sa ee eri: patina i ‘ , eae sat Coruell Gam Shaul Library Marshall Equity Collection itt of £. I. Marshall, OG. B. 1204 CORNELL UNIVERSITY LIBRARY THE GENERAL ORDERS, AND STATUTES, RELATING TO THE PRACTICE, PLEADING, AND JURISDICTION OF THE COURT OF CHANCERY FOR UPPER CANADA, WITH COPIOUS NOTES, COMPILED FROM THE ENGLISH REPORTS AND CONTAINING A SUMMARY OF EVERY REPORTED CANADIAN DECISION THEREON, AND A BOOK OF FORMS, BY RICHARD SNELLING, LLB, STUDENT-AT-LAW, AND FREDERICK T. JONES, SOLICITOR. TORONTO: HENRY ROWSELL, LAW BOOKSELLER AND PUBLISHER, KING STREET EAST. 1863. TO THE HONORABLE PHILIP MICHAEL MATTHEW SCOTT VANKOUGHNET, CHANCELLOR OF UPPER CANADA, ETC., ETC, ETC., THIS WORK IS, WITH HIS PERMISSION, MOST RESPECTFULLY INSCRIBED. PREFACE. It is not without a considerable degree of diffidence, and some degree of apprehension, that we venture to intrude ourselves upon the notice of the profession at so early a period of our professional career. With the exception of a work by Mr. T. W. Taylor, published as ‘Taylor’s Orders,” in 1860, in which he collected the orders of court then in force, and of which he has, since the announcement of this work, issued a second edition, no work has yet appeared upon the practice of the Court of Chancery in Upper Canada. The Acts and Orders relating to the jurisdiction and practice of the court, have, up to the present time, been scattered and difficult to be procured. They have never been consolidated and arranged in a single volume. It is true that there are numerous ex- isting treatises published in England on Chancery Practice, and although, on the one hand, they are approved as indicating the practice of the court, yet, on the other hand, a very large proportion of the commentary is in- applicable to the proceedings of our own court. The object of the present volume is to give all the orders of the court and to consolidate them, to set out all the acts relating to its jurisdiction, and in immediate connection therewith to offer an analysis of decisions thereon, serving to interpret, or at any rate to explain, the same, and to shew at a glance the construction which each order and act has received. The practice of the Court of Chancery in Upper Canada has during the past five years been widely extended, and is not now confined to any particular locality in Upper Canada: the practice is general, The want therefore of such a work as the ensuing pages offer has been largely felt, and with a view of increasing its utility a very compendious Book of Forms has been added. The reports have been carefully collated ; every reported case has been vie PREFACE. vouched, and the latest decisions have been brought within the scope of the work. The forms will be found practically useful and correct. As a first effort the authors can hardly venture to hope that the pre- sent volume will be found to be a complete Book of Practice—they can- not pretend to call it a Chancery Practice—but having regard to the fact, that it contains all the orders consolidated, and all the acts, with an interpretation thereof, illustrated by upwards of three thousand judicial decisions, and embracing therein every reported decision in our own court, and the most recent and apt decisions of the court in England, they bespeak for their efforts the consideration of the profession. How far they have succeeded in their endeavors to render their volume as little inferior as possible to a Chancery Practice, properly so called, the profession must judge ; for their own part, if they can be considered as having in any degree added to the utility of other treatises, and so adapted them as to aid the practitioner in the pursuit of his profession in the Court of Chancery in this province, they will feel themselves amply re-paid for the time they have bestowed upon the present work. Toronto, 0. W., Ist July, 1863. TABLE OF CONTENTS. PREPAGCE sissseversanstissvivies aii NA aaTE Te Y, TGABLR OP CASES sisccciessiscssecceesipesasssus anee-tesadaceandessa¥areiats soaTevereve ULL PART THE FIRST. GENERAL ORDERS OF THE Court or CHANCERY, FoR Upprr CaNaDas, AND ORDERS OF THE Court oF ERROR AND APPEAL AND Privy CounciL. ORDERS OF THE CouRT oF CHANCERY. PAGE. Orders of 8rd June, 1858........2 1 s “ 6th June, 1853.......... 00 ae assess seven 208 “ Gth. February}, 1854. oii. sissssseneovses. Scsaweve vanteerstverceewuetes 239 sf SOth April, [85S vccswcess weossvse secs: is ceivesed-ae oe cesesinoncceenastaoes 239 es 17th September, 1856 .... 240 a 8th November, 1856 240 ce With March, DSS 7 ccs esesccsscorsieieansasraensnsesaneevevssensnvsese 24D es Gt April: 185 Tosa sesess cause stienvanstelewnetiean: sacs taceanscese gesteacse 222 as 28rd: December, 1800 sccisswscascecsevwssaes veawseaevaicesveas veseven 248 fe 6th February, 1858 254 “ SOGH, Dane, 1858... eisteresncade inaasccegdocescne sed aideasoaayacseve tees 258 se TSH April, S185 Qicssdasscvanedsaceadnsvetacsunclet sess seme stenbaatuaaenaes 258 “ 30th April, 1859 é 260 e Sth October; 1859...00:6 wecsaissees vase 262 se 29th June; USO liscccsscses sovaswornvscars veces wes eves 263 ce Oth: Wily, US6) esses sscuisentacs toned ines Meta sencansicesevecwn ae 0) 7 22nd. February, L862... ices ceseage vieseann vevegadarw gecvenigasenes 4, GUO! “ 28th April, 1862 ocicrsissoctsss vesveses gece 2 es Oth May; 1862.ssscssssvse «6 ax SaeKaaerapenaearuenomercaanasenrs 2UD “ 6th June, 1862 weiss sscossees evees. vai 278 e 10th January, 1863 279 OrpERs OF THE CourT oF ERROR AND APPEAL. Orders of 8rd July, 1850.... fe 27th June, 1856.......... oe lusebiiias aeuheredevsbewrnacoa ae 21st December, 1856........, situa Goa darti gaeaudewasde> Saeeuesasneeesieys 302 OnpERS OF THE Privy COUNCIL. Orders of 13th June, 1853 .......cccsessesccen seneee cereeeven seenen resus titeseees 803 Migcellaneous points on the Orderg..sesscsssee esorsereeresesterssrserseaeerns B08 vill. TABLE OF CONTENTS. PART THE SECOND. Tar Boox or Forms oF PROCEEDINGS. Bills. cc sidsisetecanwtaeeta ai eeerasiane sides sed pbs izedbenssdasduannssaey 2iRee aieieeesedleve Demurrers .....0. sovccvere Answers... Notices of ‘Motion. Notices....sssesseceeee Affidavits ........ Orders......... Decrees .... Petitions Forms used in the Master’ 8 office Miscellaneous Formas..... iets Sesieeeiaeen “ Bills: Of: COSt8is0 sseis eas siivai vse cadoes iasairavadseccciecdae. sacdaceeasetencuev mene PART THE THIRD. STATUTES RELATING TO THE PRACTICE AND JURISDICTION OF THE CouRT or CHANCERY. The Chancery Act... ee Uidieusinesavanaieeexen, axveajeseresievacse 4OO The Court of Error anit Ropest ‘ite . 526 The County Court (Equity side) Act.. 5387 The Surrogate Court ACts.ccsesse csecees stavemedteres 008 The Common Law Procedure Acti....cssessceee coseevee sosseees .. 544 The Act respecting Arrest and Imprisonment for Debt.........:s0sseeceers 547 es ss The Law Society of Upper Camada.........ccsccen veceee 651 cE aE The property of Religious Institutions in Upper Canad avssscssovisessvosncrereas See eUVeeeaese hE Reeves svahes 652 es & The appointment of Guardians and the aa of Infants.. aaniiaee eo sieseeceaste od . 553 ‘s se The Axentanee. of Tetates Tail. ésedenade hs veensbares ésivees 558 es “e The Partition and Sale of Reai Estate.... « 561 “ « The Limitations of Actions and Suits...........s0008 562 “ cs The Registrations of Judgments, Decrees, &........ 564 “ ee Affidavits, &c., made out of the Province for use PMOL Elias. 50s saczsicd nates uevansiacsosasdaanpaces was ceeaveaes 565 The Attendance of Witnesses in the Courts of Upper and Lower Canada Feciprocallysscseecee 568 General Index. ssscscssesossrsass sssesesen ensece sosetenen vcsecen acevenace seseeneeenes 569 OFFICERS OF THE COURT OF CHANCERY. on JUDGES. The Hon. Puinip MicnarL Mattuew Scort VANKOUGHNET— Chancellor. 6s JAMES CHRISTIE PauMer Esten— Vice-Chancellor. “ JoHN GopFREY SpRaccE— Vice-Chancellor. MASTER. Anprew Norton BueEtt, Esquire, Barrister-at-law. TAXING OFFICER. GeorceE Hemines, Esquire, Barrister-at-law. MASTER’S CHIEF CLERK. Water M. Ross, Esquire. SPECIAL EXAMINERS. Joun Hector, Esquire, Q. C. WILLIAM VYNNE Bacon, Esquire. SURROGATE CLERK IN CHANCERY. CHARLES Fitze1szon, Esquire. REGISTRAR. ALEXANDER GRANT, Esquire, Barrister-at-law. JUDGES OF THE COURT OF ERROR AND APPEAL. The Honorable ARCHIBALD McLean, Chief Justice of Upper Canada, President. ce te Partie MicuazL Matrtupw Scorr VANKouGH- NET, Chancellor. ts s Wittram Henry Draper, Chief Justice of the Court of Common Pleas. ee “James CHRISTIE Patmur Esten, Vice-Chancellor. es JoHn GopFrey Spracer, Vice-Chancellor. ae “ Wi1ram B. Ricuarps, Judge of the Court of Common Pleas. Joun Hawkins Haearty, Judge of the Court of Queen’s Bench. JosEpH CurraN Morrison, Judge of the Court of Common Pleas. Apam Wison, Judge of the Court of Queen’s Bench. ALEXANDER Grant, Esq., Barrister-at-law. Clerk of the Court of Error § Appeal, oe ce MASTERS AND DEPUTY-REGISTRARS, AND TOWNS WHERE THE VENUE MAY BE LAID FOR THE EXAMINATION OF WITNESSES AND THE HEAR- ING OF CAUSES IN THE COURT OF CHANCERY. TOWN. COUNTY. MASTER. CIRCUIT. Barrie...... » SUM COG ase ssoneiees JoHN STRATHY......00000 Home. Belleville..... Hastings., ...... Wm. Warren Dean.... Eastern. Brantford... Brant.....cccccee JoHn CAMERON ...eeeeree Home. Brockville... Leeds§ Grenville, J. DockstapER Buewu... Eastern. Chatham .... Kent......00 signin Grorce WILLIAMS...... Western. et ee. \w. H. WELLER......+6 Eastern. en ee \y oun McDone t........ Eastern. Goderich.... Huron g Bruce, RoBerr Cooper. .......+ Western. Guelph ...... Wellington....... GEORGE PALMER......06 Home. Hamilton..... Wentworth....... WiuuiamM LEG@o.......00 Home. Kingston... Frontenac, at \ Sas. A. Henperson.... Eastern. nox, g Addington, London...... Middlesex... ...... JAMES SHANLY)......0008 Western. Niagara..... LAN COUN. esr veeeves JoHn POWELL .......0000 Home. Ottawa.....+< Carlton... ....40. JOHN WILSON. ......e0 eee Eastern. Owen Sound Brey rcrecseneves Davin A. CrEeasor...... Home. Simcoe .-..++ Norfolk ......c000e Davin TISDALE .......008 Home. PTE. cueess Lanark, Renfrew, W. O. BUELL. .......0000 Eastern. Sandwich... Esse@escscesseees Samuet S. Macpongxx, Western. Sarnia. ...se Lambton .....000s P. T. Pouserr,.........0 Western. St. Thomas.. Elgin. ...cccseveee JAMES STANTON... oes. 0000 Western. Stratford.... Perth.sccccccocees Ricuarp T. Hucearp.. Western. Whatby...... Ontario. server . Gzorce H. Darrnetu... Home. Woodstock... Oxford... FH. B. Brarpe... cescceseee Western. Toronto...... MOP Ris siakwenvecee ALEXANDER GRANT,.... Hoe Registrar of the Court, : Sault St. Marie, Algoma District, Joun Prince. TABLE OF CASES CITED OR INTRODUCED. [THE CASES ARE INDEXED UNDER THE NAMES OF THE PLAINTIFFS ONLY. ] A. PAGE. Abadom v. Abadom.....csccsucseeees Abell v. Heathcote... Aberdeen vy. Chitty Abingdon v. Way......... Acaster v. Anderson.... 85 Ackerley v. Frodsham.......... ssss0. «. 7 Adair v. Barrington..... w. 114 Adams v. Claxton..,.. « 205 sy. Fisher.... 101 « y. Smyth... 92 Ainslie v. Medlicott... sy, SimSiscesscee Aitchison v. Coombs.. Alchin v. Buffalo...... Alcock vy. Alcock.... Allen v. Allen........ sey. Loder... ‘cy, Spring ..... Allfrey v. Allfrey Alsop v. Bell.. «© y, Lord ‘Oxford. Ambrose v. Nott...... ss y. Noble...... Andrew vy. Andrew.... Andrews v. Cradock ........... se vy. Maulson...... se vy. Morgan of v. Powys.... Angell v. Angell..... $8 Fs DAVIB: cisieaisaceti is Ce “«-y. Haddon....., Seehvionnce LOZ, Anning v. Lavers .........ssessceesseeoeeee 180 Anon. y. Bridgewater Canal Coicsnene 810 A PAGE. Anon. v. Courtney vss. cseseceereeeeee 187 se Christ opher. 179, 868 fs 1 Atk. blows ives 94 fs 1 Atk. 489.. « 171 “s 1 Atk. 578.. eee 171 “ DB ALK: 621 .ccsscnsssisessenvenss . 204 “a Barns 22s svisenienvessevteey esis 142 He 1 Grant, 168...... iges 204 ee 2 Grant, 122, see 245 cs 4 Grant, 61 iscsi sisensere 148, 148 ag 6 Grant, 622.......175, 490, 513 ss Grant’s Cham. ‘Dive BViedeaveveee,) OL es 9 Hare, App. xxvii..... ....72, 73 “ 18 Jur. Ts hekotsgeea, 73 6 1L. J. Ch. 119..... wee 247 ee Cited 1 Mad. 536. .. 