall have delivered up the same, to give in to tlie 
 Registrar of the said court a written judgment therein, signed by hiin; 
 and a decree or order, as the case may require, shall be drawn up in 
 pui-suance of such judgment; and every such decree or order shall have 
 the same force and eftect as if the judgment in pursuance whereof it is 
 drawn up had been given in open court the day before he shall have so 
 delivered up the Great Seal. 
 
 LXL Construction of terms. — In the construction of this act the 
 expression '' Her JIajesty," shall mean the sovereign for the time being, 
 and the expression " Lord Chancellor," shall mean also and include the 
 Lord Chancellor, Lord Keeper and Lord Commissioners for the custody 
 of the Great Seal of the United Kingdom for the time being. 
 
 When an order is made by a judge In chambers on the 
 hearing of the application, it seems the appeal should be 
 direct from that order, and it is neither necessary nor proper 
 that it it should be re-heard even pro fonnd., by the judge 
 who made it: {Saunders v. Druce, S Drew. 139.) 
 
 On an adjourned hearing from chambers, the court ■will 
 not make any declaration, but, if necessary, will direct a 
 certificate to the same effect, to be drawn up for its approval : 
 {Morgan v. Hutchett, 19 Beav. 86.) 
 
 Where a deed is to be settled by the court, it is sent to 
 the judge's chambers, and fi-om the cFudge's chambers it is 
 sent to the conveyancing counsel. When a matter deserves 
 the arguments of counsel, it is to be argued in coin-t ; (i?e 
 Bennett's estate, 18 Jur. 33.) 
 
 The chief clerk in chambers never makes any order of his 
 own authority, but all orders in chambers are orders of 
 the judge, and are in fact made by him in the presence of 
 the parties, unless they agree for their own convenience, to 
 take the orders without actually going before the judge in 
 chanihers, or unless the order is such an order of course as 
 would be made in court, without communication with the 
 judge, upon simjjly handing a brief to the registrar. Such last- 
 mentioned order, when made in chambers, being made upon 
 communication of the chief clerk to the registrar, without the 
 actual intervention of the judge : (Kay, App. 31.) 
 
 2 B 2
 
 280 GENERAL ORDERS. 
 
 GENERAL ORDERS AND RULES OF THE HIGH 
 COURT OF CHANCERY, ISSUED BY THE LORD 
 CHANCELLOR, SEVENTH DAY OF AUGUST, 
 1852. 
 
 Order of Courts Saturday^ the 7th day of Avgrist, 1852. 
 
 The Right Hon. Edward Burtenshaw, Lord St. Leonards, Lord High 
 Chancellor of Great Britain, by and with the advice and assistance of 
 the Right Hon. Sir John Romilly, Master of the Rolls ; the Right Hon. 
 the Lord Justice Sir James Lewis Knight Bruce, the Right Hon. the 
 Lord Justice Lord Cranworth, the Right Hon. the Vice-Chancellor Sir 
 George Jaraes Turner, the Hon. the Vice-Chancellor Sir James Parker, 
 doth hereby, in pursuance of an act passed in the fifteenth and six- 
 teenth years of her present Majesty, intituled, "An Act to amend the 
 practice and course of proceeding in the High Court of Chancery," and 
 in pursuance and execution of all other powers enabling hiin in that 
 behalf, order and direct: — 
 
 That all and every the order.s, rules, and directions hereinafter set 
 forth, shall henceforth be, and for all purposes be deemed and taken to 
 be " General Orders and Rules of the High Court of Chancery,'' viz.: — 
 
 Prinling. 
 
 1. Bills and claims are to be printed on writing royal paper, quarto, 
 in pica type, leaded; and the copy to be filed is to be interleaved with 
 paper of the same description. 
 
 2. No costs are to be allowed, either as between party and party, or 
 as between solicitor and client, for any written bill or written copy of a 
 bill, filed under the 15th and 16th Vict. c. 86, s. 6, or for any written 
 copy thereof, served upon the defendant thereto, or for any written brief 
 of such bill, unless the court shall, in disposing of the costs of the 
 cause, direct the allowance thereof. 
 
 3. The Clerks of Records and Writs shall, at the expiration of four- 
 teen days from the filing of any written bill or written copy of a bill, 
 take off the files of the court, without further order, the bill or copy so 
 filed, unless a printed copy thereof shall in the meantime have been 
 filed, and the plaintiff in the suit, or his solicitor, who shall jiersonally 
 have undertai<en to file such printed copy, shall pay to the defendant 
 all the costs incmred by him in the suit, such costs to be taxed by the 
 Taxing Master, without further order, upon production to him of the 
 certificate of the Clerk of Records and Writs, that a printed copy of the 
 bill has not been filed pursuant to such undertaking, and to be recover- 
 able in like manner as costs ordered to be paid by a party in a suit to 
 another party in a suit are now recoverable.
 
 GENERAL ORDERS. 281 
 
 4. In lien of the fees now payable to solicitors for instructions lor 
 bills, for engrossinj; bills and claims, for copies of bills and claims, for 
 abbreviating bills and making a brief thereof, solicitors shall be entitled 
 to charge, and be allowed in suits commenced after these orders come 
 into operation, the fees s])ecitied in Schedule A., to these orders. 
 
 5. The payment to be made by the defendant to the plaintiff for 
 printed copies of the bill or claim shall be at the rate of one halfpenny 
 per folio. 
 
 6. No defendant shall be at liberty to demand from the plaintiff more 
 than ten printed copies of his bill or claim, 
 
 A mendment of Bills and Claims. 
 
 7. Where, according to the present practice of the court, an amend- 
 ment of a bill or claim may be made without a new engrossment thereof, 
 a bill or claim ni:iy be amended by written alterations in the printed 
 bill of complaint or claim so to be filed, and by additions on the paper 
 to be interleaved therewith, according to the directions of the order. 
 
 8. The practice of amending a defendant's copy of the bill shall, 
 with respect to the amendment of bills filed after these orders come 
 into operation, be abolished. 
 
 9. A copy of an amended bill or claim, whether upon an amendment 
 by a reprint, or by such alterations and additions as mentioned in 
 Order 7, is to be served upon the defendant or his solicitor, and such 
 copy may be partly printed and partly written, if the amendment is not 
 made by a reprint: but in every case the copy to be served is to be 
 stamped with the proper stamp by one of the Clerks of Records and 
 Writs, indicating the filing of such amended bill or claim, and the date 
 of the filing thereof. 
 
 10. in all cases where, according to the present practice of the court, 
 a subp«ena to appear to and to answer an amended bill may be served 
 upon the solicitor of a defendant, service upon the defendant's solicitor 
 of a copy of an amended bill, whether wholly printed or partly printed 
 and partly written, shall be good service on the defendant. 
 
 11. Where a defendant has appeared in person to any bill, service at 
 the address for service of such defendant of a copy of an amended bill, 
 whether wholly printed or partly printed and partly written, shall be 
 good service on the defendant. 
 
 Limitation of preceding Orders. 
 
 12. None of the preceding orders shall apply to bills or claims filed 
 before these orders come into operation, though afterwards amended; 
 and the existing practice of the court ie to continue in force with refer- 
 ence to the amendment of such bills and claims. 
 
 13. The existing practice of the court with reference to issuing and 
 serving writs of subpoena to appear and answer bills and writs of 
 suininons on claims, are also to continue in force with respect to bills 
 and claims filed before these orders come into operation. 
 
 2 B 3
 
 282 GENERAL ORDERS. 
 
 Mode in which the directions of the court are obtained on 
 the question of what parties are to be served with the order 
 or decree, and as to which of the parties service may be 
 dispensed with : (Z)e BaUiihard v. Bulloch, 9 Hare, App. 13.) 
 
 Form of Bill, 
 
 14. Bills may be in a form similar to the form set out in Schedule B. 
 to these orders, with such variations as the nature and circumstances of 
 each particular case may require. 
 
 Interrogatories. 
 
 15. The inten-ogatories for the examination of the defendant to a bill 
 may be in a form similar to the form set out in Schedule C. to these 
 orders, with such variations as the nature and circumstances of each 
 particular case may require. 
 
 16. In cases in which the plaintiff requires an answer to any bill 
 from any defendant or defendants thereto, the iuten-ogatories for the 
 examination of such defendant or defendants are to be filed within eight 
 days after the time hmited for the appearance of such defendant or de- 
 fendants. 
 
 17. If the defendant appear in person, or by his own solicitor, within 
 the time limited for that purpose by the rules of the court, the plaintiff 
 IS, within eight days after the time allowed for such appearance, to 
 deliver to the defendant or defendants so required to answer, or to his 
 or their solicitor or solicitors, a copy of the interrogatniies so filed as 
 afore.'-aid, or such of them as the particular defendant or defendants 
 shall be required to answer. And the copy so to be delivered is to be 
 examined with the original, and the number of folios counted by the 
 Clerk of Records and Writs, who, on finding that such copy is duly 
 stamped and properly written, are to mark same as an office copy. 
 
 18. If any defendant to a suit commenced by bill do not appear in 
 person, or by his own solicitor, within the time allowed for that purpose 
 by the rules of the coiu-t, and the plaintitf has filed interrogatories for 
 his examination, the plaiuliti' may deliver a copy of such interrogatories 
 so examined and marked as aforesaid to the defendant, at any time after 
 the time allowed to such defendant to appear, and before his appearance 
 in person, or by his own solicitor; or the plaintiff may deliver a copy 
 of such interrogatories so examined and marked as aforesaid to the 
 defendant or his sohcitor, after the appearance of such defendant 
 in person, or by his own solicitor, but within eight days after such 
 appearance. 
 
 19. A defendant required to answer a bill must put in his plea, an- 
 swer, or demurrer thereto, not demurring alone, within fourteen days 
 from the delivery to him, or his solicitor, of a copy of the interrogatories 
 which he is required to answer ; but the court shall have full power to 
 enlarge the time from time to time, upon application being made to the 
 court for that purpose.
 
 GENERAL ORDERS. 283 
 
 Form of Answer. 
 
 21. Answers may bo in :i form similar to tiie fomi set out in 
 Schedule D. to thesi; orders, with such variations as the nature and 
 circumstaiices of each particular case may require. 
 
 Motion for Decree. 
 
 22. One month's notice is to be given by the plaintiff to the defen- 
 dant or defendants, of the motion for a decree or a decretal order. 
 
 23. The affidavits to be used in support of such motion are to be filed 
 before the service of sucb motion, and a list of such affidavits is to be 
 set forth at the foot of such notice. 
 
 On a motion for a decree the answer of a defendant may 
 be read against liimself without notice having been given 
 under the 23nl Order of August, 18.52, of the intention to 
 read the same as an affidavit against such defendant ; but the 
 answer of one defendant cannot be read against another 
 defendant without notice being given to sucli otiier defendant 
 of the intention to read it; and semhle, a deed mentioned in 
 the answer of a defendant is admissible in evidence on a 
 motion for a decree against liiin, without notice of the inten- 
 tion to use it: {Cousins v. Vasey, 9 Hare, App. Gl.) 
 
 The court has jurisdiction under the 15 & l(j Vict. c. 86, 
 to issue subpoena ad testificandum or a suhpieuu duces tecum, 
 requiring the attendance of witnesses on a motion for decree : 
 (Wiga7i V. Rowland, 10 Hare, App. 18.) 
 
 24. The defendant, within fourteen days after the ser\'ice of such 
 notice, is to file his affidavits in answer, and to furnish the plaintiff or 
 his solicitor with a list thereof. 
 
 2-5. Within seven days after the expiration of such fourteen days, the 
 plaintiff is to file his affidavits in reply, which affidavits shall be con- 
 fined to matters strictly in reply, and he is to furnish the defendant or 
 his solicitor with a list thereof; and except so far as these affidavits are 
 in reply, they are not to be regarded by the court, unless upon the 
 hearing; of tiie motion the court shall give leave to the defendant to 
 answer them ; and in that case the costs of such affidavits, and of the 
 further affidavits consequent upon them, shall be paid by the plaintiffs, 
 unless the court shall otherwise order. 
 
 26. No further evidence upon either side is to be used upon such 
 motion for a decree or decretal order, without leave of the court. 
 
 27. Every notice of motion for a decree or decretal order is to be 
 entered with the i-egistrar, who is to make out a list of such motions, 
 and the same are to be heard according to such Ust, unless the court 
 sh;ill m'ike order to the contrary. 
 
 28. Where a defendant shall not have been required to answer, and
 
 284 GENERAL ORDERS. 
 
 shall not have answered the plaintiff's bill, so that under the 15 & 16 
 Vict. c. 86, s. 26, he is to be considered as having traversed the case 
 made b}; the bill, issue is nevertheless to be joined by filing a replica- 
 tion in the form, or to the effect, of the replication now in use. 
 
 Under the 26th section of the 15 & 16 Vict. c. 86, and 
 28th Order of August, 1852, a replication is necessary when 
 the decretal order has not been made, and the suit is to be 
 proceeded with in the ordinary way ; but is not necessary if 
 the plaintiff is proceeding by motion for decree : (^Duffield 
 V, Sturges, 9 Hare, App. 87.) 
 
 Dismissal for want of Prosecution. 
 
 29. A defendant to a suit commenced by bill who shall not have been 
 required to answer the bill, and shall not have answered the same, 
 shall be at liberty to apply for an order to dismiss the bill, for want of 
 prosecution, at any time after the expiration of three months from tbe 
 time of his appearance, unlc-ss a motion for a decree or decretal order 
 shall have been set do.vn in tbe meantime, or the cause shall have been 
 set down to be heard, and the court may, upon such application, if it 
 shall think fit, make an order dismissing the bill, or make such other 
 order, or impose such terms, as may appear just and reasonable. 
 
 Impertinence. 
 
 30. Tlie application to be made for the costs of any impertinent 
 matter introduced into any bill, answer, or other proceeding, is to be 
 made at the time, when the court disposes of the costs of the cause or 
 matter, and not at any other time. 
 
 Evidence. 
 
 31. The time within which the plaintiff in any suit commenced by 
 bill, is to give the defendant notice of the mode in which be desires the 
 evidence to be adduced in tbe cause shall be taken, is to be seven day.9 
 after issue joined therein, and if the plaintiff shall not within such time 
 give any such notice, or if tbe plaintiff' shall give such notice, and shall 
 therein desire the evidence to be adduced upon afBdavit, the plaintiff, 
 and defendant respectively shall be at liberty to verify their respective 
 cases by affidavit, unless the defendant, or some or one of tbe defendants, 
 if more than one, shall within the fourteen days after the expiration of 
 the said period of seven days, give notice to the plaintiff', or bis solicitor, 
 that he or they desire the evidence to be oral. 
 
 32. The evidence on both sides in any cause to be used at tbe hearing 
 thereof, whether taken orally (and including the cross-examination and 
 re-examination of any witness or witnesses), or taken upon affidavit, 
 is to be closed within nine weeks after issue joined therein, except that
 
 GENERAL ORDERS. 285 
 
 any witness who has made an affidavit intended to be used by any party 
 to such cause at tlie hearing thereof, shall be subject to cross-exainiiui- 
 tion within one month at'tor the expiration of biich period of nine weeks. 
 
 33. No alhdavit tiled before issue joined in any cause shall be re- 
 ceived or receivable at the hearing thereof unless within one month 
 after issue joined, notice in writing shall be given by the party intend- 
 ing to use the same to the opposite party of his intention in that 
 behalf. 
 
 34. Any party desiring to cross-examine a witness who has made an 
 affidavit in any cause intended to be used at the hearing thereof, shall 
 give forty-eight hours' notice to the party on whose behalf such :illidavil 
 was Sled, or to the party intending to use the same, of the time and 
 place of such intended cross-examination, in order that such party may, 
 if he shall think fit, be present at such cross-examination. 
 
 3.5. The re-examination of any such witness is immediately to follow 
 his cross-examination, and is not to be delayed to a future period. 
 
 36. Any party in any cause or matter reijuiring the attendance of 
 any witness before an examiner, for the purpose of his being examined 
 or cross-examined, with a view to his evidence being used upon any 
 claim, motion, petition, or other proceeding before the court, not being 
 the hearing of a cause, shall give to the opposite party or j)arties forty- 
 eight hours' notice at least of his intention to examine such witness, 
 and of the time and place of such examination, unless the court shall 
 in any case flunk fit to dispense with such notice. 
 
 37. And where it is desired to cross-examine any party, whether a 
 party to the cause or matter or not, who has made an affidavit to be 
 used, or which shall be used on any claim, motion, petition, or other 
 proceeding before the court, not being the hearing of a cause, the party 
 desiring so to cross-examine such deponent, shall give such notice to 
 the opposite party as is required by Order 34, with reference to the 
 cross-examination of a witness, who has made an affidavit to be used on 
 the hearing of a cause. 
 
 38. All the above orders with reference to examination, cross-ex- 
 amination, and re-exainination of witnesses shall extend and be applica- 
 ble to evidence taken in any cause subsequent to the hearing thereof. 
 
 39. In suits in which issue shall have been joined, when these orders 
 come into operation, the evidence to be used at the hearing of the cause 
 sli.all be taken according to the existing practice of the court, unless 
 the parties shall consent or the court shall order that the same shall be 
 taken in the mode prescribed by 15 & 16 Vict. c. 86, and these orders. 
 
 In a cause at issue before the Orders of Auiriist, 1 8o2. the 
 parties, in July, 185'2, agreed to postpone publication till the 
 •2nd November, on the ground that the new practice ■would 
 then conie into operation, Tiie case was one in v/jiich it 
 was not clear, but ])robable, that oral examination might be 
 most eflective : Held, that the postponement of ))ul)lication 
 was not an agreement to adopt the new })ractice, but in the 
 absence of special reasons to the contrary, there being a
 
 286 GENERAL ORDERS. 
 
 probability of advantage in applying the new practice, it 
 ought, according to the intention of the act, to be applied : 
 {Howard v. Howard, 1 Drew. 2.39.) 
 
 Adding to Decree. 
 
 40. The time within which a party served with notice of a decree 
 under the section 42 of the above act, may apply to the court to add to 
 the decree, is to be one month after such service. 
 
 41. A memorandum of the service upon any person or persons of 
 notice o! the decree in any suit under the said section, rule 8, is to be 
 entered in the ofBce of the Clerks of Records and Writs, upon due 
 proof, by affidavit of such service. 
 
 42. The summons to be obtained imder section 4 5 of the above act 
 may be in a form similar to the form set forth in Schedule E. to these 
 orders, with such variations as the ciixumstauces of the case may 
 require. 
 
 Revivor and Supplement. 
 
 43. Any party under no disability, or under the disability of cover- 
 tm-e, who may be served with an order to revive any suit, or to carry 
 on the proceedings therein, may apply to the court to discharge such 
 order within twelve days after such service; and any party being under 
 any disability other than coverture, who may be so served, may apply 
 to the court to discharge such order within twelve days after the ap- 
 pointment of a guardian or guardians ad litem for such party; and until 
 such period of twelve days shall have expired, such order shall have no 
 force or effect against such last-mentioned party. 
 
 Netc Facts or Circumstances. 
 
 44. If the plaintiff, in any case, which is not in such a state as to 
 allow of an amendment being made in the bill, shall desire to state, or 
 put in issue, any facts or circumstances which may have occurred after 
 the institution of the suit, he may state the same, and put the same in 
 issue, by filing in the Record and Writ Clerk's Office a statement either 
 written or printed, to be annexed to the bill, and such proceedings, by 
 way of answer, evidence, and otherwise, are to be had and taken 
 upon the statement so filed, as if the same were embodied in a supple- 
 mentary bill ; provided always that the court may make any order 
 which it sliall think fit fur accelerating the proceedings thereunder, 
 or proceedings therein, in any manner which may appear just and 
 reasonable. 
 
 In an administration suit, it had at the hearing been re- 
 ferred to the Master to ascertain whether the proper parties 
 were before the court. One of the defendants found by the 
 Master to be a proper party, died, and administration to his
 
 GENERAL ORDERS. 287 
 
 estate was taken utit, and a statement tn that effect filed, 
 under the 44tli Order of Augnst, lS5-i. Tlie phiintiU'appIied 
 by way of motion, tliat the administrator, who was one of 
 the solicitors in the cause, miglit be at the further hearing 
 deemed a defendant. Held, that as under the old practice 
 a supplemental bill would have been filed, a short answer put 
 in, and a decree taken ajrainst tlie administrators, so that 
 was the course to be adopted in the present case : (^Ileath 
 V. Chapman, 17 Jur. 570.) 
 
 Injtinction. 
 
 4.'). No injunction for the stay of proceedings at law is to be granted 
 as of course for default of appearance, or answer to the bill. 
 
 Power of Court. 
 
 46. The power of the court to enlarge or abridge the time for doing 
 any act, or taking any proceedings in any cause or matter, upon such, 
 if any, terms as the justice of the case rer^uires, is unaffected by these 
 orders. 
 
 Commencement of Orders. 
 
 47. These orders shall take effect and come into operation on the 
 second day of November, one thousand eight hundred and fifty-two. 
 
 Interpretation. 
 
 48. In these orders the following words have the several meanings 
 hereby assigned to them, over and above their several ordinary meanings, 
 unless there be somethmg in the subject or context repugnant to such 
 construction, viz. : — 
 
 1. Words importing the singular number include the plural num- 
 ber, and words importing the plural number include the singular 
 number. 
 
 2. Words importing the masculine gender include females. 
 
 3. The word " bill " includes " information." 
 
 4. The word " party "' includes a body politic or corporate. 
 
 5. The word " affidavit " includes " affirmation." 
 
 St. Leonards, C. 
 
 .ToHN Ro:\iiLLY. M. R. 
 
 J. L. Knight Buuck, L. J. 
 
 CitANWORTIT, L. J. 
 G. J. TuRNliH, V. C. 
 
 Richard T. Kindkrsley, V. C. 
 James Parker, V. C.
 
 288 GENERAL ORDERS. 
 
 SCHEDULF, (A.) 
 
 Table of Fees. 
 
 £ ». d. 
 
 For instructions for hill 1 14 
 
 For making a copy of a bill or claim for the pnuter, per folio 4 
 
 For correcting the proof sheet per folio 2 
 
 For printer's bill (as paid) deducting any copies paid for by 
 
 the defendant 
 
 For amending each copy of a bill or claim to serve where 
 
 there is no reprint 13 4 
 
 Instructions for brief, to be allowed on a replication being 
 filed, or on a motion for a decree on a bill, or in an injunc- 
 tion cause on moving for the injunction ; but so that this 
 fee shall be charged once only in the progress of a cause 110 
 For amending each brief of a bill or claim where there is no 
 
 reprint 13 4 
 
 For perusing and considering the bill on behalf of each defen- 
 dant, or set of defendants, appearing by the same solicitor 110 
 
 SCHEDCLE (B.) 
 
 Form of Bill. 
 In Chancery — 
 
 John Lee PlaintiflF, 
 
 James Styles ^ 
 
 and > Defendants. 
 
 Henry Jones 
 
 Bill of Complaint. 
 
 To the Right Honourable Edward Burtenshaw, Baron St. Leonards 
 of Slaugham, in the county of Sussex, Lord High Chancellor of 
 Great Britain. 
 Humblv complaining, showeth unto his lordship. John Lee. of Bedford- 
 square, in the county of Middlesex, Esq., the above-named plaintiff, as 
 follows — 
 
 1. The defendant, .James Styles, being seised in fee simjile of a farm 
 called Blackacre, in the parish of A., in the county of B., with the 
 appurtenances, did by an indenture dated the 1st of May, one thousand 
 eight hundred and fifty, and made l)etween the defendant, James Styles, 
 of the one part, and the plaintili' of the other part, grant and convey 
 the said farm, with the appurtenances thereto unto, and to the use of 
 the plaintiff, his heirs, and assigns, subject to a proviso for redemption 
 thereof, in case the defendant James Styles, his heirs, executors, ad- 
 ministrators, or assigns, should, on the 1st of May, one thousand eight
 
 GENERAL ORDERS. 289 
 
 hundred and fifty-one. pay to the plaintiff,his executors, administrators, 
 or assitjns, the sum of live thousand pounds, with interest tliereon, at 
 the i-ute of five pounds per centum per annum, xs by the said indenture 
 will appear. 
 
 2. The whole of the said sum of five thousand pounds, together with 
 interest tliereon at the rate aforesaid, is now due to the plaintiff. 
 
 3. The defendant, Henry Jones, claims to have some charge upon 
 the farm and premises comprised in the said indenture of mortgage of 
 the 1st of May, one thousand eight hundred and fifty, which charge is 
 subsequent to the plaintiff's said mortgage. 
 
 4. The plaintift" has frequently applied to the defendants, James 
 Styles and Henry Jones, and required ihem either to p.ny the said debt, 
 or else to release the equity of redemption of the premises, but they 
 have refused so to do. 
 
 5. The defendants James Styles and Henry Jones, pretend th.at there 
 are some other mortgages, charges or incumbrances affecting the pre- 
 mises, but they refuse to discover the particulars thereof. 
 
 6. There are divers valuable oak, elm, and other timber and timber- 
 like trees growing and standing on the farm and lands comprised in 
 the said indenture of mortgage of the first of ilay, one thousand eight 
 hundred and fifty, which trees and timber are a material part of the 
 plaintiff's said security, and if the same or any of them are felled and 
 taken away, the said mortgaged premises would be an insuflBcient 
 security to the plaintiff for money due thereon. 
 
 7. The defendant James Styles, who is in possession of the said farm, 
 has marked for felling a large quantity of tlie said oak and elm trees, 
 and other timber, and he has by handbills, published on the second 
 December instant, announced the same for sale, and he threatens and 
 intends forthwith to cut down and dispose of a considerable quantity of 
 the said trees and timber on the said farm. 
 
 Prai/er. 
 
 The plaintiff prays as follows : — 
 
 1. That an account may be taken of what is due for principal and 
 interest on the said mortgage, 
 
 2. That the defendants, James Styles and Henry Jones, may be de- 
 creed to pay to the plaintift" the amount which shall be so found due, 
 together with his costs of this suit, by a short day to be appointed for 
 that purpose, or, in default thereof, that the defendants James Styles 
 and Henry Jones, and all persons claiming under them, may be abso- 
 lutely foreclosed of all right and equity of redemption in and to the said 
 mortgaged premises. 
 
 3. That the defendant, James Styles, may be restrained by the in- 
 junction of this honourable court from felling, cutting, or disposing of 
 any of the timber or timber-like trees now standing or growmg in or 
 upon the said farm and premises comprised in the said indenture of 
 mortgage, or any part thereof. 
 
 4. That the plaintiff may have such further or other relief xs the 
 nature of the case may require. 
 
 [cii.] 2 c
 
 290 GENERAL ORDERS. 
 
 Xames of defendants. 
 
 The defendants to this bill of complaint are James Styles, Henry 
 Jones, 
 
 Y.Y. 
 
 (Name of counsel.) 
 
 Note. — This bill is filed by Messrs. A. B. and C. D., of Lincoln's 
 Inn, in the county of Middlesex, solicitors for the above-named plaintiff. 
 
 Schedule (C.) 
 
 Fm'w, of Inten'ogatories. 
 
 In Chancery — 
 
 John Lee Plaintiff, 
 
 James Styles^ 
 
 and > Defendants. 
 
 Henry Jones ) 
 
 1. Does not the defendant, Henry Jones, claim to have some charge 
 upon the farm and premises compiised in the indenture of mortgage of 
 the first of May, one thousand eight hundred and fifty, in the plaintiflf 's 
 bill mentioned ? 
 
 2. What are the particulars of such charge, if any, the date, nature, 
 and short effect of the security, and what is due thereon? 
 
 3. Are there, or is there, any other mortgages or mortgage, charges 
 or charge, incumbrances or incumbrance, in any and what mannei' 
 atfecting the aforesaid premises, or any part thereof ? 
 
 4. Set forth the particulars of such mortgages or mortgage, charges 
 or charge, incumbrances or incumbrance ; the date and short effect of 
 the security ; what is now due thereon; and who is or are entitled 
 thereto respectively ; and when and by whom, and in what matter, 
 every such mortgage, charge, or incumbrance was created. 
 
 The defendant James Styles is required to answer all these interro- 
 gatories. 
 
 The defendant Henry Jones is required to answer the interrogatories 
 numbered 1 and 2. 
 
 Y. Y. 
 
 (Name of Counsel.)
 
 GENERAL ORDERS. 291 
 
 Schedule (D.) 
 Form of Ansioer. 
 
 In Chancery — 
 
 John Le<? Plaintiff, 
 
 James Styles^ 
 
 and > Defendants. 
 
 Henry Jones j 
 
 The answer of James Styles, one of the above-named defendants to 
 the bill of complaint of the above-named plaintift'. 
 
 In answer to the bill, I, James Styles, say as follows: — 
 
 1. I believe that the defendant, Heniy Jones, does claim to have a 
 charge upon the farm and premises comprised in the indenture of mort- 
 gage of the 1st of May, one thousand eight hundred and fifty, in the 
 plaintiff's bill mentioned. 
 
 2. Such charge was created by an indenture dated the 1st of Novem- 
 ber, one thousand eight hundred and fifty, made between myself of the 
 one part, and the said defendant, Henry Jones, of the other part, 
 whereby I granted and conveyed the said iarm and premises, subject to 
 the mortgage made by the said indenture of the first of May, one thou- 
 sand eight hundred and fifty, unto the defendant, Henry Jones, for 
 securing the sum of two thousand pounds, and interest, at the rate of 
 five pounds per centum per annum, and the amount due thereon is the 
 said sum of two thousand pounds, with interest thereon, from the date 
 of such mortgage. 
 
 3. To the best of my knowledge, remembrance, and belief, there is 
 not any other mortgage, charge, or incumbrance, affecting the before 
 said premises. 
 
 M. X. 
 
 (Name of Counsel.) 
 
 Schedule (E.) 
 Form of Summons. 
 
 In Chancery — 
 
 In the matter of the estate of John Thomas, late of the parish of 
 A. in the county of B., deceased. 
 
 Joseph Wilson against William Jackson. 
 Upon the application of Joseph Wilson, of Kussell-square, in the 
 county of Middlesex, Esq., who claims to be a creditor upon the estate 
 of the above-named John Thomas, let William Jackson, the executor of 
 the said John Thomas, attend at my chambers [in the KoUs-yard, 
 Chancery-lane, Middlesex], [or at No. , square, Lincoln's- 
 
 inn, Middlesex], on the day of , at of the clock in 
 
 2 c 2
 
 292 GENERAL ORDERS. 
 
 the noon, and show cause, if he can, vrhy an order for the 
 
 administration of the personal estate of the said John Thomas, by the 
 High Court of Chancery, should not be granted. 
 
 Dated the day of , 1852, 
 
 John Romilly, llaster of the Rolls, or 
 G. J. Turner, Vice Chancellor, or 
 Richard T. Kindersley, Vice-Chancellor, or 
 James Parker, Vice- Chancellor. 
 
 Note. — If the above-named William Jackson does not attend either in 
 person or by his solicitor, at the time and place above mentioned, such 
 order will be made in his absence as the judge may think just and 
 expedient. 
 
 This summons was taken out by A. and B. of Lincoln's Inn, in the 
 county of Middlesex, solicitors for the above-named Joseph Wilson. 
 
 Order of Court. 
 The 7th day of August, 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. Leonards, 
 Lord High Chancellor of Great Britain, by and with the advice and 
 assistance of the Right Honourable Sir John Romilly, Master of the 
 Rolls, the Right Honourable the Lord Justice Sir James Lewis Knight 
 Bruce, the Right Honourable the Lord Justice Lord Cranworth, the 
 Right Honourable the Vice Chancellor Sir George James Turner, the 
 Honourable the Vice-Chancellor Sir Richard Torin Kindersley, and the 
 Honourable the Vice-Chancellor Sir James Parker, doth hereby, in 
 pursuance and execution of all powers enabling him in that behalf, order 
 and direct — ■ 
 
 That all and eveiy the orders, rules, and directions hereinafter set 
 forth shall henceforth be, and for all purposes be deemed and taken to 
 be General Orders and Rules of the High Court of Chancery, viz. : 
 
 1. That no appeal from any decree, order, or dismission, or any re- 
 bearing of the case on which such decree, order, or dismission is 
 founded, shall be allowed unless the same is set down for hearing, and 
 the requisite notice thereof duly served, within five years from the date 
 of any such decree, order, or dismission respectively. 
 
 2. That all decrees and orders, and all dismissions pronounced or 
 made in any cause, claim, or matter in this court which shall be en- 
 rolled, shall be so enrolled within sis calendar months after the same 
 shall be so pronounced or made respectively, and not at any time after 
 without special leave of the court, such leave to be obtained in manner 
 nest hereinafter mentioned. 
 
 3. In case any party is desirous to enrol a decree, or order, or dis- 
 mission, after the expiration of six calendar months from the time the 
 same shall have been made, he shall obtain an order for that purpose, 
 and which order, unless made by consent of the adverse party, or on 
 motion and notice to all the parties, shall be a conditional order in the
 
 GENERAL ORDERS. 293 
 
 first instance, but shall become absolute without further order unless 
 cause is shown against it within twenty-eight days after the service of 
 the order. 
 
 4. That where a caveat is entered with the proper officer to stay 
 the signing of the docket of the enrolment of any decree, order, or dis- 
 mission, such caveat shall be prosecuted with efl'et.t within twenty-eight 
 days after the docket of such decree, order, or dismission shall be left to 
 be signed witii the proper officer by the party who entered the same, 
 otherwise such caveat shall be of no force ; and the docket of such 
 decree, order, or dismission may, immediately after the expiration of 
 the said twenty-eight days, be presented to be signed as if no such 
 caveat h;ul been entered. 
 
 5. That no enrolment of any decree, order or dismission shall be 
 allowed after the expiration of five years from the date thereof. 
 
 6. That the Lord Chancellor, either sitting alone, or with the Lords 
 Justices, or either of them, shall be at liberty, where it shall appear to 
 him, under the peculiar circumstances of the case to be just and expe- 
 dient, to enlarge the periods hereinafter appointed for a rehearing, or 
 an appeal, or tor an enrolment. 
 
 7. That the-ie orders shall take effect on and from the twenty- 
 eighth day of October next. 
 
 (Signed) St. Leonards, C. 
 
 John Romilly, M. E. 
 
 J. L. Knight Bruce, L. J. 
 
 Ceanworth, L. J. 
 
 G. J. Turner, V. C. 
 
 Richard T. Kinderslev, V. C. 
 
 James Paukek, V. C. 
 
 L'nder the 15 4- 16 Vict. cap. 80. (') 
 
 Summons. 
 The Right Honourable, &c. 
 
 1. The summons for the pm-pose of proceedings before the ULister of 
 the Rolls and Vice-Chancellors respectively at chambers, whether 
 originating in chambers or not, may be in a form similar to the form 
 set forth iu schedule A. to these Orders, with such variations as the cir- 
 cumstances of the case may require. 
 
 2. The summons to be issued under section 20 of the act of the 
 15 & 16 Vict. c. 80, may be in a form similar to the form set forth in 
 Schedule B. to these Orders, with such variations as the circumstances 
 of the case may require. 
 
 (') The cases decided upon these orders, are so few, that it has not 
 been thought necessary to append them ; the effect of them is stated, and 
 they are quoted in the text. 
 
 2 c3
 
 294 GENERAL ORDERS. 
 
 3. A seal is forthwith to be provided for the chambers of the Master 
 of the Rolls and each of the Vice-Chancellors, and summonses are to be 
 prepared by the parties, and sealed by one of the clerks at the chambers 
 of the judge from whose chambers they are issued, and a copy of such 
 summons is to be left at the judge's chambers by the party obtaining 
 such summons. 
 
 4. In cases of applications under the 15 & 16 Vict. c. 80, s. 45, 
 applications for guardianship and maintenance of infants originating in 
 chambers, and of all other applications originating in chambers, a 
 duplicate of the summons is to be filed in the liecord .ind Writ Office, 
 and in eases where service is required, the copies served are to be 
 stamped in the manner provided by section 46 of the act of 15 & 16 
 Vict. c. 86. 
 
 5. In cases where proceedings originate in chambers, the original 
 summons is to be served seven clear days before the return thereof ; all 
 other summonses not being summonses referred to in Order 2, are to be 
 served two clear days before the return thereof. 
 
 6. In cases where proceedings origuiate in chambers, and when from 
 any cause the summons may not have been served upon any party seven 
 clear days before the return thereof, an endorsement may be made 
 upon the summons and upon a copy thereof stamped for service, ap- 
 jjointing a new time for the parties, not before served, to attend at the 
 chambers of the judge, and such endorsements are to be sealed at the 
 judge's chambers, and the service of the copies so endorsed and sealed is 
 to have the same force and effect as the service of the original summons; 
 and whijn any party has been served before such endorsement, the hear- 
 ing thereof may, upon the return of the summons, be adjourned to the 
 new time so appointed. 
 
 Appearances. 
 
 7. In all cases where proceedings originate in chambers, the parties 
 served are, before they are heard in chambers, to enter appearances in 
 the Record and Writ Office, and to give notice thereof. 
 
 Orders and Directions applicable to all Cases whether originating in 
 Chambers or not. 
 
 8. In all cases in which by any order any accounts are directed 
 to be taken, or inquiries to be made, each direction shall be numbered, 
 so that as far as may be, each distinct account and inquiry may be 
 designated by a number, and such order may be in the form set forth in 
 Schedule C. to these Orders, with stich variations as the circumstances 
 of the case may require. 
 