161 “ 2 Mad. 395.... . 64 “ 3 Mad. 494... we 164 “ 4 Mad. 255 .... we 523 ee 5 171 “ i 523 & 2 3» 2BB e000 276 « 3 ‘ 189 és 12 Sim. 262...... 7 “ 2 Sim. N.S. 558 ee 1 Vern. 45 wi... ceeeeeee secu 195 “ 1 Vern. 131. 214 es 1 Vern. 253. 247 a 1 Vern. 288. 195 “ 1 Ves: 409 wscssisevesssescussas 315 “ 2 Ves. 287. vita 114 cL 8 Ves. 615... . 173 et 10 Ves. 287.. PF 6 as 12 Ves. 4..... coat he, “ 15 Ves. 174... 114, 209 cs 19 Ves. 321.. wae 244 Anstey v. Hobson.... 87 Applegarth v. Baker, es j 44 Arkell-y, Wileon, sn: asuesmonrnensin BLT Xiv. , A. PAGE. Armistead y. Durham.............42, 117 Armitage v. Wadsworth.... . 479 Armory v. Brodrick.. Armstrong v. Armstrong... Arnold y. Arnold.. sé oy. Hull... . «oy. McLean .... neenonee eee Arner vy. McKenna... w. 519 Ashley ex parte. ve... .. 156 « y. Sewell .. sevses 80 Ashmall v. Wood+:::: view LQT Askew v. Peddle..... 5 . 212 ‘¢ vy. Poulterers’ Co. . Astwell v. Staunton.... me Atkins v. Cook............. wes 7 Atkinson v. Henshaw. 171 a Me Parker scscousevesciencivetccass 47 Atkyns v. Wright.......... veveoreeoee LOO, 102 Attorney-General vy. es (Earl of) .... Attorney-General v v. Attwood... v. Brantford ......... 234 46 “cy. Brooke ... 81 as eae ay BrowN..sssessessees 221 ce “ey. Carrington., ..... 225 *e soy. Clapham ....104, 367 ne «¢-y. Cooper ....... .... 116 ee “¢y. Corporation of London......48, 219 “ «¢y. Corporation of Worcester....... 60 cs (OV DAY wavswassveave evs, AZ v. Donnington Hos- , (The Governors of the) 60 “ v. Earl of Ashburn- Hameecceseeee 219 v. Fishmongers’ Co. 43 v. Garbutt....... 109, 508 ES “y. Goderich.. ......... 481 #6 “¢ _-¥v. Governors of the Donnington Hospital. 60 v. Grasett.......518, 519 y. Hill.. v. Jackson... v. Lewis... vy. Marsh ....... vy. Mayor of Norwich 17 v. McLaughlin...... 508 (Jamieson rela- tor) v. McNulty. 508 (McGuire relator) v. McNulty....,.508, v. Nethercoat. ai 41 v. Nichol..w.seeccore 810 vy. Parkhurst........ 316 Ve RaYwiesreerenser eee 208 504 TABLE OF CASES. A. PAGE. Attorney- -General v. Tiler .........000. 316 “¢ y. Woolrich.. ........ 816 Ausebrook, Be .......se0e sreeee ceases 180, 868 Auseman v. Montgomery...... Australian Steamship Co. v. Flem- ~ UNgissccesiess Avarne v. Brown... Aylett vy. Pontin.... Ayliffe v. MULray...erccosserees seveseeee 868 Core ewees ane eneene pete saces B. Babcock’s Estate, Ln rés.e.-e Baby v. Cavanagh ... ‘© vy. Woodbridge. .. Backhouse v. Wyld......... Bailey v. Ford « y, Gundry, Sin ian ee vy M Baker vy. Dean......... «¢ -y. Holmes.. wooy, Mellish.... Eos Sowter....-... «6 y. Wilson..... Baldwin v. Borst..,.... LU v. Crawford . “ vy. Damar.. 114 ce v. Duignan.. seeeeee487, 499 Balguy v. Chorley ........ tavsoceces seers 214 Bally, Over .ssssese secsisesseevesses L7L (y. Ballissscssana ve Balmanno v. Lumley. Bamford v. Watts......... Bancroft v. Wardour. 57 Band v. Randle.. - 126 Bankart v. Houghton. re - 310 Bank of British North ‘America ¥. Rattenbury ......cseccssees e144, 478 Bink of Montreal v. "Baker . sersessecenee 487 ss v. Thompson ....... 487 Bank of Toronto v. Eccles......... 478, 482 Bank of Upper Canada v. Brough...... 487 v. Pottroff 145, 531 “ . v. Scott....180, 140, 488 Banks v. Banks.........:ssssesessrsesees eee 173 8 owe Parker iesicseccssees seo 170 Barber vy. Barber... 55, 221 Barclay v. Russell... - 68 Barkworth v. Young... ce Worse, BD Barker v. Smark.......c...ccc0 eeseces wd, 65 Barlow v. Gains. ......cc0ssessesecees coseee 170 a Osborne... sess wemesaievesss LOS Barned v. Laing .ssceceseseveeee eee 819 Barnes vy. Abraham... Viveeersenses 246 TABLE OF CASES. PAGE. Barnes v. Taylor... : wee 56 sey. Wilson... oe okigveonn es Deh Barnhart v. Patterson....... 108, 821, 486 Barnwell v. Iremonger ........0000 89 Barry: Hatéhvssesascsesces 500 Barraud v. Archer ... Barret v. Blagraye.... Barrett v. White ..........c0008 Barrington, In re... seen eee Barrow, Jn re.. Barry v. Croskey.. Kt “Ne BLEVENS: sacs ase sincenewresr enone: 319 Bartlett v. Wood...... 89 Bartley v. Bartley ... 104 Barton vy. Barton...... 128 “ “cc y. Chambers... se sy, Whitcombe ... 36 Baskett v. Cafe.. 833 Batchelor v. Middleton .- 196 Bateman v. Cooke.. 11 fe v. Margerison se v. Willoe.. Suaeetns, LO Bath (Earl of) v. Earl of Bradford... 204 Bates v. Christ’s College.............. 102 ce ON Tv Eliptl asasneasxaantia 172 Bauman y. Matthews... 221 Baxter v. Turnbull...... 485 6 oy Westcoast Lie BO ye WALSON isicesee ts, aceeeetesesssss 83 Bayley v. Cass....... 107 Baylies v. Baylies .......00sseseeereeeeeee 173 Baynes v. Ridge...... aris Seaesaiaed Sadiene 33 Bazalgette v. Lowe..... .... 37 Beamish vy. Pomeroy......... 478 Beardmore v. Tredwell .....scs0 see eee eee 310 Beatty v. Blake .........-..6 seve 487 Beavan v. Burgess... .... 230 Oly 208 es Ve Mornington. cice.csuccescses 238 Beckett v. Rees .......:..0- 0000 94 Beckitt v. Wragg........cc1 ce seeseeees 518 Beckwith, 00 réicesecisces ccvvwscs Bedminster Charities, In re. Beeching v. Lloyd .... Beete v. Bidgoode ... Bell v. Cade...... -...+. «ey. Johnson... Bellamy v. Jones...... es v. Sabine Belmore y. Belmore... Belsham vy. Percival......., Bennet v. Lee.........:sccseee Bennett v. Bennett..... «6 y. Hamill ......... vy. Honeywood eee 41 “cr XY. B. PAGE. Bennett v. Powell... secsecsseee on » 36 a Wi RECS: waxes: cergccincetysassancues - 161 Benson v. Hadfield......... ... 56, 221 «oy. Lamb ....... « 163 Bernard v. Jervis... 221 Berney v. Sewell ...scsse ccssssescerseeves 172 Berrow v. Morris.. . 276 Bertie v. Lord Falkland. sang enets 214 Bertolocci v. Johnstone.. ainiesnes, AT Berwick v. Murray........ anv LOS. Bessant v. Noble..... ve 126 Bessey v. Graham ......... 00000 seeeee oe 205 Bethune v. Caulcutt.......... 109, 180, 196 Betts v. Clifford ....... oon L1G, 222, 811 Betts v. Menzies....... a Bevan, ex parte... Bevis v. Bolton ........ Bich v. Motley.......... Biddulph vy. Camoys ...cccsec cesses eeuee ae v. Dayrell...... re bnteNAcila elsia Bierdermann v. Seymour,....... Bignold vy. Audland Bilton y. Blakeley....... ... Bingham v. Dawson . nestles Meany ee v. Lady Clanmorris........... 194 Birch: Vs) OY ssesansansiesaavenenvees Bird v. Gandy “vy. Heath coy, Kerrie. . Birkenhead Docks eee of)» v. Laird..... .. . . 124 Blachford v. "Oliver. si eatvleiae sree 181 Blackborough vy. Ravenhill............... 171 Blackhall v. Coombs ........see0 seeoe eee 122 Blackmore v. Howett.... ite: Ae Blackwood v. Gregg .... ve 82 “ v. Paul .... - 480, 495 Blain v. Terryberry... ciSab tents 246 Blake 'v.. Beatty: .ccs1ccecssesscigasisaesnes 487 «oy. Blake ......... we 868 8 ys Cox cvewese vee 90 CAV e JONES ssayias-seess wee 18 Blakeley vy. Blakeley... . 86 Blakeney v. Dufaur... paGy 38 Bland v. Davison... . «46, 49 Blanshard v. Drew............ 114, 116, "929 Blenkinsopp v. Blenkinsopp ee 32, 33 Blest V¥, Brow .sesa:sevesveecsed ove + 220 Bliss y. Putnam... .. 48, 126 Bluck vy. Colnaghi.............. . 114 ‘ y. Galsworthy...... - 102 Boardman vy. Jackson.... . 194 Boddam vz. Byley.csss ssessevasseoscviessss 808 Boddington v. Woodley...... +. 170, 179 Boddy, [7 re..eceseseesessceees cove l66, 514 Boehm v. De Tastet. wrrrcoversessveesrees 288 xvi. Boehm v. Wo0d......eceeseesee Boger, In re.sscweeee Bolding v. Lane....... Bolton v. Ridsdale... « y, Stannard.... 14 Bones v. Angier....eccsesseseees 34 Bonfil v. Purchas.........++6. 46 Bonham v. Newcomb... - 140 Bonithon v. Hockmore. .. « 199 Bonsor y. Bradshaw. ...... wee 522 Boomer vy. Gibson...... 18, 39 Booth vy. Booth...... . 64 Bootle v. Blundell ..........+- 523 Borough v. Whichcote. .. 105 Bosanquet v. Marsham wsscssesseceeeee 57 Bothomley v. Squires .....17, 55, 57, ae POS %. VERE +. c.nnce rion veier Boulton v. Cameron.. 7 v. Gillespie... - ee v. Jeffery...... s vy. Robinson .. Bourn v. Bourn ........60. Bousfield v. Mould Bower v. Cooper .... Bowersbank v. Colaseeau Bowes v. Fernie..... Bowman v. Bell... Bown v. Stenson.. (OW, West.rcen cove Bowser v. Maclean ... Bowyer v. Bright.... Boyd v. Heinzelman...... Boydell v. Drummond Bozon v. Bolland.......... Bradberry v. Brooke . Bradley v. Bevington.... sg y. Munton ..,..0 sees Bradstock v. Whatley......... 63, 500, 522, 523 ve - 164 Bramwell v. Lucas...... .... 2 Brandon v. Brandon.......... “174 Braybrook (Lord) v. Inskip... és 161 Breadalbane (Marquis of ) y. Chandos (The Marquis of ).......sssscer 0. 128 Brennan, Ln 7é....0..-se0ee seen 280, Brewer v. Rose Brewin v. Austin.. eevee eee l42, 808 Brewster v. The Canada Co.. +485, 502 Bridger v. Penfold...csssesseresreeeeee 165 Bright v. Legerton.... Brignall v. je tte Bristowe v. Needham... ie v. Whitmore... British Empire Shipping Co. v. 7, Somes British North America (Bank of ) v. Rattenbury ...... Broad y. Wickham... sessee seer L44, Paces cecee oo. eeeees TABLE OF CASES. B. Brocas V. LOY. ...cssscesesveeesessoseeess Brocksopp v. Barnes .. 3 Brodie v. Barry ......+ Bromitt v. Moor... Bromley v. Stokes... Brook v. ———-— ... PAGE. 181 198 171 Brooke v. Reynolds... .s....sece vee terrence 122 Brooker y. Brooker 170 ee y. Smith........ 85 Brookfield v. Bradley.. 212 Brooks v. Brooks ........ + 62 “« yv. Greathead.,...... . 169 66 vy Purton... sere vooeees 811 sey. Snaith....... apgiiarecguleses 164 Broughton v. Lashmar........... ++ 116, 222 Browell v. Reed.....c.ssscosees scesesseeee 171 4| Brown In re... we 48 Browne In re... ren . 487 Brown v. Baker ...... seseeee 68 «sy, Barkham .. sees 808 “ y, Blount..... 317 « y. Butter... 118 “« v. Cole.. 142 “« v. DeTastet 206 sey. Douglas ......... 221 ne Dowthwaite . re 320 ‘ey. Kingsmill... 493 “ey. Poyntz...... 64 “y. Smart..... 494 6 oy. Btantonys ss .cceccensssses cacess, 8S Brownsword v. Edwards ..... .. 54 Bruce v. Elwin........... ceeeee wnat 320 Bruiton v. Birch....... 127 Brunsdon v. Allard... 224 Bryan v. Cornish...... 172 “oy. Wastell...... 41 Brydges v. Branfill... 247 “ v. Hatch..... 244 Buchanan v. Kerby... 487 oe v. Tiffany... 75 Buchner vy. Buchner ... 497 Buck v. Faweett ....... e 83 Buckeridge v. Whalley.... 280 Buckley v. Cooke........ 181 < vy. Ryan... 20 ee Vi Wilson! 25 seace vers 141 Buckmaster v. Buckmaster... 174 se v. oe seeaas 82 Bugden v. Sage.. 5 64 se v. Soutb.. seoseeeee 102, 108 Building Society (The C Canada Per- manent) v. Wallis .........c00... 496 Bullen v. Renwick ........ 486 Bulstrode v. Bradley ... 195 Bunbury v. Bunbury ... sessesee 128 Bunnett, In resssseccessersesssereessssence QUT TABLE OF CASES. Vii. B. PAGE, Cc. PAGE. ele a Robinson......1sseeeeeeee LOL] Coptisle (Countess of) v. Lord Berkley 173 MEG Vir“ WODGY! ‘sees xeyspacsan 56 | Carney y. Boulton. ..iccceceees 40, 42, 44 Burchell y. Giles.. age CATS 225 Carpmael v. Powis 108 Burgess v. Howell . sictcorsarens 499 Carr v. Paulet...... Re kee PR 61 ne aii Ss tl Sg 8, 04,68, 221 gt : Gaatiaton v. Cantillon .. asi 85 Burnell v. . Martin... wwe Ot « “y, Holly 214 Burney v. Macdonald S20) vee. eCartudleecs ” T06 Burns v. The Canada Co... sees 500 | Carroll v. Hopkins. eee at 41 Burnside v. Lund ........ 187 | Carron Iron Co. v. Maclaren... Burr v. Gamble Seine 488 | Carruthers vy. Armour Burrell v. Nicholson 00. 6. seeesseeee 2383] Garte y. Ball ese. Burrowes v. Molloy...... + 133 | Carter-v. Sanders... seco. eoee Burt ve. Sturbicswcwees 2 124 Cartwright v. Shepheard. Burton v. Robertson ......... .++. - 56) Carwardine v. Wishlades.sccece see ose 85 Busbby v. Munday... vee 123 | Carwick v. Young... ves 63, 64, 65, 121 Busk v, Beetham... veer 814] Gasborne v. Barsham v..cscssece seeseeees 523 Bute vs Bdenieeve cesses ves saecssaveng sacs 212 | Casey v. Jordon wseeese, Bute (Marquis of ) v. ee Cast y. Poyser....... Canal Co... ++ 101} Cathcart v. Lewis Butler v, Duneomb.. --» 808 | Catholic Publishing Co. v. Wyman.... 345 © y. Freeman... s+ 489] Catlin, In ree... we 219 ««y. Gardener ........ id 1763-222) Gaton vs Lewis: :: . 102 c Cauty v. Houlditeh. .. wu 178 C. Cawtbra v. MeGuire . 11, 491 Caddick: v. Cooke:ccssscasseses ieigeae 817, 818} Chaffers vy. Baker. .......c.ccesscoes coves 72 Cesar vi Norton ivew seve sxeamaaarsvones ANT | v. Headlam... 127 Caillard v. Caillard......... «ee 170] Chalk v. Raine........... 110 Caldwell v. Hall .... . 518}Chalmers v. Lawrie... 151 Calley v. Richards .. 102] Chamberlain v. Lee... cece ceeeee 162 Calvert v. Day... ....-.5 6|Chambers v. Bull.. 62 «cy. Godfrey .... 159) « v. Chambers.. 246 Camac vy. Grant........ 3814] «* v. Goldwin ........... 196 Camden v. Benson .... 159 | Champernowne v. Brooke. .. 212 Cameron v. Bradbury..........0. sseesees 498 es v. Scott........ 204 ae v. Lynes........ , 187] Champneys v. Buchan... 43 ee v. McDonald. , 197 | Chance v. Henderson......... ssscsees one 57 ef Vo MCR ae isssnssenssicoravcissnes 182 | Chandler vy. Chandler... 172 bs Vo Phippsscerenisweseieieevaxes 524 es vy. Ford......... 481 Cameron’s Coalbrook Railway Co., Chantler v. Ince.... 496 DMP Ovosisovcisuaatoiets. doiessins reais Chapin v. Clarke...... 480 Campbell's, Campbell... Chapman v. Beach Ti2 Ve Ferris..ccso00 Chappel v. Purday... 82 sf Va Mackay: sssccaseesrsseavernny Charitable Donations (Commissioners fe Ve MOXDAY cososcces scorer esses of ) v. Ainterausetevecorecias «88 ue V. Mullett ......cs00 see cveseene Chatfield v. Berchtoldt. staat 383 ae v. Taylor depirtenasion Cheeseborough v. Wright .. 39 Cane we Martin's sa: cssanracersdveatenensiegas 2|Cherry v. Morton.......... 66 Canada Permanent rnneeied ms Chesterfield v. Janssen... 476 y. Wallis.. . 496| Chetwynd v. Lindon .........c08 ccceveee 56 Canning v. Bell ..... «- 225]Chevalier v. Strong ..... 494 Carbonell v. Besseil.. .«- 853 | Chinnock v. Sainsbury .. . 809 Carew, Jn re.. a .+ee 164] Chisholm vy. Sheldon...... 44, 105, 109, Carfrae v. Vanbuskirk.. 108, 485 , 491 Carleton vy. Smith.. .. 103] Cholmondeley (Earl of) v. Ea a 0 Carlisle v. Gabe. iassrccuanes denaeveausgee ene! Cc SPORE: covepccesions savcassnimegiessanees oe xviii. C. PAGE. Cholmondeley (Lord) v. Lord Clinton 15 Christie v. Cameron ...-sccesceascersers 85 «sy, Long ..... vee AOL we v. Saunders . 491 Christmas, Jn re.. Christ’s Hospital y. Grainger... Chuck v. Cremerecssesseecereeesee Church v. Marsh.. fe eeneeee City Bank v. Amsden... distae 44 Ke “« y, Bostwick......... 53 City of London v. Perkins... 106 Clarke v. Best... asin voetaty 132 Clark v. Burnhai.. went 476 Clarke v. Clarke.. 151 Clark:-vi: Cor tvssssssssss oes dsegeseiesveeevexe 18 Clarke v. Derby. (aayor ot). » 41 42 Clark v. Dew.. aesin, LOL 68 ON: Fergusson. 7 Clarke v. Hall........ 90 Clark(e) v. Jaques. ..ececcee cecseceee 222 Clarke v. Law... secs 182 SEY. LWLIC....05 vecsevccsecs soosesene 120 Clark(e) v. Manners......... 310 Clarke v. Ormonde..... sy. Tipping. 819 «sy. Turton.. 110 Clark vy. Waters...... 73 Clarkson v. Kitson... ‘478 Clayton v. Clarke.... Clegg v. Edmonson.. Clements v. Bowes Cleveland v. McDonald.. Cleveland’s Harte Estates (ins re ¢ Duke of )... shatateaaieas wiaaenase 02 Cliffe v. Wilkinson... 6, 8 Clifford v. Turrell.. see 883 Clinan v. Cook........ 318 Clive v. Beaumont... 318 Clute v, Macaulay. .......scccecsecee sneeee 616 Coalbrook Railway Company, (Re COMOTON'S) cs r0is cee: even atceseanerss 103 Cobourg and Peterburo eiiiiesaes Com- pany v. Covert.. eeesine « 244 Cocher v. Beirs.......... Cochrane v. Fearon.. ce v. Phillips .. Cockburn v. Raphael... Cockell vy. Bacon.. 4 Coffin v. Cooper........... Coke v. Fountain....... Colborne v. Thomas..., Sinem Colburn v. SimmS.....ccccc sesee ose seeeee Colclough v. Sterum... Colebrook vy. Jones.. Colegrave vy. Manley... Coleman y, Mellersh. see eee eee een eenees TOUT Oe Ore ern ns eeeeee 7| Cope v. Parry .. TABLE OF CASES. Cc. Coleman v. West pao CO. seeeee te v. Whitehead... Coles v. Gurney... Collard v. Roe .... Collett v. Prestcn... Collins v. Greaves... sy, Stuteley. .......06 Collinson v. er 7 v. Lister....... Colman v. Northcote.. Colquhoun, Ln 7e....0. 60656 Columbine v. Chichester.. Colyer v. Colyer. .s..scceseee Combe v. Acland... « y, The Corporation. of London. Commander v. Gilrie....... 2.0.06 ee Commercial Bank v. Bank of Upper Camadars.sceccssecses vecree 145, 488, sev. Graham... oe aoe “c“ cc ce v. Woodcock.. Commerell v. Poynton... Commissioners of Charitablé. Dona- tions v. Hunter.... Conethard v. Hasted.... .. Congreve, In 7é.......0 Coningsby v. Jekyll. Connell v. Connell.... arr 6s ¥i Carranhccseseuicsscevs Connolly v. Montgomery.. Connor v. Connor...... Constable v. Guest. Sebls vy. Bolton....., Broomhead. . Flood., Cadsass: Wood..... Cooke v. Fryer... «oy. Gwyn... Coombe v. Berne Cooney v. Girvin.. Caeper y. Earl Powis. tees v. Emery... v. Hubbuck .. v. Lewis. . atae v. Powis (Earl). iat v. Purton......., Coorg (The Rajah of) vy, The East India Company.......... 1 eevee veceee sen eee a Russell......., Copeland y. Stanton..,......, OOy eam ee wreeenees 890 eecccenes 190 eee PAGE. 312 145 - 312 TABLE OF CASES, C. PAGE. eS Corbett v. Meyers. sccsssees cessor cesses 234 Crow V. Wood s-ssseee Cornell v. CUrTan...sessesseessesverseeseene 317, CTOWFoot v. Mander... Cornwall v. Brown....... aks .. 223 Crowther v. Crowther., Corrigal v. Henry....... .. ... 483 Cryne v. Doyle........ pee © 116 Cuddon v. Tite... cece ceeee aianairs Corry v. Curlewis.. Corsellis v, Corsellis...... 557 Cottingham vy. Boulton. ... 497 Cottle v. Cummings... . 98 Cotton v. Corby... 88, "388, 480, 500, 531 Cottrell v. Watkins saWowe sleasSiaws. Adige 206 Counter v. Commercial Bank (The) 39, 68 v. McPherson....... mesacisecwa aes 479 &§ Vi Wey ldetsisscenccswrscnecae voxsee 148 Countess of Carlisle v. Lord Berkley.. 173 Countess of Plymouth v. Bladon....... 63 Courtois’ Will, Ln re...scsesccssessnsesees 225 Courtois v. Vincent.. 558 Cousins v. Smith............. ise Covert v. Bank of vpper Canada... . 247 Coward vy. Chadwick....... w-...0.. ie AN: Cowpe v. Bakewell... 197 Cox vV. Bannister.......0. cessessee 35 Coyle v. Alleyne ....... s.s0 0 238 Cozens v. McDougall.............. wee 208 Crace v. Crace.........scees aie 9 Crafford v. a a nies ee Craig v. Bolton... 66 y, Cralg. iscseose ‘* yy. Templeton... Crandell v. Moon......... Crawford v. Birdsall. e v. Cooke... y. Polley... Crawshay v. Collins... 172, 198 £6 Ve Matle...ccee socesesseeseeces Lee ot y. Thornton.. .819, 320 Cresswell v. Bateman......cc.ssseseeeee 48 ee v. Byron..... 312 ss v. Haines 241 Creuze v. Hunter........... 558 Cridland v. Lord de Mauley.. 42 Crofts v. Middleton... 0... ........eeeee 853 Crompton vy. Earl of Efingham. « 148 Crook: ¥. CrodKusssscsscseaecsssesvraessiees 179 Crooks v. Crooks... 159, 483 «oy. Davis.......0. 477, 494, 497 “ey. Glenn. os dasen haies Veisea's esctee 496 eC we Blreetiz.: «cee aie 158, 204 « y. Torrance ....... .483, 500 Croome y. Lediard.. weeeL61, 223 Cropper v. Mellersh... ioiwenaio aud acedea siians oe . 13 Croskey v. European and ‘American Steam Shipping ioe ti Sess 120 Cross v. Thomas........ «. 50 Crosse v. Crosse...... «04 386 Crouch v. Walter or Waller. coins 558 Cummings vy. McFarlane. ; ae v. McLachlan........cee eee » 497 Cunyngham v. Cunyngham........ 81, 88 Curling vy. Flight......... 0.0064 .. 162, 206 a v. Lord Townsend wesc sss, 66 Currah y. Rapelje... teseeee 0224, 500 Curran v. Little. .......s000+ tereee 496 Curre v. Bowyer..... 128 Curtis, L072 sensxnvswssnwscesestesuces vance Daine; Dire sccessivcasecrvawesscnsaariecaweses Dale vy. Hamilton.. 152, 318 Dallas v. Gow.. awevws 189) Dalmar v. Dashwood. Hohe gh Weleeronserttiat 172 Dalton v. Hayter.......... 40, 96, 116 “cy. McBride... weveee 494 ‘ey. MeNider........ 18, 488 Danford v. Cameron. ......sceeee vevees vee 85 Dangar v. Stewart..... 48 Daniels v. Davidson........ .. 387 Darbey v. Whitaker........... Darnley (Earl of ) v. London, Chatham and Dover Railway Company... » 281 Darston v. Earl of Oxford ....... .....0 194 Dashwood vy. Blythway... 144 ke v. Lord Bulkeley... » 82 Daubeney v. Coghlan........ 206 Davenport vy. Davenport. ateayes 315 ae vy. Stafford .. 208, 212 Davey y. Durrant ...... «107, 181 Davidson v. Grange. 481, 485 iG V. Leslie. .......00 seeces covsenee . 812 as v. McKillop.......2. .-2. seeeee 98 ss vy. Thirkell......... 198, 206, 484 Davies v. Boulcott......0seseseseeeel26, 127 «ey. Cracraft ..... nantconansuensntG « 175 sey. Marshall...... 809, 311 es V. Stainbank. ......scesccssseeree 122 Davis v. Angell... . 821 “sy, Barrett, ‘115, 171, 173, 176, 3 60 op Bend eP venuscesseacns ceisee ascooe «oy. Bluck. ...00 “¢ sy. Chanter.... sey. Clark... iaareiens 6 ¥. DaviS..creesesvees 206, 311 (0 oy, Marlborough (The ‘Duke of ) 170, 174 $6 y, Prout, .occe sesessescecces coe 18 SH ye Smydersevseseosvees 477, ‘492, 498 xy, D, PAGE. Dawkins v. Mortan....scceseeeee 62, 91 Dawson v. tone eslivew ise 94 6 ve JAY ween wssaiseaseadseet 176, 222 tt Vv. N@WSOM....4 seeeer eee teeeee eee 277 se y. Raynes... e v. Yates... Day v. Croft.. Dean v. Thwaite.. Dean of Ely v. Gayford c or + Edwards. « 127 Dearman v. Wych... ceuonsneaitex? 214 De Balinhard v. Bullock. . igeseciene een 12, 151 Deeks v. Stanhope.....s+++ 46, 50, 95, 320 De la Rue v. Dickinson Delevante v. Child... serescseeseeeee 5 De Manneville v. De Manneville...... « 558 Dempsey Vv. Dempsey .-+-+-0e sree 158 Denning v. Henderson.... Dennison v. Kennedy.... . 500 Densem v, Elsworthy..... sews we «18 Dent v. TUrpin ceeseeecereeeee seeser serene 57 Derbyshire, Staffordshire and War- wickshire Railway Company v. Serrell......cccc cee acces ceeeeeceeeen es 2 121, Desborough v. Rawlins... sees seers 367 Devaynes v. Robingon....... ses. 13, 101 Devine v. Griffin.......... 493, 497 De Visme v. De Visme.. Dew v. Clarke....... Dewell v. Tuffnell. ste De Winton v. Mayor, & ‘&e., ‘of Brecon. » 174 Dexter v. Cosford. cvseneervens@ ely B21 Dey v. Dey... , +87, 484 Dick y. MoNab...... adsyincs: DBA Dicken v. Hamer...... 148 Dickenson v. Duffill.. stains , 105 Dickson v. The Canada Company.. 60 61 Dines v. Scott. steteeeeen se agers 194 Diplock v. Hammond. 320 Dik Ve SaVMan in sccsess sane seaysveedesseaeis 73 Dobede v. Edwards.. Dobson v. Faithwaite... al v. Land...... ‘ Dodson v. Sammell.. ‘ Dock Company (Bast a and West st India) v. Littledale., Docker v. Somess... esceesee ceeseenee eee Dolder y. The Bank of England........ Dolly v. Challinw.....c. eeeee cue 40, 42 Dolman, In re... s.s.aee aman Dominicetti v. Latti. . 187 Donald v. Bather...... 127 Donations (Commissioners of Charita- ble) v. Hunter Done vy. Allen.. Donovan v. Fricker.. ita - ce wo . 115 see! LOT V. THOMPSON wessesersessesrerees LTB TABLE OF CASES. PAGE. , 125 : 491 , 503 : 122 ww. 174 « 277 315 170 . 212 314 481 Doody v. Higgins....... Dougall v. Lo «cy, Lang.. Douglas v. Clay . ws Dove Vv. Dove.....eseer sere Dovenby Hospital, Jn re. Dowden v. Hook.....c0s oe Dowling v. Hudson. Drake v. Drake...... (6 oy, SYMES «2. cee ececee career ees « y, Toronto (The Bank OT aos Draper y. The Manchester, Sheffield and Lincolnshire vem Co..... 104 Dresser v. Morton.. sevecvervenaecess ATE Drever v. Maudesley... 7, 174, 204 Drewry v. Thacker...s.ssseseeceecereees « 122 Drinan v. Mannix.. ......- seve O15 Drummond v. ADGeCrSON.....s.eeceeece ane 78 Drysdale v. Mace... w» 164 Dubois v. Hole...+.. +--+ a Ol Duckworth v. Trafford. ... 170 Dufaur v. Sigel......++ sve 119 Duffield v. Sturges ... 90 Duggan, In re. ..00+ 611 «© vy, Cotton.. sfevijeicnese: 224 Duignan v. Walker. aisrewcatsava eeasastineste se 809 Duke of Cleveland’s Harte states, TN 17. oe snscccece ceeneennseees 2 Duncombe \ Vv. 7, Lewis. Dungey v. oe Dunn v. Cox... a eo; Dunn... Du Vigier v. Leo .. Dyer v. Kearsley ......+ Dyke v. Taylor........ Dyott v. Dyott.cccsssssssee ceeeees srenee O14 E. Eade v. Lingood....s.ecsseceee «- 106 Earl of Bath v. Earl ‘of Bradford... aihias . 204 Earl of Lonsdale vy, Church. .......66. 174 « -y, Wordsworth...... 194 Earl of Mornington v. Smith........... 114 Earl of Portarlington v. Damer...... ae 64 East and West India Dock Company V. Littledale.......ce ccseussuseaseeesen 820 ue India Company v. Boddam slgsienas 81 ee v. Keighley...... 206 sf ss a vy. Naish........., 244 Eccles, Jn re... vx 221 Edge v. Duke... sess 43 Edgecumbe v. Carpenter.. 