 9. Where an order is made directing an account of debts, claims, or 
 liabilities, or an inquiry for next-of-kin or other unascertained persons, 
 unless otherwise ordered, all persons who do not come in and prove 
 their claims within the time which may be fixed for that purpose by 
 advertisement, are to be excluded from the benefit of the order.
 
 GENERAL ORDERS. 295 
 
 10. When an order is mside directing an account of the debts of a 
 deceased person, unless otherwise ordered, interest is to be computed on 
 such debts or on such of them as carry interc-t, al'lcr tbe rate tboy 
 respectively carry, and as to all others after tiie rate of four per cent, 
 from the date of the order. 
 
 11. When an order is made directing an account of legacies, unless 
 otherwise ordered, interest is to be computed on such legacies after the 
 rate of four per cent, per annum, from the end of one year after the 
 deceased's death, unless any other time of payment or rate of interest is 
 directed by the will, and in that case according to the will. 
 
 12. Where an order is made directing any property to be sold, unless 
 otherwse ordered, the same is to be sold with the approbation of the 
 judge to whose court the cause or matter is attached, to the best pur- 
 chaser that can begot for the same, to be allowed by such judge, and 
 all proper parties are to join them as such judge shall, direct. 
 
 13. When an order is made directing a receiver to be appointed, 
 unless otherwise ordered, the person to be appointed is first to give 
 security to be allowed by the judge to whose court the cause is attached, 
 and taken before an officer or agent of the court in the country, if there 
 shall be occasion, duly to account for what he shall receive on account 
 of the rents and profits, for the receipt of which he is to be appointed, 
 at such period, as such judge shall appoint, and to account for and pay 
 the same as the court shall direct, or as the case may be, to be answer- 
 able for what he shall receive in respect of the personal estate, for the 
 getting in and collection of which he is to be appointed, and to account 
 for and pay the same as the court shall direct ; and the person so to be 
 appointed is to be allowed a proper salary for his care and pains in 
 receiving such rents and profits, or as the case may be, to have an allow- 
 ance made to him in respect of his collecting such personal estate. 
 
 14. The General Order of the court, with respect to receivers, shall, 
 mutatis nMtaiulis, apply to receivers appointed under orders made after 
 these rules and regulations come into operation. 
 
 15. Recognizances which have been heretofore given to the JIaster of 
 the Rolls, and the senior master, in order, are hereafter to be given to 
 the Master of the Rolls and senior Vice-Chancellor for the time being. 
 
 Proceedings in Chambers. 
 
 16. In all cases where matters in respect of which summonses have 
 been issued, are not disposed of upon the return of the summons, the 
 parties are to attend from time to time without further summons, at 
 such time or times as may be appointed fur the consideration or further 
 consideration of the matter. 
 
 17. In all cases of proceedings in chambers under any order, the 
 solicitor prosecuting the same shall leave a copy of such order at the 
 judge's chambers, and shall certify the same to be a true copy of the 
 order as passed and entered. 
 
 1 8. Upon a copy of the order being left, a summons is to be issued 
 to proceed with the accounts or inquiries directed, and upon the return 
 of such summoui, the judge is to be satisfied by proper evidence that
 
 296 GENERAL ORDERS. 
 
 all necessary parties have been served with notice of the order, and 
 thereupon directions are to be given as to the manner in which each of 
 the accounts and inquiries is to be prosecuted ; the evidence to be 
 adduced in support thereof, the parties who are to attend on the several 
 accounts and inquiries, and the time within which each proceeding is to 
 be taken ; and a day or days may be appointed for the further attend- 
 ance of the parties, and all such directions may afterwards be varied or 
 added to as may be found necessary. 
 
 19. If upon the hearing of the summons it shall appear to the judge 
 that by reason of absence or for any other sufficient cause, the service 
 of notice of the order upon any party cannot be made or ought to be 
 dispensed with, the judge may, if he shall think fit, wholly dispense 
 with such service, or may, at his discretion, order any substituted 
 service, on notice, by advertisement or otherwise, in lieu of such service. 
 
 20. If in tiie prosecution of the order ic shall appear to the judge 
 that it would be expedient that further accounts should be taken or 
 further inquiries made, he may order the same to be taken or made 
 accordingly, or if desired by any party, he may direct the same to be 
 considered in open court. 
 
 21. At the time any summons or appointment is obtained, an entry 
 thereof is to be made in a book to be called " The Smnmons and Ap- 
 pointment Book," stating the date on which the summons is issued, or 
 appointment made, the name of the cause or matter, and by what party, 
 and, shortly, for what purpose such summons or appointment is ob- 
 tained, and at what time returnable. 
 
 22. Lists of matters appointed for each day are to be made out and 
 affixed outside the doors of the chambers of the respective judges, and 
 subject to any special directions, such matters are to be heard in the 
 order in which they appear on such list. 
 
 23. The course of proceeding in chambers is ordinarily to be the 
 same as the course of proceeding in court upon motion. No statements 
 of facts, charges, or discharges are to be brought in; but when directed, 
 copies, abstracts, .or extracts of or from accounts, deeds, or other docu- 
 ments, and pedigrees and concise statements are to be supplied for the 
 use of the judge and his chief clerk, and when so directed, copies are 
 to be IWnded over to the other parties. But no copies to be made of 
 deeds or documents when the originals can be brought in, without special 
 directions. i,, 
 
 24. The party intending to use any affidavit in any proceeding in 
 chambers, is to give notice to the other parties concerned, of his inten- 
 tion in that behalf. 
 
 25. The practice of the court with respect to evidence before the 
 hearing, when applied to evidence to be taken before an examiner in 
 any cause subsequently to the hearing, is to be subject to any special 
 directions, which may be given in any particular case, 
 
 26. When a ciiief clerk is directed by the judge to examine any 
 witness, the practice and mode of proceeding is to be the same as in the 
 case of the examination of witnesses before the examiner, subject to any 
 special directions which may be given in any particular case. 
 
 27. The original examinations and depositions of parties and wit-
 
 GENERAL ORDERS. 297 
 
 nesses taken by or before the chief clerk, authenticated by his signature, 
 are to be transmitted by him to the Kecord and Writ Office to be then; 
 filed, and any party to the suit or proceeding may liave a copy thereof; 
 or of any part or portion thereof, upon payment of the proper fee. 
 
 28. All orders made in chambers, and drawn up by the chief clerks 
 or registrars, are to be entered in the same manner and in the same 
 office as orders made in open court arc entered. 
 
 29. Where any account is directed to be taken, the accounting party 
 is, unless the judge shall otherwise direct, to make out his account and 
 verify the same by affidavit; the items on each side of the account are 
 to be numbered consecutively, and the account is to be referred to by 
 the affidavit as an exhibit, and to be left in the judge's chambers. 
 
 30. Any party seeking to charge any accounting party beyond what 
 he has by his account admitted to have received, is to give notice 
 thereof to the accounting party, stating so far as he is able, the amount 
 sought to be charged, and the particulars thereof in a short and suc- 
 cinct manner. 
 
 31. Upon a receiver's account being left in the judge's chambers to 
 be prepared, a summons to proceed thereon is to be taken out, and the 
 account, when passed, is to be entered by the solicitor of the receiver 
 in books, in the same manner as heretofore, but the affidavits verifying 
 the account so passed is to refer to it as an exhibit, and not to be 
 annexed to it. 
 
 32. When a receivership has been completed, the book containing the 
 accounts is to be deposited in the Record and Writ Office. 
 
 33. Where advertisements are required for any purpose, a peremp- 
 tory and only one is to be issued, unless for any special reason, it may 
 be thought necessary to issue a second advertisement or further adver- 
 tisements ; and any advertisement may be repeated as many times, and 
 in such papers as may be directed. 
 
 34. The advertisements are to be prepared by the solicitor, and sub- 
 mitted to the chief clerk for approval, and when approved, are to be 
 signed by him, and such signature is to be sufficient authority to the 
 printer of the Gazette to insert the same, 
 
 35. Advertisements for creditors or other claimants are to fix a 
 time for the creditors or claimants to come in and prove their claims, 
 and to appoint a day for the hearing and adjudicating them, and may 
 be in a form similar to the form set forth in Schedule 1). to these Orders, 
 with such variation as the circumstances of the case may require. 
 
 36. Claimants coming in pursuant to advertisement are to enter 
 their claims at the chambers of the judge, in the " Summons and Ap- 
 pointment Book," for the day appointed for hearing by the advertise- 
 ment, and are to give notice thereof, and of the affidaxits filed, to the 
 solicitors in the cause within the time specified in the advertisement for 
 bringing in claims. 
 
 37. The claimants filing affidavits are not to be required to take 
 office copies, but the party prosecuting the cause or matter is to take 
 office copies, and produce the same at the hearing unless otherwise 
 ordered in chambers. 
 
 38. If on the day appointed for hearing the claims, they are not
 
 298 GENERAL ORDERS. 
 
 disposed of, an adjournment day for hearing such claims is to be fixed ; 
 and when further evidence is to be adduced, a time may be named 
 within whicli the evidence on both sides is to be closed, and directions 
 may be given as to the mode in which such evidence is to be adduced. 
 
 39. Any claimant who has not before entered his claim may be 
 heard on such adjournment day, provided he enters his claim, and files 
 his affidavit four clear days prior to such day, and no certificate of debts 
 or claims shall, in the mean time, have been made. 
 
 40. Creditors claiming debts not exceeding five pounds, need not 
 attend on the day of hearing, unless required to do so by notice from 
 some party. 
 
 41. After the time fixed by the advertisement, no claims are to be 
 received, except as before proviJed in case of an adjourament, unless the 
 judge at chambers shall think fit to give special leave, upon application 
 made by summons, and then upon such terms and conditions as to costs 
 and otherwise as the judge shall think fit. 
 
 42. A list of all claims allowed shall, when signed by the judge, be 
 made out and left in the judge's chambers by the party prosecuting the 
 order. 
 
 43. In cases where the court directs any computation of interest in 
 the apportionment of any fund, which is to be acted upon by the Ac- 
 countant-General or other person without any further order from the 
 court, the order to be made by the court may direct such computation 
 or apportionment to be made by one of the chief clerks attached to the 
 court of such judge, and may direct the certificate thereof, signed by 
 such chief clerk, to be acted upon accordingly, without the same being 
 signed and adopted by the judge. 
 
 44. When an account has been directed, the certificate or report is to 
 state the result of such account, and not to set the same out by way of 
 schedule, but is to refer to the account verified by the affidavit filed, 
 and to specify by the numbers attached to the items in the account, 
 which, if any of such items have been disallowed or varied, and to state 
 what additions, if any, have been made by way of surcharge. In any 
 case in wliich the account verified by the affidavit has been so altered 
 that it is necessary to have a fair transcript of the account as altered, 
 such transcript may be required to be made by the solicitor prosecuting 
 the order, and is then to be referred to by the certificate or report. The 
 account and the transcripts if any referred to by certificates or reports, 
 are to be filed therewith, but no copies thereof are to be required to be 
 taken by any party. 
 
 45. The certificates or reports to be made by the chief clerk to the 
 judge are not, except the special circumstances of the case shall render 
 it necessar}', to set out the order, or any documents or evidence or 
 reasons, but are to refer to the order, documents, and evidence, or par- 
 ticular paragraphs thereof, so that it may appear upon what the result 
 in any such certificate or ref)ort is founded. 
 
 46. The certificate of the chief clerk to the judge may be in a form 
 similar to the form set forth in Schedule E. to these Orders, with such 
 variations as the circumstances of the case may require, and when pre- 
 pared and settled, it is to be transcribed by the solicitor prosecuting the
 
 GENEEAL ORDERS. 299 
 
 proceedings in such form, and within such time as the cliief clerk shall 
 require, and is then to be signed by the chief clerk at an adjournment 
 to be made for that purpose. But where, from the nature of the case, 
 the certificate can be drawn and copied in chambers whilst the parties 
 are present before the chief clerk, the same shall then be completed and 
 signed by him without any adjournment. 
 
 47. The time within which any party is to be at liberty to take the 
 opinion of the judi^e, upon any proceeding which shall have been con- 
 cluded, but as to which the certificate or report of a chief clerk shall not 
 have been signed and adopted by the judge, is to be four clear days 
 after the certificate or report shall have been signed by the chief clerk. 
 
 48. Any party desiring to take the opinion of the judge as mentioned 
 in the last preceding rule, is w'ithin four clear days after the certificate 
 or report shall have besn signed by the chief clerk, to obtain a summons 
 for such ])urpose. 
 
 49- At the expiration of four clear days after the certificate or report 
 shall have been signed by the chief clerk, if no party has in the mean 
 time, obtained a summons to take the opinion of the judge thereon, the 
 chief clerk is to submit the certificate or report to the judge for his 
 approval, and the judge may thereupon, if he approve the same, sign 
 such certificate or report in testimony of his approbation thereof, as 
 follows: "Approved this day of ." 
 
 50. The certificate or report, when signed by the judge, with the 
 accounts, if any, to be filed theremth, is to be transmitted by the 
 chief clerk to the Report Office to be there filed. 
 
 51. The time within which an application may be made by summons 
 or motion to discharge or vary any certificate or report, which has been 
 signed and adopted by the judge sitting in chambers, is to be eight 
 clear days after the filing of such certificate or report. 
 
 52. Certificates of the chief clerk made as mentioned in rule 43, and 
 not required to be signed and adopted by the judge, are to be trans- 
 mitted and filed in the same manner as those adopted by the judge. 
 
 53. The Orders 47, 48, 49, and 51, are not to apply to certificates 
 on passing receivers' accounts; such accounts may be adopted and 
 signed by the judge without delay, and upon being so signed are to be 
 filed and forthwith acted upon. 
 
 54. A register is to be kept of all proceedings in the judge's chambers 
 with proper clerks, so that all the proceedings in each cause or matter 
 may appear consecutively and in chronological order, with a short 
 statement of the questions or points decided or ruled at any hearing. 
 
 , 55. Parties attending any proceedings at chambers, without having 
 obtained the previous leave of the judge to attend the same, are not to 
 be allowed the costs of such attendance, unless by special order of the 
 court. 
 
 56. The costs of counsel attending the judge in chambers are not, in 
 any case, to be allowed, unless the judge certifies it to be a proper case 
 for counsel to attend.
 
 300 GENERAL ORDERS. 
 
 Deposit of Deeds. 
 
 57. When any deeds or other docnments are ordered to be left or 
 deposited, the same are to be left or deposited in the Record and Writ 
 OtHce, and are to be subject to such directions as may be given for the 
 production thereof. 
 
 Power of Judfje. 
 
 58. Powers and authorities given to the Masters in Ordinary of the 
 Court of Chancery, by any General Order or Orders of the court, may 
 be exercised by the judge sitting in chambers. 
 
 59. The power of the court and of the judge sitting in chambers, to 
 enlarge or abridge the time for doing any act or taking any proceedings, 
 and to give any special directions as to the course of proceeding in any 
 cause or matter, are unaffected by these Orders. 
 
 Commencement of these Orders. 
 
 60. These Orders shall take effect and come into operation from and 
 after the first day of Michaehiias Term, 1852, 
 
 Interpretation. 
 
 61. In these Orders the following words have the several meanings 
 hereby assigned to thera over and above their ordinary meanings, unless 
 there be something in the subject or context repugnant to such con- 
 struction, viz: — 
 
 1. Words importing the singular number include the plural 
 number, and words importing the plural number include the sin- 
 gular number. 
 
 2. Words importing the masculine gender include females. 
 
 3. The word " party " includes a body politic or corporate. 
 
 4. The word " affidavit " includes '" affirmation." 
 
 5. The word " order " includes decree and decretal order. 
 
 6. The word " receiver " includes consignee and manager. 
 
 St. Leonaeds, C, &c. &c.
 
 GENERAL ORDERS. 301 
 
 SCHEDTTLE (A.) 
 
 Form of Summons. 
 
 In Chancery — 
 
 In the matter of John Thomas, an infant, or 
 
 Joseph Wilson against William Jacljson. 
 Let all parties concerned attend at my chambers (in the Rolls Yard, 
 Chancery Lane, Middlesex (or at No. , Square, Lincoln's Inn, 
 Middlesex), on the day of , at o'clock in the 
 
 noon, on the hearing of an application on the part of [lieresiute 
 on whose behalf the application is 7nade, and the precise object of tfte 
 application.'] 
 
 Dated the day of ,1852. 
 
 John Romillt, M. R., or 
 G. J. TiiKNEu, V. C, or 
 Richai:d T. KiNDKRSLEr, v. C, or 
 JouN Stuakt, V. C. 
 
 This summons ^\•as taken out by A. and B. of Lincoln's Inn, in the 
 county of Middlesex, solicitors for . 
 
 To 
 
 The following note to be added to the original summons, when pro- 
 ceedings originate in chambers, and when the time is altered by endorse- 
 ment, the endorsement to be referred to a.s below : — 
 
 Note. — If you do not attend us in person or by your solicitor at the 
 time and place aboTC mentioned (or at the place above mentioned at the 
 time men'.ioned in the endorsement hereon), such order will be made, 
 and proceedings taken, as the judge may think just and expedient. 
 
 N.B. — The form of summons to be obtained under section 45 of the 
 act 15 & 16 Vict. c. 86, is prescribed by rule 42 of the Orders 
 7th August, 1852. 
 
 Schedule (B.) 
 
 Form of Summons by Chief Clei'Jc. 
 
 In Chancery — 
 
 In the matter of the estate of John Thomas, late of , in the 
 
 county of , deceased, or 
 
 Joseph Wilson against William Jackson. 
 The defendant William Jackson (or A. B. of, &c.), is hereby sum- 
 moned to attend at the chambers of the Master of the Rolls (or Yice- 
 [cu.] 2 D
 
 302 GENERAL ORDERS. 
 
 Chancellor), in the Rolls Yard, Chancery Lane (or No. , Square, 
 
 Lincoln's Inn, Middlesex), on the day of , at of 
 
 the clock in the noon, to he examined (or to be examined as a 
 
 witness, on the part of the for the purpose of the proceedings 
 
 directed by the Master of the Rolls (or the said Vice-ChanceLor), to be 
 taken before me. 
 
 Dated this day of , 1852. 
 
 A. B. 
 Chief Clerk. 
 
 This summons was taken ont by A. and B. of Lincoln's Inn, in the 
 county of Middlesex, solicitors for 
 
 Schedule (C.) 
 Form of Order. 
 
 This court doth order that the following accounts and inquiries be 
 taken and made, that is to say — 
 
 1. An account of the personal estate, not specifically bequeathed, of 
 A. B. deceased, the testator in the pleadings named, come to the 
 hands of, &c. 
 
 2. An account of the said testator's debts. 
 
 3. An account of the said testator's funeral expenses. 
 
 4. An account of the said testator's legacies. 
 
 5. An inquiry what parts, if any, of the said testator's personal 
 estate, are outstanding or undisposed of. 
 
 And it is ordered that the said testator's personal estate not specifi- 
 cally bequeathed, be applied in payment of his debts and funeral 
 expenses in a course of administration, and then in payment of his 
 legacies. 
 
 And it is ordered that the following further accounts and inquiries be 
 taken and made, that is to say — 
 
 6. An inquiry what real estate the said testator was seised of or 
 entitled to at the date of his will, and at the time of his death. 
 
 7. An inquiry what incumbrances aflfect the said testator's real 
 estate. 
 
 8. An account of the rents and profits of the said testator's real 
 estate received by, &c. 
 
 9. And it is ordered that the said testator's real estate be sold. 
 
 And it is ordered that the further consideration of this cause be ad- 
 journed, and any of the parties are to be at liberty to apply as they 
 may be advised.
 
 GENERAL ORDERS. 303 
 
 Schedule (D.) 
 
 Form of Advertisement. 
 
 Pursuant to a decree or order of the High Court of Chancery, made 
 in a cause 
 
 against 
 the creditor of (or persons clain)ing to bo next-of-kin to or the heir of, 
 as the case may be), late of in the county of , are 
 
 by tlieir solicitors, on or before the day of , to come 
 
 in and prove their debts or chiims at the chambers of the Master of 
 the Rolls, in the Kolls Yard, Chanceiy Lane, (or of the Vice-Chancellor, 
 No. , Scjuare, Lincoln's Inn, Middlesex), or in default thereof, 
 
 they will be peremptorily excluded from the benefit of the said decree 
 or order. 
 
 Monday the day of , at in the noon, at the 
 
 said chambers, is appointed for hearing and adjudicating upon the claims. 
 
 Dated this day of 1852. 
 
 A. B. 
 Chief Clerk. 
 
 Schedule (E.) 
 
 Form of Certificate of Chief Clerk, 
 
 In the matter of (or between ) \_state titW], I hereby 
 
 certify that the result of the accounts and inquiries which have 
 been taken and made in pursuance of the order in this cause, 
 dated the day of , is as follows: — 
 
 1. The defendants the executors of the testator, have 
 
 received personal estate to the amount of £ , and they have 
 paid, or are entitled to be allowed on account thereof, sums to the 
 amount of £ , leaving a balance due from (or to) them of 
 £ , on that account. 
 The particulars of the above receipts and payments appear in the 
 accomit marked , verified by the affidavit of filed on the 
 
 day of , and which account is to be filed with the certifi- 
 
 cate, except that in addition to the sums appearing on such account to 
 have been received, the defendants are charged with the following sums 
 [siate the same here or in a scheduW], and except that I have dis- 
 allowed the items of disbursement in the said account numbered , 
 and ; [or in cases tohere a transcript has been made'], the defen- 
 dants have brought in an account verified by the affidavit of , 
 and which account is marked , and is to be filed with this certi- 
 ficate. The account has been altered, and the account marked , and 
 which is also to be filed with this certificate, is a transcript of the 
 account as altered and passed. 
 
 2 D 2
 
 304 GENERAL ORDERS. 
 
 2. The debts of the testator which have been allowed are set forth in 
 the schedule hereto, and with the interest thereon, and costs 
 mentioned in the schedule, are due to the persons therein uamed 
 and amount altogether to £ 
 
 3. The funeral expenses of the testator amount to the sum of £ , 
 which I have allowed the said executors in the said accotint of per- 
 sonal estate. 
 
 4. The legacies given by the testator are set forth in the 
 schedule hereto, and with the interest therein mentioned remain doe 
 to the persons therein named, and amount altogether to £ 
 
 .">. The outstandmg personal estate of the testator consists of the 
 particulars set forth in the schedule hereto. 
 
 6. The real estate to which the testator was entitled, consists of the 
 particulars set forth in the schedule hereto. 
 
 7. The incumbrances affecting the testator's real estate, are specified 
 in the schedule hereto. 
 
 8. The defendants have received rents and profits of the testator's 
 real estate, &c., [m a form similar to that provided with respect 
 to the personal estate.'\ 
 
 9. The real estates of the testator directed to bo sold have been sold, 
 and the purchase money, amounting altogether to £ , has 
 been paid into court. 
 
 N.B. — The above numbers are to correspond with the numbers in 
 the decree. ^ 
 
 After each statement the evidence produced is to be stated as 
 
 follows : — 
 The evidence produced on this account (or inquiry), consists of the 
 probate of the testator's will, the affidavit of A. B. filed, and paragraph 
 No. , of the affidavit of C. D. filed. 
 
 St. Leonards, C, &c. &c.
 
 GENERAL ORDERS. 305 
 
 Order of 23rd October, 1852. 
 
 The Right Honourable, &c. 
 
 I. The chief clerks of the Master of the Rolls and Vice-Chancellors 
 raspectivcly, are directed to take the following fees: — 
 
 £ s. d. 
 
 1. For every original summons for the purpose of pro- 
 ceedings originating in cliiunbers 5 
 
 2. For every duplicate tliereof 5 
 
 3. For every other summons 3 
 
 4. For every advertisement 10 
 
 5. For every certificate or report , 10 
 
 6. For every certificate upon the passing of a receiver's 
 or consignee's account, a further fee in respect of each 
 
 lOOZ. received of 10 
 
 7. For every order drawn up by the chief clerk, made 
 upon applications for time to plead, answer, or demur, 
 for leave to amend bills or claims, or for enlarging 
 publication, or the period for closing evidence, or for 
 the production of documents, or applications relating to 
 
 the conduct of suits or matters 5 
 
 8. For every other order drawn up by the chief clerk ... 1 
 
 II. The registrars are directed to take the following fees for orders 
 made by a judge in chambers, drawn up by the registrars, the like fees 
 as before directed to be taken by the chief clerks for orders drawn up by 
 him. 
 
 III. The Record and Writ Clerks are directed to take the following 
 fees: — 
 
 For office copies of original depositions and examinatiens, 
 
 per folio 4 
 
 For entering appearance to judge's summons, same charge 
 
 as for appearing to a bill. 
 For stamping every copy of a bill or claim for service ... 5 
 For stamping every copy of a judges summons for service 5 
 For examining every copy or part of a copy of a set of 
 interrogatories, and marking same as an office copy 5 
 
 IV. All fees received by officers of the court under the prcceditig 
 orders, are to be accounted for and paid by them respectively, once in 
 every month into the Bank of England, in the name of the Accountant- 
 General, to be placed to the account there entitled " The , Suitors' Fee 
 Fund Account,"' the amount so received and paid by such officers 
 respectively to be verified by the affidavit of the accounting party. 
 
 V. Solicitors are entitled to charge and be allowed the following foes : — 
 For instructions to commence proceedings originating in 
 
 chambers, and to defend the same 13 4 
 
 For preparing an original summons for the purpose of pro- 
 ceedings originating in chambers, and tiie duplicate 
 
 thereof 13 4 
 
 2 D 3
 
 306 GENERAL ORDERS. 
 
 £ s. d. 
 For attending at chambers to get such such summons and 
 
 duplicate esamined and sealed 6 8 
 
 For attending at the Record and Writ Office to file dupli- 
 cate and examine copies, and get same stamped 6 S 
 
 For endorsing a summons and the copies under Order VI. of 
 
 16th October, 1852, and attending to get same sealed 6 8 
 For entering the appearance for one or more defendants, if 
 
 not exceeding three 6 8 
 
 If exceeding three, for every additional number not ex- 
 ceeding three, an additional sum of 6 8 
 
 In cases of proceedings originating in chambers, the same 
 
 term fee as in a suit 
 For preparing every other summons, and attending to get 
 
 same filled up and sealed at chambers 6 8 
 
 For each copy of a summons to serve or leave at chambers 2 
 For attending on a summons or other appointment, each 
 day a fee of 65. 8d, 13s. Ad., or IZ. L«.,accordiiig to cir- 
 cumstances, but the fee is to be 6s. 8<Z., unless a larger 
 fee is allowed by the judge or his chief clerk. 
 When from the length of the attendance, or from the diffi- 
 i-ulty of the case, the judge shall think the highest of the 
 above fees an insufficient remuneration for the services per- 
 formed, or where the preparation of the case to lay it before 
 the judge shall have required skill and labour for which no 
 fee has been allo'Aed, the judge may allow such further 
 fee, not exceeding one guinea, as, in his discretion, he may 
 think fit. 
 
 For preparing every advertisement 6 8 
 
 For attending to get same approved and signed 6 ,8 
 
 For attending for every order drawn up by the chief clerk, 
 
 and at the Registrar's Office to get same entered 6 8 
 
 For attending to enler claim under Order XXXV^I. of 
 
 16th October, 1852, and to file affidavit 6 8 
 
 For peiTising the affidavits of claimants coming in under 
 Order XXXVI. of 16th October, 1852, at the time 
 appointed by the advertisement, when the number of 
 
 the claimants does not exceed five 110 
 
 When the number exceeds five, for every additional num- 
 ber not exceeding five, an additionaJ sum of 110 
 
 For attending to bespeak and procure office copy of certi- 
 ficate or report 6 8 
 
 For all other business performed, such fees as by the 
 practice of the court they are entitled to for similar 
 business.
 
 GENERAL ORDERS. 307 
 
 Order of 25th October, 1852. 
 
 The Right Ilonourablo Edward Burtenshaw, Lord St. Leonards, &c. 
 
 I. Iq lieu of copies of pleadings and other proceedings in the Court 
 of Cliuncery, and of tlie documents relating thereto, being made and 
 delivered by officers of the court at the office in whicli they are filed or 
 left, copies of such plc^adings, proceedings, and documents save as here- 
 inafter excepted), are to be made, delivered, charged, and paid for 
 according to the following regulations: — 
 
 1. The following copies are exempted from this Order: that is to 
 say, office copies of proceedings filed in the Report Office, office 
 copies of answers, pleas, and demurrers, office cojiies of depositions 
 of witnesses, and examination of parties to be made for and taken 
 by the party on whose behalf such depositions and examinations 
 have been taken, office copies of affidavits to be made for and 
 taken by the party filing the same, and office copies of affidavits 
 to be taken under Order XXXVIL of 16th October, 1852. 
 
 2. The party or his solicitor rcquiiing any copy, save as hereinbefore 
 excepted, is to make a written application to be delivered to the 
 party by whom the copy is to be furnished, or his solicitor, with 
 an undertaking to pay the proper charges. 
 
 3. Upon such requisitions being made with such undertaking as 
 aforesaid, copies of such pleadings, proceedings, or documents are 
 to be made by the party or his solicitor filing or leaving the same, 
 or who, under the first rule, may have taken office coiues thereof. 
 
 4. The copies are to be ready to be delivered at the expiration of 
 forty-eight hours after the delivery of such request and under- 
 taking, or within. such other time as the court may in any case 
 direct, and are to be delivered accordingly, upon demand and 
 payment of the pro])er charges. 
 
 5. The charges for all such copies are to be at the rate of fourpence 
 per folio. 
 
 6. Copies of bills of costs are to be made side for side, so .as to cor- 
 respond with the bills of costs left in the office. 
 
 7. The folios of all copies are to be numbered consecutively in the 
 margin thereof, and the name and address of the party or solicitor 
 by whom the same is made, is to be indorsed thereon in like 
 manner as upon the proceedings in the court, and such party or 
 solicitor is to be answerable for the same being true copies of the 
 original, or of an office copy of the original pleadings, proceed- 
 ings, or document of which it purports to be a copy, as the case 
 may be. 
 
 8. In cases of es parte applications for injunctions or ^^Tits of ne 
 exeat rer/no, the party making such application is to deliver copies 
 of the affidavits upon which it is granted upon payment of the 
 proper charges innuediately upon the receipt of such written 
 request and undertaking as aforesaid, or within such time as may 
 be specified in such request, or may have been directed by the court. 
 
 9. Any party or solicitor who has taken any office copy mentioned in
 
 308 GENERAL ORDERS. 
 
 rule 2, is to produce the same in court or at the judge's chambers, 
 when required for the purpose of the proceedings to which the 
 same relate. 
 
 II. That all office copies and copies to be furnished by parties or 
 their solicitors, shall be written on paper of a convenient size, with a 
 snffioient margin, and in a neat and legible manner, similar to that 
 which is usually adopted by law stationers, and in the case of copies to 
 be furnished by parties or their solicitors, unless so written, the parties 
 or solicitors furnishing them shall not be entitled to be paid for the 
 same. 
 
 III. That in case any solicitor who shall be required to furnish any 
 such copy as aforesaid, shall either refuse, or for two clear days from 
 the time when the application for such copy shall have been made, shall 
 neglect to furnish the same, the person by whom such application shall 
 be made shall be at liberty to procure a copy from the office in which 
 the original shall have been filed, in the same way as if no such appli- 
 cation had been made to the solicitor; and in such case no costs shall 
 be due or payable to the solicitor so making the default in respect of 
 the copy or copies so applied for. 
 
 IV. That in case any solicitor by whom any such copy ought to be 
 furnished, shall neglect to do so for such two clear days as aforesaid, or 
 for one clear day, an addition of two clear, days, or one clear day, 
 as the case may be, shall be made to the period within which any 
 proceeding which may have to be taken, after obtaining such copy, 
 ought to be so taken, so that the person requiring such copy may be as 
 little prejudiced as possible by such neglect as aforesaid. 
 
 V. That the Taxing ^Master shall not allow any costs in respect of 
 any copy, so taken as aforesaid, unless the same shall appear to him to 
 have been requisite, and to have been m-.de with due care, both as re- 
 gards the contents and the writing therei.f. 
 
 VI. That from and after the first day of November next, all the fees 
 now payable in relation to such proceedings in the said court, as are 
 mentioned in the first schedule hereinafter contained shall be abolished, 
 and the fees specified in the second part of such schedule shall be pay- 
 able, and the same (save as provided by the seventh of these Orders'), 
 shall be collected, not in money, but by means of stamps denoting the 
 amount of such fees, stamped or affixed at the expense of the parties 
 liable to pay the fees, on or to the vellum, parchment, or paper on which 
 the proceedings in respect whereof such fees are payable, are written 
 or printed, or which may be otherwise used in reference to such pro- 
 ceeding. And where any of the fees specified in the second part of the 
 said first schedule, shall be payable in respect of any matter or thing 
 to be done by any officer, or in any office of the court, and it shall not 
 have been customary to use any written or printed document or paper, 
 in reference to such matter or thing, whereon the stamp could be 
 affixed, the party or his solicitor requiring such matter or thing to be 
 so done, shall make application for the same, by a short note or 
 memorandum in writing, and a stamp denoting the amount of the fee bo 
 payable shall be stamped on, or affixed to, such note or memorandum. 
 
 VII. That in all cases where the costs are directed to be paid out of
 
 GENERAL ORDERS. 309 
 
 a fund in court, tbo fees of tasntion shnll not be payable by means of 
 stamps, but sball be carried over by tlie Accountant-General to tha 
 credit of the Suitors' Fee Fund, and to that intent the Taxing-Master 
 shall in such cases certify the amount of such fees. 
 
 Vm. That from and after the 28lh of October, 1852, the brokerage 
 which shall or may from time to time be received by the Accountant- 
 General of the Court of Cliancery shall be paid by him, on tiie first day 
 of every month, or as soon after as conveniently may be, into the Bank 
 of England, to be there placed to his credit as such Accountant-General , 
 to the account intitled " The Suitors' Fee Fund Account." 
 
 IX. That, subject to the superintendence and direction of the Ac- 
 countant-General of the Court of Chancery, with the approbation of the 
 Lord Chancellor, the first, second, and third clerks in each division of the 
 Accountant- General's Office shall, from and after the said 28th day of 
 October, 1852, and until other order or provision shall be made in that 
 behalf, continue to perform the acts or duties hitherto performed by 
 such clerks, and which are mentioned in the said second schedule, in 
 addition to the duties prescribed by act of Parliament as heretofore; 
 and such fees as are specified in the second schedule hereto shall be 
 paid for such acts as aforesaid, to be accounted for in like manner aa 
 the other fees now received in the office of the said Accountant-General, 
 and to be collected by means of stamps, in like manner as provided by 
 Order \^I., and from and after the said 28th day of October, 1852, no 
 other person shall perform such acts or duties. And in order to enable 
 tlie Lord Chancellor, with the consent of the Commissioners of Her 
 Majesty's Treasury, from time to time to fix the amount of the yearly 
 salaries to be paid to such clerks, the Accountant-General shall every 
 six months make a return to the Lord Chancellor of the amount re- 
 ceived during the preceding sis months, in respect of such fees. 
 
 The first Schedule to which the foregoing Orders refer: — 
 
 Part. L — Fees now payable which are to be abolished. 
 JlASTEtis' Office. 
 
 £ s. d. 
 
 For drawing every report exclusive of schedules of accounts 
 of parties accounting before the Masters, and exclusive of the 
 foe on signing, per folio 10 
 
 For drawing schedules of accounts of parties accounting 
 before the Master, per folio 6 
 
 For taking the acknowledgment of any deed 6 
 
 For searcliing for papers in a cause or matter not in im- 
 mediate progress before the Master 6 8 
 
 For entering accounts of receivers, consignees, and com- 
 mittees, per folio, in each book 4 
 
 For entering accounts of parties accounting before the 
 Master in a book, if required, per foiio 4 
 
 For every exhibit 2 6 
 
 Wheu a Aiaster shall be required to attend a party to ad- 
 minister an oath, there shall be paid a further fee of 10s.
 
 310 GENERAL ORDERS. 
 
 £ s. d. 
 over and besides the coach-hire or reasonable travelling ex- 
 penses of the Master 10 
 
 And for copies of every document or writing made in the 
 Master's Office, and also for the transcript of every report, 
 pursuant to the act of Parliament 3 & 4 Will. 4, c. 94, and 
 the General Orders of 26th October, 1842, per folio 4 
 
 Registrar's Office. 
 
 1 . For every decree or order on the original hearing of the 
 
 cause and on further directions 3 10 
 
 2. For every office copy 2 
 
 3. For every order on petition or motion of course, not ex- 
 ceeding one side 3 
 
 4. For every additional side of such order 10 
 
 5. For every order on other petitions where the reference is 
 directed, but the decision of the Master is not to be final, 
 
 and also where the petition is dismissed 10 
 
 6. For every office copy thereof 10 
 
 7. For every order for a special injunction or for the ap- 
 pointment of a receiver 2 10 
 
 8. For every office copy 10 
 
 9. For every order for payment of money out of court, and 
 for no other purpose, where the sum or sums thereby spe- 
 cifically directed to be paid shall not exceed in the whole 
 
 lOOl. 10 
 
 10. For every office copy thereof 5 
 
 11. For every order of transfer out of court or sale of any 
 sum or sums of government stock or South Sea Annuities 
 (excepting long annuities and annuities for terms of years), 
 and for no other purpose, where the sum or sums thereby 
 specifically directed to be transferred or sold shall not ex- 
 ceed in the whole lOOZ. stock or annuities 10 
 
 12. For every office copy thereof 5 
 
 13. For every order for payment out of court of any annuity 
 or annuities, not exceeding in the whole 51. per annum, 
 or of any interest or dividends upon stock or annuities not 
 exceeding 5^. per annum, and for no other purpose 10 
 
 14. For every office copy thereof 5 
 
 14a. For every office copy of every other order for payment 
 
 or transfer out of court 10 
 
 15. For every other order on special motions 10 
 
 16. For every office copy thereof 10 
 
 17. For every order on arguing exceptions 2 
 
 18. For every office copy thereof 10 
 
 19. For every order on arguing pleas and demurrers 10 
 
 SO. For every office copy thereof 10 
 
 21. For every order on petition of appeal or rehearing 2 
 
 22. For every office copy thereof 10
 
 • . GENERAL ORDERS. 311 
 
 £ s. d. 
 
 23. For every order on petitions not herein otherwise speci- 
 fied 2 
 
 24. For every office copy thereof 10 
 
 25. For every order in any matter of lunacy 10 
 
 26. For every office copy thereof 5 
 
 27. For every order in any matter of bankruptcy 10 
 
 28. For every office copy thereof 5 
 
 29. For every office copy of a petition of appeal on the re- 
 hearing, per side 6 
 
 30. For every order on the hearing of a claim on further 
 directions 2 
 
 31. For every office copy thereof 10 
 
 32. For every order on arguing exceptions (on claim) 1 
 
 33. For every office copy thereof 5 
 
 34. For every order (on a claim) for transfer out of court, or 
 sale of any government stock, &c., exceeding 100/. stock 
 or annuities ; and for every order for payment out of court 
 of any annuity or annuities, or of any interest or dividends 
 upon stock or annuities, exceeding in the whole 5/. per 
 
 annum 1 10 
 
 35. For every office copy thereof 10 
 
 36. For every order for payment of money out of court 
 where the sum or sums thereby directed to be paid shall 
 exceed 100«., and shall not exceed in the whole 500/., and 
 for transfer out of court, or sale of any sum or sums of 
 government stock or South Sea Annuities (excepting 
 long annuities or annuities for terms of years), when the 
 sum or sums thereby directed to be transferred or sold 
 shall exceed 100/., and shall not exceed in the whole 500/., 
 and for payment out of court of any annuity or annuities 
 not exceeding 5/., and not exceeding in the whole 25/. per 
 annum, or of any interest or dividends upon stock or an- 
 nuities exceeding 5/. and not exceeding in the whole 25/. 
 
 per annum, and for no other purpose 10 
 
 37. For every office copy thereof 1 10 
 
 38. Forevery other order for payment or transfer out of court 2 o 
 
 Report Office. 
 
 Searches 6ci. per year 6 
 
 Examination of office copies for evidence, per folio of ninety 
 
 words 1^ 
 
 Entering Seats. 
 
 For every order or decree left for entry, containing 168 words 
 
 on a side 6 
 
 For every certificate on Master's report 10 
 
 Entering every attachment 2
 
 312 GENERAL ORDERS. * 
 
 Affidavit Office. 
 
 £ s. d. 
 
 For filing every affidavit, with or without schedules or other 
 
 papers thereto annexed 4 
 
 For the registrar's or his deputy's hand to every copy of an 
 affidavit, with or without schedules or other papers thereto 
 annexed 10 
 
 For every search for an affidavit, for each time 6d., with the 
 
 liberty of reading it over, if found 6 
 
 For searching for and taking an original affidavit ofi" the file 
 in order to attend the Lord Chancellor or Master of the 
 Rolls therewith, or to be made use of in any court ...... 068 
 
 For attending therewth at the Lord Chancellor's, or at any 
 
 of the courts at Westminster, or in London, each time ... 6 8 
 
 For examining the copy of every affidavit with the original, 
 in order to make use of such copy as evidence in any other 
 court than the Court of Chancery 10 
 
 Taking affidavits, for distringas 10 
 
 For carrying an original affidavit by the registrar or his 
 deputy, to any assizes, for each day, including horse- 
 hire and expenses 110 
 
 For trouble, attendance, and taking security to return au 
 original affidavit to the office, when by an order of the 
 court, such original affidavit is directed to be delivered 
 to an associate or clerk of assize, to be made use of at the 
 assizes 6 R 
 
 For every exhibit 2 6 
 
 Examiners. 
 
 Every witness sworn, including oath 2 6 
 
 Every witness sworn and not examined, including oath 5 
 
 Every witness examined on close holidays 17 8 
 
 Examining copy of depositions, •with record to prove on trial 
 
 at law, if more.than forty sheets, for each sheet 2 
 
 Eecokd and Writ C leeks. 
 
 Sealing special injunction 1 10 
 
 Re-sealing any writ, or any alteration thereof 3 
 
 Every exemplification, per skin, exclusive of parchment and 
 
 duty 1 14 
 
 Amending every office copy, if more than ten folios, for every 
 
 folio over ' 4 
 
 Search for records when in record-room, or for any person 
 
 not being a party in the cause, for each year after the 
 
 first year 10 
 
 Every exhibit to au affidavit, &c 2 6
 
 GENERAL ORDERS. 313 
 
 Taxing Masters. 
 
 £ g. d. 
 
 For copies of bills of costs an'l other documents, per folio... 4 
 
 For drawing every report, per folio 10 
 
 Per-ceiitage on amount of every bill of costs as taxed 2 10 
 
 For every exhibit 2 6 
 
 Door Keeper or the Court of Chancery. 
 
 For every cause heard on each side 13 
 
 In every further directions, ditto 13 
 
 In every exceptions, each set 13 
 
 Every appeal or rc-heariug, one side 13 
 
 Every plea or de:nurrer, one side 13 
 
 Every t,'uardian, assigned 13 
 
 Out of H. paid on setting down every petition 3 
 
 Every lunatic petition 3 
 
 Every witness examined wjya coce 1 C 
 
 Every prisoner by habeas corpus 2 6 
 
 Setting down causes to be heard 10 
 
 Setting down cause at Rolls 1 
 
 Term fee for Attorney-General 1 10 
 
 Term-fee from Solicitor-General 10 
 
 Upon swearing into offices before the Lord Chancellor 2 12 6 
 
 From each Queen's Counsel, per term 1 12 
 
 Rolls Court— Secretaries. 
 
 For drawing and copying every order of course 5 6 
 
 For entering every order of course 6 
 
 For entering every order for setting down further directions, 
 
 exceptions, pleas, and demurrers 6 
 
 For filing every petition for an order of course 10 
 
 For answering and setting down every petition for hearing... 6 6 
 
 For setting down every cause for hearing 10 
 
 For setting down every cause on further directions ., 12 6 
 
 For setting down every set of exceptions 10 
 
 For setting down every demurrer 10 
 
 For setting down every set of pleas 10 
 
 For setting down every rehearing 1 
 
 For advancing every cause 10 
 
 For entering every caveat against the enrolment of a decree 
 
 or order 5 
 
 For every docket of decree or order signed bv tiie Master of 
 
 theRoUs .' 2 6 
 
 For every office copy of an order 6 
 
 For every fiat of enrolment 5 6 
 
 On hearing out of term, of every cause, further directions, 
 
 pleas, demurrers, and, where decree is made, each party... 13 
 [CH.] 2 E
 
 314 GENERAL ORDERS. 
 
 £ s. d. 
 On hearing of every petition in which an order is made, the 
 
 petitioner pajs 7 
 
 From each party, on the hearing of a cause in term time ... 2 6 
 From each party, on the hearing of a cause in Michaelmas 
 
 and Hilary Terms only 10 
 
 For papers left at the Secretary's office for the Master of 
 
 the Rolls, on fm'ther directions, exceptions, &c 5 
 
 For eveiy recognizance vacated 6 
 
 On the appointment of every guardian in court for infants, 
 
 out of term 7 
 
 For silk-gowns, a fee payable by each of Her Majesty's 
 
 counsel attending at the Rolls Court, for each term 12 6 
 
 In the Office of the Accodntant-General. 
 
 Certificateof payment in under order 2 
 
 Certificate of payment under act of Parliament 4 
 
 Certificate of transfers into court under order 2 
 
 Certificate of transfer underact 4 
 
 Certificate of investment of principal money 3 6 
 
 Certificate of investment of interest money 2 
 
 Certificate of sale of stock 2 6 
 
 Certificate of transfer of stock out of court 16 
 
 Carried over 2 6 
 
 Deposit of exchequer bills 5 
 
 Delivery out of exchequer bills 5 
 
 Investment of principal money in exchequer bills 5 6 
 
 Investment of interest money in exchequer bills 4 
 
 Sale of exchequer bills 5 
 
 Exchange of exchequer bills ...„. 5 
 
 Chancery Subpcena Office. 
 
 For every subpoena 5 6 
 
 For sealing every distringas 5 6 
 
 For filing alEdavit 10 
 
 In the Office of the Secretary of Decrees and Injunctions. 
 
 Enrolling Lord Chancellor's and Vice-Chancellor's decree... 10 6 
 
 The like, Master of the Rolls 10 6 
 
 Petition to enrol nM7iCj3)-o ^U7JC 10 
 
 Answering same 10 
 
 If private seal enrolling decree, extra 3 9 
 
 Searching, if decree enrolled or caveats enteicd 10
 
 GENERAL ORDERS. 315 
 
 Part II. — Fees to be collected hy means of stamps. 
 In the Judge's Chambers. 
 
 £ s. d. 
 For every original summons for the purpose of proceedings 
 
 originatin;^ in chambers 5 (i 
 
 For every du]>iicate thereof 5 
 
 For every otlu'r summons 3 
 
 For every order drawn up by the cliief clerk made ujx)n ap- 
 phcation for time to plead, answer, or demur, for leave to 
 amend bills or claims, or for enlarging publication, or the 
 period for closing evidence, or for production of documents 
 or applications relating to tiie conduct of suits or matters 5 (( 
 
 For every other order drawn up by the chief clerk 1 
 
 For every advertisement 1 •' 
 
 For every certificate or report 10 
 
 For every certificate upon the passing of a receiver's and 
 consignee's account, a further fee in respect of each 100?. 
 received, of 10 
 
 In the Masters' Offices. 
 
 For every warrant or summons 3 
 
 For every certificate or report 10 
 
 For taking the acknowledgment of every married woman ... 1 6 8 
 
 For attending any court, per day, by the clerk 14 
 
 For every oath 16 
 
 For every certificate upon the passing of a receiver and con- 
 signee's account, a further fee in respect of each 100/. 
 
 received, of 10 
 
 In the Registrar's Office. 
 
 For every decree or decretal order on the liearing of a cause, 
 or on further directions, and on the hearing of a special 
 case, including the court fee and the charge for entry ... 4 
 
 For every order for transfer or payment out of court of an 
 amount not exceeding 200/. stock, or cash, or interest on 
 stock, not exceeding 10/. per annum, and for every order 
 on petition where the petition is dismissed 10 
 
 For every order for transfer or payment out of court of an 
 amount exceeding 200/., but not exceeding 500/. stock, 
 or cash, or interest on stock, exceeding 10/. per annum, 
 and not exceeding 25/. per annum, and for every order on 
 
 special motion not herem otherwise specificii 10 
 
 For every order on the hearing of claims, pleas, demurrers, 
 exceptions, or on petitions not herein otherwise specified, 
 or on petitions of appeal, rehearing for injunctions, re- 
 ceivers, and for writs of ne exerti reyfto 2 
 
 2 E 2
 
 316 GENERAL ORDERS. 
 
 £ s. d. 
 
 For every office copy of a petition of appeal or rehearing ...10 
 For every order on petition or motion of course, including tlie 
 
 entry thereof 5 
 
 For every office copy of a decree or order 10 
 
 In the Report Office. 
 
 Upon every application for a search 6 
 
 For all office copies, at per folio 4 
 
 Affidavits. 
 
 For filing every affidavit, vpith or without schedules or other 
 
 papers thereto annexed, including exhibits, if any 2 6 
 
 For the copy of every affidavit, for each folio 4 
 
 Upon every application to inspect an affidavit 6 
 
 Upjon every application for the officer to attend with an 
 affida\'it or affidavits at the Lord Chancellor's, or at any 
 of the courts at Westminster or in London, each day ... 10 
 
 Upon every application for the officer to carry an original 
 affidavit to any assizes, for each day besides reasonable 
 expenses of officer 10 
 
 For every deponent, affirmant, or declarant to an affidavit, 
 affirmation, or declaration, sworn, affirmed, or declared iu 
 London, or within ten miles of Lincoln's Inn Hall 16 
 
 Upon any application for the officer to attend an invalid, 
 
 including the attendance 10 
 
 In the Examiner's Office. 
 
 For filing interrogatories 7 
 
 For all office copies, per folio 4 
 
 For every witness sworn and examined, including oath, for 
 
 each hour 5 
 
 For every witness sworn and examined abroad (besides 
 
 coach hire, and reasonable expenses) 17 
 
 If more than five miles from the Examiner's office for the 
 
 first day 2 15 
 
 For eveiy other day 2 2 
 
 For attending the Lord Chancellor or the Master of the 
 
 Rolls with record, per day 10 
 
 For attending any Master at his office 10 
 
 For attending with record in any other court or place in 
 
 London or Westminster, per day 10 
 
 If in the country, per day, besides reasonable expenses 2 
 
 Upon every application to inspect depositions, including the 
 
 inspection 3 
 
 Upon every application to examine copies of depositions, with 
 
 record to prove on trial at law 5
 
 GENERAL ORDERS. 317 
 
 £ s. d. 
 Upon every application to search book for causes, including 
 
 search 10 
 
 Upon every application to search book for depositions, in- 
 cluding search 10 
 
 N.B. — These fees will shortly cease to be payable when 
 the new system comes into operation. 
 
 In the Record and Writ Clerk's Office. 
 
 For all office copies, per folio 4 
 
 Filing every bill or information 1 
 
 For filing every claim 5 
 
 For filing every special case 10 
 
 Upon entering every appearance, if not more than three 
 
 defendants 7 
 
 If more than three, and not exceeding six defendants 14 
 
 And the snme proportion for every number of defendants. 
 For sealing an attachment or distringas, for not appearing 
 
 or answering 8 
 
 For every certificate 4 
 
 For every copy of a bill or claim to be served 5 
 
 For every writ of summons, distringas, or subposna 5 
 
 For filing and entering duplicate of every judge's summons 5 
 
 For stamping every copy thereof 5 
 
 For sealing every other writ 10 
 
 For every oath, affirmation, declaration, or attestation upon 
 
 honour ; 1 fi 
 
 For examining every cojiy or part of a copy of a set of inter- 
 rogatories, and marking same as an otfiee copy 5 
 
 Upon every application for a search fur a record, and for 
 
 searching 2 
 
 Upon every application to inspect a record, and for inspect- 
 ing the same 5 
 
 Upon eveiy application to inspect exhibits, if occupied not 
 
 more than one hour 5 
 
 If more than one hour, per diem 10 
 
 Upon every application for officer's attendance in courts of 
 law, per diem, and for his attendance, besides reasonable 
 
 expenses of the officer 1 
 
 Upon every application for the officer's attendance in a Court 
 
 of Equity, per diem 10 
 
 For examining and signing enrolments of decrees and orders 3 
 For filing caveat against claim to revive, or against decree 
 
 or order, or enrolment ,-... 050 
 
 For filing supplemental statement, or statement for revivor 10 
 For ofiico copies of depositions taken before examiner, at 
 
 perfolio , 4 
 
 2 E 3
 
 318 GENERAL ORDERS. 
 
 In the Taxing Masters' Office. 
 
 £ s. d. 
 
 For every warrant or summons, but not more than one order 
 or summons is to be issued on one LDl or set of bills, unless 
 the Taxing Master shall think it necessary to issue a new 
 warrant or summons 3 
 
 On signing every report and certificate 10 
 
 Upon the Master's certificate of every bill of costs, as taxed, 
 
 where the amount shall not exceed 20?. 10 
 
 Upon every additional 20?. or fractional part thereof, a further 
 
 feeof 10 
 
 For every oath, aiSrmation, or attestation upon honour 1 6 
 
 In the Lord Chancellor's Principal Secretaries' Office. 
 
 On all attendable petitions, appeals, rehearings, and letters 
 
 missive 10 
 
 On all non-attendable petitions 10 
 
 On a matter of course, order on a petition of right 10 
 
 On an order for a commission on a petition of right 1 
 
 In the Office of the Secretary at the Rolls. 
 
 Of every petition set down for hearing, to include the fee on 
 
 hearing 10 
 
 On the petition for every order of course 7 
 
 On the admission of every solicitor 1 17 
 
 The second Schedule to which ilieforegomg Order refers. 
 In the Office of the Accountant-General. 
 
 1. For preparing English power of attoniey with affidavit, 
 
 exclusive of stamp duty 
 
 2. For preparing foreign power of attorney without affidavit 
 
 3. For special power of attorney 
 
 4. For copies of accounts, debtor and creditor's side, per folio, 
 
 as to be explained by General Order 
 
 5. Upon every application for a search 
 
 (Signed.) 
 
 3 
 
 6 
 
 3 
 
 
 
 5 
 
 
 
 
 
 3 
 
 5 
 

 
 GENERAL ORDERS. 319 
 
 Order of \Oth November, 1852. 
 
 The Right Honourable Edward Burtenshaw, Lord St. Leonards, &c. 
 
 All office copies, and other copies of proceedings and documents, shall 
 be counted after the rate of ninety words to the folio, and where the 
 same or any portion thereof shall be written with columns containing 
 figures, in every such case each figure or combination of figures repre- 
 senting a distinct denomination, siiall be counted as one word, therefore 
 415U. 16s. 9c?. would count as three words. 
 
 Signed, &c. 
 
 Order of Zrd December, 1852. 
 The Right Honourable, &c. 
 
 1. That the Commissioners of Inland Revenue do prepare stamps 
 impressed upon adhesive paper of the amounts following: that is to say, 
 threepence, fourpence, eightpence, one shilling and fourpence, one 
 shilling and sixpence, two shillings and sixpence, and two shillings and 
 eightpence. 
 
 2. That such stamps shall he affixed by the parties requiring to use 
 the same, on the vellum, parchment, or paper on which the proceeding in 
 respect whereof such stamps may be required, is written, printed, or 
 engrossed, or which may be otherwise used in reference to such pro- 
 ceeding. 
 
 3. That every officer of the Court of Chancery, who shall receive any 
 document to which a stamp shall be so affixed, shall, immediately upon 
 the receipt thereof, obliterate or deface such stamp, by impressing 
 thereon a seal to be provided for that purpose, but so as not to prevent 
 the amount of the stamp from being ascertained, and no such document 
 shall be filed or delivered out, until the stamp thereon shall be obliter- 
 ated or defaced as aforesaid. 
 
 Order of Ath December, 1852. 
 The Right Honourable, &c. 
 
 1. When no certificate of the taxation of a bill of costs shall be 
 required, the ad valorem duty directed by the Order of the 25th day of 
 October, to be levied by stamps on the Master's certificate, shall never- 
 theless be due, and shall be payable on the amount of the bill as taxed, 
 or on the amount of such part thereof as may have been taxed. And 
 the solicitor is, in such case, to cause the proper stamp (the amount 
 thereof to be fixed by the Master) to be impressed on or annexed to the 
 bill of costs. 
 
 2. The fees hereunder specified shall hereafter be collected, not in
 
 320 GENERAL ORDERS. 
 
 money, but by means of stamps denoting the amount of such fees, 
 stamped or affixed, at tbe expense of the parties liable to pay the fees, 
 on or to the vellum, parchment, or paper on which the proceedings in 
 respect whereof such fees are payable are written or printed, or which 
 may be otherwise used in reference to such proceedings. 
 
 1. In the Registrar's Office. 
 
 For orders made by a judge in chambers, drawn up by the 
 Registrar, the like fees as by the Order of the 23rd of 
 October, 1852, are directed to be taken by tbe chief clerks 
 to the judges, for orders drawn up by such chief clerks. 
 
 2. In the Record and Writ Clerk's Office. 
 
 For amending every record of any bill £0 10 
 
 For amending every office copy thereof 5 
 
 Copies of documents left as exhibits, per foho 4 
 
 Order of \^ih December^ 1852. 
 
 The Right Honourable, &c. 
 
 1. The business to be referred to the conveyancing counsel nominated 
 by the Lord Chancellor under the 15^16 Vict. c. 80, s. 41, is to 
 be distributed among such counsel in rotation by the first clerk to the 
 registrars for the time being, and during his occasional or necessary 
 absence, by the second cleik to the registrars for the time being, and 
 during the occasional or necessary absence of both sucii clerks, then by 
 such one of the other clerks to the registrars, as the first registrar for 
 the time being may nominate for that purpose. 
 
 2. The clerk making such distribution as aforesaid is to be respon- 
 sible that the business is distributed according to regular and just 
 rotation, and in such manner as to keep secret from all persons the 
 rota or succession of conveyancing counsel, to whom such business is 
 referred ; and it shall be his duty to keep a record of such refereoces, 
 with proper indexes, and to enter therein all sucli references. 
 
 3. When the court or a judge, sitting at chambers, shall direct any 
 business to be referred to any such conveyancing counsel, a short me- 
 morandum or minute of sucli direction is to be prepared and signed by 
 the registrar, if the same shall liave been given in court, or by the judge's 
 chief clerk if given in chambers, and tbe party prosecuting such direc- 
 tion, or his solicitor, is to take such memorandum or minute to the 
 registrar's clerk, whose duty it shall be to make such distribution as 
 aforesaid, and such clerk is to add at the foot thereof a note specifying 
 the name of the conveyancing counsel in rotation, to whom such 
 business is to be referred, and such memorandum or minute is to be left 
 by the party prosecuting such direction, or his solicitor, with such con-
 
 GENERAL ORDERS. 321 
 
 veyancing counsel, and shall be a sufficient authority for him to proceed 
 with the bu^incss so reteired. 
 
 4. In case the conveyancing counsel in rotation shall, from illness or 
 from any otiier cause, be unable or decline to accept any such reference, 
 the same shall be otl'ered to the other conveyancing counsel appointed 
 as aforesaid, successively, according; to tlieir seniority at the 15ar, 
 until some one of them shall accept the same. 
 
 5. The precedin;; Orders are not to interfere with the power of the 
 court, or of the judge sitting at chambers, to direct or transfer a 
 reference to any one in particular of the said conveyancing counsel, 
 where the circumstances of the case may, in his opinion, render it 
 expedient. 
 
 Order of 24th December, 1852. 
 
 The Right Honourable, &c. 
 
 1. When any of the Masters in Ordinary shall request the opinion of 
 any of the conveyancing counsel nominated by the Lord Chancellor, 
 under the 15 & 16 Vict. c. 80, s. 41, to be taken upon any matter 
 depending before such Master, such business is to be laid before the 
 conveyancing counsel in rotation, to be ascertained in the manner pre- 
 scribed by the General Orders of the 16th day of December, 18.')2, and a 
 memorandum or minute of every such request is to be prepared by the 
 blaster's chief clerk, and signed by him, and such memorandum or 
 minute, when marked with the name of the conveyancing counsel in 
 rotation, shall be a sufticient authority for such counsel to proceed 
 with such business ; and if the conveyancing counsel in rotation 
 shall be unable or decline to proceed tiierewith, tiie same shall be otl'ered 
 to the other conveyancing counsel, nominated as aforesaid, successively, 
 according to their seniority at the bar, until some one of them shall 
 accept the same. 
 
 2. Where, under a decree or order of the court, whether already 
 made, or hereafter to be made, any estate or interest shall be put up for 
 sale with the approbation of one of the blasters in Ordinary, an abstract 
 of the title to such estate or interest is, upon the re(juest of the Master, 
 to be laid before the conveyancing counsel in rotation, for the opinion of 
 such counsel thereon, to the intent that the said Master may be the 
 better enabled to give such directions as may be necessary respecting 
 the conditions of sale of such estate or interest. 
 
 3. Notwithstanding the preceding Orders, the IMaster is to be at 
 liberty to request tiie opinion of any one in particular of the said con- 
 veyancing counsel, to be taken upon any matter before such JIaster, 
 vfhere the circumstances of the case may render it expedient to do so.
 
 322 GENERAL ORDERS. 
 
 Order qfSIsi January, 1853. 
 I, the Right Honourable, &c. 
 
 That the registrar, in drawing up any decree or order whereby the 
 Accountant-General shall be directed to pay or transfer any fund or 
 part of any fund, in respect of which any duty shall be payable to the 
 revenue, under the acts relating to legacy duty, shall, unless such 
 decree or order expressly provide for the payment of the duty, direct 
 the Accountant-General to have regard to the circumstance that such 
 duty is payable ; and where, by any decree or order, any carrying over 
 to a separate account of any fund in respect of which any sach duty 
 may be chargeable shall be directed, the registrar shall add the words, 
 " subject to Legacy Duty," to the title of the account. And in order 
 the better to provide security against the payment or transfer by the 
 Accountant-General of any fund chargeable with any such duty without 
 the duty being first paid, the Accountant-General is, on receiving notice 
 from the proper officer that the duty is payable, to cause a memoran- 
 dum to be made in his books, in conformity with such notice. And the 
 Accountant-General, before executing any decree or order directing the 
 payment or transfer of any fund or part of any fund in respect of 
 which any such duty shall be payable, shall require the production of 
 the official receipt for the duty, or a certificate from the proper officer of 
 the payment of the duty chargeable in respect of any such fund or 
 any portion thereof respectively, by any such decree or order directed to 
 be paid or transferred. And I do further order and direct that where, in 
 making any decree or order, express provision for the payment of any 
 such duty shall be intended to be made, such duty shall, by such decree 
 or order, be directed to be paid to the Receiver-General of Inland 
 Revenue for the time being, or his official assistant duly constituted, to 
 be named in the Order. 
 
 Order of Ath March, 1853. 
 
 The Right Honourable, &c. 
 
 That when any cause shall, at the original or any subsequent hearing 
 thereof, have been adjourned for further consideration, such cause may, 
 after the expiration of eight days, and within fourteen cays from the 
 filing of the certificate or report of the chief clerk of the judge to whose 
 court the cause is attached, be set down by the registrar in the cause- 
 book for further consideration, on the written request of the solicitor 
 for the plaintiff or party having the conduct of the cause, and, after the 
 expiration of such fourteen days, the cause may be set down by the 
 registrar on the written request of the solicitor for the plaintiff, or for 
 any other party, and the request to set down the cause may be in the 
 form or to the effect set forth in the schedule hereto marked (A.); but 
 the cause, when so set down, shall not be put into the paper for further 
 consideration, until after the expiration of ten days from the day on
 
 GENERAL ORDERS. 323 
 
 which the same was to set down, and shall be marked in the cause- 
 book accordingly. And notice thereof shall bo given to the other 
 parties in the cause, at least six days before the diy for which the same 
 may be so marked for further consideration, anil such notice may be in 
 the form or to tiie effect set forth in the schedule hereto marked (B.) 
 
 SCUEDULE (A.) 
 
 In Chancery — 
 
 A. V. B. 
 I request that this cause, the further consideration whereof was 
 adjourned by the Order of the day of , may be set 
 
 down for further consideration before His Honour, the 
 Dated, &c. 
 
 C. D. 
 Solicitor for (the plaintiff.) 
 
 Schedule (B.) 
 In Chancery — 
 
 A. V. B. 
 
 Take notice that this cause, the further consideration whereof was 
 adjourned by the Order of the day of , was, on 
 
 the day of , set down for fm-thcr consideration before 
 
 His Honour, the for the day of 
 
 Yours, &c., 
 C. I). 
 Solicitor for (the plaintiff.) 
 
 To m. 
 
 Sohcltor for (the defendant.) 
 
 Order of 12th April, 1853. 
 
 The Right Honourable, &c. 
 
 That notwithstanding the 27th of the General Orders of the 21st 
 December, 1833, it shall not hereafter be necessary for the registrar, in 
 drawing up any decree or order, to recite any previous decree or order 
 in the cause or matter, or any report, certificate, affidavit, or other 
 document that has been (or before the decree or order is completed 
 shall be) filed or recorded in the court; but it sliall be suiheient to 
 refer thereto, save only in matters of contempt, or where the order varies 
 from some general rule, and in such other cases as the court shall 
 direct, or the registrar shall, in his discretion, see fit, the registrar shall
 
 324 GENERAL ORDERS. 
 
 make such short recitals as may be necessary to show the grounds on 
 which the decree or order is granted. 
 
 Order of lOth May, 1853. 
 The Eight Honourable, &c. 
 
 That, in every case in which any person is entitled to, or in any 
 manner interested in any Old South Sea Annuities, Xew South Sea 
 Annuities, Bank Annuities, 1726, or Three Pounds percent. Annuities, 
 1751, standing in the name of the Accountant-General of this court in 
 trust in any cause or matter, whether such person is so entitled bene- 
 ficially or only as executor, administrator, trustee, guardian, committee 
 or otherwise, such person may apply to the Master of the Rolls, or to 
 any of the Vice-Chancellors in chambers, by summons in the cause 
 or matter in trust in which such annuities may be standing, praying 
 that the said Accountant-General may be authorized and directed to 
 receive the capital sums, which will, under the provisions of an act 
 passed in the present session of Parliament, intituled '' An Act for 
 Redeeming or Commuting the Annuity payable to the South Sea Com- 
 pany, and certain Annuities of Three Pounds percent, per Annum, and 
 for creating New Annuities of Three Pounds Ten Shillings per cent, 
 per annnn, and Two Pounds Ten Shillings per cent, per annum, and 
 issuing Exchequer Bonds," on the 5th of January, 1854, and the 5th 
 of April, 1854, respectively become payable in respect of such annuities, 
 or that the said Accountant-General may be directed to signify, on or 
 before the 3rd day of .June next, to the Governor and Company of the 
 Bank of England, or to the South Sea Company, as the cise may be, on 
 behalf of all persons interested in such annuities, his assent to accept 
 and receive, in lieu of such Old South Sea Annuities, New South Sea 
 Annuities, Bank Annuities, 1726, or three-pound per cent, annuities, 
 1751, respectively, a competent portion of new Three-pounds Ten 
 shillings Annuities or Exchequer Bonds, according to the provisions of 
 the said act, and the Master of the Rolls or Vice Chancellors, as the case 
 may be, may on any such application, and on the attendance of such 
 parties, if any, and on such evidence, if any, as he may think fit and 
 require, authorize and direct the said Accountant-General to receive 
 such capital sums, or to signify such assent, as the case may be, in case 
 the said Master of the Rolls or Vice-Chancellors shall be satisfied that 
 such authority and direction may be given with a due regard to the 
 rights of all persons interested in the said funds. 
 
 And it is hereby further ordered that the Accountant-General, in all 
 cases in which no notice shall, on or before the 31st day of May, 1853, 
 have been given to him, of an order made by the Master of the Rolls, or 
 one of the Vice-Chancellors, authorizing and directing him to receive 
 such capital sums, or to signify such assent as aforesaid as to any 
 portion of the said annuities so standing in his name, shall, on or before 
 the 3rd day of June next, signify to the Governor and Company of the 
 Bank of England, or to the South Sea Company, as the case may be,
 
 GENERAL ORDERS. 325 
 
 his assent to accept and receive in lieu of the Old South Sea Annuities, 
 New South Sea Annuities, Bank Annuities, 1726, and Three pounds per 
 cent. Annuities, 1751, standing in his name, or of such part thereof as to 
 which no sucli notice as aforesaid sliall have been given to him, a com- 
 petent sum of Two pounds ten shiUings per cent. Annuities according to 
 the provisions of the said act. And the Accountant-General shall in 
 sucli case, cany such Two pounds ten shillings per cent. Annuities to 
 the credit of the same causes or matters respectively, in respect whereof 
 such assent shall so have been signified by him as aforesaid, and the 
 same shall be held upon the same trusts, and shall be subject to the 
 same orders as the Annuities in respect of which the same shall so be 
 received. 
 
 Order of 2nd June, 1853. 
 
 The Right Honourable, &c. 
 
 That so much of the Order of Court of the 10th day of May, 1853, 
 be revoked as directs that the Accountant-General of this court in all 
 cases in which no notice should, on or before the 31st day of May, 1853, 
 have been given to him of an order made by the Master of the Molls or 
 one of the Vice-Chancellors, authorizing and directing him to receive 
 such capital sums as thereinbefore referred to, or to signify such assent 
 as therein aforesaid, as to any portion of the Annuities thereinbefote 
 referred to as standing in his name, should, on or before the 3rd day of 
 June then next, signify to the Governor and Company of the Bank of 
 England, or to the South Sea Company, as the case might be, his assent 
 to accept and receive in lieu of the Old South Sea Annuities, New South 
 Sea Annuities, Bank Annuities, 1726, and Three pounds per cent. An- 
 nuities, 1751, standing in his name, or of such part thereof, as to which 
 no such notice as therein aforesaid should have been given to him, a 
 competent sum of Two pounds ten shillings per cent. Annuities, accord- 
 ing to the provisions of the act therein before mentioned ; and that the 
 Accountant-General should in such case carry such Two pounds ten 
 shillings per cent. Annuities to the credit of the same causes or matters 
 respectively, in respect whereof such assent should so have been signi- 
 fied by him as therein aforesaid, and that the same should be held upon 
 the same trusts, and should be subject to the same orders as the An- 
 nuities in respect of which the same should so be received. 
 
 Order of 2>rd June, 1853. 
 
 The Right Honourable, &c. 
 
 That in all cases in which any order directing the investment from 
 time to time of any interest or dividends accruing upon any stocks or 
 securities standing in the name of the Accountant-General to the credit 
 [CH.] 2 F
 
 326 GENERAL ORDERS. 
 
 of any cause, matter, or acconnt, or upon any stocks or securities which 
 may be ordered to be transferred into the name of the Accoantant- 
 General, or to be carried over with his privity from one account to 
 another, or upon any stocks or securities which may be ordered to be 
 purchased with any cash in court, or with any cash to be paid into 
 court with the like privity, shall be brought to the Accountant-General 
 for the purpose of having such direction for investment carried into 
 efiect: the said Accountant General may, from time to time, until he 
 shall receive notice of an order to the contrary, without any further 
 request, invest the interest and dividends so directed to be invested, 
 together with all accumulations of interest and dividends thereon, as 
 soon as conveniently may be after they shall accrue due and have been 
 received, in the purchase of the particular description of stock or se- 
 curity named in such order, and place such stocks or securities, when 
 purchased, to the credit of the cause, matter, or account respectively, 
 as may be directed by such order. 
 
 Order of 26th Juhj, 1853. 
 
 The Right Honourable, &c. 
 
 That in the interval between the close of the sittings after any term, 
 and the commencement of the sittings before or at the beginning of the 
 next ensuing term, any judge of the court may sign and adopt any 
 certificate made by the chief clerk of any other judge, and orders made 
 by any judge of the court may be prosecuted at the chambers of any 
 other judge by his permission, and in case the prosecution thereof shall 
 not be completed during such interval, the prosecution may be continued 
 at the chambers of the same judge, if and so far as he shall think fit. 
 In all cases in which any judge signs and adopts a certificate made in 
 pursuance of an order made by any other judge, it is to be expressed 
 that he does so for such other judge, and such certificate shall, in all 
 future proceedings, be deemed to be signed and adopted by the judge 
 for whom it is signed and adopted, save that no application to discharge 
 or vary such certificate is to be made to the judge for whom the 
 same is signed and adopted, without the leave of the judge by whom it 
 has been signed and adopted, and the judge by whom it has been signed 
 and adopted, is to have the same power to discharge or vary the certi- 
 iicate as he would have had if it had been made in pursuance of an 
 order made by himself. 
 
 Order of 9th December, 1853. 
 I, &c. 
 
 That any application to the Master of the Rolls or to a Vice- Chan- 
 cellor, under the "Charitable Trusts Act, 1853," section twenty-eight
 
 GENERAL ORDERS. 327 
 
 shall be made by summons, and such summons may be in the form set 
 out in Schedule A. annexed to the General Order of the 16th day of 
 October, 1852, or as near thereto as the nature of the case may piTinit. 
 The fees payable on proceedings before the Master of the Kolls or any 
 of the Vice-Chancellors under the said act, shall be the same as are 
 payable according to the Order of the 23rd day of October, 1852, in 
 respect of other proceedings commencing by summons, and shall be 
 collected by means of stamps, as directed by the Order of the 25th day 
 of October, 1852. 
 
 In all cases in which the Master of the Rolls or any Vice-Chancellor 
 shall direct that any matter commenced by summons, imder the said 
 act, shall be heard in open court, the same fees siiall be payable and 
 the same costs shall be allowed, as would have been payable in respect 
 of any other matter so heard. 
 
 No order made under the said act by the Master of the Rolls or by 
 any of the Vice-Chancellors, shall be subject to appeal, where the gross 
 annual income of the charity has not been declared by the Charity 
 Commissioners for England and Wales, to exceed one hundred pounds, 
 unless the Master of the Kolls or the Vice-Chancellor, by whom such 
 order may have been made, shall certify that such appeal ought to be 
 permitted, either absolutely or on such terms as the said Master of the 
 Rolls or Vice-Chancellor may think fit to impose. 
 