170 Edgson v. Edgson....cscsececcsece cesses eee 81 Edmonds v. Lord Foley..... ..... 102 Edney v. Jewell. .scss cesses ceesecee ceovees 18 Edwards vy. Batley....... TABLE OF CASES. E, PAGE. F. PAGE. Edwards v. Cunliffe....s0000005..142, 148 | Pechan vy, Hayes .isscseeccsseses 137 se Ve McLesy.scssurcssdaesseaesace 66 | Felkin v. Lord Herbert. 101 Egerton v. Jones... .... » 206 | Fellowes v. Deere ....... .8, 314 Egremont v. Cowell. - 55 | Fellows’ settlement, Inre. vee 148 Ellerton v. Thirsk.. 812] Rellows v. Barrett s.ccesecsssccs sscces,, 9 Euliott V. Helliwell....essssssesee csees ene 137 Fennings v. Humphrey ». . 68, 64 < —_ y. Lord Minto.. ++ 68! Fenny v. Priestman....... 821, 484 Ellis v. Colman.......... - 821] Fenton vy. Crickett . secon, 205 ff “ye Ellis... ane 482 «c v. Cross ......6 es 44, 479 : Ve Griffths.......e. cesseeee seeseeees 142 | Fenwick v. Fortescue... tees aeeeeeece 7 ‘vy. King...... mise eRe aks dine 252 Fergus v. Gore ..... tseeeee cease 165 Ellison v. Thomas «......1. sss eee 280 | Fergusson v. Fyffe ....eccecseseesseseees . 808 Elliston v. Sheldrake ... -+ 73 | Ferrand y. Mayor, &c., of f Bradford... 288 Else v. Barnhard........ - 156] Perrass v. McDonald .. vecesee 485 Eltoft v. Brown........-c1ssssssee sesseeees 187 | Perrier v. Kerr . "491, 499 Ely v. Hensly... 51 | Field v. Beaumont .... ston 1B “© (Dean of ) v. - Gayford ¢ or wr Edwards 127 | Fieske vy. Buller ..... 32 Elvy v. Norwood........ 195, 808, 486, 487] Pikin vy. Hill ..... 281 Emerson v. Emerson. ...... ceesesse eevee 116 | Pinch vy. Finch..... 15 Empringham v. Short..... »204, 205 (oy, Shaweececeecee . 142 Engerson v. Smith. ....... “ 0) Finden v. Stephens ... , 221, 222 English v. English. ........ sesseees eee Findlay v. Lawrence w..ses.eeeee ee .. 116 Enraght v. Fitzgerald ........ Fingal v. Blake .......... . 173 Enthoven v. Cobb........ Fiott v. Mullins... 867 Erskine v. Campbell... Fisher v. Baldwin .. ws 120 “« _ vy. Gartshore... DEY 4, MEE airsetsenarametaratciaatang BL Evans y. Bremridge..... 120) ey, Wilsons . 811, 321, 482 “«v, Coventry ...... 128) Fisken vy. Rutherford......... 310, 311, 488 RRS aeiere 528) «ey, Wride ws. sccsnoamer 290 us Wis POTKOD sesacivaccrewsesnnsasdssits 143 | witch v. Rochfort .. . 310 Vi Stokes paessdisteiagl geueeiane teases 820 Fitzgerald, In re.. . 490 Evelyn v. Chippendale....... s.sssssseeee 7 oy, Bult .scoseee 120 St “ye, Bvelynisviensensseycosesservens 102: “ v. Phillips . 177 Everard '¥: Warten ssss:ccte sxeesececerwess 194 Fleming v. Fleming...... 32 Ewart v. Williams.......151, 152, 185, 186 “ ve Snook . .s..c0ee dues Beas, BOO Ewing v. Good... oe «e+ 494] Fletcher v. Bosworth..cccccssesee 74 Eyles v. Ward. “on, 869 “~~ ¥y, Moore .. 39 Eyre v. Barrow... ee ee 234 “ y, Rogers. 124 S© Vs, Hansonissscsscevascsssseesevn 142, 143 Flight v. Bolland ...... 315 Flint v. Corby........ 500 B, “ y, Field ... 55 Fall v. Elkins....,....... sAevevesneeeasenss . 172) “ v. Smith........ 500 Fallows v. Lord Dillon ..... ... .. 170] Flintoft v. Haynes ... 308 Farebrother v. Beale .... - 820 | Flocton v. Slee ....0..sessseseosasecoareses 47 es vy. Welchman -120, 122 | Floyer v. Edwards 197 Pariat Vo. Marty, .aios.s sce vous ncdewsiiees 178 | Footner v. Sturgis .escsecssccsccsseseeeoes 130 Farlow v. Weildon ......0. ceceesees seeeee 164 | Forbes v. Connolly ..... Farquharson v. Williamson. . “cy. Moffatt ..... Farrant v. Lovel ......... --++0 Bond v. DePontes ..... Farrell v. Cruikshank Ve Dillons ccsess Farrow v. White .........- “© y, Dolphin sie Farry v. Davis.......06 « y, England (The Bank kof weeny Farwell v. Wallbridge ... He Sys Steeples eet sov'cee, 142 Faulkner v. Daniel....... ‘cy, Tennant . fe ve Wastell, ccassss Fearns v. Young......+ seven Featherstone vy, Fenwick ....... oa teeeee 72 Forman v. Grey secs HA 40, 96, xxii. Forrest v. Elwes..... Forrister, In re.....- Forster v. Menzies . Forsyth v. Drake.... Foster, In re... sevens “6 “ce Fowler v. Bayldon.. “cc “cc Fox v. Hill........+. Foy v. Merrick..........0 TABLE OF CASES. v. Cantley. sees v. Fowler.... v. Roberts... Francis v. St. Germains........cceseseere Frank v. Basnett.........++. Frankland v. Overend Fraser v. McLeod... 6c y. Sutherland... Fray v. Voules......s0+ s+ cai Frazer vy. Bens... ..... “cc Free v. Hinde........ evel 72; Freeland v. yones.., ; Freeman y. Pennington......... v. Thompson.. Feeman, Craigie & Proudfoot, ‘Inve. French v. Myles..cccstsssesces seecescen eee Friend v. Solly.......6. Fry v. Mantell....... Fryer, In ré....ssseee Furze v. Hennett...... Futvoye v. Kennard.. Fyfe v. Arbuthnot. Fyler v. Fyler.. Fynn, Galbraith v. Armstrong... coceseeee “cc “ Gale “ Galt Gamble v. Gummerson ... 6c eee TG TE. sacienavacsened Ps esti tek he G. v. Galbraith . v. Morrison V. ADbOtt.. .ceceseeeee v. Hubert... ¥. Dush sssssasce eevee v. Howland... Gandee y, Stansfield s.ssssscss sess cose Ganderton v. Ganderton | sae atosaseeReeeae Gardner v, Blane......secee ss “cr of v. Brennan....... sai Ve Garrett...ss.ssses: eee svseveee Ol Ga. PAGE. Garlick v. Lawson ... Garth v. Cotton scccccnes 66 oY, Ward .cccccees veseees Gartside v. Isherwood .. Garven v. Allen ..... ose wove 484 Gascoyne v. Chandler . . Gaskell v. Chambers .. Gastum v. Frankum .. Geddes v. Morley ...... csccssscsesceree . 501 Gedye v. Montrose (Duke of ) aoe “64, 65 Gee v. Cottle ..cecicsscverrccrseessesceese Ol £6 VY, GUINEY....seeee sas ave ss Geldard v. Hornby ... George v. Whitmore Gervais v. Edwards. ... ss 497 Gibb v. Warren .ecccocssesrsesces sevens see 487 Gibbins v. N. E. Metropolitan District ASY]UM .ercere ceesseeeees cone 161, 228 Gibbs v. Payne .. an veces 184 Gibson vy. Clench +. 220 sy. Ingo wu. seus 85 « y, Wills... 3 soweeee LOT Giddings v. Qiddings .. ven 9, 814 Giles Vv. Hart w.eccosccoresteeee seenes 309 Gillam v. Cleghorn........+ + 489 Gillespie v. Alexander ....c.sseseeseeees 192 «e v. Grover...40, 44, 331, “479, 493 Gillie, Zit re... sssssee soncssevesseasereceees O18 Gilmour v. Matthews ......05 Girdlestone v. Lavender ..c......seeee . 181 Gladwyn v. Hitchman .......0. ». 808 Glazbrook v. Gillatt ....c..s66 seseseeeee QTT Gloucester (Mayor, &c., of)v. Wood, 88, ae Glover v. vias bepress ajvnwaain “© y. Portington ....... Glyn v. Caulfield ..... «© vy, Duesbury ..... Goate v. Fryer ......... wee 128 | Goddard vy. Haslam.. woe 127 Godfrey v. Maw ..... serene 64 Golden v. Newton c.s.cescsseeeeee Goldsmith y. Ears - iste. 18 Gompertz v. Pooley ... we» 120 Gooch v. Marshall...... 811, 312 Good v, Blewitt ........ seseree 198 Goodall v, Burrowes .. 131, 141 “« v. Skerratt ..... . 46, 49 Goodday v. Sleigh.... . oT 222 Gooderham y. DeGrassi , ++ 20, 228 Goodeson y, Gallatin ......cccscsosse eee 491 Goodeve v. Manners...... “49, "185, 481, 482 Goodfellow vy. Hambly ......... 38, 71, 74 Goodhill y, Burrowes odeageaart aly 241 TABLE OF CASES. a. PAGE. Goodhue v. Whitmore......... 20, 140, 223 Goodman v. Kine .........ssecessseeesaee 811 * v. Whitcomb ... sunsets 172 Goodwin vy. Williams......, Goodyer v. Lake.. 82 Gordon y. Gordon 110 sey. Jesson ....... seogee 46 ee oy, Traill........ 199 ss oy, Weaver ..... 61 Gore v. Bowser ...cescosssccesees ooccecses 367 © y. Stacpoole .,..0.sesescacseeeseens 144 Gosling v. Gosling ...ceccse cesses seeseeeee 124 Gould v. Hamilton .. 500 «sy. Tancred.. 53 Governors of Grey Coat, ‘Hospital y v. Westminster Improvement Com- MMISSIONETS ....... escere severe Seiessane 35 Graham v. Graham......... 590 66 vy. McPherson 2... sscsssee es coer 180 Grane v. Cooper ...... 103 Grange v. Conroy. 68 GATE, IReTE a sscisivisnacissasgavace i eta er Stuart, Jn re.. TABLE OF CASES. 8. PAGE. Stuart (Lord J.) v. London & N. W. Railway Co. .scccosscss.sovscesee sores 497 Stubbs v. Sargon... ...... -176, 368 Stupart v. Arrowsmith v.00... 128 Sturch v. Young ...... 229 Sturgeon v. Hooker 0.0.2... cceces scenes 83 Sturgis v. Morse...... 3 St Suart v. Welch. .... 820 Sullivan v. Bevan........... . 89 Summerfield v. Pritchard ........ 0.00. 104 Sutherland v. DeVirenne 127 as vy. Sutherland .. we 101 Sutton v. Jones ou... . 178 Swallow v. Binns. 127 SC. SND Yaeger oes wee: O6 Swanzy v. Swazy....csscsesea sceses 6, 8 Swasland v. Dearsley...... wee 862 Sweet v. Hunter ...sscssesss weseces . 108 Swinborne v. Nelson ......... eee LOL Swinfen v. Swinfen. . 812 Switzer v. Boulton.... 244 Sykes v. Brockville & Ottawa ra Railway Co.. Sete 485 Cee OM Hastings ... wiess 175 Symson vy. Prothero 225 Tait: Ve JOMKIOS a scsacsisoenenscoascevensancas Talbot v. Rutledge.-............ Tanfield v. Irvine.... Tardrew v. Howell... Tarratt v. Lloyd ........ a Tate v. Leithead or Lighthead.......... Tatham v. Platt. Day lors: Le TES ei dcheessecnsscceieassss 166, 557 Taylor NMAC a sercccsinewencanane aire ane 171 Barclay.. 55 Fields'..essesae 198 « . Gilbertson ... 497 ae Mabley’ cowevsapens 2s 482 ss Milner.... Ad aA4444444: Oldham............ ee Popham......... #6 . Rundell,....... 7 SHOR vnsccsisr ies, 476 se Stead si insoccweawersics siewaneveues 137 ss Taylor. . 276 ey, Walker...s. a0 131 Taylor & Bostwick, Jn re,. Teague v. Richards..... ..... Telford v. Ruskin.. Temple v. Bank of England... 25 Terrell v. Higgs.......... atey Tergon v. Hawkins .. 7 Tewart v. LaWS0D...sccss sess agsiqieiee edie Texier Le v. Margravine of Anspach.. 1 PAGE, Tharpe v. Tharpe....sssssresssesseeseeee 178 Thatcher v. Lambert.. vewess ‘60 Thibodo v. Collar... ..140, 141 . sé WeSoobells sscewsccrevieescevnsee 811 Thomas v. Bernard ............ 0000 sees « 92 es v. Dawkins.... . 173 ee v. Gwynn ..... 344 se v. Rawlings... 102 eS vy. Roberts......., 558 i y. Selby...... 81 ee Wi THOMAS cccscwervaiaavsvsccee, “FB ee y. Torrance .......14, 44, 102, 174 Thompson v. Buchanan ..........cccceeee 115 “ vy. Brunskill... 496, 498 ee vy. Derham.... diacaen eee fle v. Goodman .. 122 ee Vind ODES oi deus Seven wacnsgarnonce 73 ee v. Lambe.. 202 ce v. Lockwood. . avaiieess 62 ee y. Pascoe . 820 ce y. Teuton .., 147 fe v. Trotter.... 187 a v. Ward...... 108 se y. Wilkes ... we. 487 Thornhill v. Manning . 144, 214 Thornton v. Wilson... .. eis Thrasher vy. Connolly ..... 76 Threlfall v. Lunt......... 55 Thurlow v. Treeby ...... 37 Thwaites v. Foreman 64 Tickner vy. Smith......... 87 Tidd vy. Lister .... 171 Tidswell v. Bowyer.......scccsses seseseees 66 Tiffany v. Thompson.... 518 Tillotson vy. Ganson ..... 64 50. Times Fire Insurance Co.‘ Vi . MeDonell Tink v. Rundle.. garnna 3 Tipping v. Eckersley. susie Tippins v. Coates....... Toft v. Stephenson............ Tolson v. Jervis.......... Tomkins v. Harrison ............cceeca eee Tomlinson, Jn re.........0 st vy. Hill.......... Tommey y. White.......... Tomson v. Judge.... Took ‘¥:. Clarkisesvsecasseas Tooke v. Bishop of Ely.... imate ann 18S Toronto (Bank of) v. Eccles. . reve 478, 482 Rorotits (City of) v. McGill............. 252 ne ye Municipal Coun- cil of York and Peel... 501 Tort’ ¥; Dorr sistance. 84 Torrance v. Crook buaeciiniad reves 66 ne v. Winterbottom.. 20, 140 Toulmin vy. Coplandss.sssere os svecneconsessa 200 XXXVI. T. PAGE, Towers v. Christie......,:ssec sere severe 500 ef v. Foott ... 115 Townley v. Deare 820 Townsend v. Champernowne. 163 Trevelyan v. Charter. ...... + 212 Trevylyan, Jn re... “ . 240 Trezevant v. Broughton.... 46 Trilly v. Keefe.......-- a. , 79 Trim v. Baker ...... 57 Trimleston v. Hamill 196 Tripp v. Griffin........ 499 6 OV. Martin. sosccace seseeseee ereses eee 482 Troward v. Attwood. 116, 222 Trulock v. Robey...ccccsesssesee seeees 538, 195 Tryon v. Westminster... ....6 seccseseeees 56 Tuck v. Silver.....essee 309 Tuckley v. Thompson.. 1380 Tudor v. Morris......... 18 Tullett v. Armstrong 170 Tully v. Bradbury ...... 502 Turnbull v. Symmonds., 1382 Turner v. Hodgson ....... 212 58 v. Sampson..... 221 as v. Turner...81, "$3, "381, 204, 219, 308 a8 yv. West Bromwich Union..... 164 ae y. Williams........ aia Uaidewien gave . 94 ue vy. Wright... 121 Two Sicilies (King ot) y y. Wilcox...... 55 Twyford v. Trail.. 206 Tylee v. South ...cs..0 seceescee veces eeeres 1038 “« y, Tylee.... 