 Order of 9th March, 1854. 
 
 I, The Right Honourable, kc. 
 
 That the General Order made by me, bearing date the 31st day of 
 January, 1853, be discharged, and in lieu thereof, I do order that the 
 Registrar, in drawing up any decree or order whereby the Accountant- 
 General shall be directed to pay or transfer any fund or part of any fund 
 in respect of which any duty shall be payable to the revenue, under the 
 acts relating to legacy or succession duty, shall, unless such decree or 
 order expressly provide for the payment of the duty, direct the Ac- 
 countaiTt-General to have regard to the circumstance that such duty is 
 payable-, and where, by any decree or order, any carrying over to a 
 separate account of any fund in respect of which any duty may be 
 chargeable shall be directed, the Registrar shall add to the words 
 "subject to Legacy Duty," or "subject to Succession Duty," as the case 
 may be, to the title of the account ; and in order the better to provide 
 security against the payment or transfer by the Accountant-General of 
 any fund chargeable with any such duty, witliout the duty being first 
 paid, the Accountant-General, on receiving notice from the proper officer 
 that the duty is payable, is to cause a memorandum to be made in his 
 books, in conformity with such notice. 
 
 And the Accountant-General, before executing any decree or order, 
 du-ecting the payment or transfer of any fund, or part of any fund, in 
 respect of which any such duty shall be payable, shall require the pro- 
 duction of the official receipt for the duty, or a certificate from the 
 2 F 2
 
 328 GENERAL ORDERS. 
 
 proper ofBcer of the payment of the duty chargeable in respect of any 
 such fund or any portion thereof respectively, by any such decree or 
 order directed to be paid or transferred. 
 
 (Signed.) 
 
 Order of 1st June, 1854. 
 
 That all and every orders, rules, and directions hereinafter set forth, 
 shall henceforth be, and for all purposes be deemed and taken to be. 
 General Orders and Rules of the High Court of Chancery, viz: 
 
 I. If the fourteen days, within which, pursuant to the orders of the 
 court, a defendant is bound to file liis aiBdavits in answer to a motion 
 for a decree, or the seven days within which the plaintiff is bound to 
 file his affidavits in reply thereto, or the nine weeks after issue joined, 
 within which the evidence in any cause to be used at the hearing 
 thereof is to be closed, or the month after the expir.ation of such nine 
 weeks, within which a witness who has made an affidavit intended to 
 be used by any party to such cause at the hearing thereof, is subject 
 to cross-examination, shall expire in the long vacation, the time for 
 the several purposes aforesaid respectively, is hereby extended to the 
 fifth day of the ensuing Slichaelmas Terai, and is to expire on that day 
 unless enlarged by order: provided always, that in cases where the 
 above mentioned periods of fourteen days and nine weeks respectively, 
 shall be extended by virtue of this order, the seven days within which 
 the plaintiff is bound to file his affidavits in reply, and the month 
 during which a witness is subject to cross-examination shall be respec- 
 tively taken to commence from the expiration of such extended period. 
 
 II. Any judge of the court whose chambers may be open for business 
 during any vacation, may issue summonses for the purpose of any pro- 
 ceeding before the Master of the Rolls or any Vice-Chancellor at 
 chambers after the vacation. 
 
 III. The same course of procedure as is now in use, as to the pro- 
 duction of documents ordered to be produced before the hearing of a 
 cause, shall extend and be applied to the production of documents 
 ordered to be produced after the hearing of any cause or matter. 
 
 IV. In all cases in which the certificate of the chief clerk is to be 
 acted upon by the Accountant-General of the court without any further 
 order, such certificate may be signed and adopted by the judge on the 
 day after the same shall have been signed by the chief clerk, unless any 
 party desiring to take the opinion of the judge thereon, obtains a sum- 
 mons for that purpose before twelve of the clock on that day. And the 
 time for applying to discharge or vary such certificate, when signed and 
 adopted by the judge, is to be two clear days after the filing thereof. 
 
 V. In all cases in which any person required to be served with notice 
 of a decree or order pursuant to the 8th rule of the 42nd section of the 
 act 15 & 16 Vict. c. 86, may be an infant, or a person of unsound mind.
 
 GENERAL ORDERS. 329 
 
 not found so by inquisition, tlie notice is to be served upon such person 
 or persons, and in such manner as the judge to whose court the cause 
 is attached, may direct. 
 
 VI. Guardians ad litem appointed for infants, or persons of unsound 
 mind, not found so by inquisition, who shall be served with notice of 
 any decree or order, are to be appointed in like manner as guardians ud 
 litem to answer and defend, are now appointed in suits on bills filed. 
 
 VII. At any time during the proceedings at any judge's chambers, 
 under any decree or order, the judge may, if he shall think fit, require 
 a guardian ad lit«ni to be appointed for any infant, (jr person of unsound 
 mind, not found so by inquisition, who has been served with notice of 
 such decree or order. 
 
 VIII. In all cases in which notice of a decree or order shall be 
 served pursuant to the 8th rule of the 42nd section of the act 15 & 1 6 
 Vict. c. 86, the notice so served is to be entitled in the cause, and there 
 is to be endorsed thereon a memorandum in the form or to the effect 
 following, that is to say: "Take notice, that from the time of the 
 service of this notice, you (or as the case may he, the infant, or person 
 of unsound mind), will be bound by the proceedings in the above cause, 
 in the same manner as if you (or the said infant, or person of unsound 
 mind), had been originally made a party to the suit, and that you (cr 
 the said infant, or person of unsound mind) may, by an order of course, 
 have liberty to attend the proceedings under the within mentioned decree 
 or order ; and that you (or the said infant, or person of unsound 
 mind) may, within one month after the service of this notice, apply to 
 the court to add to the decree or order. 
 
 IX. The charges for copies of pleadings and other proceedings, and 
 documents furnished under the General Orders of 25th October, 1852, 
 Order Number 1, sections 2, 3, and 4, to a person admitted to sue or 
 defend in forma, pauperis, or to his solicitor, by or on behalf of any other 
 party, shall be at the rate of one penny-halfpenny per folio: provided 
 always, that if such person shall become entitled to receive divers costs, 
 the charges for such copies shall be at the rate of fourpence per folio, 
 and nothing shall be allowed in taxation in respect of such charges, 
 until such person or his solicitor shall have paid or tendered to the 
 solicitor, or party by whom such copies were furnished, the additional 
 twopence-halfpenny per folio. But this proviso shall not apply to any 
 copy which shall have been furnished by the party himself, who is 
 directed to pay the costs and not by his solicitor. 
 
 X. The charges for copies furnished by a person admitted to sue or 
 defend in forma jmuperis, other than those furnished by his solicitor, 
 shall be at the rate of one penny-halfpenny per folio. 
 
 XI. Expenses incurred in consequence of affidavits being prepared or 
 settled by counsel, are to be allowed only when the Taxing Masters shall, 
 in their discretion, and on consideration of the special circumstances of 
 each case, think such expenses properly incurred; and in such case they 
 are to beat liberty to allow the same or such parts thereof, as they may 
 consider just and reasonable, whether the taxation be between solicitor 
 4nd client or between party and party. 
 
 XII. Any party who may be dissatisfied with the allowance or dis- 
 
 2 F 3
 
 330 GENERAL ORDERS. 
 
 allowance by the Taxing Master, in any bill of costs taxed by him, of 
 the whole or any part of any item or items, may, at any time before the 
 certificate is signed, deliver to the other party or parties interested 
 therein, and carry in before the Master, an objection in writing to such 
 allowance or disallowance, specifying therein, by a list in a short and 
 concise form, the items or item, or parts or part thereof objected to, and 
 may thereupon apply to the Master for a waiTant to review the taxation 
 in respect of the same. 
 
 XIII. Upon the application for such warrant, or upon the return 
 thereof, the Taxing ^Master is to reconsider and review his taxation upon 
 such objection , and he may, if he shall think fit, receive further evidence 
 in respect thereof; and if so required by either party, he is to state, 
 either in his certificate of taxation, or by reference to such objection, the 
 grounds and reasons of his decision thereon, and any special facts or 
 circumstances relating thereto. 
 
 XIV. Any party who may be dissatisfied with the certificate of the 
 Taxing Master, as to any item or part of an item which may have been 
 objected to as aforesaid, may apply to the court, by motion or petition, 
 for an order to review the taxation as to the same, and the court may 
 thereupon make such order as to the court shall seem just; but the 
 certificate of the Taxing Master shall be final and conclusive as to all 
 matters which shall not have been objected to in manner aforesaid. 
 
 XV. Such motions and petitions are to be heard and determined upon 
 the evidence which shall have been brought in before the Taxing Master, 
 and no further evidence is to be received upon the hearing thereof, unless 
 the court shall otherwise direct. 
 
 (Signed.) 
 
 Order of 2\st June, 1854. 
 
 I. From and after the 2nd day of July, 1854, all office copies and 
 other copies of pleadings, proceedings, and documents in the Court of 
 Chanceiy, shall (except in the cases hereinafter mentioned), be counted 
 and charged for after the rate of seventy-two words per folio, and where 
 such copies or any portion thereof, shall comprise columns containing 
 figures, each figure shall be counted and charged for as one word. 
 
 II. From and after the 2nd day of July, 1854, the charge for all 
 transcripts of accoimts made in the office of the Accountant- General, 
 shall be after the rate of two shillings for each opening of such tran- 
 script, consistmg of the debtor and creditor sides of the account to be 
 entered therein. 
 
 III. The charges hereinbefore directed to be made, shall be paid by 
 means of stamps, according to the General Orders of the Court of 
 Chancery in that behalf, now in force, so far as relates to documents 
 furnished by the said com-t. 
 
 (Signed.)
 
 GENERAL ORDERS. 331 
 
 Order oflZtk January^ 1855. 
 
 Introductorv. 
 
 I. The course of proceeding prescribed by the 15 & 16 Vict. c. 86, 
 and the General Order of the 7th day of August, 1852, with respect to 
 the mode of examining witnesses, and the practice of the court in rela- 
 tion thereto, are altered in the manner and to the extent prescribed by 
 these orders, but not further or otherwise. 
 
 II. The Orders numbered respectively 31, 32, 33, comprised in the 
 General Order of the 7th day of August, 1852, and all other orders 
 and Jparts of orders, so far as such other orders and parts of orders 
 are inconsistent with these orders, but not further or otherwise, axfi 
 hereb}- abrogated and discharged. 
 
 III. All former orders and parts of orders not spccitied in Order II., 
 so far as the same are now in force and consistent with these orders, 
 
 are to remain iu full force and effect. 
 
 Evidence. 
 
 IV. It shall not be competent for the plaintiff or any defendant to 
 require, by notice or otherwise, that the evidence to be adduced in a 
 cause shall be taken orally, but when issue shall have been joined in any 
 cause, the plaintiff and defendants respectively shall be at liberty to 
 verify their respective cases, either wholly or partially by affidavit, or 
 wholly or partially by the oral e.Kamination of witnesses, before one of 
 the examiners of tho court, or before an examiner to be specially ap- 
 pointed by the court. 
 
 V. The evidence on both sides in any cause to be used at the hearing 
 thereof, whether taken upon affidavit or orally (and including the cross- 
 examination and rc-esamination by any witness or witnesses), is to be 
 xilosed within eight weeks after issue joined therein, except that any 
 witness who has made an affidavit mtended to be used by any party to 
 such cause at the hearing thereof, shall be subject to cross-examination 
 within one month after the expiration of such period of eight weeks. 
 
 VI. No affidavit or deposition filed or made before issue joined in any 
 cause shall, without special leave of the court, be received at the hearing 
 thereof, unless within one month after issue joined, or within such longer 
 time as may be allowed by special leave of the court, notice in writing 
 shall have been given by the party intending to use the same, to the 
 opposite party, of his intention in that behalf. 
 
 VII. In suits in which issue shall have been joined when these orders 
 take effect, the evidence to be used at the hearing of the cause shall be 
 taken according to the present practice of the court, unless the parties 
 shall consent, or the court shall order that the same shall be taken in 
 the altered mode prescribed by these orders. 
 
 Affidavits. 
 
 VIII. All affidavits, whether to be used at the hearing of a cause, 
 or on any other proceeding before the court, are to state distinctly what 
 facts or circumstances deposed to are within deponent's own know-
 
 332 GENERAL ORDERS. 
 
 ledge, and his means of knowledge, and what facts or circumstances 
 deposed to are known to or believed by him by reason of information, 
 derived from other sources than his own knowledge, and what such 
 sources are. 
 
 IX. The costs of affidavits not in conformity with the preceding 
 order, are to be disallowed on taxation, unless the court should other- 
 wise direct. 
 
 X. These orders shall be deemed to apply as nearly as may be to 
 evidence taken after the hearing of a cause, as well as to evidence taken 
 previously, and with a view to such hearing, 
 
 XI. These orders shall take effect on and after the 21st day of 
 January, 1855. 
 
 (Signed.) 
 
 Order of 2nd February, 1855. 
 
 Where the preparation of any case or matter to lay it before the 
 judge in chambers on a summons, shall have required and received 
 from the solicitor such extraordinary skill and labour, as materially to 
 conduce to the satisfactory and speedy disposal of the business, and 
 therefore shall appear to the judge to deserve higher remuneration than 
 the ordinary fees, the judge may allow to the solicitor, by a niemoran- 
 dum in writing expressly made for that purpose, and signed by the 
 judge, specifying distinctly the grounds of such allowance, such further 
 fee not exceeding ten guineas, as in his discretion he may think fit, 
 instead of the fee of one guinea authorized in such a case by the Order 
 of the 23rd day of October, 1852. 
 
 (Signed.) 
 
 Order of 30th November, 1855. 
 
 I. Every decree, order, report, certificate, petition, and document, 
 made, presented, or used in any cause in this court, is to be distin- 
 guished by having plainly written on the first page of such decree, 
 order, report, certificate, petition, and document, the date of the year, 
 the letter and the number by which the cause is distinguished in the 
 Cause books kept by the Clerks of Records and Writs. 
 
 II. The Clerks of Records and Writs are, in addition to the entries 
 heretofore made by them in their respective cause-books, to enter therein 
 respectively, the date of every decree, order, report, and certificate, 
 which shall be made in each cause. 
 
 III. The entry of every such decree and order is also to contain a 
 reference to the date and folio of the registrar's book in which such 
 decree or order shall have been entered.
 
 GENERAL ORDERS. 333 
 
 IV. These orders arc to take effect on and from the 1st day of 
 Hilary Term, 1856, but they are not to apply to any cause commenced 
 before the 1st day of Michaelmas Term, 1852. 
 
 (Signed.) 
 
 Order of 22nd April, 1850. 
 
 The Right Honourable Charles Christopher Lord Cottenham, Lord 
 High Chancellor, &c. 
 
 I. Any person seeking equitable relief may, without special leave of 
 the court, and instead of proceeding by bill of complaint in the usual 
 form, file a claim in the Record and Writ Clerk's Office in any of the 
 following cases, that is to say, in any case where the plaintiflf is or 
 claims to be, 
 
 1. A creditor upon the estate of any deceased person seeking pay- 
 ment of his debt out of the deceased's personal assets. 
 
 2. A legatee, under the will of any deceased person, seeking payment 
 or delivery of his legacy out of the deceased's personal assets. 
 
 3. A residuary legatee or one of the residuary legatees of any 
 deceased person, seeking an account of the residue and payment or 
 appropriation of his share therein. 
 
 4. The person or any of the persons entitled to the personal estate of 
 any person who may have died intestate, and seeking an account 
 of such personal estate, and payment of his share thereof. 
 
 5. An executor or administrator of any deceased person seeking to 
 have the personal estate of such deceased person, administered 
 under the directions of the court. 
 
 6. A legal or equitable mortgagee or person entitled to a lien as 
 security for a debt, seeking foreclosure or sale, or otherwise to 
 enforce bis security. 
 
 7. A person entitled to redeem any legal or equitable mortgage, or 
 any lien seeking to redeem the same- 
 
 8. A person entitled to the specific performance of an agreement for 
 the sale or purchase of any property, seeking such specific per- 
 formance. 
 
 9. A person entitled to an account of the dealings and transactions 
 of a partnership dissolved or expired, seeking such account. 
 
 10. A person entitled to an equitable estate or interest, and seeking 
 to use the name of his trustee in prosecuting an action for his own 
 sole benefit. 
 
 11. A person entitled to have a new trustee appointed in a case 
 where there is no power in the instrument, creating the trusts 
 to appoint new trustees or where the power cannot be exercised, 
 and seeking to appoint a new trustee. 
 
 II. Such claim in the several cases enumerated in Order I. is to be 
 in the form and to the eft'ect set forth in Schedule A. hereunder written 
 as applicable to the particular case, and the filing of such claim is, in, 
 all cases not otherwise provided for, to have the force and effect of filing 
 a bill.
 
 334 GENERAL ORDERS. 
 
 III. Every such claim is to be marked at or near the top or tipper 
 part thereof, in the same manner as a bill is now marked with the 
 name of Lord Chancellor and one of the Vice-Chancellors, or with the 
 name of the Master of the Rolls. 
 
 IV. Upon filing such claims, the plaintiff thereby claiming may sue 
 out a writ of summons against the defendant to the claim, requiring him 
 to cause an appearance to be entered to such writ, and also requiring 
 him on a day or time, to be therein named, or on the seal or motion day 
 the next following, to show cause, if he can, why such relief as is claimed 
 by the plaintiff should not be had, or why such order, as shall be just 
 with reference to the claim, should not be made. 
 
 V. Such writ of summons is to be in the form and to the effect 
 in that behalf set forth in No. 1, of the Schedule B. hereunder written, 
 with such variations as circumstances may require, and is to be sealed 
 with the seal of the office of the Clerks of Records and Writs. 
 
 VI. In any case other than those enumerated in Order I. or in any 
 case to which the forms set forth in Schedule A., are not applicable, the 
 court (if it shall so think fit), may, upon the ex parte application of any 
 person seeking equitable relief, and upon reading the claim proposed to 
 be filed, give leave to file such claim, and sue out a writ of summons 
 thereon, under these orders, and if such leave be given, an endorsement 
 thereon, by the Registrar, upon the proposed claim shall be a sufficient 
 authority for the Record and Writ Clerk to receive and file such claim. 
 
 VII. In the case provided for by the 5th article of Order I., any 
 one person who, under the 3rd or 4th article of Order I, might have 
 claimed relief against the executor or administrator of the deceased 
 person whose personal estate is sought to be administered, and the co- 
 executor or co-administrator, if any, of the plaintiff may be named in 
 the writ of summons as defendants to the suit, and in the first instance 
 no other person need be therein named. 
 
 VIII. In other cases, the only person who need be named in the writ 
 or summons as defendant to the suit in the first instance, is the person 
 against whom the relief is directly claimed, 
 
 IX. All claims, and all writs, caveats, proceedings, directions, and 
 orders consequent thereon, either before the court or in the Master's 
 offices, are to be deemed proceedings, writs, and orders subject to the 
 general rules, orders, and practice of the court, so far as the same are 
 or may be applicable to each particular case, and consistent with these 
 orders, and all orders of the court made in such proceedings, are to be 
 enforced in the same manner and by the same process as orders of the 
 court made in a cause upon bill filed. 
 
 X. Writs of summons are, as to the number of defendants to be 
 named therein, as to the mode of ser\-ice thereof, and as to the time and 
 mode of entering appearance thereto, to be subject to the same rules as 
 writs of subpoena to appear to and answer bills. 
 
 XI. The time for showing cause named in any writ of summons 
 (except a writ of summons to revive or carry on proceedings), is to be 
 fourteen days at the least after service of the vsrit, but by consent of the 
 parties, and with the leave of the court, cause may be shown on any 
 earlier day.
 
 GENERAL ORDERS. 335 
 
 XII. At tlie time for sliowing cause named in the writ or on the seal 
 or motion day, then next following, or so soon after as the case can bo 
 heard, tlie defendant having previously appeared, is personally or by 
 counsel to show cause in court, if he can (and if necessary by affidavit), 
 why such relief, as ie claimed by the claim, should not be had against 
 him. 
 
 XIII. At the time appointed for showing cause upon the motion of 
 the plaintiff, and on hearing the claim, and what may be alleged on the 
 part of the defendant, or upon reading a certificate of the appearance 
 being entered by the defendant, or an affidavit of the writ of summons 
 being duly ser\-ed, the court may, if it shall think fit, make an order 
 granting or refusing the relief claimed, or directing any accounts or 
 inquiries to be taken or made, or other proceedings to be had, for the 
 purpose of ascertaining the plaintiff's title to the relief claimed, and 
 further, the court may direct such (if any) persons or classes of persons 
 as it shall think necessary or fit, to be summoned or ordered to appear 
 as parties to the claim, or on any proceedings before the Master, with 
 reference to any accounts or inquiries directed to be taken or made, or 
 otherwise. 
 
 XIV. Every order to be so made is to have the effect of, and may be 
 enforced as a decree or decretal order, made in a suit commenced by bill, 
 and duly prosecuted to a hearing, according to the present course of the 
 court. 
 
 XV. If, upon the application for any such order, or during any pro- 
 ceedings under any such order when made, it shall appear to the court 
 that, for the purposes of justice between the parties, it is necessary or 
 expedient that a bill should be filed, the court may direct or authorize 
 such bill to be filed, subject to such terms as to costs or otherwise as 
 may be thought proper. 
 
 XVI. The orders made for granting relief in the several cases to 
 which the forms set forth in Schedule A. are applicable, may, if the 
 court thinks fit, be in the form and to the efl'ect set forth in Schedule C. 
 as applicable to the particular case, with such variations as circum- 
 stances may require. 
 
 XVII. Under every order of reference to the blaster, under these 
 orders, the Master is, unless the court otherwise orders, to be at liberty 
 to cause the parties to be examined on interrogatories, and produce 
 deeds, books, papers, and writings, as he shall think fit, and to cause 
 advertisements for creditors, and if he shall think it neeessar}', but 
 not otherwise, for heirs and next-of-kin, or other unascertained persons, 
 and the representatives of such as may be dead, to be published in the 
 usual forms or otherwise, as the circumstances of the case may require, 
 and in such advertisements to appoint a time within which such persons 
 are to come in and prove their claims, and within which time, unless 
 they so come in, they are to be excluded the benefit of the order, and in 
 taking any account of a deceased's personal estate, under any such 
 order of reference, the Master is to inquire and state to the court what 
 part, if any, of the deceased's personal estate is outstanding or undis- 
 posed of, and is also to compute interest on tiie deceased's debts, as lo 
 such of them as caiTy interest after the rate they respectively carry, and 
 as to all others after the rate of four per cent, per annum from the date
 
 336 GENERAL ORBERS. 
 
 of the order, and to compute interest on legacies after the deceased's death, 
 unless any other time of payment or rate of interest is directed by the 
 will, bat in that case, according to the vril), and under every order 
 whereby any property is ordered to be sold with the approbation of the 
 Master, the same is to be sold to the best purchaser that can be got for 
 the same, to be allowed by the blaster, wherein all proper parties are to 
 join as the Master shall direct. 
 
 XVIII. If, upon the proceedings before the blaster, under any such 
 order, it shall appear to the Master that some persons, not already 
 parties, ought to attend or to be enabled to attend the proceedings before 
 him, he is to be at liberty to certify the same, and upon the production of 
 such certificate to the Record and Writ Clerk, the plaintiff may sue out 
 a writ of summons requiring the persons named in such certificate to 
 appear to the writ, and such persons are thereupon to be named and 
 treated as defendants to the suit. 
 
 XIX. Such writ of summons, under an order or blaster's certificate 
 is to be in the form and to the efiect in that behalf set forth in No. 2 
 of Schedule B, with such variations as circumstances may require. 
 
 XX. The persons so summoned having appeared, are to be at liberty 
 to attend, and to be entitled to the notice of proceedings before the 
 Master, under the order of reference, subject to such directions as the 
 Master may make in respect thereof. 
 
 XXI. Where any proceedings, originally commenced by claim and 
 writ of summons, shall by the death of paities or otherwise, have 
 become abated or defective for want of parties, and no new relief is 
 sought, a claim to revive or carry on the suit, may be filed, and such 
 claim is to be in the fonn set forth in Xo. 12 of Schedule A. 
 
 XXII. The party claiming simply to revive or cany on proceedings, 
 may sue out a writ of summons reqiimng the defendant thereto to appear , 
 to the writ, and to show cause, if he can, why the proceedmgs should 
 not be revived or carried on. 
 
 XXIII. Such writ of summons is to be in the form and to the efiect 
 in that behalf set forth in No. 3 of Schedule B., with such variations 
 as circumstances may require. 
 
 XXIV. If any defendant to any such writ is desirous of showing 
 cause why the proceedings should not be revived or carried on, he is to 
 appear and to file a caveat against such revivor, or carrying on in the 
 Record and Writ Clerks' Ofiice in the form set forth in No. 4 of 
 Schedule B, and to give notice thereof in writing to the opposite party. 
 If no such caveat be filed within eight days from the time limited for 
 his appearance to the writ, then at the expiration of such eight days, 
 the proceedings are to be revived, and may be carried on without any 
 order for the purpose, and a certificate of the Record and Writ Clerk, 
 that no caveat has been filed within the time limited, is to be a sufficient 
 authority for the Master to proceed. But if any such caveat be filed, 
 the proceedings are not to be revived or carried on without an order to 
 be obtained on motion, of which due notice is to be given. 
 
 XXV. Where any further or supplemental relief is sought, and such 
 supplemental relief is such as is provided for in any of the cases 
 enumerated under Order I., a supplemental claim may be filed, in such 
 of the forms set forth in Schedule A. as is applicable to the case.
 
 GENEItAL ORDERS. 337 
 
 XXVI. If such supplemental relief is not such as is provided for by 
 Order XXV., a buppiemental claim may be filed, staling shortly the 
 nature of the plaunitl"'s case, aud the supplemental relief claimed, 
 but the leave of the court is to be obtained, previously to the tiling 
 thereof, upon an ex parte application for the purjiosu in the manner 
 specified in Order VI. 
 
 XXVII. A writ of summons may be sued out, and other proceedings 
 may be taken upou a supplemental claim, in like manner as upon an 
 original chiim. 
 
 XXVIII. Guardians ad litem to defend may be appointed for infants 
 or persons of weak or unsound mind, against whom any writ of sum- 
 mons may have issued under these orders, in hke manner as guardians 
 ad litem to answer and defend are now appointed in suits on bill filed. 
 
 XXIX. Any order or proceeding made, or purporting to be made, in 
 pursuance of these orders may be discharged, varied, or set aside 
 on motion, and any order for accelerating proceedings may be made by 
 consent. 
 
 XXX. Any order of the Master of the Rolls or of any of the Vice- 
 Chaiicellors may be discharged or varied by the Lord Chancellor on 
 motion. 
 
 XXXI. If any of the cases enumerated in Order I. involve or are 
 attended by such special circumstances, atfecting either the estate or the 
 personal conduct of the defendant, as to require special relief, the 
 plaintiff is at liberty to seek his relief by will, as if these orders had not 
 been made. 
 
 XXXII. If, at any time after these orders come into operation, any 
 suit for any of the purposes to which the forms set forth in Schedule A. 
 are applicable shall be commenced by bill and prosecuted to a hearing, 
 and in the usual course, aud upon the hearing it shall appear to the 
 court that an order to the effect of the decree then made, or an order 
 eijually beneficial to the plaintiff, might have been obtained upon a 
 proceeding by summons, in the manner authorized by these orders, the 
 court may order that the increased costs which have been occasioned by 
 the proceeding by bill, beyond the amount of costs which would have 
 been sustained in the proceeding by summons, shall be borne and paid 
 by the plaintiff. 
 
 XXXIII. The Record and Writ Clerks are directed to take the 
 following fees : — 
 
 £ s. d. 
 
 1. For filing a claim ."i 
 
 2. For sealing every writ of summons 5 
 
 3. For fihng a caveat 2 6 
 
 For appearances, office copies, certificates, &c., the 
 
 same fees as directed by the schedules of fees 
 now in force. 
 The registrars are directed to take the following fees : — 
 
 1. For every order on the hearing of a claim, and 
 
 on further direction 2 
 
 2. For every office copy tliereof 10 
 
 3. For every order on arguing exceptions 1 
 
 [CH.] 2 G
 
 338 GENERAL ORDERS. 
 
 £ s. d. 
 
 4. For every office copy thereof 5 
 
 5. For every order for transfer out of court or sale 
 
 of any surn of government stock, &c., exceed- 
 ing 100^. stock or annuities, and for every 
 order for payment out of court of any 
 annuity or annuities, or of any interest or 
 dividends upon stock or annuities, exceeding 
 
 in the vchole 5?. per annum 1 10 
 
 ft. For every office copy thereof 10 
 
 For every other order and office copy, the same 
 
 fees as now received by the registrars and 
 
 their clerks, under the schedules of fees now 
 
 in force. 
 
 Solicitors are entitled to charge and be allowed the 
 
 following fees: — 
 
 For instructions to sue or defend 6 8 
 
 For instructions for every claim 13 4 
 
 For preparing and filing a claim 2 2 
 
 For preparing a writ of summons 13 4 
 
 For each writ after the first 6 8 
 
 For engrossing claims and writs, per folio 6 
 
 For parchment, as paid 
 
 For each copy of writ to serve, per folio 4 
 
 For the brief to counsel to move for leave to file 
 claim (exclusive of a copy of the claim for 
 
 counsel and the court) 10 
 
 For the brief and instructions to counsel on the 
 
 hearing (exclusive of any necessary copies) 10 
 For taking instructions to appear, and for entering 
 
 appearance : — 
 For one or more defendants, if not exceeding three 13 4 
 If exceeding three, and not more than six, an ad- 
 ditional sum of 6 8 
 
 If exceeding six, for every number not exceeding 
 
 three, an additional sum of 6 8 
 
 For settling minutes, passing and entering order 
 on hearing, the same charges as on a decretal 
 order. 
 
 For entering a caveat 6 8 
 
 For procuring certificate of no caveat 6 8 
 
 For term fee, as in suit 
 
 And also all such fees as by the present practice of the court they 
 are entitled to, save such as are varied or rendered unnecessary by 
 these present orders. 
 
 XXXIV. These orders shall come into operation on the 22nd day of 
 May, 1850. 
 
 XXXV. In these orders and schedules the following words have the 
 several meanings hereby assigned to them, over and above their several 
 ordinary meanings, unless there be something in the subject or context 
 repugnant to such construction, viz.: —
 
 GENERAL ORDEUS. 339 
 
 1. Words importing the singular number incluile the plural number, 
 and words importing the plural number include the singular number. 
 
 2. Words importing tlie masculine gender include females. 
 
 3. The word "affidavit" includes "affirmation," and " dec];iration 
 on honour." 
 
 4. The word person or party includes a body politic or corporate. 
 
 5. Tlie word legacy includes an annuity and a specific as well as a 
 pecuniary legacy. 
 
 6. The word legatee includes a person interested in a legacy. 
 
 7. The expression residuary legatee includes a person interested in 
 the residue. 
 
 Schedule (A.) 
 Form of Claim. 
 
 1. By a creditor upon the estate of a deceased person, seeking pay- 
 ment of his debt out of the deceased's personal assets. 
 lu Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 E. F. defendant. 
 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that C. D., late of , deceased, was, at the time of 
 
 his death, and that his estate still is justly indebted to him the said 
 A. B. in the sum of £ , for goods sold and delivered by the said 
 A. B. to the said C. D. (or otherwise, as Vie case may be, or, if the 
 debt is secured by any written instrument, state the date and nature 
 thereof), and that the said C. D. died in or about the month of , 
 
 and that the above-named defendant E. V. is the executor (or adminis- 
 trator) of the said C. D., and that the said debt hath not been paid, 
 and, therefore, the said A. B. claims to be paid the said debt of £ , 
 with his costs of this suit, and in default thereof he claims to have the 
 personal estate of the said C. D. administered in this court, on behalf 
 of himself and all others, the unsatisfied creditors of the said C. I)., 
 and for that purpose that all proper directions may be given and 
 accounts taken. 
 
 Note. — This form may be varied according to the circumstances of 
 the case, where the claimant is not the original creditor, but has 
 become interested in or entitled to the debt, in which case the 
 character in which he claims is to be stated. 
 
 2. By a legatee under the will of any deceased person seeking pay- 
 ment or delivery of his legacy out of the testator's personal assets. 
 
 2 G 2
 
 340 GENERAL ORDERS. 
 
 In Chancerr — 
 [Lord Chancellor], 
 [Vice-Cbancellor of England, or Vice-Chancellor, naming him], 
 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 C. D. defendant. 
 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that he is a legatee to the amonnt of £ , under the 
 ■will dated the day of , of , late of , deceased, 
 
 ■who died on the day of , and that the above-named C. D. 
 
 is the executor of the said , and that the said legacy of £ 
 
 per cent, per annum, from the day of , (the day mentioned 
 
 in the will for the payment of the legacy, or the expiration of twelve 
 calendar months after the said testator's death), is no^w due and owing 
 to him the said A. B. (or still unpaid or unsatisfied), or unappropriated 
 or unsecured, and the said A. B. therefore claims to be paid (or satis- 
 fied) the said legacy and interest (or to have the said legacy and interest 
 appropriated and secured), and, in default thereof, he claims to have the 
 personal estate of the said administered in this court, on behalf 
 
 of himself and all other the legatees of the said , and for that 
 
 purpose that all proper directions may be given and accounts taken. 
 
 Note. — This form may be varied according to the circumstances of 
 the case, where the legacy is an annuity or specific, or ■where the 
 plaintiff is not the legatee, but has become entitled to or interested 
 in the legacy, in which case the character in ■which the plaintiff 
 claims is to be stated. 
 
 3. By a residuary legatee, or any of several residuary legatees, of any 
 deceased person, seeking an account of the residue, and payment or 
 appropriation of his share therein. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 C. D. defendant. 
 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that he is the residuary legatee (or one of the residuary 
 legatees) under the will dated the day of , late of , 
 
 who died on the day of , and that the above-named 
 
 defendant C. D. is the executor of the said , and that the said 
 
 C. D. has not paid to the said A. B. the (or his share of the) residuary 
 personal estate of the said testator, the said A. B. therefore claims to 
 have the personal estate of the said administered in this court,
 
 OENEUAL ORDERS. 341 
 
 and to have liis costs of this salt, and for that purpose that all proijcr 
 directions may be given and accounts taken. 
 
 Note. This form may be varied according to the circumstances of 
 the case, where the plaintiff is not the residuary Icgiitce, but has 
 beconu' entitled to or iiitiTcsted in the residue, iu which case the 
 character in which ho claims iji to be stated . 
 
 4. By the person or any of the persons entitled to the personal estate 
 of any person who may have died intestate, and seeking an atiouul «( 
 such personal estate, and payment of his share tliereuf. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 
 C. 1). defendant. 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that he is next-of-kin (or one of the next-of-kin), accord- 
 ing to the statutes for the distribution of the personal estate of intestates 
 of , late of , who died on the day of , intestate, 
 
 and that the said A. B. is entitled to (or to a share of) the personal 
 estate of the said deceased, and that the said defendant C. D. is 
 
 the aihiiinistrator of the personal estate of the said , and that the 
 
 said C. D. has not accounted for or paid to the said A. B. the (or the 
 said A. B.'s share of the) personal estate of the said intestate. The 
 said A. B., therefore claims to have the personal estate of the said 
 administered in this court, and to have his costs of this suit, and for 
 that purpose that all proper directions may be given and accounts 
 taken. 
 
 5. By the executor or administrator of a deceased person claiming 
 to have the personal estate of the testator admiuistored under the 
 direction of the court. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 
 C. 1). defendant. 
 
 The claim of A. B. of . The said A. B. states that he is the 
 
 executor (or administrator) of E. F., late of , but now deceased, 
 
 who departed this life on or about , and that he hath possessed 
 
 the personal estate of the said E. F. to some amount, and that he is 
 
 2 G 3
 
 342 GENERAL ORDERS. 
 
 willing and desirons to acconnt for the same, and that the whole of 
 the personal estate of the said E. F. should be duly administered in 
 this court for the benefit of all persons interested therein or entitled 
 thereto, and that C. D. is interested in the said personal estate, as one 
 of the nest-of-kin (or residuary legatee) of the said E. F., and the said 
 A. B. claims to have the personal estate of the said E. F. applied in a 
 due course of administration under the direction of this court, and in 
 the presence of the said C. D., and such other persons interested in the 
 said estate, as this court may be pleased to direct, or that the said C. D. 
 may show good cause to the contrary ; and the costs of this suit may 
 be provided for, and for these purposes that all proper directions may 
 be given and accounts taken. 
 
 This form may be varied according to circumstances, when the plain- 
 tiff 's co-executor or co-administrator is a defendant. 
 