171, 174 Tyler v. Bell 1.2. esse csersecer seseeasee coe 56 Tyndale v. Warre .....6000 see 164 Tyute v. Hodge........ .- sae 7 Pyson v. Fairclough.. ....sss.seecee evens 172 U. Upper Canada (The Bank of) v. Brough .......-5 008 vy. Pottroff...... 145, v. Scott...180, 140, Upton v. Ferrers.scccesse coves 487 531 488 808 “ 6c or “ Vv. Vacy Vv. Vacy...ccrscsse cocssssee cove seuss AQT Vale v. Davenport .. see 164 Vallier v. Lee ......000+ reese wwe 479 Vandebende y. Levingston. wisn 216 Vankoughnet y. Mills...... sore 501 Van Norman v. Beaupré..... . 496 Van Sandau v. Moore....... se 820 Vansickler v. Peitit...... vere 487 Vansittart v. Vansittart. wee 219, Van Wagner v. Terryberry..scccessseoee 558 494 TABLE OF CASES. Vv. PAGE. Vaughan v. Rogers.. igediaenddonsas OO Vaun v. Barnett ....06 cesses seesenees caves . 170 Veitch v. Irving... 6, 314 Verity v. Wyld.......0 ‘ ven, 224 Vernon vy. McKinzie ....... vee 71 “ vy, Thellusson. .122, 128 as y. Vernon.. wwlT, 57 Vickers v. Hand i...sccesseraceveeseeeeees . 197 Vincent v. Hunter. le es v. Spicer... ccccoreceseceerssscases . 310 Viney v. Chaplin . .162, 214 Vorley v. Jerram..... sareceoes 244 Vyvyan v. VyVyan wsccessevesses cesee oe 820 Ww. Wadeeu v. Hast India Co.....secccee 62 Wadham v. Rigg.ssssseseees . 85 Wadsworth vy. Boulton..... we 284 fs vy. McDougall . 488 Wainwright v. Waterman., 321 Wait v. Scott......05. vee . 501 Wakefield v. Newbon. ....cesesseeces sees 312 Walburn v. EMS 17, 88, 320 Waldo v, Caley... ccccsssesescsesee saseeseee 83 Wale v. Sulter.. 9 Wales, &c., Co. “(The F ‘Prince eof) 9 v. Palmer....sce serves ve we 127 Walker v. Bernard . . 486 ee y. Easterby.... 7 «s v. Mickelthwait.........cs006 eae 120 ae y. Provincial Insurance Co.... 500 « y, Symonds... sigeewaneeatas wees, 82 a v. Taylor..... 321 ee v. Walker...... 171 ae v. Woollaston.. 171 Wallace v. James....... 485 te v. McKay ..... 246 Waller v. Pedlington . 116 Wallis v. Bastard.... 197 «eg. Glynn...... Walsingham v. Goodriche Walton v. Bernard.. ws Warburton v. Lendon. and Blackwall par ear Co... Wand, In re.. ae Meee e eats weeeee teens as4ac Trathen . Warde v. Dickson... Ware v. Horwood.. ‘y, Watson,....... TABLE OF CASES. XXXVIi, W. PAGE. Ww. PAGE, Waring v. Manchester, Sheffield, and Whalley v. Lord Suffield............0.6. 82 Lincolnshire Railway Co. ......... 222) « v. ee ane 812 Warmstrey v. Tanfield................... 481] Whan v. Lucas.. eve seve 187 Warren v. Richardson..... «. 818! Wharton v. Swann... ese 89 se vy. Taylor.......... seeee 195 ee vy. Wharton... oe seceee 66 Warwick & Worcester R. W. Gis, Fn re. 68] Whatten v. Cradock .142, 308 Wason v. Westminster Improvement Wheeler, Jn re.......-. see 240 CommMissioners..... ..eeceee seseeeeee a Whicheriey v. Whicher et w. 194 Waters Vi Petet iciciscssvanice epssovzveses Whitaker v, Wright... seve 867 ss yy. Shade.... 246, 486 Whitbread v. Lyall....... see 144 Waterton ¥.. Crott. .cosencsssiscenconcesed . 85] v. Roberts. see 180 Watkins v. Brent........ escesces seresene 171 MBI Beasley... . 255 ee Wi BUSH, wcavawssdersccoauetesiewe 56 vy. Cohen.. aaa . 310 Watson y. Fitzpatrick.. 89} oy, Courtney. Giese ance 204 Ce ~¥ MHOVEORY dso and taseieviasmaciateie 49} * vy, Cummins.........008 89, 483, 490 «sy. Munro..... +486, 523] ‘ v. Fussell... +82, 83 ae v. Parker.. sven 212] Sy, Sayer ... senee 66 Watt v. Foster......... 502 «¢ y, Smale... 17 Watteeu v. Billam . 7] v. White... 8 Watts v. Hughes... . 85] Whiteaves v. Melville... 0... cece cecees 126 « y. Hyde...... 281] Whitehead v. The Buffalo and Lake OO a Welhys cnveenaseataleetiansedesensices 8 Huron Railway Co..244, 485 ce oy, Manning . 2, 225] v. North .......... sagaceasrees 212 Waugh, 21: és rcissasenssnsessnsssejcosessioa 47 | Whitelock v. Baker.....ccccseeessssceeeee 247 Wayn v. Lewis.... 131 | Whitfield v. Roberts... «180, 182 Wearing v. Ellis .......10 secccees 18 | Whiting v. Lawrason....s sssescesecesaee 478 Weatherhead y. Blackburn... 56 | Whitla v. MclIntosh....... eee ATT Webb v. Byng.....s.cescccee voeee - 119] Whitley v. Lowe..... we 174 « y. Cleverden.. ... 504] Whitmore v. Ryan........ 382, 33 « y. Direct London & “Portsmouth Whittemore v. Ridout ..........ssecceees 502 Railway Co ......seeseeceeeee 497 | Whittington v. Edwards............ 88 Gb yy Ein glandsissscasasae iecsccsavisoneee 55 « "-y. Gooding... ‘ 127 ‘ey, Rorke....... 196 | Whitworth v. Whyddon.... 171 « y. Salmon.. 85 | Wiard v. Gable ..... eters 481 e8. es Webb sexssns 276 | Wickenden v. Rayson....... 214 Webster, ez parte.... 164] Wickham v. Nicholson .... 130 ee Ve, LE-UD bs scesseessescsveietncie 812] Wicks vy. Hunt wee sesereee 810 ig v. O’Closter....... 81, 524 | Wigharm v. Measor .......s.ce0 eee .130, 1381 7 Ve Taylor’ sis veciceisss socnseices . 237 | Wightman v. Wheelton....40, 91, 1238, Wedderburn v. aT edierburae 65, 120, 198 181, 311 Weeks v. Cole... sbedeaaneevederk sd 814 | Wilcox v. Rellaers ........ csecerses siseas, LOZ Weightman v. Powell... ateeees .88, 68, 76] Wild v. Murray.......... sisegheSecvese 0 ss vy. Wheelton...40, 91, 123, Wilde v. Gibson 2. cesses secsesees svenseee 318 181, 311 | Wildman y. Lade......... cc. ceece ceceeeeee 214 Weiss: V4 Dil ecicciiteseresesesduisdaspamasesese Wilkins vy. Hogg..... ews we 87 Welch v. Welch.. sc y. Reeves ..... . 18 Weld v. Bonham.. weds sy. Stevens.. ..... awe 227 Wellesley v. Duke of Beaufort... ~851, 558 6 Me WiNaMms serssies sever ee sees 173 a v. S aeniiian eetad ae , 56] Wilkinson v. Hartley....... 161, 223, 318 Wells v. Wood .. isi ais 66 ee vy. Lewis ..... s0 , 318 West v. Laing... a seasense 8D ba y. Wilkinson .. . 199 a oy, Smith........-.176, "999, 277, 868 | Willan v. Willan ........... 83 Weston v. Haggerston..........-...20 Willard v. McNab.. 482 Weymouth v. Lambert... Willatt v. Bussby...... . 821 Whaley v. Norton......... Williams, Jn re...102, "103, 158, 163, 812 Whalley, In re, 219 ' 'y, ALKINSON wresssseneseees 80 Coe . TABLE OF CASES. XXXYVI11. Ww. PAGE. Williams ve Felker..scsece sseseesveese see 480 y. Flight... a Ke v. Goodchild... te v. Jackson..... Bees ee v. Lewellyn ..cccccer eeeesee se V. Page....sss vssceee 45, 127, 214 ee y. Prince of Wales Insur- ance Oo., ataiio.we 104 ne v. ses 65, 120, 121 ah y. Rowlands = . 240 ee v. Sorrell .... 196 ae v. Springfield . vs 196 “ y. Thompson... vee 61 ee y. Williams .. 244 Williamson v. Hutton . Willis v. Parkinson...... , 212 Wills v. Gandy...... . 87 6%, Murray ssscssveavensenrseavereene . 482 «ow Rich .... _ 171 Willyams v. Hodge 72 Wilmott v. Boulton . eareer 105 Wilson v. Auchterlony .. . Bates . Cluer Greenwood ... Metcalfe ...... Shier “ oc “ce “ce “ce cc oo! “ce Aad a44848; Switzer .... Townend.... aac ia . Wilson .. Wilton v. Clifton.. Wiltshire’s Estate, Tar TCivecve sees a Matehester (Bishop at v. "Bowker... ws V. Paine ...cccce ces Wing v. Harvey........ Winter v. Innes Wintle v. Bristol Railway Co.. Winnall v. Et Winthrop v. Elderton... v. Murray... Wirdman v. Kent Witham v. Salvin.... st v. Smith... 492, 493 Wood v. Beadell .... sae 128 v. Brett... 482 “ y, Grey... 314 “oy. Griffith... 81, 82, 83 66 vy. Harpur secssccse see sessneee O44 (Cox. Hitchings! ics enissicererssaves LTL Wood v. Lyne .. ‘6 sy. Machu..... “cy. Midgley .. « y, Scearth....... Woodruff v. Street. Woodhatch v. Francis.... 87 ts v. Freeland... 866 Woods v. Wo0ds........00eseees. .. 225 Woodward v. Earl of Lincoln ......... . 812 ts V. TWinaine. 10. weeoeee save 209 Woodyatt v. Gresley...... «170, 171 Worley v. Frampton.... » 168 Wormald vy. De Lisle..........0. secssevees 67 Wormsley v. Sturt.............104, 152, 194 Worth v. Mackenzie....... wee 12 Wortley v. Molesworth. ....... sapeeege « 68 Wragg v. Beckitt .............0. 0.518, 519 ‘cy. Wragg... cee 95 Wray v. Hutchinson.. 321 Wrenvs Kirtonsscssies ssasen cssoacsees 174 Wright v. Angle... 98 yv. Atkyns.. v. Edwards... Y. Henderson... . v. Wright ..... vous 214 Wrottesley v. Bendish, 61, 73 Wyatt v. Sadler............ sevase 192 Wyld v. Ward.... 82 Wylie v. Wylie... . 485 Wyllie v. Ellice..... 8 Wynn v. Morgan... .....00- » 819 Wynne v. Humberston. saagaas ‘102, 104, 367 (© yy. Newborough .....c. seseceeseees 178 Xs Yaggie, In re... .ccssssccesees 166, 204 Yate v. Bolland........ aennevsece DAT “¢ y, Leithead or r Lighthead. tevseneee 48 Yeomans v. Haynes....ce ses cseeeree 148, 214 Young V. Bown. seen ceseee . 495 v. Christie... oy 478 «-y. Goodson ... 381 «cy. Keighly ... 58 oy. Ward...... 15 Yow v. Townsend,........ss000esee0, 204, 214 Z. Zulueta v. Vinent............0.. 35, 88, 120 PART THE FIRST. GENERAL ORDERS OF THE COURT OF CHANCERY FOR UPPER CANADA. ORDERS OF COURT. 8rp JUNE, 1853. Tue Jupees of the Court of Chancery do hereby, grat orders in pursuance of an Act of Parliament passed in the 4 7Wes. twelfth year of the reign of Her present Majesty, intituled ‘‘An Act to provide for the more effectual administration of Justice in the Court of Chancery, in the late province of Upper Canada,” and of an act passed in the 13th & 14th years of the reign of Her present Majesty, intituled ““An Act to amend the Re- gistry Law of Upper Canada,” and in pursuance and execution of all other powers enabling them in that behalf, order and direct that all and every the rules, orders and directions hereinafter set forth, shall hence- forth be, and for all purposes be deemed and taken to be, general orders and rules of the Court of Chancery, Viz. :— i Ld 2 INTRODUCTORY—INTERPRETATION. [ORDERS I., I., AND III] INTRODUCTORY. Orders to trke = -T. These orders are not to affect suits already com- July, 183. menced, except as hereinafter provided; and as to all suits hereafter to be commenced, they are to take effect on the 1st day of July, 1853. All former or- | II. All the orders of this court which were in force Gere rspeaied ‘on the Ist day of May, 1850, numbered from I. to CXCII.; and all orders promulgated on the Tth day of May, 1850, numbered from I. to LXXXIV.; and all the orders promulgated on the 7th day of January, 1851, numbered from I. to XXV., are hereby abrogated and discharged, except as to suits already commenced. | INTERPRETATION. Interpretation. III. In these orders the following words have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there is something in the subject or context repugnant to such construction, viz. : 1. Words importing the singular number include the plural number; and words importing the plural number include the singular number. ( 2. Words importing the masculine gender include females. 3. The word “person” or “party” includes a , body politic or corporate. 4, The word “bill” includes information. 5. The word “ plaintiff’’ includes informant. 6. The word “affidavit” includes affirmation. « . INTERPRETATION—COMPUTATION OF TIME. 3 [ORDERS IV, AND YV.] 7 The word “legacy” includes an annuity anda specific as well as a pecuniary legacy. 8. The word “legatee’’ includes a person interested in a legacy. 9. The expression “‘residuary legatee”’ includes a person interested in the residue. 10. The word “order’’ includes decree and decretal order. IV. The long vacation is to commence on the Ist day Long Vacetion. of July, and to terminate on the 21st day of August in every year. COMPUTATION OF TIME. V. When any time limited from or after any date or event is appointed or allowed for doing any act or taking any proceeding, the computation of such limited time is not to include the day of such date, or of the happening of such event, but is to commence at the beginning of One dey to be the next following day; and the act or proceeding is to °° =v to be done or taken at the latest on the last day of such limited time, according to such computation. Sec. 2.—When the time for doing any act, or taking any proceeding is limited by months, not expressed to “Month” means . . ar month, be calendar months, such time is to be computed by lunar months of twenty-eight days each. Src, 3.