 6. By a legal or equitable mortgagee or person entitled to a lien as 
 security for a debt, seeking foreclosure or sale or otherwise to enforce 
 his security. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice -Chancellor, naming him], 
 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 C. D. defendant. 
 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that under or by virtue of an indenture (or other docu- 
 ment) dated the day of , and made between (parties), 
 and a transfer thereof made by indenture, dated the day of , 
 and made between (parties), the said A. B. is a mortgagee (or an 
 equitable mortgagee) of (or is entitled to a lien upon) certain fi-eehold 
 property (or copyhold or leasehold or other property, as the case may 
 be), therein comprised, for securing the sum of £ , and interest, 
 and that the time for payment thereof has elapsed, and that the above- 
 named C. D. is entitled to the equity of redemption of the said mort- 
 gaged premises (or the premises subject to such hen), and the said A. B 
 therefore claims to be paid the said sum of £ , and interest, and 
 the costs of this suit, and, in default thereof, he claims to foreclose the 
 equity of redemption of the said mortgaged premises (or to have the said 
 mortgaged premises sold, or to have the premises subject to such lien 
 sold, as the case may be), and the produce thereof applied in or towards 
 payment of his said debt and costs, and for that purpose to have all 
 proper directions given and accounts taken. 
 
 The names only of the parties are to be set out, not the substance or 
 effect of the document. 
 
 If there is no written security to be referred to, the property is to be 
 described generally.
 
 GENERAX ORDERS. 3 13 
 
 7. By a person entitled to the redemption of any legal or equitabK- 
 mortgage, or any lieu seeking to redeem the same. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancelior of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Between A. I?. pl'.iintifT, 
 C. D. defendant. 
 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that under or by virtue of an indenture (or other docu- 
 ment) dated the day of , and made between (parties), (and 
 the insurances hereinafter mentioned, that is to say, an indenture dated 
 the day of , the will of dated the day 
 of ), the said A. B. is entitled to the equity of redemption of 
 certain freehold property (or copyhold or leasehold or other property, as 
 tlie case may be), therein comprised, which was originally mortgaged 
 (or pledged) for securing the sum of £ , and interejit, and that the 
 above-named defendant C. D. is now by virtue of the said hidenturo 
 dated the day of , (and of subsequent assurances), the 
 mortgagee of the said property (or holder of the said lien), and entitled 
 to the principal money and interest remaining due upon the said mortgage 
 (or lien), and he believes that the amount of principal money and interest 
 now due upon the said mortgage (or lien), is the sum of £ , or 
 thereabouts, and that the said A. B. hath made, or caused to be made, 
 an application to the said G. D., to receive the said sum of £ , 
 and any costs justly payable to him, and tu re-convey to the said 
 A. B. the said mortgaged property (or property subject to the said 
 lien) upon paynient thereof, and of any costs due to him in respect of the 
 said security, but that the said C. D. has not so done, and therefore 
 the said A. B. claims to be entitled to redeem the said mortgaged pro- 
 perty (or property subject to the said lien), and to have the same re- 
 conveyed (or delivered up) to him upon payment of the principal money 
 and interest and costs due and owing upon the said mortgage (or lien), 
 and for that purpose, to have all proper directions given and accounts 
 taken. 
 
 8. By a person entitled to the specific performance of an agreement 
 for the sale or purchase of any property seeking such specific per- 
 formance. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Between S.. B. pl.-iintiff, 
 C. D. defendant. 
 The claim of A. B. of , the above-named plaintiff. The said
 
 344 
 
 GENERAL ORDERS. 
 
 A. B. states that by an agreement dated the day of , and 
 
 signed by the above-named defendant C. D., he the said C. D. con- 
 tracted to buy of him (or sell to him) certain freehold property (or 
 copyhold, leasehold, or other property, as the case may be), therein 
 described or referred to, for the sum of £ , and that he has made 
 or caused to be made, an application to the said C. D. specifically to 
 perform the said agreement on his part, but that he has not done so, 
 and the said A. P>. therefore claims to be entitled to a specific per- 
 formance of the said agreement, and to have his costs of this suit, and 
 for that purpose to have all proper directions given: and he hereby 
 offers specifically to perform the same on his part. 
 
 9. By a person entitled to an account of the dealings and transac- 
 tions of a partnership dissolved or expired, seeking such account. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff. 
 C. D. defendant. 
 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that from the day of , down to the day 
 
 of , he and the above-named C. D. carried on the business 
 
 of , in co-partnership under certain articles of co-partnership 
 
 dated the day of , and made between (parties), (or without 
 
 articles, as the case may be), and he saith that the said partnership was 
 dissolved (or expired, as the case may be), on the day of , and 
 he claims an account of the partnership dealings and transactions 
 between him and the said C. D., and to have the affairs and business 
 of the said partnership wound up, and settled under the direction of 
 this court, and for that purpose, that all proper directions may be given 
 and accounts taken. 
 
 10. By a person entitled to an equitable estate or interest, and 
 claiming to use the name of his trustee in prosecuting an action for his 
 own sole benefit. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 C. D. defendant. 
 
 The claim of A. B. of , the above-named plaintiff. The said 
 
 A. B. states that under an indenture dated the day of , and
 
 GENERAL ORDEIIS. 3 KO 
 
 made between (parlies), he is entitled to nii (Minitable estate or interest 
 ill certain property therein described or referred to, and that the above- 
 named defendant is a trustee for him of such property, and that l>einj; 
 desirous to prosecute an action at law against , in respect of such 
 
 property, he lias made or caused to bo niadi' an application to the said 
 defendant to allow him to bring such action in his name, and hau 
 offered to indemnify him iigainst the costs i>f such action, but that the 
 said defendant has refused or neglected to allow his name to be used for 
 that purpose, and the said A. 15. therefore claims to bo allowed to 
 prosecute the said action in the name of the said defendant, and hereby 
 offers to indemnify him against the costs of such action. 
 
 11. By a person entitled to have a new trustee appointed in a case 
 when there is no power in the instrument creating the trust to appoint 
 new trustees, or when the power cannot be exercised, and seeking to 
 appoint a new trustee. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Between A. B. plaintiff, 
 C. D. defendant. 
 The claim of A. B. of , the above-named plaintifl'. The said 
 
 A. B. states that under an indenture dated the day of , and 
 
 made between (parties) (or will of , or other document, as tho 
 
 case may be), he the said A. B. is interested in certain trust projierty 
 therein mentioned or referred to, and that the above-named defendant 
 C. D. is the present trustee of such property (or is the real or personal 
 representative of the last surviving trustee of such property, as the case 
 may be), and that there is no power in the said indenture (or will, or 
 other document) to appoint new trustees (or that the power in the said 
 indenture (or other document) to appoint new trustees, cannot be 
 executed), and the said A. B. therefore claims to have new trustees 
 appointed of the said trust property, in the place of (or to act in con- 
 junctioa with) the said C. 1). 
 
 12. By a party entitled to revive or to carry on a snit, and seeking 
 to revive or carry on the suit. 
 In Chancery — 
 
 f [Lord Chancellor], 
 
 As in 
 
 original ^ 
 claim. 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming 
 him], 
 or 
 [Master of the Bolls,]
 
 346 GENERAL ORDERS. 
 
 "Between A. B. plaintiff, 
 and 
 C. D. defendant; 
 Title of this claim. <j and 
 
 I Between G. H. plaintiff, 
 I and 
 
 [_ K. L. defendant. 
 
 The claim of G. H. of , the above-named plaintiff. The said 
 
 G. H. states that the said A. B. filed his claim in this suit on or 
 about , that on or about , the said A. B. died (or became 
 
 bankrupt or insolvent), that the said suit and all proceedings there- 
 under have thereby become abated (or defective), that the said G. H. 
 has become and is the executor (or administrator, or the assignee of the 
 estate and effects) of the said A. B. and he claims to be entitled to 
 revive the said suit and proceedings (or be entitled to carry on the said 
 suit and proceedings), and to have all such relief as the said A. B. 
 vFould have been entitled to, if he had lived (or had not become bankrupt 
 or insolvent), or that the said C. D. ought to show good cause to the 
 contrary. 
 
 Note. — This form may be applied to any case to which Order XXI. 
 applies, and may be varied according to the circumstances of each 
 case. 
 
 SCHEDOLE (B.) No. 1. 
 
 Form of Writ of Summons on Claim. 
 
 Victoria by the grace of God of the United Kingdom of Great Britain 
 and Ireland, Queen, Defender of the Faith to C. D., greeting — 
 Whereas A. B. hath caused to be filed with the Record and Writ Clerks 
 of Our High Court of Chancery, a claim as follows : — (^claim to be set 
 forth verbatim'), therefore We command you (and every of you where 
 there is more than one defendant), that within eight days after the 
 service of this writ on you, exclusive of the day of such service, laying 
 all excuses and other matters aside, you do cause an appearance to this 
 writ to be entered for you in Our High Court of Chancery, and further 
 that on the fourteenth day after the service of this writ, or on the seal 
 or motion day then nest following, you do personally or by your counsel 
 appear in the Court of Our Lord Chancellor, before the Vice-Chanceilor 
 of England (or the Vice-Chancellor naming him), (or in the Court of 
 Our Master of the Rolls), at ten of the clocli in the forenoon, and then 
 and there show cause, if you can, why the said A. B. should not have 
 such relief against you, as is claimed by the said claim, or why such 
 order, as shall be just with reference to the claim, should not be made, 
 and hereof fail not at your peril. 
 
 Witness Ourself, at Westminster, the day of , in 
 
 the year of Oar reign. 
 
 (The following memorandum to be placed at the foot"): 
 
 Appearance to be entered at the Record and Writ Clerk's OfEce, in
 
 GENERAL ORUEKS. 347 
 
 Chancery Lane, London, and if you ntjjjloct to enter your appeanuicc, 
 and either ]>er,sonally or by your counsel to api>eur iu the High Court 
 of Chancery, at the place aiul on the day and hour above-inenlioiifd, 
 you will be subject to such order as the court may tiiiiik fit to make 
 against you in your absence, for payment or satisfaction of the said 
 claim, or as the nature and circumstances of the case may require. 
 
 Schedule (B.) No. 2. 
 
 Victoria, &c., to , greeting. 
 
 Whereas A. 15. hath caused to be filed a claim against D., claiming, 
 &c., {set forth only the ofaim wit/tout t/ie introductory statement.') And 
 whereas by an order made in the said cause, dated the day 
 
 of , it was ordered 
 
 And whereas Mr. , the Master to whom the said order stands 
 
 referred, hath, by his certificate dated the day of , 
 
 certified to us that you ought to be a party to the said cause, and to be 
 served with a writ of summons therein, therefore, We command you 
 that within eight days after the service of this WTit on you, exclusive of 
 the day of such service, you do cause an appear.ince to be entered for 
 you in Our High Court of Chancery, and that you do attend the pro- 
 ceedings in the said cause as a party defendant thereto, and do and 
 observe such things as are by our said court ordered and directed in the 
 said cause, and herein fail not. Witness, &c. 
 
 {The following memorandum to be placed at the foot): 
 
 Appearance to be entered at the Record and Writ Clerk's OfBoc, 
 Chancery Lane, London, and if you neglect to appear, the proceedings 
 will be earned on without further notice to you. 
 
 Schedule (B.) No. 3. 
 
 Victoria, &c , to , greeting. 
 
 Whereas A. B. hath caused to be filed a claim against C. D., 
 
 claiming, &c., (set forth the claim verbatim.') 
 
 And whereas the said A. B. hath departed his life (or become bank- 
 rupt), (or as the case may be), whereby the said suit hath become 
 abated (or defective), and G. H. is now the legal personal representa- 
 tive (or assignee, of the said A. B., and as such claims to be entitled to 
 revive (or carry on) the said suit, therefore, We command you the said 
 C. D., that, within eight days after the service of this writ on you, 
 exclusive of the day of such service, you do cause an apjiearance to be 
 entered for you in Our High Court of Chancery, and further that, within 
 sixteen days after such service, you do show good cause, if you can, 
 why the suit and all proceedings thereunder should not be revived 
 against you, and be in the same plight and condition as the same were 
 in at the time of the said abatement thereof (or why the suit and pro- 
 ceedings should not be carried on against you .as claimed.) Witness, &c. 
 
 {The filhwimj memorandum to be placed at t lie foot): 
 
 Appearance to be entered at the Kecord and Wiit Clerk's Office, in
 
 348 GENERAL ORDERS. 
 
 Chancery Lane, London; and, if you desire to show cause, you are to 
 enter a caveat at the same oiBce, within the time limited, otherwise the 
 stiit will stand rerived, or may be carried on without further order. 
 
 Schedule (B.) No. 4. 
 For/a of a Caveat against Revivor. 
 
 Between A. B., plaintiff, 
 C. D., defendant. 
 And between G. H., plaintiff. 
 
 K. L., defendant. 
 The said K. L. objects to the suit in the plaintiff's claim mentioned 
 being revived (or carried on) against him, in the manner claimed by 
 the plaintiff. 
 
 SCHEDI'LE (C.) 
 
 1 . Form of Order for payment of a debt or legacy. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor naming him}, 
 
 or 
 [Master of the Rolls.] 
 
 Date 
 
 Between A. B., plaintiff, 
 C. D., defendant, 
 Upon motion this day, made unto this court by ilr. , of 
 
 counsel for the plaintiff, and, upon heanng, by Mr. , of counsel 
 for the defendant (or upon reading a certificate of an appearance having 
 been entered by the defendant), (or upon hearing an affidavit of service 
 upon the defendant of a v/rit of summons issued in this cause), and 
 upon reading the claim filed in this cause on the day of , 
 
 (and an affidavit of , filed in this cause), (or the defendant by 
 
 his counsel admitting assets of the testator or intestate in the said 
 claim named), this court doth order t!iat the defendant do, within a 
 month after service upon him of this order, pay to the plaintiff the sum 
 of £ , together with interest thereon, at the rate of £ , per 
 
 cent, per annum, from the day of , to the time of such payment, 
 
 together with the costs of this suit, to be taxed by the Taxing Master 
 iu rotation. 
 
 2. Form of Order on Executor or Administrator to account on claim 
 by a Creditor or Testator, or Intestate. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Data
 
 GENERAL ORDERS. 349 
 
 Betwo«a A. IS., plaintitT, 
 C. D.. (lefeiidanL 
 Upon motion, &c (as t» Form No. 1), this court doth declare that 
 all persons who are creditors of the said testator ur iiiteslale, are 
 entitled to the benetit of this urder, and it is ordered th.H it be referred 
 to the Mii.stcr of this court in rotation, to take an account of what is duo 
 to thu' plainiiffimd all other the creditors of deceased the testator 
 
 (or intestate), in the plaintitT 's claim named, and of his funeral 
 expenses: and it is ordered that the Master do take an account of the 
 personal estate of the said testator (or intestate) come to the handa of the 
 said defendant, his executor (or administrator), or to the hands of anj 
 other person or persons by his order or for his use: and it is onlered 
 that the said testator's or (intestate's) personal estate be applied in 
 payment of his debts and funeral expenses in a due course of administra- 
 tion, and this court doth reserve the consideration of all further direc- 
 tions, and of the costs of this suit until after the said master shall 
 Lave made his report. 
 
 3. Form oj Order to Account on Claim by a Legatee. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Date. 
 Between A. B., a legatee of deceased, plaintiff, 
 C D. ... ... ... defendant. 
 
 Upon motion, &c. (as in Form No. 1), this court doth declare that 
 all persons who are legatees of the said testator, are entitled to the 
 benefit of this order: and it is ordered that it be referred to the Master 
 of this court in rotation, to take an account of the personal estate, not 
 specifically bequeathed, of deceased, the testator in the plaintili's 
 
 claim named, come to the hands of the defendant, or to the hands of 
 any other person or persons by his order or for his use: and it is ordered 
 that the said Master do take an account of the said testator's debts, 
 funeral expenses, and of the legacies given by his will: and it is ordered 
 that the said testator's said personal estate be applied in payment of 
 his funeral expenses and debts, in due course of administration, and 
 then in payment of his legacies. And this court doih reserve the con- 
 sideration of all further directions and of the costs of this suit, until 
 after the said Master shall have made report. 
 
 [CII.] 
 
 2 11
 
 3oO GENERAL ORDERS. 
 
 4. Form of Order to Account on Clahnhy a Residuary Legatee, or one 
 
 of several Retiduary Legatees. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Date. 
 Between A. B., a residuary legatee of deceased, plaintiff, 
 C. D. , defendant. 
 
 Upon motion, &c. (as in Form, No. 1), this court doth declare that 
 all the residuary legatees named or described in the will of , 
 
 deceased, the testator named in the plaintiff's claim, are entitled to the 
 benefit of this order, and to attend the proceeilings under the same 
 before the Master, to inquire and state to the court who were the 
 residuary legatees of the testator living at the time of his death, and 
 whether any of them are since dead, and, if dead, who is or are their 
 legal personal representative or representatives, and if the Master 
 shall find that all such residuary legatees, or their legal personal re- 
 presentatives, have been duly served with writs of summons, he is to 
 proceed to take an account, &;c. {as in No. 3, to the end.') 
 
 5. Form of Order to Account on Claim hy the Next-of-kin or one of 
 
 the Next-of-kin oj an Intestate. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Date. 
 
 Between A. B., plaintiff, 
 C. D., deiendant. 
 
 Upon motion, &c. {as in Form No. 1), this court doth declare that 
 all the next-of-kin, according to the Statutes of Distribution of , 
 
 the intestate nauied in the plaintiff's claim, are entitled to the benefit of 
 this order, and to attend the proceedings before the Master under the 
 same, and it is referred to the Master of this court in rotation, to inquire 
 and state to the court, who were the next-of-kin according tu the 
 Statutes of Distribution of the said , living at the time of his 
 
 decease, and whether any of them are sinie dead, and, if dead, who is 
 or are their legal personal representative or representatives, and if the 
 said Master shall find that such next-of-kin have been duly served with 
 writs of simimons to attend the proceedings before him under this order, 
 then it is ordered that it be ret'erred to the said Master to take an 
 account of the said intestate's personal estate (usual accounts of per- 
 sonal estate, debts, and funeral expenses, &c., 'is in Form No. 3.)
 
 GENERAL ORDEUS. 351 
 
 6. Form of Order for A cconnU of Personal Estate of a Deceatfil 
 J'erson, on the Claim of the Executor or AJminiatnitor. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vicc-(>"Iiancel]or, naming liiin], 
 
 or 
 [Master of the Rolls.] 
 
 Date. 
 
 Betweou A. B., plaintiff, 
 C. D., defendant. 
 
 Upon motion, &c. (as in Form No. 1), this court doth declare th«t 
 all persons interested in the personal estate of the said testator (or 
 intestate) arc entitled to the benefit of this order, and it is ordered that 
 it be referred to the Master, to take an account of the testator's (or 
 intestate's) personal estate possessed by the plaintiff or by any other 
 person, by his order or for his use, and also to take an account of the 
 testator's (^or intestate's) funeral expenses, debts, and legacies, and it is 
 ordered that such perso :al estate be applied in a due course of adminis- 
 tration, in payment of such funeral expenses, debts, and legacies, and 
 any further directions which may be necessary are hereby reserved. Sec. 
 
 7. Form of Order of Foreclostcre on Claims by a legal or equitable 
 Mortgagee. 
 
 In Chancery — 
 
 [Lord Cliancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 [Master of the Rolls.] 
 
 Date 
 
 Between A. B., plaintiff, 
 C. D., defendant. 
 
 Upon motion, &c. ((is in Form No. 1), this court doth order that it 
 be referred to the JIaster of this court in rotation, to take an account of 
 what is due to tlie phiintiff for principal and interest on the mortgage 
 (or equitable mortgage), in the plaintiff's claim mentioned: and it is 
 ordered that it be referred to the Taxing Master in rotation, to tax the 
 plaintiff his costs of this suit: and upon the defendant paying to the 
 plaintiff what shall be reported due to him for principal and interest as 
 aforesaid, together with the said costs, when taxed, within six months 
 after the said Master shall have made his report, at such time and 
 place as the said Master shall appoint, it is ordered that ihe plaintiff 
 (do reconvey the mortga<;ed premises in the plaintiff's affidavit of claim 
 mentioned, free and clear of all incumbrances done by him or any 
 claiming by, for, or under him, and) do deliver np all deeds and writings 
 in his custody or pow^er relating thereto upon oath, to the said dcfen- 
 
 2 n 2
 
 352 GENERAL ORDERS. 
 
 dant, or to whom he shall appoint, but in default of the defendant 
 paying unto the plaintiff such principal, interest, and costs as aforesaid, 
 by the time aforesaid, it is ordered that the defendant (do stand abso- 
 lutely debarred, and foreclosed of and from all equity of redemption of, 
 in, and to the said mortgaged premises) do convey to the plaintiff the 
 premises comprised in the equitable mortgage in the plaintiff's afB- 
 davit of claim mentioned, free and clear of all right, title, interest, and 
 equity of redemption of, in, and to the said premises, and the Master 
 is to settle the conveyance if the parties differ about the same. 
 
 8. Form of Order of Sale on Claim by a legal or equitable Mortgagee 
 or Person entitled to a Lien. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Date. 
 
 Between A. B., plaintiff. 
 C. D., defendant. 
 
 Upon motion, &c. (as in Form No. 1), this court doth order that it 
 be referred to the ]\Iaster of this court in rotation, to take an account 
 of what is due to the plaintiff for principal and interest on the mort- 
 gage (or equitable mortgage or lien), in the plaintiff's claim mentioned: 
 and it is ordered that it be referred to the Taxing Master in rotation, to 
 tax the plaintiff his costs of this suit: and upon the defendant paying 
 to the plaintiff what shall be reported due to him, for principal and 
 interest as aforesaid, together with the said costs, within sis months 
 after the said ]SIaster shall have made his report, at such time and place 
 as the said Master shall appoint, it is ordered that the plaintiff (do 
 reconvey the mortgaged premises in the plaintiff's affidavit of claim 
 mentioned, free and clear of all incumbrances done by him, or any 
 claiming by, from, or under him, and) do deliver up all deeds and 
 writings in his custody or power relating thereto, upon oath to the 
 defendant, or to whom he shall appoint, but in default of the defendant 
 paying to the plaintiff such principal, interest, and costs as aforesaid, 
 by the time aforesaid, then it is ordered that the said mortgaged 
 premises (or the premises subject to the said equitable mortgage or lien), 
 be sold with the approbation of the said Master: and it is ordered that 
 the money to arise by such sale be paid into court to the end that the 
 same may be duly applied in payment of what shall be found due to 
 the plaintiff for principal, interest, and costs as aforesaid, and this court 
 doth reserve the consideration of all further directions until after the 
 said Master shall have made his report.
 
 GENERAL ORDERS. 3.j.'} 
 
 9. Form of an Order for Redemption on Clnim by Person entitled to 
 
 redeem. 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-CbanccUor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Date. 
 
 Between A. B., plaintiff, 
 C. D., defendant. 
 
 Upon mo'.ion, &c. (as in Form No. 1), this court doth order that it 
 be referred to the Master in rotation, to take an account of what is due 
 to the defendant, for principal and interest on his mortgage (or equitable 
 mortgage or lien), in the plaintiff's claim mentioned : and it is ordered 
 that it be referred to the Taxing Master in rotation, to tax the defen- 
 dant his costs of this suit: and upon the plaintift' paving to the 
 defendant what shall be reported due to him for principal and interest, 
 together with such costs, when taxed, within six months after the said 
 Master shall have made his report, at such time and place as the said 
 Master shall appoint, this court doth order that the defendant do recon- 
 vey the mortgaged premises (or deliver up possession of the property 
 subject to the equitable mortgage or lien), in the plaintilTs claim men- 
 tioned, free and clear from all incumbrances done by him, or any 
 claiming by, from, or under him, and to deliver up all deeds and 
 ■writings in his custody or power relating thereto, upon oath to the 
 plaintiff, or to whom he shall appoint, but, in default thereof, the 
 plaintiflF's said claim is to stand dismissed out of this court, with costs 
 to be taxed by the said Taxing Master, and to be paid by the jdaintiff 
 to the defendant. 
 
 10. Form of Order of Reference of Title on Claim of Person seeking 
 
 specific performance. 
 In Chancery — 
 [Lord Chancellor], 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Master of the Rolls.] 
 
 Date. 
 
 Between A. B., plaintilT, 
 C. D., defendant. 
 Upon motion, &c. (as in Form No. 1), this court doth order that it 
 be referred to the Master of this court in rotation, to inquire whether* 
 good title can be made to the property comprised in the acreement in 
 the said plaintiff's claim mentioned, and in case the said Master shall 
 be of opinion that a good title can be made, it is ordered that he do 
 state at what time it was first shown that such goo<l title could be 
 made, and this court doth reserve the consideration of all further direc- 
 tions, and of the costs of this suit, until after the said Master shall have 
 made his report.
 
 354 GENERAL ORDERS. 
 
 11. Form of Order for an Account of Partnership Dealings and 
 Transactions on Claim of Person entitled to the Account. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-chancellor, naming; him], 
 
 [Master of the Rolls.] 
 
 Date. 
 
 Between A. B., plaintiff, 
 C. D., defendant. 
 
 Upon motion, &c. (05 in Form No. l),this court doth order that it 
 be referred to the ISIaster of this court in rotation, to take an account of 
 the partnership dealings and transactions between the plaintiff and the 
 defendant, from the day of : and it is ordered that what 
 
 upon taking the said account shall be found due from either of the said 
 parties to the other of them, be paid by the party from whom the same 
 shall be found due, (and this court doth reserve the consideration of all 
 further directions, and of the costs of this suit, until after the said Master 
 shall have made his report.) 
 
 12. Form of an Order on Claim hy a Person claiming to me the Name 
 of his Trustee. 
 
 In Chancery — 
 
 [Lord Chancellor], 
 
 [Vice-Chancellor of England, or Vice-Chancellor, naming him], 
 
 or 
 [Ma.ster of the Rolls.] 
 
 Date. 
 
 Between A. B., plaintiff, 
 C. D., defendant, 
 
 Upon motion, &c. (qs in Form No. 1), this court doth order that the 
 plaintiff be at liberty to use the name of the defendant in prosecuting 
 the action at law, in the plaintiff's claim mentioned, on indemnifying the 
 defendant against the costs of such action: and it is ordered that it be 
 referred to the Master of this court in rotation, to settle the indemnity 
 to be given by the plaintiff to the defendant, in case the parties differ 
 about the same.
 
 GENERAL OUDEUS. 3o J 
 
 13. Form of Order on Claim for the Appointment of New Truateei. 
 
 Ill Chancery — 
 
 Chancellor], 
 
 [Lora Ch 
 [Vice-Ch 
 
 -Chancellor of England, or Vice-Chanccllur, ndming him], 
 or 
 [Master of the Rolls.] 
 
 Date. 
 
 Between A. B., plaintiff, 
 C. D., (lefuudant. 
 
 Upon motion, &c. {as in Form Xo. 1), this court doth order that it 
 be referred to the Master of this court in rotation, to appoint pro[M:'r 
 persons to be new trustees under the indenture {or will, or other instru- 
 ment), in the plaintiff's claim mentioned, in the place of {or to act in 
 conjunction witli) the defendant: and it is ordered that the di'fi-iidant do 
 convey (assign or transfer) the trust fund or property {nftn'iiuj to it) 
 to such new trustees {or so as to vest the same in such new trustees 
 jointly with himself) upon the trusts of the said indenture {or will, or 
 other document) or such of them as are now subsisting, and capable of 
 taking effect, and they are to dei-1 ire the trusts thereof aceordinply, such 
 conveyance {or a.--sit,'nment) to be settled by the said Master [in case 
 the parties differ about the same:] (') (and il is'ordered that tlie defen- 
 dant do deliver over to such new trustees all deeds and writings in his 
 custody or power, relating to the said trust property.) (-) 
 
 (') To be omitted in the case of infants or charities. 
 
 ('■^) To be omitted where the defendant is coutiuued a trustee. 
 
 NOTE. 
 
 Since these pages were printed, the question of costs in a mortgagee's 
 suit has beeii decided in a a.anner which makes it unsafe to rely upon the 
 case of While v. Bishop of Peterborough {ante, p. 201), unless in a case 
 on every point similar. Ford v. Chesltrjithl {}.l.li. 23rd Feb. 1856), 
 was a suit by an equitable mortgagee against the mortgagor and prior 
 and subsequent incumbrancers; the mortgaged property was sold under 
 ti contract entered into before the suit, and the money cume into court. 
 The decree directed in the usual manner an inquiry what incumbrancers 
 there were, and their priorities. White v. bishop of Peterboroufjh was 
 relied upon in argument, to show that the costs of all the incumbrnncera 
 must, in ihe first instance, be paid out of the fun i ; but the court held 
 that the case cited did not apply, and that ihe pialnliiFs costs being 
 puid out of the fund, all the oiher incuaibrai:cers must lake their 
 uebts, interest, and costs in the order of their priorities.
 
 APPENDIX II. 
 
 GENERAL ORDERS. 
 
 Moiulay the 2n(l (lay of February, 1857. 
 
 The Right Hon. Uobert jMoiisey. L'lril Craiiworlh, 
 Lord High Cliaiicellor of Great Britain, hy and with 
 the advice and consent of tiie Kigiit Hon. Sir John 
 Romilly, Master of the Kolls, the Kiglit Hon. Sir 
 James Lewis Knight Bruce, and the Kight Hon. Sir 
 George James Turner, the Lords Justices of the Court 
 of Appeal in Chancery, the Hon. tlie Vice-Chancellor 
 Sir liichard Torin Kindersley, tiie Hon. the Vice- 
 Chancellor Sir John Stuart, and the Hon. tlie Vice- 
 Chancellor Sir William Page Wood, doth hereby, in 
 pursuance of the Act ]iassed in the session of Parlia- 
 ment holden in the tifth and si-xth years of the reign 
 of her present Majesty, iniituleti "An Act for Abo- 
 lishing certain Oliices in the Higli Court of Chancery 
 in England," and in pursuance and execution of ail 
 other powers enabling him in that behalf, order and 
 direct, — 
 
 That in lieu of the order numbered 22, compriseil 
 in the General Order of the 2(Jth day of October, 
 1842, the following order be substituted, (that is to 
 say)— 
 
 Service of all writs, notices, summonses, orders, 
 ■warrants, rules, documents, and other proceedings, 
 not requiring personal service upon the party to be 
 afft!cfed thereby, shall l>e made before seven o'clock 
 in the evening, except on Saturdays, when it shall be 
 made before two o'clock in the afternoon, and if made 
 after seven o'clock in the evening, on any day except 
 Saturdays, the service shall be deemed" as made on 
 the following day, and if made after two o'clock in the 
 afternoon on Saturday, tli'' service shall be deemed 
 as made on the following JSIonday. 
 
 [CH.j 2 H*
 
 358 APPENDIX. 
 
 This order is to come into operation on the 10th 
 day of February 1857. 
 
 Ckanworth, C. 
 
 John Romilly, M.E. 
 
 J. L. Knight Bruce, L.J. 
 
 G. J. Tlrner, L.J. 
 
 Richard T. Kindersley, V. C. 
 
 John Stuart, V.C. 
 
 W. P. Wood, Y C. 
 
 Friday, the 30th day of January 1857. 
 Whereas of late years various alterations have 
 taken place in the practice and procedure of the Court 
 of Chancery, whereby certain of the fees heretofore 
 allowed to the solicitors of the court have ceased, and 
 others of such fees have become inapplicable to the 
 duties which the solicitors have to perform ; and it is 
 desirable that a new and revised list of fees should be 
 made. 
 Kow, upon consideration thereof, 
 The Right Honourable Robert Monsey, Lord Cran- 
 worth, Lord High Chancellor of Great Britain, with 
 the advice and assistance of the Right Honourable 
 Sir James Lewis Knight Bruce, and the Right 
 Honourable Sir George James Turner, the Lords 
 Justices of the Court of Appeal in Cliancery, the 
 Honourable the Vice-chancellor Sir Richard Torin 
 Kindersley, the Honourable the Vice Chancellor Sir 
 John Stuart, and the Honourable the Vice-Chancellor 
 Sir William Page Wood, doth order and direct as 
 follows : — 
 
 1. The several orders and parts of orders following 
 are discharged, so far as regards all costs incurred 
 subsequent to the time when this order comes into 
 operation ; 
 
 The order of the 26th day of February 1807, 
 except so much thereof as is meniioaed in the 
 second schedule hereto. 
 The sixth schedule to the order of the 26th Octo- 
 ber 1842. 
 The 121st section of the order of the 8th Mav 
 
 1845. 
 So much of the thirty- third section of the order 
 of the 22nd April 1850 as relates to the fees to 
 be charged by and allowed to solicitors. 
 The fourth section of the order of the 7th August 
 1852, and the schedule A. appended to such 
 order.
 
 GENERAL OKDERS. 3of) 
 
 The fifth section of the order of the 23rd October 
 1852. 
 2. Solicitors are to be entitled to chnrpc and l>e 
 allowed the fees set forth in the column heuded l.owc-r 
 Scale in the first schedule hereto, in the several cttxcs 
 following, unless the court shall niako order to the 
 contrary ; that is to say, — 
 
 1st- In all suits by creditors, loRatees (whether 
 specific, pecuniary, or residuary), devit>eea 
 (whether in trust or otherwise), heirs at law or 
 next of kin, in which the (lersonal or real, or 
 personal and real estate, for or agaiii.st or in 
 respect of which, or for an account or adminis- 
 tration of wiiich, the demand may be made, 
 shall be under the amount or value of lOOU/. 
 2ndly. In all suits for the execution of trusts in 
 which the trust estate or fund shall be under 
 the amount or value of lOOU/. 
 3rdly. In all suits for foreclosure or redemption, 
 or for enforcinj,' any charge or lien, in wln'ch 
 the mortgage whereon the suit is founded, or 
 the charge in lien sought to be enforced, shall 
 be under the amount or value of lOOO/. 
 4thly. In all suits for specific performance, in 
 wiiieh the purchase-money or consideration 
 shall be under the amount or value of 1000/. 
 othly. In all proceedings under tlie Trustees 
 Relief Acts, or under the Trustee Acts, or under 
 any of such Acts, in which the trost estate or 
 fund to which the proceeding relates shall be 
 under the amount or value of 1000/. 
 6thly. In all proceedings relating to the guar- 
 dianship or maintenance of infants, in which 
 the property of the infant shall be under the 
 amount or value of ICnO/. 
 7thly. In all proceedings by special case, and in 
 all proceedings relating to funds carried to 
 separate accounts, and in all proceedings under 
 any railway or private Act of Parlian:eiit. or 
 under any other statutory or summary juris- 
 diction, and generally in all otiier cases where 
 the estate or fund to be dealt with shall be 
 under the amount or value of 1000/. 
 
 3. In all other cases solicitors are to be entitled to 
 charge and be allowed the fees set f'T'!; in t!ie column 
 headed Higher Scale in the first schedule hereto, unless 
 the court shall make order to the contrary as to all or 
 any of the parlies. 
 
 2 11* 2
 
 360 APPEN1>IX. 
 
 4. The fees of court, nuvv collected by means of 
 stamps, are to he rrdnced and varied as set forth in 
 the tiiird schedule hereto. 
 
 The fees set forth in the column headed Lower Scale 
 in the third schedule hereto are to be pnid in b11 casi-s 
 in which the lower scale of fees is to be cliarged by 
 and allowed to solicitors, under the provisions of the 
 second section of this order; and the fees of court set 
 forth in the column heatled Higher Scale in the third 
 schedule hereto are to be p^id in all other cases. 
 
 The solicitor or part}' instituting any proceeding in 
 respect of which he claims to paj' the fees of court 
 according to the lower scale, is to tile with the clerk of 
 records and writs a certificate in the form hereunder 
 set forth, of which certificate the clerk of records and 
 writs is, at the request of any solicitor, or any party 
 acting in person, in the suit or matter, to mark a 
 co])y. 
 
 On production of such copy of the certificate, the 
 officers of the court are to receive and file all pro- 
 ceedings in the suit or matter bearing stamps accord- 
 ing to the loner scale. 
 
 In any case certified for the lower scale of court 
 fets in which it shall happen that the solicitor shall 
 become entitled to charge and be allowed according to 
 the liigher scale of solicitors' fees, the deficiency in 
 the fets of court is to be made good. 
 
 In any case in which the fees of court have been 
 paid upon the higher scale, and in which it shall 
 happen that the solicitor shall become entitled to 
 charge and be allowed only according to the lower 
 sciile of solicitors' fees, the excess of fees of court so 
 paid may be allowed upon the taxation of costs, if 
 the circumstances of the case shall, in the judgment 
 of the taxing master, justifj' such allowance. 
 
 This order is to come into operation on the 1st Feb. 
 1857. 
 
 ^orm of Certificate for imymg the Lower Scale of Court 
 Fees. 
 
 (Title of Cause or Matter.) 
 
 I herebj' certify, that to the best of my judgment 
 and belief, the lower scale of fees of court is appli- 
 cable to this case. Dated, &c. 
 
 A.B. 
 
 Solicitor for
 
 6 8 
 
 13 
 
 4 
 
 6 8 
 
 13 
 
 \ 
 
 6 8 
 
 6 
 
 8 
 
 GICNERAL ORr>KRS. 3f;i 
 
 The First Sciiedukk. 
 ScIiediUe of Fees and Charges to be olluwed to SoUcilurs . 
 
 Instructions. 
 