—When the time for doing any act, or taking any proceeding expires on a Sunday, or other day on which the offices are closed, and by reason thereof such Where the time : of doing any act act or proceeding cannot be done or taken on that day— falls on Sunday, such act or proceeding is, so far as regards the time of doing or taking the same, to be held to be duly done or 4 PRACTICE AS TO LONG VACATION. [oRDER V., SECS, IV, AND V.] taken, if done or taken on the day on which the offices shall next open. (a) (a) Where the day appointed by the master’s report for payment of the mortgage money found due by the report fell upon a Sunday, the court refused to make a final order of foreclosure, notwithstanding that attendance had been given on the Saturday and Monday preceding and following the day named, and the money was still unpaid. (Holeumb v. Leach, 3 Grant, 449.) Where a notice of motion bad been given for Good Friday, the court refused to entertain the motion at the next sitting. (Fitzgerald v. Phillips, 8 Grant, 535.) The time of va. Suc. 4.—The time for vacation is not to be reckoned count for certainin the computation of the times appointed or allowed purposes. ‘ . for the following purposes, viz. : 1, Amending or obtaining orders for leave to amend bills. 2. Setting down demurrers. 8. Filing replications, or setting down causes under the directions of rule XVIII. (0) (5) The time appointed by the court for vacation at h ristmas is not excepted in the computation of the time allowed for amending the bill. Spragge, V. C., deciding in Connolly v. Montgomery, Grant’s Cham. Rep. 20, that the above order, 5, of 1853, had reference to the long vacation only. This decision was given after consultation with the other members of the court. And by the order of the 30th June, 1858, it is ordered that the time of the long vacation is not to he reckoned in the computation of the time appointed or allowed for the purpose of answering either an original or amended bill. The long vacation is not reckoned in computing the six months from the service of the bill, within which the plaintiff may move ex parte for an order pro confesso. (Kerr vy. Clemmow, Grant’s Cham. Rep. 14; Grange v. Conroy, Grant’s Cham. Rep. 70.) It would seem that the long vacation is reckoned in computing the fourteen days allowed for confirmation of the Master’s report. See Stinton vy. Taylor, 4 Hare, 608, where it was held that the rule does not apply to the filing of replications generally. Query, whether proceedings taken in the Master’s Office during the vacation are regular. ; Sze. 5.—The day on which an order that the plaintift do give security for costs is served, and the time thence- forward until and including the day on which such secu- SECURITY FOR COSTS. 5 [ORDER V., SEG. V.] rity is given, is not to be reckoned in the computation of time allowed a defendant to answer or demar. (c) (c) A plaintiff cannot be compelled to give security for costs, unless he himself states upon his till, that he is resident out of the jurisdiction, or unless the fact is established by affidavit. If it appear on the face of tbe bill that the plaintiff is not merely without the jurisdiction, but is residing out of the jurisdiction, then the defendant is entitled to take out on preecipe from the office of the registrar or deputy registrar, (see Order XLIV., sec. 4,) where the bill is filed, an order for the plaintiff to give security. The mere circumstance of the plaintiff having gone abroad will not be a sufficient ground on which to compel him to give security, unlessit is stated either by the plaintiff himself, or upon affidavit, that he is gone abroad for the purpose of residing there. (Green v. Charnock, 3 Bro. CG. C. 871; 2 Cox, 284; 1 Ves. J. 396; Hoby v. Hitchcock, 5 Ves. 699.) The order so obtained on preecipe, should also state that all proceedings are stayed until security be given, otherwise the plaintiff will be at liberty to take any proceedings which will not affect the defen- dant’s right to answer, such as amending bill, and taking it pro confesso against a defendant who does not demand security. The order will not be granted if even one among several plaintiffs is within the jurisdiction, though the others may be out of the jurisdiction. (Walker v. Easterby, 6 Ves. 612.) An order that the plaintiff do give security for costs may be, therefore, obtained by a defendant as of course, if it appears upon the face of the bill that the plaintiff or plaintiffs, not one or more of several plaintiffs, but the plaintiff or plain- tiffs is or are, either residing out of the jurisdiction of the court, or if not residing, is or are out of the jurisdiction, and likely to continue and be out of the jurisdiction when the defendant may be in a position to call upon the plaintiff to pay costs. Each set of defendants may call upon the plaintiff to give security, notwithstanding that the plaintiff, upon a previous requisition on the part of one defendant, may have given a bond generally to all the defendants. A defendant cannot require that the plaintiff shall give security for costs, if, in knowledge of the fact of the plaintiff’s residence, or being out of the jurisdiction of the court, he nevertheless files an answer. In ordinary cases, the order may be obtained on precipe, as of course. In other cases, a notice of motion must be given. On presenting the precipe to the registrar for the order of course, an office-copy of the bill should also be produced in proof, that in the bill the plaintiff is stated to be, or appears to be, resident out of the jurisdiction. y The order, when obtained, is to be served on the plaintiff’s solicitor, who there- upon gives to the solicitor of the defendant who obtained the order, the name, address, and description of the proposed surety or sureties. The plaintiff is not bound to propose to the defendant the names of his sureties. He may give the bond at once. But to propose such names is the usual course, as otherwise, in the event of an objection being sustained, the consequences both as respects the bond and as to costs, may be somewhat serious to the plaintiff. The plaintiff need not name more than one surety ; but it is more usual to name two, and it is indeed advisable, otherwise, in the event of the death of one, it will be necessary to renew the bond. If one surety, or all the sureties die, or become bankrupt, an order should be obtained for stay of proceedings until a new surety is appointed. If no objection to the proposed surety or sureties is intimated by the defendant’s solicitor within two days from the proposal of the names, he cannot 6 SECURITY FOR COSTS. [ORDER V., BEC. V.] afterwards object, and the bond may be executed and deposited with the registrar, and notice thereof served upon the defendant’s solicitor on the same day, and it is desirable that notice thereof should likewise be given to the solicitors of all the other defendants. If the defendant’s solicitor objects, which he has a right to do, (Cliffe v. Wilkinson, 4 Sim. 122,) the plaintiff must find others, or the objection must be brought before and determined by a Judge in Chambers. The form of bond will be found in the Book of Forms, Part the Second. When security is asked for on the ground that the plaintiff is out of the jurisdiction, and an application is made to a Judge in Chambers on motion that he do give gecurity for costs, the question arises whether the party is resident abroad or not, within the meaning of the rule, and the answer to that question depends in each case upon the interpretation to be put upon the phrase * resi- dent,” or, ‘‘ permanently resident” abroad. If a plaintiff goes to reside abroad, under circumstances rendering it likely that he will remain abroad for such a length of time that there is no reasonable probability of his being forthcoming when the defen- dant may be entitled to call upon him to pay the costs in the suit, that is sufficient. (Blakeney v. Dufaur, 2 DeG. M. & G. 771.) Applications for security must be made before answer. (See cases cited infra.) The mere fact of a plaintiff being in the service of the Crown, and absent from the jurisdiction of the court, is not sufficient to exempt him from giving security for costs; to do so, it must be shewn that he is absent from his domicile in the service of the Crown. (Dickenson vy. Dufill, 8 U.C. L. J. 826.) The judgment in this case by Spragge, V. C., reviews at considerable length the various authorities upon the subject. . : The solicitor cannot be the security; (Panton vy, Labertouche, 1 Ph. 265; Beckitt v. Wragg, Grant’s Cham. Rep. 5;) and as to the nature of the security, see Plestow v. Johnston, 2 W. R. 3. The plaintiff is only bound to divide one penalty among all the defendants. (Lowndes v. Robertson, 4 Mad. 465.) The surety must be a solvent person, (Cliffe v. Wilkinson, 4 Sim. 122,) and where the surety became bankrupt after a decree dismissing the plaintiff’s bill, but from which the plaintiff was appealing, the court stayed the proceedings in it till a new surety was appointed. (Lautour v. Holcombe, 1 Ph. 262; Veitch v. Irving, 11 Sim. 122.) In Bainbrigge v. Moss, 3K. & J. 62; 3 Jur. N.S. 107; the defendant’s costs of sending a clerk abroad to enquire into the solvency of the surety were allowed. “A bond for £100 is ‘a sufficient security for costs.” (Australian Steamship Com- pany (limited) v. Fleming, 4 K. & J. 407;) and see Plestow v. Johnston, 2 W R. 3. As to what constitutes a waiver of the defendant’s right, see Murrow v. Wilson, 12 Beav. 497; Swanzy v. Swanzy, 4 K. & J. 287; Player vy. And 15 Sim, 104; Ainslie v. Suns, 17 Beay. BF , Ms Panes = Where plaintiff is abroad, and the defendant becomes apprised of it he cannot obtain security for costs, if he afterwards takes any other step in the cause such as applying for time to answer, (Meliorucchy v. Meliorucchy, 2 Ves. 24; 8. c., 1 Dick 147; Chapin v. Clarke, per Esten, V.C., 28th June, 1859,) nor will security for costs be granted after any step, as answering or obtaining time to answer by defendant; (Craig v. Bolton, 2 Bro. C. ©. 609; Anon 10 Ves. 287; Prior v. White, 2 Moll. 861;) other- wise, if at the time of answering, he had no notice that the plaintiff was out of the jurisdiction. (did. )- Where a plaintiff, upon his bill, misstates bis place of residence, the court will order him to give security for costs. (Sandys v. Long, 2 Myl. & K. 487; 8. ¢., 7 Sim. 140.) See also, Calvert v. Day, 2 ¥. & Coll. 217. If, however, SECURITY FOR COSTS, 7 [oRDER V., SEO. V.] before the order for security is obtained, the plaintiff amends his bill and inserts hia residence correctly, security for costs will be refused. (Ackerley y, Frodsham, 8 L. J. N. 8 Ch. 240.) ‘ A defendant in an interpleader suit, who was out of the jurisdiction, was ordered to give security for costs, he being looked upon as a plaintiff. (Smith v. Hammond, 6 Sim. 15.) If the plaintiff be resident out of the jurisdiction of the court, the defendant is en- titled to an order for security for costs, and that in the meantime all proceedings in the suit may be stayed. All the plaintiffs, however, when there are several, must be resident abroad, for if any one be within the jurisdiction the defendant is not entitled to security. (Walker v. Easterby, 6 Ves. 612.) Neither will security be ordered where the plaintiff is residing abroad in an official capacity, or in actual service as a British officer. (Evelyn v. Chippendale, 9 Sim. 497; Clark v. Fergusson, 1 Giff. 184; 5 Jur. N. S. 1155; Colebrook v, Jones, 1 Dick. 154.) If it be not distinctly stated that plaintiff is abroad on actual service, security will be ordered. (Lillie v, Lillie, 2M. & K. 404.) The plaintiff in a cross suit, whether the original suit be at law or in equity, although residing out of tbe jurisdiction, is not bound, as against the plaintiff in the original suit, to give security. (Vincent v. Hunter, 5 Hare, 820; Wild v. Murray, 18 Jur. 892; 2 W.R. 613; 2Eq. R. 1095; Watteeu v. Billam, 18 L. J. 455; 14 Jur, 165; 3 DeG. & Sm. 516; and see Sloggett v. Viant, 13 Sim. 187; Thornton v. Wilson, 1 Hog. 20; MacGregor v. Shaw, 2 DeG. & Sm. 360; Wilkinson v. Lewis, 3 Giff. 394; Fenwick y. Fortescue, Bunb. 272.) In testing whether a bill is really a cross bill, the question is whether the bill is a simple bill of defence against some existing attack. (Tynte v. Hodge, 11 W.R.52; 7L. T.N.S. 849; 8 Jur. N.S. 1226.) A plaintiff filing a bill to restrain an action at law need not give security. (Wat- teen v. Billam, 3 DeG. & Sm. 516,) and that too, notwithstanding the bill may ask for relief other than the injunction. (Manley v. Williams, Grant’s Chamber R. 48.) Where one of several defendants after decree, obtained leave to have the conduct of the cause, he was ordered, being out of the jurisdiction, to give security. (Mynn vy. Hart, 9 Jur. 860.) If a person out of the jurisdiction petitions for the taxation of a solicitor’s bill, he will be required to give security. (Anon. 12 Sim. 262; ReDolman, 11 Jur. 1095.) So where a person not a party to the suit presents a petition and is out of the jur- isdiction, the respondent may apply at once for security, without waiting until the petition comes on, (Atkins v. Cook, 3 Drew. 694; 3 Jar. N.S. 283; 5 W. BR. 881; Partington v. Reynolds, 6 W. R. 307; see also Drever v. Maudesley, 5 Russ. 11.) A defendant, however, although out of the jurisdiction, has a right to present a petition in the suit, without giving security for the costs of the petition. (Cochrane y. Fearon, 18 Jur. 568.) In like manner security will be ordered if the plaintiff appears to have no fixed residence; (Player v. Anderson, 15 Sim. 104; 10 Jur. 169; but see Hurst v. Padwick, 12 Jur. 21;) or is on a voyage at sea, and there is nothing to shew when he may return. (Stewartv. Stewart, 20 Beay. 322.) So where a plaintiff bad left his residence shortly after filing the bill, and no in- formation could be obtained from his solicitors as to his abode, security was ordered, (Manby v. Bewicke, 2 Jur. N. 8. 671; 4 W. R. 757; 8 DeG. M. & G. 468; over- 8 SECURITY FOR COSTS. [ORDER Y.,8E0. V.] ruling decision of V. C. Wood, see 3 W. R. 646; 1 Jur. N. 8. 1015; Bailey y, Gundry, 1 Keen. 53.) See, however, Hurst v. Padwick, 12 Jur. 21; Lumley v. Hughes, 2 W. R. 112; Watts v. Kelly, 6 W. R. 206; and the like where the plaintiff was not to be met with at the place described, and was keeping out of the way to avoid process. (Oldule v. Whitehead, 28 L. J., 333; 6 Jur. N. 8. 84; 7 W. R. 157.) So if the plaintiff’s residence, as described in the bill, be insufficient or vague, security will be ordered; thus where the plaintiff was described as then working on a particular railway line, naming it, security was ordered. (Sibbering v, Earl Balcarras, 1 DeG. & S. 683; 17 L. J. 102; 12 Jur. 108; Grant v. Mills, 29 L, T. 11; Griffith v. Ricketts, 5 Hare, 195.) ' So if the plaintiff wilfully misrepresents his residence, an order will be granted; (Sandys v. Long, 7 Sim. 140; affirmed 2 M. & K. 487;) but not where it is done innocently and from mere error, (Simpson v. Burton, 1 Beav. 556-8.) Or without any wilful intention to conceal or mislead. (Smith v. Cornfoot, 1 DeG. & 8. 684; 12 Jur. 260; Watts v. Kelly, 6 W. R.206.) Neither willan order be granted merely on the ground that, at the time of filing the bill, the plaintiff was not actually resi- dent at the place of which he is described. (Hurst v. Padwick, 17 L. J. 169; 12 Jur. 21; Lumley v. Hughes, 2W. R. 112; 22 L. T. 197.) The defendant should lose no time in making the application, for if he take any subsequent step in the cause after he has ascertained that he is entitled to security, he will, in general, waive his right thereto. (Cooper v. Purton, 8 W. R. 702; but see Swanzy v. Swanzy, 4K. & J. 287; 27 L. J. 419; 4 Jur. N. §. 1018; 6 W. RB. 414; Jackson v. Davenport, 9 W. R. 356; see also 2 Ves. 24; Craig v. Bolton, 2 Bro. C. C. 609; Lonergan vy, Rokeby, 2 Dick. 799.) Where a defendant wishes to obtain security after he has answered, he must make a special application supported by affidavit. (Wyllie v. Ellice, 11 Beav. 99; 17 L. J. 878; 12 Jur. 711.) An executor or administrator residing abroad must give security for costs (Knight yv. DeBlaquiere, San. & Sc. 648.) See as to infants, &c., out of the jurisdiction suing by a next friend. (Lander v. Parr, 16 L. J. Ch. 269.) Where a plaintiff goes abroad pending the suit under suspicious circumstances, he may be ordered to give the security, (Blakeney v. Dufaur, 2 DeG. M. & G. 771; 8. c. 16 Beav. 292,) and see O’Conner vy. Sierra Nevada Company, 24 Beav. 485; where the plaintiff had gone abroad for purposes connected with the suit. In that case, upon the plaintiff’s return, the order was discharged. The recent act, (22 Vic., ch. 83,) has effected a material change in the practice of the court as to granting or refusing security for costs. The fact that the plaintiff has not any fixed place of abode within the province will not be sufficient to warrant an order for that purpose where it is shewn that he has property within the jurisdic- tion, per Lsten, V. C. (White v. White, Grant’s Chamber Rep. 48.) The judge, too, is bound to take notice of the territorial division of the province; for in McDonald v. Dicaire, Grant’s. Chamber Rep. 84, which was an application for security for costs, the bill stated the plaintiff to be resident in the parish of Rigaud, in the county of Vaudreuil, and per the Chancellor it was held that as by the Prov. Stat. 19 Vic., eh. 152, the whole province having heen set off into territorial divisions the court was bound to take notice of such subdivision of the country as that act makes, and that therefore security for costs should be given. : The plaintiff, in Cliffe v. Wilkinson, cited sw i ] , in ¢ Ww ipra, was allowed to pay £120 into court instead of giving security; and see Australian Steamship Company (limited } v. Fleming, 4 K. & J. 407; ‘and Fellowes v. Deere, 3 Bea. 858, where a proper sum SECURITY FOR COSTS, 9 (ORDER Y., SEO. V.] was allowed to be paid into court. This practice has been followed in our own court, by allowing a deposit of £100 into court, in place of giving security by bond. If a married woman sues by a next friend, he must be able to give security for costs. (Hind v, Whitmore, 2 K. & J. 458; s.v., 25 L. J. 894.) It seems, however, that the latter rule does not hold good in an infant’s suit. ([id.) As to this point, however, see Lindsay v. Tyrrell, 24 Beav. 124; s.c., 8 Jur. N. 8. 1014; 8. ¢., 6 W. R. 617; on appeal, 2 DeG. & J.7; s.¢., 6 W. R. 148. If the next friend of an infant or married woman be resident out of the jurisdic- tion, security will be ordered. (Alcock y. Alcock, 5 DeG. & Sm. 671.) The next friend of @ married woman will also be ordered to give security on the ground of poverty, though within the jurisdiction; (Stevens v. Williams, 1 Sim. N. 8. 545; Hind v. Whitmore, 2K. & J. 458; 25 L. J., Ch. 894;) so if next friend be insolvent, he will be removed ; (Waters v. Peters, 8 U. C. L. J, 8328; Pennington v. Alvin, 1S. & S. 264; Wale v. Salter, Mos. 47, 86;) see, however, Crace v. Crace, (Eng.,) 1 U. C. L. J. 88; where an application to remove a next friend of a married Woman on the ground of poverty was refused, he having been allowed to remain on the record for six months without objection. The foregoing rule as to the next friend of a married woman does not apply to infants. (Fellows v. Barrett, 1 Keen. 119.) If the next friend of a married woman retires during the suit, he will have to give security.for the costs already incurred, and also to find a surety to join him; (Payne vy. Little, 22 L. J. 1037;) so if the next friend of infants dies, security will be ordered if the infants are all resident out of the jurisdiction, but such order will be discharged on the appointment of a new next friend resident within the jurisdiction. (Parks y. Brown, 4 U. C. L. J. 282.) A married woman, defendant, (though her hushand be a co-defendant,) applying on her own behalf for security, must do so by next friend. (Pearse v. Cole, 16 Jur. 214; Cooney v. Girvin, Grant’s Cham. Rep. 94; s.c., 8 U. C. L. J. 187.) When a bill is filed by a next friend on behalf of an infant, the address of the next friend must be fully set out. (Major v. Arnott, 2 Jur. N. S. 80; s.¢., 4 W. R. 229.) In Hardwicke v. Warren, 2 Ir. Eq. R. 156, the practice was laid down that if the plaintiff do not comply with the order within a reasonable time the proper course is to apply on motion that he give the security before a certain day, and in default, that his bill should stand dismissed without costs. But see Giddings v. Giddings, 10 Beav. 29, (and cases there cited,) where the application was granted with costs, and following these decisions Wood v. Grey, per Esten, V. C., 8 Oct., 1856. The time is in the discretion of the court, and may be enlarged, (Jbid.,) per Zsten, V.C., 8rd Decr., 1856. In O’Grady v. Munro, 7 Grant, 106, the plaintiff, a British subject, having gone to reside in the United States, where he had remained for several years, but had never taken any oath of naturalization, or exercised the rights of citizenship in that coun- try, returned to this province, and some months afterwards filed a bill in this court, a motion for security for costs was refused although several persons swore that his intention was to leave immediately on the decision of the case, the plaintiff having sworn that his intention was to remain in the country. Where upon the death of a sole plaintiff residing out of the jurisdiction, and as against whom the defendant had waived his right to security for costs, the bill was revived by his legal personal representative, who also resided out of the jurisdiction, the defendant was held entitled to the usual order for security for costs. (Jackson y. Davenport, 7 Jur. N. 8S. 1224; 80 L. J. Ch. 272; 9 W. RB. 356.) 2 10 SECURITY FOR COSTS—PARTIES TO SUITS. [ORDER V., SEQ. V., AND ORDER VI.] If the order cannot be obtained upon precipe; and it will have been seen that it can only so be obtained when it appears upon the face of the bill that the plaintiff is resident out of the jurisdiction, then a notice of motion must be served upon the plaintiffs solicitor for an order that security may be given upon the evidence dis- closed in an affidavit which must be filed in the regular way before notice is served in support of such application, such affidavit must be mentioned in the notice of motion. The deputy-master in the county where the bill is filed is to hear and dispose of all applications relating to security for costs, see post Order XLIV., sec. 4. The bond must be given to the registrar or deputy-registrar where the bill is filed, see Order XLIIL., sec. 6. In Roaf v. Topping, Grant’s Cham. Rep. 14, which was an application by the defendants to be at liberty to sue on the bond given for security for costs, the plain- tiff being resident out of the jurisdiction, Spragge, V. C., required the decree to be produced to shew that the defendants were ordered to receive their costs, and in Stokes v. Crysler, Grant’s Cham. Rep. 14, which was a similar application, Zséen, V.C., required the party moving to shew a demand from, and refusal of the costs by, the sureties named in the bond before making the order asked, PARTIES TO SUITS. VI. The practice of setting down a cause on an objection for want of parties merely, is abolished. Defendant notte Sec. 2.—It shall not be competent to any defendant ake objection , . . . 3 for want of par-1n any suit to take any objection for want of parties to ies in any o ao oe ‘ : the following such suit, in any case to which the rules next hereinafter oe set forth extend. Ruz 1.—Any residuary legatee, or next of kin, may have a decree for the administration of the personal estate of a deceased person, without serving the remain- ing residuary legatees or next of kin. Rutt 2.—Any legatee interested in a legacy charged upon real estate; or any person interested in the pro- ceeds of real estate directed to be sold, may have u decree for the administration of the estate of a deceased person, without serving any other legatee or person interested in the proceeds of the estate. PARTIES TO SUITS. 