 I, iwer III({'er 
 
 For claims, original summons 
 iR chambers, special cases, 
 answers, examinations, rte- 
 murrers, pleas, and excep- 
 tions £0 13 4 £0 13 4 
 
 For bills 13 4 2 2 
 
 For amended or supplemental 
 
 bill 6 8 13 4 
 
 For brief on moving for in- 
 junction ... " n 13 4 11 Li 
 
 For interrogatories for exami- 
 nation of parties or witnesses 
 
 For special petitions 
 
 For special affidavits 
 
 For brief in a suit by bill, on 
 cause coming on for hearing, 
 to be charged on service of 
 notice of motion for a decree 
 or on service of subpoena to 
 hear judgment 
 
 For brief on claim, to include 
 all observations 
 
 For ditto to move for leave to 
 file 
 
 To defend proceedings com- 
 menced by bill, claim, special 
 case, petition, or original 
 summons 
 
 For instructions for order to 
 revive or add parties 
 
 As to bills iind answers, examina- 
 tions, nIHdavits, and petitions, 
 ■when the larger scale is applie 
 able, in litu of the fixed fees lor 
 instrur:tions for and f ■ r diiiwinu, 
 the taxinc master is to be »t 
 liberty to take into his consltle- 
 ration the special circumstances 
 of each case, and ut his di.^<rreiiou 
 to make such allnwances for 
 work, labour, and expenses iiro- 
 perly perfurmed and incurred in 
 
 1 
 
 
 
 1 1 
 
 10 
 
 
 
 1 
 
 2 
 
 6 
 
 10 
 
 6 
 
 8 
 
 u 
 
 6 
 
 8 
 
 13
 
 362 APPENDIX. 
 
 or about the preparation of the 
 bill or answer, examination, affi- 
 davit, or pptitioti, Hi shull appear 
 to him to be just, having rciiard 
 to the length of the document, 
 the nature of the suit, the inte- 
 rests of the parties, and the 
 fund or person from which or by 
 whom the costs are to be paid. 
 
 THE PREPARATION OF PLEADIXGS AND OTHER 
 DOCU3IENTS. 
 
 (^The Chancery folio to be seventy -two words and the 
 sheet ten folios.') 
 
 For drawing bills, special cases, 
 
 answers, pleas, demurrers, 
 
 exceptions, interrogatories, 
 
 petitions, and affidavits, per 
 
 folio £0 10 £0 10 
 
 For engrossing on parchment, 
 
 per folio 6 6 
 
 For ditto on paper 4 4 
 
 For drawing statements and 
 
 other documents for the 
 
 judge's or master's chambers, 
 
 when required, including the 
 
 fair cop3' thereof to leave in 
 
 chambers 8 
 
 For the like drawing when the 
 
 larger scale is applicable ... 10 
 
 For fair copy thereof to be left 
 
 in chambers ... 4 
 
 For drawing all advertisements 
 
 to be signed by the master or 
 
 judge's clerk, including the 
 
 attendance thereon G 8 13 4 
 
 For drawing request to the 
 
 Accountant-General to lav 
 
 out cash .'.0 2 6 2 6 
 
 For ditto for every carrying 
 
 over of cash or stock ... 2 6 2 6 
 
 For drawing caveat against 
 
 signing or enrolling any de- 
 cree or order 2 6 2 6 
 
 For drawing special notice of 
 
 motion ... 
 
 Or per folio 
 
 2 
 
 .5 
 
 
 
 1
 
 GENERAL OKDEUS. 363 
 
 For drawing a claim fl I L'i 2 
 
 For ditto at the master's dis- 
 cretion 3 3 
 
 For drawing sucli observations 
 for counsel to accompany 
 brief (except on claims) as 
 may be necessary and proper, 
 per sheet 6 8 
 
 For drawing tlie brief on further 
 consideration, per sheet ... C 8 <; 8 
 
 For preparing and filing repli- 
 cation G 8 10 
 
 For drawing statement on 
 which counsel to move for 
 order to revive or add parties, 
 and copy 6 8 10 
 
 Or, according to circumstances, 
 
 at per sheet 6 8 
 
 For drawing petition to revive, 
 
 at per folio 10 1 o 
 
 For drawing and copying cer- 
 tificate to appoint guardians 
 ad litem 6 8 6 8 
 
 For amending each copy of a 
 bill or claim to serve, where 
 no reprint 6 8 13 4 
 
 For amending each brief bill, 
 or claim, where no reprint ... 6 8 13 I 
 
 For preparing an original sum- 
 mons for the purpose of 
 proceedings originating in 
 chambers 13 4 1 1 U 
 
 For indorsing an original sum- 
 mons and the copies under 
 Order VI. of IGth Oct. 1852, 
 and attending to get same 
 
 sealed 6 8 6 8 
 
 For preparing everj' other sum- 
 mons, and attending to get 
 !>ame filled up and sealed at 
 
 chambers 6 8 6 X 
 
 If special, not to exceed ... 1 1 u 
 
 For drawing bills of costs, in- 
 cluding the copy for the 
 
 master's office, per folio ... 8 » 
 For certifying proceeding under 
 
 lower scale of court fees ... 5
 
 364 APPENDIX. 
 
 The fee for drawing a document in 
 all cases includes a cpy, if re- 
 quired, for the use of the solici- 
 tor or client, or tor tlie settle- 
 ment of counsel. 
 
 For Femsals. 
 
 -For perusing the print of a bill 
 
 bv the flefendant's solicitor £110 £110 
 If exceeding GO folios, at per 
 
 folio 4 
 
 For perusing the print of an 
 
 amended bill 13 4 13 4 
 
 If amendments exceeding 40 
 
 folios, at per folio 4 
 
 For perusing an amended bill 
 
 when amended in writing ...0 6 8 6 8 
 If amendments exceeding 20 
 
 folios, at per folio 4 
 
 For perusing an answer ... 6 8 13 4 
 
 If exceeding 40 folios, at per 
 
 folio 4 
 
 For perusing an examination, 
 
 at per folio 4 4 
 
 For perusing all special affida- 
 vits filed by an opposing 
 
 party, at per folio 4 4 
 
 For perusing copy supplemen- 
 tal statement, under 15 & 16 
 
 Vict. c. 86, s. 53 6 8 13 4 
 
 For perusing copy order to 
 
 revive 6 8 13 4 
 
 The fees for perusal are not to apply 
 where the same sohcitor is for 
 both parties. 
 
 Copies of all documents are to 
 
 be at the rate of per folio ... 4 4 
 
 Or per sheet of in folios, at ... 3 4 3 ~4 
 
 Having repard tn the preceding 
 fees for perusal, the fee for '• ab- 
 breviating " is fo cease, and no 
 close copies are now to be al- 
 lowed as of course, but the al- 
 lowance is to depend on the pro- 
 priety of making the copy, which 
 in each case is to be shown and 
 considered.
 
 GICXKRAL OUDRRS. 3G.J 
 
 Fur examining and correcting 
 a proof, at per folio £(t u 2 £0 '.' 
 
 For eacli copy of a judge's sum- 
 mons, to leave in cliambers 
 or to serve 2 2 
 
 For each copy of a notice of 
 motion, order or certificate 
 to serve 10 10 
 
 Or at per folio 4 
 
 ATTEXDAXCES. 
 
 For attending on a master's 
 
 warrant C 8 8 
 
 Or according to circumstances, 
 
 not to exceed per diem ... 2 2 2 2 
 For attending each counsel wth 
 
 bis brief, case, or abstract, iu 
 
 a suit or other proceeding in 
 
 this court 8 G 8 
 
 For the like where the fee 
 
 amounts to five guineas ... 13 4 
 
 Where it amounts to twenty 
 
 guineas 110 
 
 Where it amounts to forty 
 
 guineas or upwards ... ... 2 2 
 
 For attending to present special 
 
 petition and for same an- 
 swered 6 8 6 8 
 
 For attending to present peti- 
 tion for order of course, and 
 
 for order C 8 i:j 4 
 
 For attendance on counsel and 
 
 court on motion of course, 
 
 and for order 6 8 13 4 
 
 For attending on the day on 
 
 which a cause or petition 
 
 stands on the paper for 
 
 hearing 6 8 10 
 
 For attending when heard ... 13 4 lie 
 Or according to circumstances, 
 
 not to exceed per diem ... 2 2 <"' 
 
 For attending the court on 
 
 every special motion, each 
 
 dav 6 8 13 4 
 
 The iike when heard 13 4 13 4 
 
 Or according to circumstances, 
 
 not to exceed 1 1 
 
 For attending on motion for or 
 2 n* 3
 
 366 APPENDIX. 
 
 to discharge order for injunc- 
 tion, or ne exeat, when heard, 
 per diem £0 13 4 £110 
 
 Or according to circumstances, 
 not to exceed 2 2 
 
 For attending to get answer or 
 special affidavit sworn ... 6 8 6 8 
 
 For attendance on the registrar 
 for directions to the Account- 
 ant-General to sell or transfer 
 stock 6 8 6 8 
 
 For attendance on the Account- 
 
 ant-General thereon ... 6 8 6 8 
 
 For attending the Accountant- 
 General with request to lay 
 out cash 6 8 6 8 
 
 The like to carry over cash or 
 stock to another account in 
 his books 6 8 6 8 
 
 For attending Accountant-Ge- 
 neral to identify a person 
 receiving a cheque 6 8 6 8 
 
 For attending the Accountant- 
 General with order to be- 
 speak, and afterwards to pro- 
 cure his directions for pay- 
 ment of money into court, 
 attending at the Bank of 
 England to pay the money, 
 and for attending on the 
 Accountant- General with the 
 receipt, and ac the Report- 
 office to bespeak and to pro- 
 cure tlie office copy 13 4 13 4 
 
 Where the sum paid in shall 
 
 amount to 100?. ; 110 110 
 
 And where the same shall 
 
 amount to lOOOZ. 2 2 
 
 And where the same shall 
 
 amount to 5000Z 3 .3 o 
 
 For attending the master on 
 
 signing report 6 8 6 8 
 
 For attending to file report and 
 certificates at tlie Report- 
 office, and for office copy ... 6 8 6 8 
 
 For attending examiner to pro- 
 cure appointment to examine 
 witnesses 6 8 6 8
 
 OENEUAI, OUDKRS. ;j()7 
 
 For attending tlie examination 
 of witnesses before examiner XO G 8 £0 13 1 
 
 Or according to circumstances, 
 not to exceed per diem ... 1 1 '2 2 
 
 But if without coun.sel the fee 
 may, at the master's discre- 
 tion, be increased to ... 2 2 3 8 u 
 
 For attending to settle, and 
 afterwards to read over tiie 
 engrossment of an answer or 
 examination C 8 n 13 4 
 
 If tliQ same exceed twenty 
 
 folios and under (ifty folios 13 4 1 1 o 
 
 And for each additional thirty 
 ^ folios .". G 8 i) 6 if 
 
 For attending to insert an ad- 
 vertisement in Gazette ... C 8 G k 
 
 For entering cavaets with the 
 clerks of records and writs ... 6 8 6 8 
 
 For attending to procure certi- 
 ficate of a cr/oen? G 8 G 8 
 
 For attending registrar to cer- 
 tify abatement or settlement 
 of suit, and to have same so 
 marked in the cause book ... 6 8 6 8 
 
 For attending the printer with 
 
 a bill or claim to be printed 6 8 6 8 
 
 For attending to get copies of 
 bill, claim or interrogatories, 
 marked for service C 8 G 8 
 
 For attending to take instruc- 
 tions to appear, and to enter 
 the appearance of one or 
 more defendants not exceed- 
 ing three 6 8 G 8 
 
 If exceeding three, for every 
 additional number not ex- 
 ceeding three 6 8 6 « 
 
 For attending at chambers to 
 get original summons and 
 duplicate examined and 
 sealed 6 8 n 6 8 
 
 For attending at the Record 
 and Writ-office to file dupli- 
 cate and examine copies, and 
 get same stamped 068 068 
 
 For attending on a summon.-; 
 or other appointment, each 
 day, a fee of 6s. 8c/., 13s. 4(/.,
 
 6 8 
 
 £0 6 
 
 to 
 
 to 
 
 2 
 
 3 3 
 
 368 APPENDIX. 
 
 or 11. Is., according to cir- 
 cumstances ; each attendance 
 
 to be allowed by the judge or 
 
 his chief clerk. Where from 
 
 the length of the attendance, 
 
 or from the difficulty of the 
 
 case, tlie judge shall think 
 
 the highest of the above fees 
 
 an insufficient remuneration 
 
 for the services performed, or 
 
 where tlie preparation of the 
 
 case to lay it before the judge 
 
 shall have required skill and 
 
 labour for which no fee has 
 
 been allowed, the judge may 
 
 allow such further fee, not 
 
 exceeding one guinea, or, 
 
 where the higher scale is £0 
 
 applicable, two guineas, as in 
 
 his discretion he may think fit 2 
 [Power to increase to 10 
 
 guineas, under Order of 2nd 
 
 February 1854.] 
 For perusing the affidavits of 
 
 claimants coming in under 
 
 Order XXXVI. of 16th 
 
 October 1852, and attending 
 in chambers at the time ap- 
 pointed by the advertisement, 
 where the number of claims 
 
 do not exceed five 10 6 110 
 
 Where the number exceeds 
 five, for every additional 
 number, not exceeding five, 
 
 an additional sum of ... 10 6 110 
 
 For atiendir.g for every order 
 drawn up by the chief clerk, 
 and at the registrar's office 
 
 to get same entered 6 8 6 8 
 
 For attending to enter claim 
 nnder Order XXXVI. of 
 16th October 1852, and to 
 
 file affidavit 6 8 6 8 
 
 For the plaintiff or party 
 having the conduct of the 
 order, attending the registrar 
 with brief and papers to be- 
 speak minutes or order, not 
 being an order of course ... 6 8 6 8
 
 GENF.UAL ORDEIIS. .309 
 
 For ditto, for prpparinfj list of 
 evidence read (but only when 
 required bj- the registrar and 
 
 certified by him) £0 6 8 £0 ('> 8 
 
 Or according to length, at per 
 
 folio 10 
 
 Attending to settle the draft or 
 
 minutes of any decreeor order 6 8 13 4 
 
 Or, at the taxing master's 
 
 discretion, not to exceed ... 1 1 3 3 
 
 Attending to pass any decree 
 
 or order not being an order 
 
 of course, including the 
 
 entry thereof 6 8 13 4 
 
 N.B. — The registrar will 
 leave the order for entry 
 In case the registrar shall 
 certify that a special 
 allowance ought to be 
 made in resj)pct of any 
 unusual difficulty in set- 
 tling and passing an 
 order, the taxing master 
 is to consider the same, 
 and make such allow- 
 ance to all or any of the 
 parties as to him shall 
 seem just. 
 For attending to procure certi- 
 ficate of pleadings 6 8 6 fi 
 
 For attending to procure Ac- 
 countant-General's certifi- 
 cate of fund in court ... 6 * 6 8 
 For attending to obtain consent 
 of next friend to sue iu his 
 
 name 6 8 13 4 
 
 For attending to give consent 
 to take answer without oath, 
 to hear cause as short, and 
 for other necessary or proper 
 
 consents of a like nature ... 6 8 t> 8 
 For attending to procure such 
 
 consents 6 8 6 8 
 
 For procuring certificate of 
 counsel to mark cause short, 
 and attending registrar 
 
 thereon 6 8 6 8 
 
 For attendance to mark master 
 or convej-ancing couusel ... 6 8 6 8
 
 370 APPENDIX. 
 
 For attendances in consultation 
 or in conference with counsel £0 13 4 £0 13 4 
 
 For attending to set down cause 
 or appeal for hearing ... 6 8 6 8 
 
 For attending to leave papers 
 with judge's secretary prior 
 to hearing 6 8 6 8 
 
 For attending court on appoint- 
 ment of a guardian ad litem 13 4 13 4 
 
 For attending to procure tran- 
 scripts of Accountant-Gene- 
 ral's books, wlien necessary 6 8 6 8 
 The fees fur consent are not to 
 apply where tlie same soUcitor 
 is for both parties. 
 
 For every writ of suhpana duces 
 
 tecum'. 6 8 6 8 
 
 For a writ or writs of subpoena 
 other than s^ib/tama duces 
 tecum, if the nuniberof names 
 therein shall not exceed three 6 8 6 8 
 
 If exceeding tiiree names, for 
 ever}' additional number not 
 exceeding three ... ... 0C8 068 
 
 For preparing every other writ 
 
 without order 6 8 6 8 
 
 For every writ under order, ex- 
 cept special injunction ... 13 4 13 4 
 
 For special injunction, includ- 
 ing engrossment and docket 
 
 Or per folio 
 
 For enrolling a decree or order 
 
 Or per folio 
 
 NOTICES AND SERVICES. 
 
 For service of a notice of mo- 
 tion, exclusive of copj' ... 2 6 2 6 
 
 For notice to a solicitor of ap- 
 pearance, answer, demurrer, 
 plea, amendment and repli- 
 cation 2 6 2 6 
 
 For notice of claim, under .S6th 
 
 order of KJth October, 1852 2 6 2 6 
 
 For notice of evidence to be 
 read in jiulge's chambers ... 2 6 2 C 
 
 For notice of tiling affidavit or 
 
 10 
 
 
 
 1 
 
 
 
 
 
 1 
 
 4 
 
 
 
 1 
 
 4 
 
 10 
 
 
 
 1 
 
 
 
 
 
 1 
 
 4 
 
 
 
 1 
 
 4
 
 
 
 2 
 
 G 
 
 
 
 2 G 
 
 
 
 2 
 
 « 
 
 
 
 2 f, 
 
 
 
 
 2 
 2 
 
 G 
 G 
 
 
 
 
 2 •; 
 
 2 G 
 
 
 
 2 
 
 C 
 
 
 
 2 G 
 
 
 
 O 
 
 6 
 
 
 
 2 G 
 
 GENERAL OKDEKS. 'M '. 
 
 set of affidavits filed, or which 
 ouglit properly to have beuii 
 filed togetlier, to be read in 
 court £0 2 G £0 i' f. 
 
 For notice of appointment for 
 settling and passing minutes, 
 decrees or orders before the 
 registrar 
 
 For copy and service of a war- 
 rant on a solicitor ... 
 
 For service of a judge's sum- 
 mons, exclusive of the copy 
 
 For service of a petition 
 
 For service of an order, exclu- 
 sive of the copy 
 
 For other necessary or proper 
 notice 
 
 For services on a party or wit- 
 ness such reasonable charges 
 and expenses as may be pro- 
 perly incurred, according to 
 distance or bj' the employ- 
 ment of an agent. 
 
 The fees for notices and services 
 are not to apply where the same 
 solicitor is for both parties, unless 
 it be necessary for the purpose of 
 making afflduvit of service. 
 
 There is to be one notice only of 
 settling minutes, and one notice 
 of passinK decree or order, which 
 if necessary arc to be continued 
 by adjournment, of which all 
 parties are to take notice. 
 
 OATHS AND EXHIBITS. ' 
 
 To the Commissioner for oath 
 
 in London, according to 
 
 statute 1 G 1 G 
 
 In the country 2 G 2 G 
 
 To the solicitor for preparing 
 
 each cxiiibit in town and 
 
 country ... 10 1 o 
 
 The Co:nmissioner for marking 
 
 each exhibit 10 10 
 
 TEUM FEE. 
 
 For a term fee in all causes, for 
 every term iu which a pro-
 
 372 APPKNDIX. 
 
 ceeding by the party shall 
 
 take place £0 10 £n i» 
 
 And for letters per term ... 5 5 n 
 
 In country agency causes the 
 
 further fee for letters of ... 6 8 
 
 And if it be shown to the satis- 
 faction of the taxing master 
 that the ageac_v correspon- 
 dence has been special and 
 extensive, he is to be at 
 liberty to make a special 
 allowance in respect thereof. 
 
 In addition to the term fee the 
 necessary expense of the 
 postage, carriage and trans- 
 mission of documents is to 
 be allowed. 
 
 The like term fee and for letters 
 in matters as in causes. 
 
 Where no proceeding is taken 
 which carries a term fee, a 
 charge for letters may be al- 
 lowed, if the circumstances 
 shall require it. 
 
 For any work or labour pro- 
 perly performed and not 
 herein provided for, such al- 
 lowances are to be made as 
 heretofore. 
 
 The Second Schedule. 
 
 Being that part of the Order of the 26th Feb. 1807, 
 which is not discharged or altered. 
 
 For perusing abstract, every 
 
 three brief sheets ... ... 6 8 
 
 For perusing the draft of every 
 
 deed, for each skin ... ... 5 
 
 For examining the engrossment 
 with the draft, for every 
 three skins 10 
 
 For making all attested copies, 
 examining and attesting 
 same, per folio ... ... G
 
 :o 6 
 
 £0 5 
 
 1 
 
 5 
 
 10 
 
 H 
 
 GENERAL ORDKHg. .'jT-J 
 
 The TniRD Schedule. 
 
 FEES TO BE COLLECTED BY MEANS OK STAMI*S. 
 
 In the Judge's Chavih(.-rs. 
 
 For even' original summons 
 
 for the purpo.se of proceed- 
 
 ins^s orijTinatinsj in chambers £0 
 For every duplicate thereof ... 
 For every other summons 
 For everj' order drawn up by 
 
 the chief clerlv, made upon 
 
 applications for time to plead, 
 
 answer, or (lemur, for leave 
 
 to amend hills or claims, or 
 
 for enlarginjj publication, or 
 
 the period for closing evi- 
 dence 10 5 
 
 For everv other order drawn up 
 
 by the" cliief clerk 10 10 
 
 For ever}' advertisement ... 10 
 
 For every certificate or report 10 10 
 For every certificate upon the 
 
 passing of ^ receivers or con- 
 signee's account, a further 
 
 fee in respect of each 100/. 
 
 received of 10 10 
 
 For every oath, affirmation, 
 
 declaration, or attestation 
 
 upon honour 1 G 1 C 
 
 Tn the Master's Offices. 
 
 For every warrant or summons 3 .^ 
 
 For ever}' certificate or report 10 1 
 
 For taking the acknowledgment 
 of every married woman ... 1 6 8 16 8 
 
 For attending: anv court perdav 
 by the clerk ..' .". 14 14 
 
 For every certificate upon the 
 passing of a receiver or con- 
 signee's account, a furtlier 
 fee in respect of each 100/. 
 received of 10 10 
 
 In the Registrars' OJJke. 
 
 For every decree or decretal 
 order made by the court on a
 
 374 APPENDIX. 
 
 special case, or on the original 
 
 hearing of a cause or claiiti, 
 
 or on motion for a decree, and 
 
 on further directions, or 
 
 further consideration not 
 
 made on summons adjourned 
 
 from chambers £10 £3 
 
 For every order on petition or 
 
 motion of course 010 050 
 
 For ever\' other order 10 10 
 
 For every office copy of a de- 
 cree or order, and for every 
 
 office copy of a petition of ap- 
 peal or rehearing made on 
 
 the 3rd of the General Orders 
 
 of the 25th of October 1852 10 10 
 Note. — The above fees are 
 to include the charge for 
 entry. 
 
 In the Examiiiers^ Office. 
 
 For every witness sworn and 
 
 examined, including oath, for 
 
 each hour ... 5 6 
 
 For every witness sworn and 
 
 examined awa}' from the 
 
 office (besides coach hire and 
 
 reasonable expenses) ... 1 7 17 
 
 If more than five miles from the 
 
 examiner's office, for the first 
 
 day 2 15 2 15 
 
 For every other day 220 220 
 
 Upon every application to in- 
 spect depositions, including 
 
 the inspection 3 3 
 
 Upon every application to 
 
 search book for causes, in- 
 cluding search 10 10 
 
 Upon every application to 
 
 search booif for depositions, 
 
 including search ... ... 1 10 
 
 In the Record and Writ Clerks' Office. 
 
 For making all office and other 
 
 copies per folio ... ... 4 4 
 
 For filing every bill or mforma- 
 
 tion ... " 10 10
 
 GENERAL OUI'KRS. 'A~ '» 
 
 For filing every claim £(l 5 () id j n 
 
 For filing every special case ... 10 1 n o 
 
 Upon entering every appear- 
 ance, if not more than three 
 defendants 7 070 
 
 If more than three and not ex- 
 ceeding six defendants ... 14 11 
 
 And the same proportion for 
 every like number of defen- 
 dants. 
 
 For every certificate 4 4 
 
 For marking every copy of a 
 bill, claim, or summons to be 
 served 10 6 
 
 For every writ of summons, 
 distringas, subpoena, or 
 attachment 6 .5 
 
 For sealing every other writ ... 10 10 
 
 For every oath, affirmation, 
 declaration or attestatioa 
 upon honour, except for the 
 purpose of receipt of divi- 
 dends from the Accountant- 
 General 16 1 C 
 
 For examining every copy or 
 part of a copy of a set of 
 interrogatories, and marking 
 same as an office copy ... 1 5 
 
 Upon every application for a 
 search for a record, and for 
 searching 2 2 
 
 Upon every application to in- 
 spect a record, and for in- 
 specting the same ... ... 5 5 
 
 Upon every application to in- 
 spect exhibits, if occupied 
 not more than one hoi.r ... 5 fl ,5 
 
 If more tiian one hour, per diem 10 10 
 
 Upon every application for 
 the officer's attendance in 
 courts of law per diem, and 
 for his attendance, besides 
 reasonable expenses of the, 
 officer 10 10 
 
 Upon every application for the 
 officer's attendance in a court 
 ofequitv, and fur his atten- 
 dance, per diem 10 10 
 
 Upon every application to
 
 376 APPEXDIX. 
 
 swear an invalid, including 
 the attendance, besides neces- 
 sary expenses ... ... £0 10 £0 10 
 
 For examining and signing 
 enrolments of decrees and 
 orders -. 3 3 
 
 For filing caveat against claim 
 to revive, or against decree 
 or order or enrolment ... 5 5 
 
 For filing supplemental state- 
 ment or statement for re- 
 vivor _ ... 5 10 
 
 For filing everj' affidavit, in- 
 cluding schedules and ex- 
 hibits _ ... 2 G 2 6 
 
 For every application to inspect 
 affidavit 6 6 
 
 For amending every record of a 
 bill, claim, or special case ... 10 10 
 
 In the Taxing Master's Office. 
 
 For every warrant or summons, 
 but not more than one war- 
 raot or summons is to be 
 issued on one bill, or set of 
 bills, unless the taxing mas- 
 ter shall think it necessary to 
 issue a new warrant or sum- 
 mons 
 
 On signing everv report and 
 certificate ..." 10 10 
 
 Upon the taxation of every bill 
 of costs, as taxed, where the 
 amount shall not exceed 20',. 10 10 
 
 Upon every additional 20Z. or 
 fractional part thereof, a fur- 
 ther fee of 10 10 
 
 For every oath, affirmation, or 
 attestation upon honour ... 1 6 16 
 
 In the Lord Chancellor'' s principal 
 Secretary's Office. 
 
 On all attendable petitions, 
 ajipeals, rehearings and let- 
 ters missive ... ... ... 5 10 
 
 On all nonattendable petitions 5 10 
 
 10 3
 
 GEXKR.VL OIJDKUS. .J , 7 
 
 On a matter of (.■ourse ordt-r, on 
 
 a petition of right £0 10 £0 10 
 
 On an order for a commission 
 
 on a jiotition of right ... 1 10 
 
 In the Office of the Secretwy at the liolU. 
 
 On every petition .«et down for 
 bearing, to include the fee on 
 iieariiig 5 10 
 
 On the petition for every order 
 of course 10 5 
 
 On the admission of every soli- 
 citor ' ... 1 17 
 
 In the Office of the Accountant- General. 
 
 For preparing power of attor- 
 ney with affidavit, exclusive 
 of stamp duty 3 3 
 
 Upon every application for a 
 search 5 5 
 
 For transcript of acconiits. each 
 opening consisting of debtor 
 and creditor sides of the 
 account 2 2 
 
 Cranwouth, C. 
 
 ,). L. IvNHUiT Bkuck, L. J. 
 
 (;. J. TlKNI-U, ).. .1. 
 
 KiCllI). '1'. KiNDKKSLEV, V. C. 
 
 John Srr.MtT, V. C. 
 AViLLi.\Ji Page Wood, V. C.
 
 INDEX. 
 
 ABATE3IENT : 
 as to supplemental decree on, 255 
 
 ABSCONDING : 
 
 defendant absconding, 8 
 
 ACCOUNTS, see Decree : 
 how proved, 113 ; may be read as prima facie evidence for partv 
 keeping them, 113 " 
 
 ADDRESS : 
 of bill, 2 ; of solicitor to plaintiff in bill, 5 
 
 ADMISSIONS, see E-vtdexce, 104 
 
 ADVERTISEMENTS, see Decree. 
 
 AFFIDAVITS : 
 
 to have no erasures, 38 ; where sworn, 38 ; where, if defendant 
 more than ten miles from London, 38 ; where, if defendant out 
 of the jurisdiction, 39; who may take such affidavits, 39 ; as to 
 jurat of, 39 ; time within which opponent entitled to copies, 39 ; 
 practice not to file them till last day, 39 ; effect of one party 
 having seen the affidavit of the other on his right to extend 
 time for evidence, 39 ; of rules of evidence applicable to athdavits, 
 40; general observations on preparing, 40; order of Jan. 1855; and 
 as to preparing cross-examinations on affidavits, 41; not allowed 
 to support motion for production, 86 ; form of, on production 
 or deposit of documents, 32 ; must speak in the first 
 person, 61 ; search for, 61 ; notice of tiling, 61 ; answers 
 may be converted into, and read by defendant as evi- 
 dence, 102; but he will then be liable to cross-examination, 
 102 ; on motion, office copies should be obtained before motion 
 opened, 62 ; usual course, if they are not, to let motion stand 
 over, 62 ; notice of using in chambers, 83 ; in support of motion 
 for decree when to be tiled, 49 ; a list of to be given, 49 ; when 
 defendant's to be filed, 49; when affidavits in reply to be tiled, 
 49 ; to be in paragraphs numbered, 38 ; in support of ex parte 
 injunction, what, bb ; how to be framed, 50 ; under SGth section 
 of the act, 241 
 [CH.] 2 I '
 
 AMENDING : 
 order to amend must be entered, 15 ; amending plea, 18 ; leave ob- 
 tained on special application. 18 ; when leave given after plea, 17, 
 18 ,• riglit to amend on submitting to demurrer, 12 ; when right to 
 amend of course, 12 ; when leave to amend requisite, 12 
 
 AMENDING BILL: 
 
 to rectify clerical erroi^ at any time as of course, 123 ; order to 
 amend as of course within four weeks after last answer deemed 
 sutEcient, 123 ; after replication, when order to amend as of 
 course, 124 ; otherwise no order to amend except by special 
 leave, 124 ; how such order obtained, 124 ; what amendments 
 maj' be made, 124 ; facts which would have been supplemental, 
 now introduced by amendment, 124 ; bills of revivor and supple- 
 ment still sometimes requisite, 124 ; leave to amend after repli- 
 cation, only on putting defendant right as to costs, 126 ; course to 
 apply for leave to withdraw replication and amend, 126 ; costs on 
 amending, 126 ; amendments, how made in printed bill, 125 ; 
 if exceeding two folios in length, reprint of bill necessary, 126; 
 of application in chambers to amend, 126 ; of leave to amend 
 after replication, 126 ; under order of course, defendants may 
 be added, 124 ; or name of a defendant strucls out before his 
 answer, 124; but if he has appeared his costs must be paid, 124; 
 effect of amending on proceedings, 127; when precludes defendant 
 from giving notice to dismiss, 127 ; order must be drawn up and 
 served, 127; destroys effect of order to takejo;-oco?j/&sso, 127 ; or to 
 move on original bill for production, 127 ; when it destroys injunc- 
 tion, 127; interrogatories to amended bill, 16; service of, 218; 
 order to amend of course, not by summons, but bj' motion or peti- 
 tion of course, 81 ; what affidavit in support of special application 
 to amend, 84; what after replication, andby whom tobeniade, 84 ; 
 co-plaintilTmaj' be struck out by amendment, before appearance of 
 defendants, 125 ; if a defendant has appeared, there must be 
 special leave, 125 ; and costs will be provided for, 125 ; amend- 
 ment and original bill, one record, 125 ; amendments must be 
 signed by counsel, 125 ; rule is, the bill as it is must be the bill 
 of counsel, 125 ; time for amending, 125; order to amend did 
 not prejudice a special injunction, 125 ; does not now pre- 
 judice injunction to stay proceedings at law, 125; bill, if not 
 amended within time, stands as to dismissal as if no order 
 to amend, 125 ; bill may be amended as of course before 
 answer, 123 ; when it destroj's we exeat, 121 \ when not, 127; 
 amended injunction bill, no evidence proving the amend- 
 ments can be read to support original injunction, 128; cases on 
 amendment under 53rd section of act, App., 257; when 53rd 
 section not applicable, App., 257 ; amendment of petition, 
 App., 2G2 
 
 ANSWER AND DEMURRER : 
 
 rule as to exceptions when answer and demurrer filed, 29. 
 
 ANSWER AND PLEA : 
 rule as to exceptions when answer and plea filed, 29 
 
 ANSWERS: 
 
 of defence by answer. 19 ; time for filing answer, 97; how further time 
 obtained, 97 ; apjilicatiou must besupported by aflSdavit of merits.
 
 ANSWERS— con^'nt/eJ. 
 
 97; as to preparir.fj instructions for answer, '.)" ; an«wcr« in Roni-ral 
 final, and cannot be altered, ".i7 ; excc|(tion.s, 97 ; conrtKives li-jivo 
 to file siipplenieiital answers witli <lilliciilty, 9« ; answer uiust be 
 signed by counsel, 9K ; draft copied on parcluncnt, 9S ; »ii;ni.d 
 and sworn by defendant, liow, 9« ; notice of lilinK to plainliir, 
 98; as to being evidence, 102; and see Kvii>i;n< i: ; pjjiintitT 
 reading as evidence must read all passages substantiiilly lonnectwl, 
 103; but not passages only connected by an expl'utivc if not 
 substantially connected, W.\\ time for answering, 20; when 
 defendant does not answer within the time, plaintirf may 
 issue attachment, 20; or, may file traversing note, 20; or, may 
 take bill jiro conjcsso, 20; course when |)lain(itl proceeds by 
 attachment, 20; answers of defendants out of the jurisdiction, 
 99 ; of married woman, 99; when answer of one ilefendant may 
 be received as evidence against co-defendant, 51 ; on motion 
 for, or to dissolve injunctions, to be treated as atlidavits, 7G ; 
 ■what answers not sworn, 98 ; infant answers by guardian, 98 ; 
 defendant in contempt for want of answer, 20, 21, and 22; ami 
 see AiTACiiMENT; furtlier answer, how prepared, &c., 101 ; costs 
 of exception to, 27 ; see Exckitions ; allowing further 
 answer on exceptions, 27 ; time for, 27 ; exceptions to, 25, et 
 seg., and see ExcEiTioNs ; time to answer on submitting to ex- 
 ceptions, 28 ; what meant by last answer, 31 
 
 ANSWT£RS AND DISCLAIMERS: 
 
 must be signed by counsel, 99 ; signed and sworn by defendant, 
 99; when disclaimer entitles party to be dismissed with 
 costs 100 i when not, 100. 
 
 APPEAL : 
 
 from order in chambers when to judge and when to court of appeal, 
 85 ; mere pending of api)eal not good for sta^'ingproteedings, 1G7 ; 
 unless irremediable damage, 108 ; when irremediable damage 
 sufficient, 168; effect of authorities on this point. Kin ; from 
 decree to lords justices, 169; constitution of court of appeal, 1G9; 
 when lord chancellor will hear appeal, 169 ; cannot be from decree 
 in minutes, 170; decree must be drawn up, 170 ; petition of, how 
 prepared and signed, 170; form of, 170 ; as to duty of counsel on 
 signing petition, 170 ; must be set down within live years of de- 
 cree, 170; notice thereof to parties, 170; entering. 170; petition of, 
 to be left with secretary of lord chancellor, 170; 20/. to be de[)osited 
 with registrar, 171 ; order to set down, to be passed and entered, 
 171 ; copy served on respondent, 171 ; on whom it should be 
 served, 171 ; briefs on hearing, 171 ; who begins on, 171 ; who 
 may be heard on, 171 ; as to appealing against part of decree 
 only, 171; appellant bound by part not appealed from, 171; 
 respondent may reofien whole case, 171 : but if he does, appellant 
 maj' go also into whole case, 171; evidence on appeal. 172; must 
 be read or put in, 172; no new evidence, 172 ; but court may 
 examine parties and witnesses orally, 172; appeals from orders 
 made on motion, 172 ; may be made on motion with notice, with- 
 out petition of appeal, 172 ; api)eal motion heard on evidence 
 below if strictly appeal, 172 ; but new evidence may Ik.- intro- 
 duced, 172; but then it is an original motion, 172; effect of con- 
 verting appeal motion into original motion, 172; appeal motiona 
 2 I 2 *
 
 APPEAL — continued. 
 
 put in a paper, 173 ; of appeals from order made on motion for 
 decree, 173 ; made on motion, and not on petition of appellant, 
 173 ; but is in some respects dealt with as cause, 173 ; under 
 winding-up acts, 173 ; by motion, 173 ; what evidence on, 173 ; 
 to what court, 173 ; what notice of motion, 173; from order on 
 petition, 174 ; made on petition of appellant, 174; briefs on, 174; 
 appeal to House of Lords, 174 ; lies from any interlocutory order, 
 174 ; but not for costs only, 174 ; but House of Lords will deal with 
 costs below, 174 ; within what time petition must be presented, 
 174, 175 ; cases where House will extend the time, 175 ; notice 
 of appeal must be given, 175 ; petition how prepared and framed, 
 
 175 ; must be signed hy two counsel, 176 ; what counsel 
 must sign, 176; petition required, 176; order on respondent to 
 answer, 176; must be served, 176; appellant must give security, 
 176 ; amendment of petition of appeal, 176 ; leave for, must be 
 obtained on petition, 176; mode of meeting petition of appeal, 
 
 176 ; by answer.176 ; by preliminary objections, 176 ; objections to 
 completeness of, should be by petition, 176 ; and should be taken 
 before answer, 176 ; of answering petition, 176 ; answer merely 
 formal, 176 ; either party may move to have cause set down, 177 ; 
 cause set down on application of appellant, if respondent does 
 not answer, 177 ; course when respondent does not answer, 
 under peremptory order to answer, 177 ; of preparing printed 
 case, 177 ; course of hearing appeal, 178 ; of cross appeals, 178 ; 
 of costs of appeals, 178 
 
 APPEARANCE : 
 
 summons to appear, 5 ; time for plaintiff entering appearance for 
 defendant, 9 ; consequence of defendant not appearing to bill, 7 ; 
 entering for defendant, 7 and 8; when plaintiff must apply 
 for leave to do so, 9 ; effect of defendant not appearing in 
 support of demurrer, 14 ; how services made after, 92 
 
 ATTACHMENT: 
 
 against defendant for want of answer, 20 ; execution of, 20 ; 
 motion for messenger, 20 ; time for bringing defendant to bar 
 of the court, 20 ; when plaintiff may issue new attachment, 20 ; 
 examining defendant, 20 ; when defendant alleges poverty, 20 ; 
 examining defendant in court under the new practice, 21 ; course 
 where court directs inquiry, 21 ; to be lodged with keeper of 
 prison, 22 ; plaintiff's course on return of writ, 32 ; judge's clerk 
 not to be attended on reference by counsel, 22 ; course where defen- 
 dant found not to be of inability, 22 ; habeas carpus to bring up his 
 body, 22 ; time for return of, 22 ; writ of, how obtained, 22 ; 
 form of writ, 7 ; when returnable, 7 ; writ of, who pre- 
 pared by, 7 ; sealing, 7 ; issue of, 7 ; how executed, 7 ; when 
 fresh issued, 7; against party not in the cause, 221; against 
 minor, 221 ; afhdavit of service of bill requisite when for want 
 of appearance, 221; when affidavit may be sworn, 221 ; affidavit 
 must be precise, 221; attachment, when discharged, 221; when 
 fresh attachment good, 222 ; writ of, b}' whom prepared, 222 ; 
 how to be indorsed, 222 ; by whom sealed, 222 ; sealing prae- 
 cipe, &c. 222 ; effect of, 222 ; party in contempt may move to 
 discharge it, 222; party in contempt for want of answer cannot
 
 ATTACIDIENT-co/KmweJ. 
 
 file demurrer, 222 ; nor demurrer and answer, 222 ; for costs, 222 ; 
 when it may, and when not, be issued, 222 ; aj^ainst jiarty not 
 appearing or not answering, &c. 221 ; against married woman, 221 
 
 ATTORNEY : 
 privilege of, in matters of evidence, 109 
 
 ATTORNEY-GENERAL : 
 as to receiving costs, 20J, 205 
 
 AUTHORITY, see Solicitor : 
 to solicitor to file bill, 4 
 
 AVERMENT : 
 in bill evidence against plaintiff, 101; but must be positive, 101 
 
 BELIEF : 
 what belief in God required in a witness, 108 
 
 BIBLES : 
 
 entries in, when evidence, 113 
 
 BILL: 
 
 by whom drawn, 1 ; must be signed by counsel, 1 ; how framed, 1 ; 
 form of, under order of Aug. 18.52, 2 ; to whom addressed, 2 ; how 
 marked, 2 ; statements in, 2, 3 ; prayer of, 3 : inserting names of 
 defendants in, 4 ; of printing bills, 5 ; indorsement on, o ; when 
 ■written bill may be filed, 5; filing bill, 5; with whom filed, (i; 
 service of, 6 ; alterations in, must not be extensive, 5 ; defendant 
 entitled to ten printed copies of, 92 ; taking ywo conjesto, 23, 24 ; 
 service of, 218 ; when supplemental bill requisite, 287 
 
 BILL (AMENDED), see Amending Bill : 
 must be signed by counsel, lo ; when amendments may be in writing 
 on printed bill, 15 ; signature of counsel must be copied on amended 
 copies, 15 ; as to amendments exceeding two folios in length, 15 ; 
 defendant entitled to copies of amended bill, 15 
 
 BISHOP : 
 answer of, 98 
 
 BRIEFS : 
 on hearing demurrer, 14 ; how many allowed, 14 ; observations of 
 solicitor on, 26 ; for hearing when to be delivered, 135 ; of what 
 plaintiff's brief consists, 135 ; of what defendants, 135 ; obser- 
 vations, 135 ; what allowed on petitions, 133 ; on further conside- 
 rations on, 1G2 ; on special case, see Special Cask 
 
 CASE: 
 for court of law on special case, 183 
 
 CAUSE (SHORT) : ...,,. 
 
 motion for decree may be heard as, 50 ; may be heard before the 
 regular time by consent, 50 ; no replication necessary, 50 ; and 
 see Heaiung 
 
 CAVEAT : 
 acainst enrolment of decree, 140 
 213
 
 INDEX. 
 
 CERTIFICATE : 
 
 clerk's certificate, 161 ; conclusive if not appealed from within 
 eight days of signing by the judge, 161 ; course on objecting to, 
 161 ; no formal objections requisite, 161 ; proceedings in nature 
 of motion, 161 ; conclusive as to facts on further consideration, 
 162 ; exceptions under 13 & 11 Vict. c. 35, 163 ; but court may 
 direct further inquiries if facts insufficient, 162; on further 
 consideration, when in effect a finding of law, 163 ; certificate of 
 judge in chambers, how appealed from, 174 ; how proceeded in if 
 affirmed, 174 ; how if varied, 174 ; chief clerk's certificate on 
 motions, 84 ; how and when to object to, 84 ; signing of by judge, 
 85 ; appeal from, 262 
 
 CHAMBERS : 
 
 notice of using affidavits in, 83 ; time for answering to be obtained 
 in, 28 ; when application on notice, 28, 29 ; all orders in cham- 
 bers are the judge's orders, 22; appeal from order in, 174; no 
 declaration on adjourned hearing from, 279 ; inquiries in, 263 ; 
 and see Motions, Summons 
 
 CHARGES : 
 in bill, 3 
 
 CHARITY : 
 
 costs in charity cases, 205 ; of relators, 205 
 
 CHARTS : 
 of pedigree, when evidence, 121 
 
 CHINESE : 
 how sworn, 114 
 
 CHIEF CLERK : 
 jurisdiction of, 279 
 
 CLAIMS: 
 observations on, generally, 185 ; common claims, what are, 186 ; 
 special claims, what are, 186 ; all claims must be signed by 
 counsel, 186 ; special claims must be settled by counsel, 186 ; 
 common claim filed without leave, 186 ; special claim requires 
 leave of court, 186 ; order for, obtained ex parte, 187 ; to be filed, 
 187 ; special, to be filed must be indorsed with leave by registrar, 
 187 ; to be printed, 187 ; as to amending, 187 ; defendant must 
 be served with printed copy, 187 ; as to indorsement on copy, 
 187 ; service of, and substituted service, 187 ; appearance to, 187 ; 
 effect of non-appearance, 187; evidence on, 187; no answers to 
 claims, 188 ; as to production of documents under, 188 ; closing 
 evidence on, 188 ; claims heard as causes, l.\!8 ; briefs allowed 
 on, 189; parties to, 189; not allowed for complex cases, 189; 
 course when claim not proper, 189 ; when bill instead of, 243 ; 
 oral examination on, 244 
 
 CO-DEFENDANT : 
 cross-bill necessary to obtain production from, 89 
 
 CONSULTATION: 
 when allowed in costs, 14
 
 IXDEX. 
 
 CONTEMPT ! 
 defendant clearing contempt for not appearing, 8 ; no contempt 
 wlien disability to obey order, 222 ; inturferiiiji^ to prevent iiifiiut 
 obeying order, 221 ; to disobey injunction thou(;h no order 
 drawn up and no writ served, 60 
 
 CONVEYANCING COUNSEL : 
 
 practice on deeds being settled by, 279 
 
 CONVICTION : 
 
 record of, evidence, 109 
 
 COPYRIGHT : 
 what title must be shown to support injunction against infringe- 
 ment, 73; what evidence when ])lainlit)' assignee, 73; special 
 evidence requisite on motion to restrain infringement of, 77 
 
 CORPORATION : 
 
 answer of, 98 
 
 COSTS, see Demurrer, Exceptions, Plea ; 
 
 of demurrer, if to the whole bill, 14 ; if to part, 1-J ; of submitting 
 to demurrer, 15; of exceptions to answer, 27; of submitting 
 to exceptions to answer, 28 ; of impertinence, 33 ; of atlidavils 
 on motion for decree, 49; of defendant struck out by amend- 
 ment after appearance must be paid, 125 ; on aniending a bill, 
 costs must be paid before, 127 ; if defendant accepts costs he 
 ■waives irregularities in order to amend, 127 ; of parties 
 not interested appearing on petition, 133 ; of day, wiien objec- 
 tion for want of parties at hearing, 137; costs, how enforced, 
 211; how taxing master's certilicate proceeded on, 211 ; when 
 party liable makes default, 211 ; proceeding against him b}' 
 attachment, 211 ; proceeding by Ji-/a- or ekr/it, 212 ; in charity 
 cases where misa|)plication on wrong construction of deed, 205 ; 
 of relators in, 205; of information, when they pay costs, 205; 
 of submitting to demurrer, 12; of attending hearing of de- 
 murrer, 14; what briefs allowed on hearing demurrer, li ; when 
 leave given to amend on allowing demurer, 12 ; as to Attorney- 
 General receiving, 205 ; in charity cases, 205 ; wlien party, 
 although right, will pay costs, 200; how apportioned, 200; 
 of improper conduct or proceedings, 200 ; of going into 
 unnecessary evidence, 200 ; of vexatious length in petitions, 
 200; of demurrer not set down by plaintitl', 93; how to be re- 
 covered, 93; of moving to dismiss, when pluintilThas liberty to 
 amend and does not, 95 ; when demurrer allowed simply, 94 ; 
 wlien leave given to amend, 91 ; of submitting to exceptions to 
 answer, 100 ; when disclaiming, defendant entitled to be dis- 
 missed with costs and when not, 100 ; attachment for costs, 222; 
 principle of court in dealing with generally, 192; of special 
 case, see Special Cask ; of application to delay execution of 
 decree, 109 ; of appeals to House of Lords, «ee Aiteal ; of briefa 
 on claims, 189 
 
 COUNSEL: 
 
 privilege of, in matters of evidence, 109 ; cannot be heard in 
 chambers before chief clerk, 150; but niay before judge in 
 chambers, 150 ; costs of fees to, 150
 
 INDEX. 
 
 COURT: 
 as to marking bills for, 2 
 
 CREDITORS, see Decree. 
 
 CRIME, see Evidence. 
 
 CROSS-EXAMINATION, see E\tdence: 
 on affidavits, 41 ; on interrogatories, 48 ; observations on, 48 
 
 DEAF AND DUMB, see Evidence. 
 
 DECREE : 
 
 as to proof of, 109 ; plea of former, 19 ; when minutes settled, decree 
 must be passed and entered, 139 ; how passed, 139 ; how entered, 
 139 ; when taken to be entered, 139 ; until entered no proceed- 
 ings on decree strictly, 139 ; in practice acted upon after left for 
 entering, 139; must be enrolled within six months, 139 ; not after- 
 wards without special leave, 139 ; of enforcing, 141 ; how enforced, 
 142 ; semble the orders of 1841, applying to matters as well as 
 causes, 142; and see Order, Minutes, and Inrolment; caveat 
 against inrolment of, 140 ; for inquiries and accounts, 137 ; nature 
 of usual decrees for, 138 ; passing and entering minutes, 138 ; decla- 
 ratory decree, App. 253 ; carrying decree into execution, 14G ; of 
 prosecuting preliminary decree for accounts, &c., 146 ; copy to be 
 left at j udge's chambers, 14(5 ; must be certified to be true" copy, 
 14G ; of taking out summons to proceed, 14G; directions given 
 by chief clerk, 14(5 ; order made by, must be served on account- 
 ing party, 14G ; what are grounds for accounting party to obtain 
 time, 146 ; personal convenience insufficient, 14G ; substantial 
 difficulty or incapacity must be made out, 146 ; accounting party 
 disobeymg order to bring in accounts liable to attachment, 147 ; 
 defendant to take in account verified, 147 ; form of account, 
 147; affidavit refers to account as exhibit, 147 ; of plaintiff sur- 
 charging accounting party, 147 ; account proved by voucher, as to 
 sums above 40.'>-., 147 ; as to sums under that, affidavit sufficient, 
 147 ; court may give special directions as to accounting and 
 vouching accounts, 147 ; account-books may be prima facie evi- 
 dence, 147; extentof jurisdiction so to take them, 147; such direc- 
 tion not given at decree, but in cliambers, 147 ; j udge may direct in 
 chambers further accounts and inquiries bej'ond those directed by 
 decree, 147 ; cliief clerk cannot give such directions, 147 ; affi- 
 davits and vouchers only prove payment, 148 ; not propriety of 
 payment, 148 ; when accounts rendered chief clerk makes certi- 
 ficate, 148 , form of, 148 ; how appealed from, 148 ; summons to 
 appeal termed adjourned summons, 148 ; appeal must be within 
 four days of signing, 148 ; adjourned summons heard by judge 
 in chambers or in court, 148; certificate signed by judge if no 
 appeal within four days, 148 ; when appeal from certificate to 
 judge, and when to court of appeal, 148 ; practice on this point 
 in the different courts, 149 ; production of documents in prose- 
 cuting decree, 151 ; mode of prosecuting inquiries as to state of a 
 family, &c., 151; issuing advertisements for, 151; evidence of 
 births, deaths, &c., 152 ; no statements of facts to be brought in, 
 152 ; but concise statements and documents, 152 ; of adjourning 
 days for hearing claims, 152 ; only one advertisement to be 
 issued, 152 ; unless specially otherwise directed, 152 ; advertise-
 
 DECREE— conlmned. 
 
 ment prepared by solicitor, IF,2 ; to be approved and sifjned by 
 chief clerii, 152; must fix time for hearing, 1.02; creditor*, 
 where debts nnder o/., need not attend, l.')2 ; clainianLs lilinjc 
 atHduvit need not take oflice copies, 152 ; parly proseculini; 
 decree takes tiieui and furnishes copies, 152 ; interest, how com- 
 puted on debts, 153 ; proof of dilVerent kinds of claims, 153 ; 
 judf,'ment debt, how proved, 153; simple contract debt, 153; 
 mode of proceeding for sale of real estate, 154; solicitor prose- 
 cuting decree prepares advertisements, 154 ; then condilioua of 
 sale, 154; couditions must be approved by chief clerk, 154 
 
 DECREE (PRELIMIXARY): 
 should provide for all matters intended to be dealt with on fur- 
 ther consideration, 1G5 ; on further consi<Ieration, observatioDS 
 on form of, IGo ; examination of married woman on, 1(JC 
 
 DEEDS ; 
 
 practice on settling, by conveyancing counsel, 279 
 
 DEFENDANT : 
 plaintiff entering appearance for, 7 ; when taken by sherifT, and 
 clearing contempt, 8; how served when absconding, 8 ; conse- 
 quence of not appearing, 7 ; inserting names of, in bill, 4; enti- 
 tled to have copies of bill delivered, 10 ; in contempt for 
 want of answer, 20,21, 22; after appearance service on soli- 
 citor to be sufficient in general, '.t2 ; when personal, 92 ; entitled 
 to ten printed copies of bill, 92 ; of proceedings of, generally, 92 ; 
 must enter appearance, 92 ; no notice of motion can be served 
 on him before apjicarance without leave, 92; but may tile 
 voluntary answer, 92 ; within what time, 92 ; proceedings 
 after appearance, 92 ; when he should inform plaintifT of nature 
 of defence, 92 ; as to determining on nature of defence, 92 ; not 
 bound to answer if no interrogatories filed, 92 
 
 DEMURRER : 
 time for demurring, 11 ; amendment of 1)111 on submitting to 
 demurrer, 12 ; when right to amend of course, 12 ; when leave 
 requisite, 12 ; costs on leave being given to amend, 12; when, 
 for want of parties, 12 ; costs of submitting to, 12 ; course of pro- 
 ceeding of plaintiff when defendant demurs, 12; when, to whole 
 equity, 12; course of proceeding when not submitted to, 13; 
 plaintifl' setting it down, 13; when must be set down, 13; 
 distinction between whole and partial demurrer, 13; how 
 set down, 13 ; briefs on hearing, 13 ; when to be deli- 
 vered, 13; when demurrer to be put in paper, 13; ser\'icc of 
 order setting down, 13 ; hearing of, 14 ; costs of, if to the whole 
 bill, 14 ; if to part, 14 ; costs of submitting to, 15 ; cost.", when 
 allowed, witli liberty to amend, 15; when (lemurrer not set 
 down, 15; defendant maj' set down if plaintiff does not, ".•3; if 
 set down bv plaintiff defendant then to prepare his \>t'u(. 93 ; 
 brief on, of what it consists, 93; on hearing, defendant should 
 have atlidavit of service of order setting down demurrer, 93; 
 will then be entitled to costs if plaintiff does not appear, 94 ; 
 if not so provided demurrer will be struck out, M ; cony on 
 parchment to be made of draft demurrer, 93 ; must be filed, ''3 ;
 
 DEMURFvETi— continued. 
 
 and notice i^-iven to plaintiff, 93 ; time for demurring, 93 ; demur- 
 rer allowed if not set down by plaintiff within twelve days from 
 filing, 93 ; costs of demurrer so allowed, 93 ; how recovered, 93 ; 
 on argument, defendant may demur ore tentis, beyond written 
 demurrer, 94 ; when demurrer allowed, it is with costs, 94 ; if 
 leave given to amend, court may give directions as to costs, 94; 
 if plaintifi" does not amend within time given, defendant may 
 move to dismiss, 94 ; defendant entitled to move on expiration 
 of time, 95 ; and to prepare his brief, 95 ; and to costs of, 95 ; 
 usual to give notice of intention, 95; notice of filing, 218 ; demurrer 
 by witness to questions, 43 ; how proceeded upon, 43 
 
 DEPOSIT: 
 
 distinction between order for, and order for production, 31; order 
 for, when adjourned to court, 31 ; fonn of order for. and affidavit, 
 32; form of affidavit on depositing, 32; order for, 31 ; to be 
 applied for in chambers, 31 
 
 DEPOSITIONS OF WITNESSES: 
 
 how taken, 42 
 
 DISCOVERY: 
 
 appendix, 259 
 
 DISMISSAL : 
 
 of bill for want of replication, 36 ; when demurrer allowed with 
 leave to amend, if plaintiff does not amend within time, defen- 
 dant may move to dismiss, 94 ; course of proceeding for moving 
 to dismiss, 94 ; motion must be on notice, 94 ; and must be 
 moved on a seal day, 94 ; terms usually given to plaintiff, 94 ; 
 what terms given to plaintiff on motion for, 95; if after order to 
 amend, bill not duly amended, it stands as to dismissal as if no 
 order made, 125 
 
 DOCUMENTARY EVIDENCE, 104 
 
 DOCUMENTS : 
 
 execution of may be proved orally at hearing, 13G ; or by affidavit, 
 136; where secondary evidence of, allowed at hearing, 135; 
 production and deposit of, 30 ; and see Production. 
 
 ELEGIT: 
 
 writ of, 144 
 
 ENQUIRIES : 
 
 of directions for in chambers beyond decree, 147 
 
 ENROLMENT OF DECREE : 
 
 caveat against, 140; no enrolment after five years; not necessary to 
 found proceedings on decree, 140 ; but "not strictly record" till 
 enrolled, 140 ; if not enrolled may be varied on re-hearing by 
 judge who made it, 140 ; after enrolment can only be altered on 
 appeal, 140; which is to the House of Lords onlv, 140; en- 
 rolling order under Winding-up Acts, 140 ; whether preliminary 
 decrees can be enrolled, 150 ; no appeal to House of Lords
 
 ENROLMENT OF DECREE-wn//n««/ 
 
 against it unless it is, 110; either party may enrol, Ml ; of the 
 caveat against enrolment, 111 ; enrolment may be vacated, Ml ; 
 not on ground of mere surprise, Ml ; nor because extraordinary 
 haste, 141 ^ 
 
 ENTERING : see Decree. 
 
 EVIDENCE: 
 
 order of Jan. 1855 as to, 37 ; course for solicitor of plaintiff 
 on preparing, 37 ; alHdavits to be in paragraphs numbered, 
 38; time for closing, 41; what notice of examination to be 
 given to witnesses, 41 ; power of examiner, 42 ; witness 
 refusing to answer, 43 ; who may be witnesses, 3(1 ; how 
 evidence may be taken, 30 ; notice of cross-examination on 
 motions, 61 ; when answer of a defendant may be read against 
 co-defendant, 51 ; cross-examination of witnesses, 48; notice on, 
 48; as to the producing witnesses in town; 48; as to enlarging 
 time for evidence, 47; aiiiilication for, by summons in chambers, 
 47 ; must be supported by allldavit, 47 ; costs of application, 47|; 
 when to be closed, 4G ; time for cross-examining, 4(i; when on 
 interrogatories, 47; course when depositions comiileted, 43 ; must 
 be filed, 43; when not completed within time for closing evidence, 
 43 ; application to extend time in chambers, 43 ; and supported 
 by affidavits of merits, 43 ; after time for closing eviih'nce, 
 special leave requisite to go into evidence, 43; application must 
 be to court, 43 ; appointment of special examiner, 44 ; defendant 
 cannot read his own answer as, 101 ; e.\cept as to costs, 
 101 ; or for making case for inquiry, 101 ; but may convert 
 his answer into affidavit, 101 ; but will then be liable' to cross- 
 examination, 102 ; answer is evidence for defendant when cause 
 set down on bill and answer, 102 ; admissions in pleadings 
 evidence against the party, 104; averments in bill evidence 
 against plaintiff, 104 ; but must be positive averments, 104 ; 
 general observations on, 103 ; plaintiff cannot read answer 
 of one defendant against another without notice, 102; dis- 
 cussion of this rule, 102 ; plaintiff reading answer must 
 read all passages substantially connected, 103 ; observations 
 on admissions generally, 105; competency of witnesses, 105; 
 grounds of incompetency, lOG ; idiocy, lunacy, infancy, lOCi; 
 absence of religious belief and infamy formerly ground of, 
 lOG ; also marriage, 100; how these affected bymndcrn statutes, 
 106 and 107 ; law is now that no interest of any kind is groinul 
 of incompetency, 108; nor crime of any kind, lOM; docu- 
 mentary, 109; documents of judicial kind, 109; prove them- 
 selves, 109; what are documents judicial, 109; idiot incom- 
 petent, 108; lunatic also in general, I'lJS ; but may give evidence 
 in lucid intervals, 108 ; deal and dumb may lie witne.-s-es, lii8 ; 
 person totally without religion incompetent, 108 ; what amount 
 of belief required, lOx, infancy qualified ground of incompetency, 
 108; must be shown that infant comprehends nature of oath 
 and consequences, 108; this a matter for the judge, \W : special 
 grounds of incompetency, 109 ; jirivilege of counsel and attorney, 
 109; medical man has no privilege, 10!!; nor clergymen, 109' ; 
 nor Catholic priest, 109; of foreign judgments, i.e., 110;
 
 EY IDE'S CE— continued. 
 
 in general copies of records admitted, 110 ; certificate of convic- 
 tion, 110; Queen's printers' copies of acts, 110; parish 
 registers, tiow proved. 111 ; letters patent, how proved, 112 ; 
 of specification of patent, 112 ; of documentary evidence not 
 of record, 112 ; deeds, &c., how proved, 112 ; more than 30 
 years old prove themselves, 112 ; effect of proof of execution, 112 ; 
 proof of identity when disputed, 112 ; letters how proved, 112 ; 
 whether witness is compellable to answer questions tending 
 to degrade himself, 116 ; semble he may be asked but is not 
 bound to answer, 116 and 117; cross-examination of witnesses, 
 117 ; party cross-examining, confined to matter relevant 
 to the issue, 117; unless it is matter affecting credit of wit- 
 ness, 117 ; best evidence must be tendered, 113 ; when second- 
 ary evidence admitted, 113 ; copies of deeds not admissible 
 without proof of destruction or loss of originals, 113; when 
 notice to produce originals must be given, 113 ; of witnesses, 
 114 ; mode of swearing, 114 ; of swearing Jews, 114 ; of Geutoos, 
 114; Quakers, 114; Slohammedans, 114; Chinese, 114; gene- 
 rally of persons not Christians, 114 ; accounts may be prima 
 facie evidence for party keeping them, 113 ; what requisite for 
 their being so received, 113; private entries in bibles, 113; private 
 entries in diaries, 113 ; private entries in family correspon- 
 dence, 113 ; evidence of tombstones, 113 ; rings, &c., 113 ; 
 examination in chief, 114; questions must be relevant, 114; 
 but great latitude allowed as to relevancy, 114 ; leading questions 
 must not be put, 114 ; witness cannot be called on to prove 
 orally contents of written documents, 115; documents must be 
 proved and then read, 115 ; witness can only prove what is in 
 his own knowledge, 115 ; not what he has been told, 115 ; wit- 
 ness not bound to criminate himself, 116 ; nor to give answers 
 •which create forfeitures or penalties, 116 ; leading questions 
 allowed in cross-examination, 117; re-examination, 118; con- 
 fined to matter relevant to the cross-examination, 118 ; must not 
 travel into new matter, 118; judge may permit questions as to 
 new matter, 118; but not if it touches the substantial merits, 
 118; witness may refresh his memory from memoranda, 118; 
 but may not read them as evidence, 118 ; hearsay, 120 ; when 
 admissible, 120 ; entries in family bibles, 120 ; in pedigree cases 
 without proof of the entry being by oneof thefamilj', 120 ; entries 
 in prayer books must be shown to have been made by a member 
 of the family, 120 ; so in almanacs, 120 ; family correspondence 
 admissible in pedigree, 120 ; on appeal to House of Lords, see 
 Appeal; what evidence to be now inserted in briefs for hearing, 
 135. 
 
 EVIDENCE (HEARSAY): 
 
 declarations when, 121 ; must be by members of family, 121 : not 
 by servants, friends, &c., 121 ; of persons connected by affinity, 
 ■when, 121 ; must be by members of family proved to be so 
 aliunde, 121 ; must be before commencement of litigation, 121 ; 
 that is, before commencement of the dispute, 122 ; evidence of 
 experts, 122; recitals in familj' documents admissible, 121; 
 engraving on rings, 121 ; charts of pedigree, 121 ; opinions of 
 engineers, architects, and the like, when evidence, 122 ; where
 
 EVIDENCE (IIEARSAY)-co«<.«MeJ. 
 
 secondary of documents allowed at liearinK, 135 ; oral at liearing 
 if court desires it, IStJ ; oral on motion for decree, 173 
 
 EVIDENCE IN CIlAMnERS: 
 
 mode of takint; in ciiauibers, I-IH ; evidence read at hearing; may 
 be used, 1-19 ; further evidence may be let in, 14'J; by atlidavii, 
 or, when directed, by interrogatories or fi'tvi voce, ll'.l; practice 
 same as before examiner, 149 ; any party may cross-examine 
 on affidavits, 149; examination before cliief clerk, l/iO ; counsel 
 cannot be hoard on, loO ; l)ut may if examined before judj^e, l.'iO; 
 costs of fees to, 1,50 ; affidavits to be tiled, and ollice co)»ie» 
 taken as on motions, I.'jO ; party usin;; nfliiiavit must Rivo 
 notice, 150 ; party examiniu}; or cross-examiiiin;; witnesses 
 must give forty-eight liours' notice to otlier side, 15(1; mode of 
 
 firocurinj^ attendance of witnesses, 15o ; witnesses not attending 
 iable for contempt, 150 ; mode of enforcing examination wlicn 
 ■witness refuses to answer before chief clerk, 150 ; time for closing 
 evidence, 150; mode of enhirging, 150; oral evidence taken by 
 chief clerk as by examiner, 151 ; when evidence closed, depo- 
 sitions to be filed, 151 
 
 EXAMINATION: 
 how defendant examined, 22 ; course when examined viva voce, 22; 
 course wlien examined on aflidavit, 22 ; certificate of chief clerk 
 thereon, 22; how objected to, 22; oral before master, when 
 refused, 244 ; cases on under sect. 40 of act, 244 ; of witnesses 
 under the act, App. 201 ; of party by court of ajipeal, 2 13 ; 
 when examined by Court of Appeal, 243; extension of time 
 for, 243 ; application of oral to old causes, 2»5 ; of married 
 woman at liearing, 16G 
 
 EXAMINATION (CROSS) : 
 depositions, how taken, 42 ; before whom, 42 ; course of obtaining 
 and conducting, 42 ; brief on, 42 ; on motion for decree, 51 and 
 244 
 
 EXAMINER : 
 
 duties of, 42; appointment of under statute, App. 2G2 ; jurisdic- 
 tion of, 202 ; appointment of out of jurisdiction, 242 ; power 
 of, 242 
 
 EXAMINER (SPECIAL) : 
 powers of, 45 ; ground of appointment, 45 ; motion for properly 
 in court not in cliambers, 45 ; but made sometimes in chamb- rs, 
 46 ; distinction when to be made in court and when in chamlxTs, 
 46; when appointed, 45; who may be, 45; how appointed, 45; 
 authority of, 45 ; what fees allowed, 210 
 
 EXCEPTIONS FOR SCANDAL: gee Sav>-D.\L. 
 
 EXCEPTIONS TO ANSWER : 
 
 time for filing, 25 ; exceptions disposed of by court at once, 
 25 ; of setting down exceptions, 20 ; time for, 20 ; exception 
 to rule as to time, 2(5 ; how set down, 2r. ; service of_ notice of 
 setting down, 20; how to proceed witii reference to, 25; modern 
 practice as to excepting, 25 ; how drawn, 25 ; must bo signed 
 [Cll.j 2 K '*
 
 rSDEX. 
 
 EXCEPTIONS TO ANSWER— coM^wiwec?. 
 
 by counsel, 25 ; copy of exceptions to be filed, 25 ; notice of 
 filing, 25 ; submitting to, 28 ; costs on, 28 ; when further answer 
 insufficient, 27 ; when third answer insufficient, 27 ; what notice 
 of setting down exceptions requisite, 28 ; how set down if not 
 submitted to, 101 ; if not set down within fourteen days from being 
 filed, answer held sufficient, tlOl ; briefs on, when defendant's 
 should be prepared, 101; hearing of, 101, 27, 28; course for 
 defendant when plaintiff excepts to answer, 100 ; defendant has 
 eight days to submit to exceptions, 100 ; if he submits he pays 
 20s. costs, loo ; and may then put in further answer within 
 three weeks, 100 ; mode of hearing argument of, 27 ; costs of, 
 when allowed or disallowed, 27 ; costs when some allowed and 
 others disallowed, 27; briefs on arguing, 26; when to be deli- 
 vered, 26 ; copy of interrogatories to be left with judge, 26 ; 
 of giving time to put in further answers, 27 ; Mhen old and 
 new exceptions, 29 ; practice as to amending and answering, 29 ; 
 time to answer on submitting to, 28 ; how obtained when excep- 
 tions have been set down, 28 ; notice of filing, 218 
 
 EXECUTION OF DECREE, see Decree. 
 
 EXHIBITS : 
 how proved, 63 ; to be marked by an examiner or other officer, 63 
 
 FEES: 
 
 to professional witnesses, 242 
 
 FIERI FACIAS : 
 writ of, 144 
 
 FILING : 
 
 of filing bill, 5; interrogatories, 11 ; effect of filing bill, 6 
 
 FOREIGN JUDGMENTS : 
 evidence of, 110 
 
 FORFEITURE: 
 witness not bound to answer, if answer may create forfeiture, 116 ; 
 question is for the judge, 116 
 
 FURTHER CONSIDERATION : 
 substituted for further directions, 162 ; notice of setting down to 
 be served, 1G2; briefs on, 162; court only proceeds on facts 
 found by certificate, 162 ; except under 13 & 14 Vict. c. 35, 163; 
 but may direct further inquiries if facts insufficient, 102 ; how 
 cause conducted, 1G3 ; as to making schedule part of briefs, 
 103; when certificate is in effect finding of law, 163; when 
 decree appealed from and altered, further consideration is before 
 the court below, 164; on further consideration court will not 
 decide matter not provided for bj' original decree, 164, 165 ; 
 preliminarj' decree should provide for all matters intended to be 
 considered on, 165 ; who may appear on, though not parties to 
 original decree, 165 ; observations on form of decree on, 165 ; 
 decree to be drawn uj), 167 ; as to preparing minutes on, 167 
 
 GENTOO : 
 mode of swearing, 114
 
 GUARDIAX: 
 appointiiHMit of, -202; presenting petition for infant, responsible f.ir 
 costs, 132 
 
 HABEAS CORPUS: 
 
 to bring up defendant in contenijif, 22 
 
 HEARING : 
 if plaintiff does not set down cause, defendant niav, 13-1; plaintiif 
 setting down, to serve subpcena to hear jutlgment, l.'JJ; t^i be 
 served in general on solicitor, l.'M ; but may be personal, l.!1 ; 
 must be ten days before return of snlip(jena, 131 ; time for setlinfj 
 down cause, 131 ; execution of dfeds may be proved ri'evi i (««; 
 or by affidavit, whether cause hoard on evidence or on bill imd 
 answer, 134; court may reciuirc oral evidence of substantial 
 matter, 13(i ; production of documents at, 135; when secondary 
 evidenceof admissible at, 135; as short cause, 137 ; what requi-ite 
 to hear cause as short cause, 137; plaintiff at hearing should 
 have affidavit of service of subpcena to liear judgment, h'lG; 
 effect if he has not, 130 ; defendant to have afhdavit of being 
 served, 13G ; effect if he has not, 130 ; course of hearing a 
 cause. 130; objection at for want of parties, if sustained, cause 
 stands over, and plaintitF pays costs of da}', 137 
 
 HEARSAY, see Evidence. 
 
 HOLIDAY; 
 •when day for setting down a demurrer, is a holiday, 13 
 
 HOUSE OF LORDS (APPEAL TO), see Appeal. 
 
 IDIOCY, see Evidexce. 
 
 INCOME: 
 what evidence for allowance of, 57tli section of act, App. 258 
 
 INDORSEMENT: 
 on bill, 5 
 
 INFANCY: 
 
 a limited ground of incompetency to give evidence, 108 
 
 INFANT : 
 
 cannot make admissions, 105 ; attachment against, 221 ; written bill 
 for making infant ward of court, 5 ; answer of, W ; should some- 
 times answer substantially, i>S ; petition by, 132 
 
 IMBECILE : 
 
 answer of, 09 
 
 IMPERTINENCE: 
 what is, 33 ; how dealt with, 33 ; time for applying for costs of 
 impertinent matter, 33 
 
 INtJUNCTIONS: 
 general nature of, G4 ; not obtainable on claim, 107 ; to restrain pro- 
 ceedings at law, 05 ; to restrain wrongful acts, CI ; ex partf 
 motion for, 51; when rnay be made, .'■•l; wl!"!'. notice requireil, 
 54 ; motion for, ex parte not till bill tiled, 55 ; must be 
 supported by affidavits, 55 ; by whom affidavits to be made, 
 55; requisites of affidavits, 55; party apjdying for -x 
 parte, must come quickly, 56; notice of order on, should be 
 2 K 2 "
 
 INJCXCTIOXS— cowi-mwef?. 
 
 given at once, 56 ; order for, rarely drawn up, 56 ; to star pro- 
 ceedings at law, 56 ; may be ex jmrte, 56 ; but onlj* under very 
 special circumstances, 57 ; not material now whether defendant 
 has filed answer and when, 76; affidavits may be read against 
 it, 76 ; oral evidence may be read against it, 76 ; particular 
 course in patent cases, 76 ; particular course in copyright, 77 ; 
 oral evidence cannot be taken in court on a motion, 77 ; when 
 destroyed by amendment of bill, 127 ; written bill for, 5 ; not 
 obtained on petition, 131 
 
 INJUNCTIONS TO RESTRAIN PROCEEDINGS AT LAW : 
 
 form of notice of motion, 67 ; how headed, &c., 68 ; service of, 68 ; 
 not dependent on answer, 68 ; course of the court in granting or 
 refusing, 68 ; practice before the statute, 69 ; same principles now 
 regulate, 69 ; proceedings under 68th section of act, 259 ; when 
 court grants injunction on terms, 70 ; effect of notice of the 
 order for an injunction, 70; as to suing out writ, 70; how 
 altered b}- 15 & 16 Vict. cap. 86, 65 ; not now for default of 
 appearance or answer, 65 ; exceptions, 65 ; how affected by the 
 Common Law Procedure Act, 65 ; general principles on which 
 a Court of Equity restrains proceedings at law, 66 
 
 INJUNCTIONS TO RESTRAIN PROCEEDINGS IN OTHER 
 COURTS, 67 
 
 INJUNCTIONS TO RESTRAIN WRONGFUL ACTS : 
 
 when granted, 72 ; when refused, 72 ; distinction when title 
 pureh' legal, and where the ground is fraud on the defendant, 
 72, 74; of opposing motions for injunctions, 74 ; no motion can 
 be made to dissolve injunction heard on both sides, 75 ; course is 
 to appeal, 75 ; where granted ex parte, course is to move to dis- 
 solve, 75 ; motion to dissolve how conducted, 75 ; on motion to 
 dissolve, defendant may cross-examine, 75 ; old practice on 
 affidavits on motions to dissolve, 75 ; now rendered inapplicable, 
 75 ; answers to be treated as affidavits, 76 ; in what kinds of 
 cases granted, 73 ; course of proceeding in moving for, 73 ; 
 ■what peculiarities, 73 ; as to evidence in support of, 73 ; title and 
 acts of injury must be proved, 73; ■v\hat the affidavit must be 
 on behalf of a patentee, 73 ; as to costs in, 79 ; costs when mo- 
 tion successful, but afterwards bill dismissed with costs, 79 ; costs 
 where motion refused, 79; costs where the principal of several 
 objects fails, 79; where costs not given or reserved tliough motion 
 fails, 79, 80 ; where motion refused, and nothing said about 
 costs, 80 ; when costs reserved, 80 ; costs when motion ordered 
 to stand over, 80 ; where motion refused, and fresh motion on 
 old affidavits, 81 ; as to directing issue, 78 ; no power to direct 
 case, 78 ; court will not in general determine legal right, 79 ; 
 course of court on, 78 ; when an action will be directed, 78 ; 
 course in case of nuisance, 78 
 
 INSPECTION, see Production of Documents. 
 
 INSUFFICIENCY: 
 of answer, see Exceptions. 
 
 INTEREST, see Decree.
 
 INTERROGATORIES : 
 delivery of to defendant, 10, 11 ; time for, 10 ; by wlioni 
 prepared, 10 ; must be signed bv counsel, 10 ; obsi-rva- 
 tions on frame of, 10, 11 ; general form of, 11 ; copied on 
 paper. 11; tiling, 11; stamping, 11; when evidence on, 17; of 
 examiiiing on, under old practice, 17, IH ; cross-examination on, 
 48 ; if none fded defendant not bound to aimwer, 92 ; to 
 amended bill, IG; delivery of, Ki; when to be filed before filing 
 bill, 11 ; where special leave to file requisite, 11 
 
 IRREGULARITY: 
 in order to amend bill waived by defendant accepting costs, 127 
 
 JEWS: 
 mode of swearing, 111; and see Evidence. 
 
 JUDGMENT : 
 
 record of, as evidence, 109 ; when right of judgment creditor takes 
 precedence of sequestration, 144 
 
 JURISDICTION : 
 
 to stay proceedings in courts of law, see bfJUNCnON ; in other 
 courts generally, 72 ; service on parties out of, 2G2 
 
 LEADING QUESTION, see Evidence. 
 
 LEGACY DUTY ACT : 
 paj^ment into court under, 216 
 
 LEGAL TITLE: 
 court will not in general determine on motions for injunction, 79 
 
 LEGATEE: 
 may appear on further consideration, though not party to original 
 decree, 165 
 
 LETTERS : 
 how proved, 112 
 
 LIEN: 
 for costs not prejudiced by attachment for, 222 
 
 LUNACY, see Evidence. 
 
 LUNATIC : 
 receiver in case of, 90 ; answer of, 99 
 
 MARRIAGE, see Evidence. 
 
 MARRIED WOMAN: 
 attachment against, 221 ; answer of, 99 ; petition bj-, 132 ; next 
 friend responsible for costs, 132 
 
 MASTER'S REPORT: 
 proceed! iiRS on, under old practice, and course of proiceding now 
 on chief clerk's certificate, IGO, 161 
 
 MEDICAL MAN: 
 
 not privileged from giving evidence of knowledge conlidentially 
 acquired, 109 
 
 2 K 3 "
 
 IMEMORANDA : 
 
 witness refreshing his memory by, 128 
 
 MINUTES: 
 
 of decree, of passing and entering, 138 ; how done, 138 ; how 
 settled, if briefs disagree, 138; of speaking to, l.'»9 ; of varying, 
 139 ; court never substantially varies, but only exjjlains and 
 gives coiisetpiential directions, 139; application to vary, only to 
 judge who made the decree, 139; when settled drawn up by 
 registrar, 139 
 
 MOHAMMEDAN : 
 
 how sworn, 114; and see En'idence. 
 
 MOTION : 
 
 distinction between what to be done by, and what by petition, 52; 
 are of two kinds, of course and special, 5"2 ; what are of course, 
 52; must be made on a true statement of facts, 52 ; otherwi.-e 
 will be discharged, 53 ; motions in general must be made by 
 counsel, 53 ; what, require only signature of, 53 ; course now 
 generally by petition of course, 53; witnesses on, to be served 
 with siibpaim ad tcslijlcaiuliim, (51 ; time for serving them, 01 ; 
 aflidavits in reply, and counter-affidavit-^, G2 ; when affidavits 
 cannot strictly be read on motion, 1)2 ; evidence on, 61 ; 
 atHdavits must speak in the tlrst person, 61 ; otlice co|nes of 
 evidence should be in court, 63 ; how many counsel allowed, 
 64; principle of taxation, 64; briefs on, of what they consist, 
 63; evidence of exhibits, 63; when all parties not served, 61 ; 
 when service must be personal, 61 ; when to be made on notice 
 generally, 46 ; time for serving notice of, 46 ; no notice of, can 
 be served on a defendant before appearance without leave, 92 ; 
 form of proof of exhibits, ii'o ; for payment of money into court, 
 212; must go on the answer, 212, and see Payment into 
 Coi'KT ; for leave to bring ejectment against sequestrator, 145 ; 
 affidavits in opposition to motion, 61 ; cross-examining upon, 61 ; 
 how cross-examination conducted, 61; notice to opponent of 
 cross-examination, 61; appeal, under Winding-up Acts, 170; 
 what evidence on, 170; to what court, 170; what time for 
 notice of, 170 ; appeal from order made on, 172 ; made on 
 notice of, without any petition of appeal, 172 ; notice of, by 
 whom prepared, 172; as to costs of settling by counsel, 172; 
 appeal heard on evidence below if strictly appeal, 172 ; 
 but new evidence may be introduced, 172 ; but then it is an 
 original motion, 172 ; effect of converting appeal motion into 
 original motion, 172 
 
 MOTION FOR DECREE: 
 
 when plalntitr" may proceed by, 49 ; a month's notice to be given 
 to defendant, W : atliJavit to be tiled before service of motion, 
 49 ; list of plaintitfs alHdavits to be given, 49 ; cross-examination 
 on, 244 ; is a proceeding under 40tb section of the act, 244; when 
 defendant's atVulavits to be tiled, 49 ; when affidavits in reply, 
 49; they must bo strictly in reply, 49; no further evidence 
 after affidavits in reply, without leave, 50; right to, not prejudiced 
 by court giving time to plead, answer or demur, 50 ; form of 
 affidavits, 50 ; is the hearing of a cause, 50 ; when to be set down.
 
 MOTION FOR DECREE— iwirifi.K'J. 
 
 50; may l>e heard as short cause, oO : iu'ti,.'..f. iii.i\ 
 out of as well as within the jurisdi. uii, iti ; 
 
 when answer of defendant may be rv . ilant. 51 ; 
 
 parties may - - ■■ :- •' .. .„^ 
 
 ptena aii tt.<- !,pr 
 
 oral evident m 
 
 heard on muuou, Lui iu souio rcjutcu dtali wiUi a 
 173 
 
 MOTIONS IN CHAMBERS: 
 in chaml^ers, 53; special motions where made. 53; two rt*iiM* of, 
 53; what require notice, 53, 54 ; what ni . ' ' n-fe, 
 
 54: special motion must besupporteil by . ■\ ex 
 
 parit; motion may be made, 54 ; what uioti ^2; 
 
 general rule on this subject, )S2 ; motions in clianiUrs uiaJc on 
 summons, ?<2 ; time for serving summons, 8"2 ; sunimoiwon uotic« 
 must be supported by affidavits, 82 ; parties may examine 
 witnesses orally. 83; examination before judge's clerk, not 
 examiner, 83; notice of usint; affidavits in r?i-imV'^r=. 8.1; 
 order must be entered, 85; time for api'lying to Xo: 
 
 distinction where judge has heard motion, and I'-r- 
 
 mally signed clerk's certificate, 85; what iii in 
 
 chambers, 81, 8'2 : certiticate of clerk, how to l>< all 
 
 with, 84 : mode of and time for objection tf^. '^ ■ of. 
 
 by judge, 85; no order till signed by ju " ■ to 
 
 be transmitted to Report-office, f<5 ; cor. a it- 
 
 nessos in, 83; judge's clerk cannot hear ■ - -i of 
 
 evidence to be used in chambers, 84 ; nature ol aiiidavits for 
 special le^ive to amend bill, 84 ; ditto, after replication, 84 ; by 
 whom affidavit to be made, 84 ; examinations to be transmitted 
 to Record and 'Writ office, 85 ; parties may have copies of, 85 
 
 MOTIONS OF COURSE: 
 what are motions of course, 81 
 
 MOTIONS ON NOTICE: 
 bv whom notice prepared. 59 ; how headed and addressed. 59; should 
 ?tat-^ by and against whom, 59 ; when allowed to stand over,69 . 
 -: ■ i" state what relief a^ked, 59; need not tak for costs in 
 
 ^- .: :.il, 59; when it should, 59 
 
 NE EXE.\T: 
 
 V hat it is, 57 ; may go on a claim of alimony, 'i7 ; i? nlTvny* er 
 
 . i7; the affidavit must b« positive a:. -•at* 
 
 : _ ■ abroad sufficient. 57: sometimes -uf- 
 
 .- K .f Tvhen not, 57; debt mu.-; , j-er- 
 
 ■""*; a certain sum due must be shown, 58; 
 ^ It^ must be pr~?'!<^, 5"*: wh<»Ti s written bill 
 
 V ;.■ ... -j^ ; w;i-.n motiun m.i-- ' > be 
 
 t.iki r. when no registrar pr^ >»ti 
 
 up, A:c., 58 ; form of writ of. ~ ' jp> 
 
 due, 59 ; execution of, 59 ; writteu bili fur, 5 ; auicuiiiug bill 
 does not discharge in general, 127 ; when it does, 127 
 
 NEXT FRIEND : 
 presenting petition for married woman, responsible for costs, 132
 
 NON EST INVENTUS : 
 
 return of, 7 
 
 NOTICE : 
 
 of filing plea, 16 ; to witnesses of examination, 41 ; on cross- 
 examination practice to give forty-eight hours, 42; when service 
 of must be personal, 61 ; of filing exception to answers, 25; to 
 
 ' defendant's solicitor of setting down demurrer, 13 ; requisite 
 notice of cross-examination on motions, 61 ; of filing demurrer, 
 plea or answer, 218 ; of exceptions, 218 
 
 NOTICE OF MOTION : 
 
 form of, 60 ; when it should embrace several objects, 60; when to be 
 served, 60 ; for when to be given, 60 ; when and how may be 
 given for a day not a seal day, 60 ; short notice of motion, 60 ; 
 what it should express, 60 ; ou whom to be served, 60, and see 
 Motions 
 
 OBSERVATIONS : 
 
 drawn bj' solicitors, on briefs, 26 
 
 OFFICE COPY : 
 of interrogatories, 11. 
 
 ORDER : 
 
 to pay money, how enforced, 142 ; or to do any other acts, 142 ; 
 for injunction rarely drawn up, 56 ; in strictness should be, and 
 writ obtained, 56 ; but party may be committed for breacli 
 though order not drawn up, 86 ; 11th order of 1841 does not 
 apply to default in producing deeds, 143 ; how to be pro- 
 ceeded on, 143 ; must state time when act to be done, 143; indorse- 
 ment on copy of order served, 143; effect of notice of order 
 for an injunction, 70 ; order against persons not parties to cause, 
 143; for payment into court, how served, 215 ; enforcing order 
 under orders of 1839, 144; apply only to orders for payment of 
 money or costs, 144 
 
 OUTLAWRY : 
 plea of, 79 
 
 OVERCHARGE, see Taxation, 229 
 
 PARISH REGISTERS: 
 as evidence, 111 
 
 PARTIES : 
 
 what service on when defending in person, 218 ; objection for want 
 of parties at hearing, 137 ; under 42nd section of act, 246, 247 ; 
 when decree made in absence of some, under 51st section of act 
 of act does not bind absent parties, 254; objection for want of, 
 at hearing, 137 ; under 42nd section of act, 246, 247 
 
 PARTNERS, see Receiver: 
 
 of receivers between, 91 ; of pa3'ment of money into court as 
 between, 215 
 
 PATENT : 
 
 how proved, 112 ; special evidence requisite on motions to restrain 
 infringement of, 77; on injunction to restrain infringement of 
 what affidavit must be filed, 73
 
 PAYMEN r : 
 of money ordered to be paid, liow enforced, 112 
 
 PAYMENT INTO COURT : 
 no affidavit on, to contradict answer, 213 ; nor to explain it, 213 ; 
 norto expLiin as to title when answer is,mores it, 213; in general 
 motion against trustees or executors, 211 ; but not supported in 
 every sucli case, 214 ; always wiien trustee lias niisnpplied, 214 ; 
 rule applies to implied trusts, 215 ; applies aj^ainsi auctioneer, 2 15 ; 
 so, as between partners, 215; when not, 215; plaintilfs title 
 must be admitted, 212 ; what a sufficient admission, 212 ; what 
 not, 213 ; receipt of money must be admitted, 21.'i ; what sufficient 
 admission, 213 ; what insufficient. 213 ; obtained on motion on 
 notice, 215 ; who should be served, 215 ; how order for served, 215 ; 
 course of complying with order, 216; payment under Legacy 
 Duty Act, 216; under Trustee Relief Act, 216 
 
 PEDIGREE, see Hearsay Evidence. 
 
 PENALTY : 
 
 witness not bound to answer if answer may expose him to pen- , 
 alties, 116; question for the judge, 116 
 
 PETITION: 
 generally, for what objects, 131 ; how headed, 132 ; for what court 
 to be "marked, 132; by whom drawn, 132; what statements it 
 should contain, 132; when unnecessarily long, 132 ; draft copied 
 on paper, 132 ; copy to be left with secretary of judge and to be 
 served on parties interested, 132 ; what parties ought to be 
 served, 132 ; time for service, 133 ; allegations of, how supported, 
 133 ; what parties entitled to costs, and when parties served having 
 no interest, appear, 133 ; how petition set down, 133 ; in what 
 order petitions heard, 133; briefs on, 133; no injunction on, 
 133; who may present in a suit, 133; when, on behalf of an in- 
 fant or married woman, 132 ; amending defective, 133 and 262 ; 
 how amended, 134; wiien new jietition requisite, 134; no decla- 
 ration of rights on, 134 ; meaning of that rule, 134 ; costs of, when 
 unnecessarily long, 206 ; what is and what not improper length, 
 206 ; of appeal, 174 ; briefs on, 174 
 
 PETITION OF COURSE: 
 to whom addressed; 13; how conducted, 13; must be filed, and 
 where, 13 ; should state for what court bill marked, 13 ; order 
 upon, 13 
 
 PLAINTIFF: 
 title of, how stated in bill, 2; description of, in bill, 207 
 
 PLEA: ^ . _, ,, , 
 
 time for pleading, 11 ; of advising on, 16 , settmg down, 16 ; sub- 
 mitting to, 16 ; costs of plea submitted to after setting down, 
 17 ; when leave given to amend bill after plea, 17; notice of filing. 
 218 ; of defence by, 16 ; what is a plea, 16 ; notice of filing, 16 ; 
 bow set down, 17 ; when put in the paper, 17; how argued, 1/ ;
 
 PLEA — continued. 
 
 costs of, when allowed on argument, 17 ; effect of overruling 
 plea, 17 ; time for setting down, 17 ; when leave to amend re- 
 fused, 18 ; when irregular to plead, 18 ; of amending plea, 18 ; 
 leave to amend obtained on special application, 18 ; plea to be 
 copied on parchment, 95; and filed, yj; and notice given of 
 filing, 95 ; pleas requiring to be sworn must be signed by defen- 
 dant, 95 ; when plea must be on oath, 96; when not, 95 ; either 
 party may set down, 96 ; if not set down by plaintiff within 
 three weeks from filing, will be taken to have submitted, 96 ; 
 plea how set down, 17, 96 ; Mhen court allows plea, may be with 
 or without liberty to amend bUl, 96 ; costs of, 96 ; if overruled, 
 generally with costs, 96 ; plea allowed without liberty to amend 
 puts bill out of court, 96 ; when ordered to stand for answer, 18 ; 
 when with liberty to except, 18 ; if with liberty to except, plain- 
 tiff entitled to costs, 18; when no declaration about liberty to 
 except, 18 ; effect ofsetting down simply, 18 ; of replying to, 19 ; 
 of outlawry, 19 ; of former decree, 19 ; plea must be filed within 
 fourteen days after service of interrogatories, 95 ; within twelve 
 days from appearance, if no answer required, 95 ; must be signed 
 by counsel, 98 
 %PLEA AXD ANSWER, 18 
 
 PRAYER : 
 
 of bill, 3 ; for general relief, 4 
 
 PRESSURE, 229: 
 see Taxation. 
 
 PRESUJIPTIONS, 118 : 
 
 are of law or of fact, 119 ; what are presumptions of law, 119; what 
 are presumptions of fact, 119 ; examples of presumptions of law, 
 119 ; presumption against truth of a witness generally, when part 
 of his evidence false, 120 ; and see Eviden'ce 
 
 PRETENCES : 
 in bill, 3 
 
 PRIEST : 
 
 catholic, compellable to give evidence of matter confessed, 109 
 
 PRINTED CASE: 
 time for delivering, 177; number of copies of, and joint appendix, 
 177 ; and see Appeal to House of LoPvDS 
 
 PRINTING : 
 
 of printing bills, 5 
 
 PRIVILEGE, see Production of Docusients. 
 
 PROBATE: 
 see as to being evidence, 109 
 
 PROCEEDING ON DECREE, see Decree. 
 
 PRO CONFESSO: 
 
 taking bill jiro confesso, 10 ; course of proceeding by, 23 ; where 
 defendant absconding, 23 ; cause must be set down notwith- 
 standing order, 24 ; what affidavit requisite, 24
 
 PRODUCTIOX : 
 form of order for, and afBdavit, 31 ; form of allidavit on producinK, 
 32; wlu-re two objects should be included in one ni-'tinn, -jnG ; 
 defendant's right to, 3(1; to be applied fur under siatiite in cham- 
 bers, 31 ; distinction between order for production and for deposit, 
 31 ; production of documents on answer may still be made on 
 admissions in the answers, 8o ; motion must be on notice, W; ; 
 form of notice, 8(! ; motion cannot be supported on allidavits, «*", ; 
 brief on, of what it consists, 88 ; usual order to leave with clerk 
 of records and writs, ^8 ; when order to inspect at dtfendaut's 
 office, 88; as to sealing up parts of documents, 88; allidavit on, 
 88 ; no evidence admissible against such affidavit. K8 ; production 
 by plaintiU' on motion by defendant, 81) ; co-defendant not made 
 to produce without cross-bill, 80; answer must be positive, 87; 
 when answer ignores the possession, 87; what are privileged docu- 
 ments, 87; privilege that of the client not of tlie solicitor, 8" ; 
 , semhle, the doctrine would not be extended, 88 ; common order 
 upon, 90 ; who at liberty to inspect under, DO ; cannot be moved 
 for on original bill after amendment, 127 
 
 PRO IXTEKESSE SUO : 
 motion for examination, against sequestration, 115 
 
 PUBLICATION : 
 
 enlarging, 262 
 
 QUAKER: 
 how sworn, 114 
 
 RECEIVER : 
 
 what a receiver is, 90 ; only appointed in suits, 90 ; exception in 
 case of lunatics, 90 ; not formerly in general before answer, 90 ; 
 and only on admissions in answer, 90 ; exceptions, 90 ; 
 but now on affidavits, 90 ; motion must be on notice, 90 ; not 
 appointed against party in possession under legal title, 90 ; 
 unless he liolds in fiduciary character, 90 ; but doctrine 
 only applies where plaintiff has only equity, 91 ; if plaintiff 
 claims legal title receiver may be appointed, 91; case of danger 
 or misconduct must be made against trustees and executors, 91 ; 
 or bankru|)tcy or insolvency, 91; not on mere poverty, 91 ; will 
 be appointed in partnersliips, 91 ; where misconduct jiroducing 
 danger, 91 ; motion must be in first instance to the court, 91 ; 
 renewal of receiver may be in chambers, 91; motinn must 
 be supported by affidavit of merits, 91 ; proceedings under 
 order to appoint, l.J7; may be obtained on claim, 187; 
 proposals for to be supported by affidavit, 157 ; all parties 
 served with summons, 157 ; who may and who may not be, 157 : 
 duties of receiver, 157; tenants must attorn to him, 157; how 
 compelled to do so, 157 ; receiver not in general to nnike 
 application himself, 157 ; nor to pay ai'.y t.'iing without 
 order, 158; exceptions, 158; may let, set and manage, 158; 
 proposals for, to be taken before chief clerk at once, 15x; as to 
 bringing in and passing accounts, 158; prepared by diiif clerk, 
 158; how accounts entered, 159; chief clerk's certifuatc on, 159; 
 to be filed, 159 ; course for receiver paying in money, 16a ;
 
 RECEIVER— con<iwwerf. 
 
 course for compelling him to do so, 159 ; when sureties liable, 
 lo9 ; how they are proceeded against, 159 ; of vacating recog- 
 nizances, 159 ; how order obtained, 159 ; must be drawn up, 
 marked and enrolled, 159 
 
 RE-EXAMINATION, see Evidence : 
 when it must take place, 43 
 
 REHEARING : 
 
 Master of the Rolls or Yice-Chancellor may rehear his own decree, 
 169; but not decree of any otlier judge, 1G9 ; unless orders of 
 course, 169; any judge maj' rehear order of course, 169; but 
 application should be made to judge to whom special application 
 in same cause made, 170 
 
 RELATOR : 
 
 costs of, 205 ; not if the case might have been on petition, 205 ; 
 if information causeless, relators pay costs, 205 
 
 RELIGION : 
 
 pure theist competent witness, 108; so Mohammedan, 108; and 
 see Evidence 
 
 REPLICATION : 
 
 Jiow prepared, 34 ; notice of, to defendant, 35 ; only one replication 
 regularly, 35 ; more than one may be ordered, 35 ; course when 
 more than one replication inconvenient, 35 ; leave to amend after, 
 126 ; terms on which leave to withdraw replication granted, 35 ; 
 against whom replication to be filed, 35 ; dismissing bill for want 
 of replication, 36 ; when defendant not required to answer, 36 ; 
 filing, 34 ; effect of, 34 ; time for filing, 34 ; not necessary on 
 motion for decree, 50 ; notice of filing, 218 
 
 REPRESENTATIVES : 
 
 under 44th section of the act, 248, 249 
 
 RETURN : 
 
 of attachment, 7 ; when party in London is twenty miles from 
 it, 7 ; when more than twenty miles from London, 7 
 
 REVIVOR : 
 
 bills of, still sometimes requisite, 124 ; orders for under statute. 128; 
 to have effect of orders on bill of, 129 ; when bill of revivor simply 
 formerly, 128 ; when bill of supplement requisite, 128 ; effect on, of 
 15 & 16 Vict. cap. 86, 128 ; whether appearance of defendant to, 
 requisite, 130 ; semble it is, 130 ; order fur under statute, 130, 255 ; 
 order for of course. 130, 256 ; to what cases the 52nd section 
 of the act applies, 129, 130 
 
 RINGS : 
 engraving on, when evidence, 113 
 
 SALE : 
 
 preparing advertisements, 154 ; plaintiff" in general conducts sale, 
 
 154 ; preparation of conditions, 154 ; judge or chief clerk may 
 
 fix reserved biddings, 154 ; and appoint person to receive deposits, 
 
 154 ; abstract must be laid before the conveyancing counsel.
 
 INDEX. 
 
 SALE — continued. 
 
 154; co|)ies of particulars and conditions to be printed and 
 given to nil ))arti(>s, 1,54; lu-rson appointed to conduct sale 
 biddings, how vcrifK'd, 1.35; of clerk's ccrtilicate of sale, 155 ; 
 biddings, how and when opened, 155; as to what suflicient ad- 
 vance lor, 155 ; when purchaser should investigate title, 165; 
 of i)urchaser paying in purchase nionev. 155 ; of compelling 
 purchaser to pay in, 155; how order carried out, 155 : »( ])ur. 
 chaser preparing conveyance, 155 ; to be settled by chief clerk 
 if parties ditfer, 155 ; of costs of reference to conveyancing 
 counsel, 155 ; proceedings when purchaser objects to title, 156 ; 
 how purchaser discharged, 15G; how proceeded against when 
 neglects to obey order to pay in purchase money, 15() ; course 
 when title doubtful, 157 ; under sect. 55 of act. Ajip. 258 : undt-r 
 sect. 48 of act, 242 ; under statute, App. 262 
 
 SCANDAL : 
 
 what is, 33 ; exceptions for, 33 ; signed by counsel, 34 ; when to 
 be set down, 34 ; how set down, 34; how argued, 34; expung- 
 ing scandalous matter, 34 
 
 SCIENTIFIC WITNESSES, see Evidicnce. 
 
 SECONDARY EVIDENCE, see Evidence. 
 
 SECURITY FOR COSTS: 
 when plaintiff must give, 207; when living abroad, 207 ; where 
 if only for temporary purpose, 207; when plaintitl" not properly 
 described, 207 ; what insufhcient description, 207 ; when insuf- 
 ficient security given, 207 ; only when residing abroad v(duntarily, 
 208 ; not from a seafaring man, 208 ; nor for an oOicer abroad 
 on duty, 208; security if abroad not on duty. 208; plaintiff 
 may deposit nionej", 208 ; amount fixed by chief clerk, 208 ; 
 when not ordered 208 
 
 SEQUESTRATION AND SEQUESTRATOR: 
 proceedings by, to take bill pro conj'esso, 24 ; writ of, on what 
 founded, 24; how prepared, 24 ; contempt to disturb possession 
 of sequestrator, 145 ; course of party objecting to title of, 145 ; by 
 motion for leave to bring ejectment, 145 ; or to be examined. 145; 
 mode of conducting the examination, 145; sc(|uestrator liable for 
 excess in exercise of authority, 145 : distinction where irn-gu- 
 laritj' of order, and where irregularity in conduct of otlicer, 145; 
 sequestrator what, 144 ; when his right accrues, 144 ; his rights 
 and liabilities, 144 
 
 SERJEANT AT ARMS, 24 
 
 SERVICE : 
 
 on parlies out of jurisdiction, 262 ; supplemental order nuist be 
 served, l.'iO ; whether appearance of defendant to, rc<j!:;rite, 130 ; 
 sembk, that it is, 131 ; time for serving petitions, I'S.i ; what is 
 usual service, 217; address for service, 217 ; when no solicitor 
 emploved, "/ll • service to be, when not personal, before eight in 
 the evening, 218; of printed bill, 21.S; of amended bill, 21H ; ot 
 summonses, 2_'0 ; duidicateto be tiled, 220 ; copit s t.i be stamped, 
 220; time for serving, 220; of injunction, 220; slmuld strictly 
 [ciI.] 2 L
 
 SEKVlCE—continmd. 
 
 be personal, 220 ; service of writ, 220 ; usually only copy of 
 order, 220 ; effect of service of bill, 6 ; how effected, 6 ; substi- 
 tuted, G and 8 ; when on solicitor of party, 6 ; how made on 
 solicitor, G; when defendant absconds, G and 8 ; what usual time 
 of, 218; what days do not count, 219; short service, 219; 
 abroad, 219 ; how made, 219 ; what time limited, 219 ; copy of 
 order must be served, 219 ; of subpoena to hear judgment, 220 ; 
 when personal required, Gl ; when on solicitor, 61 ; affidavit 
 of on hearing a demurrer, 14 
 
 SETTING DOWN: 
 cause, how set down, 134; certificate to be taken to secretary of 
 rolls if cause there, 13o ; to registrar's office, if before a Vice-Chan- 
 cellor, 135 ; when cause put in paper, 135 ; when briefs to be 
 delivered, 135 ; exceptions to answers, 26, and see Exceptions ; 
 time for setting down plea, 17 
 
 SHERIFF: 
 
 not finding defendant, 7 
 
 SHORT CAUSE, 137 
 
 SOLICITOR : 
 authority of to file bill, 4; when doubt of authority, 4; liability 
 of, in filing bill without authority, 4; when several plaintiffs, 
 authority of all requisite, 4; authority to, to file bill should be 
 in writing, 4 
 
 SPECIAL CASE, 179 
 
 difficulties attending, 180 ; how entitled, 180 ; as to infants, &c., 
 parties, 180; liow framed, 180; form of, 181; must be signed 
 by counsel, 181 ; and engrossed and filed, 181 ; plaintiff only 
 takes office copy of special case, 181 ; lunatic party to, 182 ; 
 husband and wife, 182; infant, 182; of special guardians for, 
 182; of discharging special guardian, 182; effect of decree in 
 special case on rights of parties, 182 : when leave to set down must 
 be obtained, 182; when statements in must be verified, 182; of 
 setting down special case, 183 ; of hearing, 183 ; what briefs on, 
 183 ; when court may refuse to decide, 184 ; court has no power 
 to bind rights as on bill or claim, 184; butonly questions of doubt- 
 ful construction, 184 ; costs of, 181 ; decree on may be reheard or 
 appealed, 184 ; as to order suspending acting on decree, 184 ; 
 how applied for, 185 ; evidence on special case, 185 ; general 
 observations on sjiecial cases, 185 
 
 SPECIAL CIRCUJISTANCES : 
 
 libert\- to state, not needful in decree, 263 
 
 SPECIAL DIRECTIONS, under 54th section of act, App. 257 
 
 SPECIFICATION : 
 how proved, 112 
 
 STAMPING : 
 
 bill, 6 
 
 STATUTES : 
 
 evidence of, 110 ; on evidence of foreign judgments, &c. 110
 
 STAY OF PROCEEDINGS: 
 staying execution of deeree, 109 ; application to judge who pro- 
 nounced decree, IG'J ; appeal from, Kl',); as to costs on, KI'J; 
 mere pendency of appeal not ground for, 1G7 ; where and when 
 irremediable danger of loss of benelit to api)ellant will do, 107 ; 
 to whom, 1G8; etl'ect of authorities on this point, 1G» 
 
 SUBPai:XA AD TESTIFICANDUM, 51, 283 
 
 SUBPCENA DUCES TECUM, 51, 283 
 
 SUBPCENA TO APPEAR: 
 abolition of, 5 
 
 SUBPCENA TO HEAR JUDGMENT: 
 
 service of must be ten days before return, 13-1 ; what good serTice 
 of, 220 ; copy to be served on each defendant, 220 ; time for 
 serving, 220 
 
 SUBSTITUTED SERVICE: 
 of subpcena to appear and answer bill of revivor, 8 ; when granted 
 on solicitor, 8; when refused, 8; general principle of allowing 
 substituted service, 9 ; of decree, 220 
 
 SUMMONS : 
 to appear to bill, 5 ; time for serving summons in nature of 
 motion, 46 ; service of, 220; duplicate to be tiled, 220 ; copies 
 to be stamped, 220; for administration, 11)0; afiplies only to 
 personal estate, or to real estate at the suit of creditors, I'Jl ; as 
 to form of summons, 11)1; summons obtained ex /Kjr/f", 191; copy 
 must be filed, 191; order made upon, 191; order usually com- 
 mon decree for accounts, 19 ; but there may be special direc- 
 tions, 191; chief clerk's certilicate under, 192; no declaration on 
 adjourned, 279 ; for administration of personal estate, 251 ; of real 
 estate, 251 
 
 SUNDAY: 
 
 w hen day for appearance expires on, 11 
 
 SUPPLEMENT: 
 bills of, still sometimes required, 124 
 
 SUPPLEMENTAL BILL: 
 when requisite formerly, 128 ; when now, 287 
 
 SUPPLEMENTAL DECREE : 
 when made under 52nd section of act, cases upon, App., 2.15, 25C 
 
 SUPPLEMENTAL ORDER : 
 must be made in court, 130 ; does not require [iroof of allegations, 
 130 ; practice on drawing up supplemental stafonieut, 130 ; 
 statement to be engrossed, 130 ; and tiled, 130 ; and served, 130 
 
 SUPPLEMENTAL STATEMENT : 
 
 if answer required, interrogatories to be filed, and when, 131 ; 
 bow discharged, l.'il; when not applicable, 130; by way of 
 amendment under statute, 129 
 
 SURPRISE: 
 
 not ground for vacating cnrolmeut of decree, 140
 
 TAXATION : 
 
 how carried on, 209 ; difference between taxation as between party 
 and party, and a* between solicitor and client, 209 ; examples of, 
 209 : what not allowed in taxation as between solicitor and client, 
 
 209 ; fees to special examiner, 210 ; in suits, 208 ; by reference to 
 taxing masters, 208 ; made to them in rotation, 209 ; petition 
 may be before a vice-chancellor or the master of the rolls, 229 ; 
 as to necessity of solicitor signing the bill, 229 ; it is for the 
 client's protection, not the solicitor's, 229 ; what fees to counsel, 
 
 210 ; what, on further consideration, 210 ; reasonable expenses in 
 taxation as between party and partj-, 210 ; on what matters, 211 ; 
 petition of course discharged, if solicitor denies the enjploj'ment, 
 228; who may present petition, 228; two may, if three emploj' 
 attornej' jointly, 228 ; but the third must be served, 228 ; between 
 solicitor and his client personallj-, 222 ; regulations of G & 7 Vict, 
 c. 73 thereon, 222 et seq. ; no application to tax but within twelve 
 months after delivery of bill, 226 ; or within twelve months 
 after payment, 226 ; except under special circumstances, 226 ; 
 what are special circumstances, 226 ; overcharge alone insuffi- 
 cient, 226 ; overcharge and surprise, or overcharge and pressure, 
 requisite, 226 ; case thereon, 227; what is pressure, 227; what 
 is not, 227 ; when doubtful agreement for costs, 227 ; when 
 agreement clear, 227 ; when master may take account, and what 
 account, 227; special petition must set forth the special circum- 
 stances, 227 ; but not the items. 227 ; but contra, 228 ; taxation 
 may be for business out of court, 228 ; but must be business 
 properly of attorney, 228; wUen the petition is of course, 228; 
 Avhen special, 228 ; what fees to counsel attending in cljambers, 
 211 ; payment of bill, admission of its correctness, 229 
 
 TAXING MASTER, see Taxation : 
 how his certiticate proceeded on, 211 
 THEISr, see Evidence. 
 
 TIME: 
 
 for setting down plea, 17; to answer, on submitting to exceptions, 
 28 ; to answer obtained in chambers, 28 ; when application to be 
 on notice, 28, 29 ; of vacation, when not reckoned, 13 ; for closing 
 evidence, 46, 243; for cross-examining, 46, 243; when time 
 begins to run, 47 ; as to enlarging time for evidence, 47 
 
 TIME (ENLARGED) : 
 
 if plaintiff wishes to enlarge time for evidence, he serves all the 
 defendants entitled to examine witnesses, 102 ; if any party 
 enlarges time, all others may profit by it, 102 
 
 TITLE : 
 
 meaning of, on motions for production, 86 ; bow stated in bill, 2 
 
 TOMBSTONES : 
 inscription on, 113 
 
 TRAVERSING NOTE : 
 
 effect of, 23 ; when to be used, 23 
 
 TRUSTEE RELIEF ACT : 
 payment into court under, 216.
 
 TRUSTEES, see Receivers : 
 of receivers against, 23 
 
 VACATION . 
 vacation judge, 54 
 
 VENDITIONI EXPONAS : 
 writ of, li4 
 
 VENDOR AND PURCHASER: 
 payment of money into court as between, 215 
 
 WAIVER: 
 defendant accepting costs waives irregularity in order to amend 
 bill, 127 
 
 WITNESSES : 
 what notice to be given of examining, 41 ; plaintiff examining 
 defendant, does not injure his right to a decree, 11 ; fees to 
 professional witnesses, 242; witness refusing to be sworn or 
 answer, 43 ; course to compel him, 43 ; demurring to question, 
 43 ; how his demurrer proceeded upon, 43 ; subjawiia to require 
 attendance of, 283 ; examination of, 2G1 
 
 WRIT: 
 of lie exeat, form of, 58 ; must be marked with the sum due, 59 ; 
 execution of, 59; of injunction as to suing out, 70 ; of assistance, 
 143 ; of Ji. fa. and ekgit, 144 ; of vet^ioni exponas, 144 ; of 
 execution abolished, 142 
 
 London: Printed by John Crockford, 29, Essex Street, Strand. 
 [CH.] 2 M
 
 SCHOOL OF LAW LIBRARY 
 
 UNIVERSITY OF CALIFORNIIL 
 
 LOS ANGELES
 
 isoNiQiinanvMiHoovl 
 ^Xd3a-Il0iyg I 
 
 uc SOUTHERN REGIONA. 
 
 UU0 8U2 129