11 (ORDER VI., SEC. I1.] RULE 3.—Any residuary devisee or heir may have the like decree, without serving any co-residuary devisee, or co-heir. (d) Rute 4.—Any one of several cestuis que trust, under any deed or instrument, may have a decree for the execution of the trusts of the deed or instrument, without serving any other of such cestwis que trust. (e) Rute 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 move on behalf of himself, and of all persons having the same interest. Rute 6.—Any executor, administrator, or trustee, may obtain a decree against any one legatee, next of kin, or céstut que trust, for the administration of the estate, or the execution of the trusts. In all the above cases the court, if it shall see fit, may But court may order other per- require any other persons to be made a party or parties porto is meals , to the suit, and may, if it shall see fit, give the conduct % = . may give the of the suit to such person as it may deem proper; and meyer ie i i i case to an: may make such order in any particular case as it may case to any deem just for placing the defendant on record on the same footing in regard to costs as other parties having 972 rexulate a common interest with him in the matter in question. (d) Asuit may be proceeded with without making the real representatives of resi- duary legatees who have died abroad before the institution of the suit, parties to the suit, although the devisees themselves have through ignorance of their death been so named. (Bateman vy. Cooke, 1 W. R. 242.) (e) So one cestui que trust may without serving his co-cestui que trust have a decree for the appointment of new trustees. (Jones v. James, 9 Hare, App. lxxx.) It seems, too, that the rule applies to a bill to make a trustee responsible for a breach of trust. (McLeod y. Annesley, 22 L. J. Uh, 633, 637; s.c.17 Jur. 608; 16 Bea. 600.) But vid. Jesse v. Bennett, 6 DeG. M. & G. 609; 26 L. J. Ch. 68, 12 PARTIES TO SUITS. {ORDER VI., SEO. I1.] ‘enue In all the above cases the persons who, according to partiesto be the present practice of the court, would be necessary office copy of the narties to the suit, are to be served with an office copy of the decree, (f) and after such service they shall be bound by the proceedings in the same manner as if they had been originally made parties to the suit ; and upon service of notice upon the plaintiff, they may attend the proceedings under the decree ; any party so served may apply to the court to vary, or add to the decree, within fourteen days from the date of such service. (g) Rutz 7.—In all suits concerning real or personal estate (h) which is vested in trustees (2) under a will, settlement or otherwise, such trustee 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 per- sonal estate; and in such case it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit; but, on the hearing the court, if it shall think fit, may order such person or persons, or any of them, to be made parties. (k) (f) From the English practice it would appear that a Judge in Chambers will direct who are the proper parties to be served; (De Balinhard y. Bullock, 9 Hare, App. xiii.;) and that the rule as to serving parties applies to infants, (Clarke v. Clarke, 20 L. T. 88; ». vu. 1 W.R. 48,) and to parties out of the jurisdiction, (Chal- mers v. Laurie, 10 Hare, App. xxvii; s. c. 1 W. R. 265.) : (g) By tbe English practice, when a party served with such decree feels himself aggrieved thereby, he should move the court on notice for leave to file a bill in the nature of a bill of review. (Kidd vy. Cheyne, 18 Jur. 348.) Service of an office copy decree for sale or otherwise in a suit does not make decree binding on a judgment creditor, who is not a party to the cause, (Knight v. Pocock, 24 Beav, 486; 8. ¢. 27 L. J. Ch. 297; 4Jur.N.S.197; 80 L. T. 126,) and as to this rule generally. (Doody v. Higgins, 9 Hare App xxxii.; s.c 2 Jur. N.S. 1068.) The practice followed by our court is for the master to whom the reference under the decree has been made to give the direction. See order XXXIV., for the endorsement to be made on the office copy of the decree served. (4) The operation of this rule is not confined to administration suits. (Fowler v. Bayldon, 9 Hare, App. lxxviiii—comp, McLéod v. Annesley, 22 L. J. Ch. 687; 8. 6.17 PARTIES TO SUITS. 13 {ORDER VI., SEC. II.] Jur. 608; 16 Bea. 600.) In applying it generally, the court will exercise the discretion given to it by the concluding clause. Thus in Tudor v. Morris, 22 L. J. Ch. 1051; s. ¢. 1 W. R. 426, it was held that the trustees of mortgage property did not sufficiently represent their cestuis gue trusts in a suit for foreclosure; Comp. Cropper v. Mellersh, 24 L. J., Ch. 480; where it was observed by V. C. Stuart that the court would only hold the section to apply to foreclosure suits in extraordinary cases. The observa- tions in Cropper v. Mellersh, were however commented upon with disapprobation, by V. C. Wood, in Wilkins v. Reeves, 3 W. R. 305—and in a similar suit, Goldsmith vy. Stonehewer, 9 Hare, App. xxxvii.; s.c. 22 Law J. Ch. 109; 17 Jur. 199, it was held that infant cestwis gue trusts were sufficiently represented by their trustees, al- though the rule was not extended to adult cestwis que trusts except as to the shares of children entitled in remainder vested in the trustees under a settlement. (Comp. Fowler v. Bayldon, ante.) So also, where an equity of redemption was granted by dee], to trustees upon trust for certain parties, some of whom were infants, and the mortgagee filed a bill for foreclosure against the trustees of the settlement, and the adult ces(uis que trusis only, as defendants, upon the death of one of the latter after the filing of the bill, the court made a decree for sale, in the absence of the infant cestuis que trusts, and of the representative of the deceased defendant, upon an affida- vit of the trustee of the settlement, that it would be for the benefit of the infants, and at the same time ordered the proceeds to be paid into court. (Siffken v. Davis, Kay, App. xxi. marginal note.) But the rule does not apply where the trustees have disclaimed, (Young v. Ward 10 Hare, App, lviii.,) nor ordinarily, where the surviving trustees or the represen- tatives of such as are dead only are made parties. (Stansfield v. Hobson, 16 Beav. 189.) In cases where the executors of a deceased mortgagor are also parties to a suit for foreclosure (Sale v. Kitson, 3 DeG. M. & G.119; s.c. 22 L. J. Ch. 3844; 17 Jur. 170; Hannam v. Riley, 9 Hare, App, xl.; s.c. 22 L, J. Ch. 110;) it has been held that the cestwis que trusts need not be joined in the suit, upon the ground, apparently, that the whole property out of which the mortgage is to be satis- fied is represented. (Sale v. Kitson, ante.) Possibly the court may be disposed to put a greater latitude upon this section in suits for the foreclosure and sale of mortgaged property. On a bill for the execution of the trusts of a will, framed according to the old practice, it was held that the trustees of the settlement of the share of one of the residuary legatees made on her marriage oucht to be parties, but that under the above rule, the cbildren of the marriage would be sufficiently represented by them. (Densem v. Elworthy, 9 Hare, App. xlii.) But trustees do not sufficiently represent their cestuis gue trusts on a bill to set aside a settlement. (Read v. Prest, 1 Kay & J. 183.) Ina suit to restore trust property, instituted by the representatives of a trustee, against his co-trustee, both of whom had committed breaches of trust, in which some of the cestuis que trusts had concurred, such cestuis que trusts were held necessary parties. (Jesse v. Bennett, 6 De G. M. & G. 609; 26 L. J. Ch. 63; see, too, Devaynes vy. Robinson, 24 Beay. 86, 99.) Where a mortgage has been executed to trustees for the benefit of creditors, the creditors are not necessary parties to a bill filed by the trustees to foreclose. (Fraser v. Sutherland, 2 Grant, 442.) So where the owner of an equity of redemption assigns it to trustees for the bene- fit of creditors, the creditors are not necessary parties to a bill of foreclosure. ~ (Dalton v. MeNider, 1 U. C. L. J. 57; Shaw v. Liddell, 1 U. C. L. J.57.) Where a property became vested in trustees under an absolute deed intended as a mortgage, on a suit to redeem against such trustees it was held that one of the trustees being beneficially interested, the cesiwis que trust were sufficiently represented. (Kerr vy. Murray, 6 Grant, 343.) Where property has been assigned to trustees for the be- nefit of creditors, and a suit is brought by or against the trustees in respect of a debt due to the assignor, the creditors are unnecessary parties. (O’Connell v. Charles, 2 Grant, 489.) ~~ 14 PARTIES TO SUITS. [oRDER VI., SEO, 11.] Where a bill is filed against trustees by parties claiming adversely to the cestut gue trust, the cestui gue trust is a necessary party, and it is the duty of the trustee to ob- ject that the cesiui que trust is not before the court, and if the objection is not made the court will at the hearing direct an amendment. (Cleveland v. McDonald, 1 Grant, 415.) : In a suit by trustees to reduce into possession the trust estate, and in which the defendant answers and calls in question the existence of the trust estate, the cestuis que trust will become necessary parties. (Houlding v. Poole, 1 Grant, 206.) Where a party who has executed a deed to trustees and seeks to set it aside ag having been obtained by fraud the cestwis gue trust must be parties and that although some of them have released their interest under the deed, and others had not any part in obtaining it. (Rogers v. Rogers, 2 Grant, 137.) To a bill filed by a partner in an insolvent partnership against his co-partner to set aside a marriage settlement as having been made by the co-partner when ingol- vent, the trustees and cestwis que trust are necessary parties, as being entitled to have the accounts of the partnership taken and the assets applied in exoneration of the settled land. (Thomas v. Torrance, Grant, Cham. 46.) . (2) Executors with a power of sale are within the section, (Shaw v. Hardingham, 2 W. R. 657,) and where there was a devise to trustees subject to the payment of debts, with a general residuary devise over, the general residuary devisee was held to be an unnecessary party to a suit to carry the trusts of a will into execution. (Smith v. Andrews, 4 W. R., 353.) Ino late case, (Boiton v. Stannard, 27 L. J.Ch. 845; »s. v. 4Jur. N. 8. 576; 6 W. R. 570,) where there was only an implied power of sale in the executrix, Sir John Romilly, M. R., held that she was nota trustee within the section. (%) Notwithstanding the above rules it would seem that when an estate is to be sold under the decree of the court, all persons interested in the property ought, if possible, to be made parties to the suit, or at least to be served with an office copy of the decree. (Doody v. Higgins, 9 Hare, App. xxxii.) Where in an administration suit, persous believed by the plaintiff to be the next of kin of the testator were not on the record, but the plaintiff alleged that he intended to serve them with a decree, a demurrer to the bill for want of parties was overruled. (Snepp v. Snepp, 4 Jur. N.S. 202; s.c. 6 W. R., 355.) Ru. 8.—In all cases in which the plaintiff has a joint and several demand against several persons, either as principals or sureties, it shall not be necessary to bring before the court, as parties to a suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable. (2) a () The regulat' ons concerning parties embodied in this order are contained in the a are amend the practice of the Court of Chancery. (15 & 16 Vie., ch. 86.) ection 2 of this order corresponds in great part with the 42nd section of that acts PARTIES TO SUITS—SUBP@NA TO APPEAR, 40. 15 [ORDER VI., SEO. II., AND ORDER VII.] Rule 1.—This rule is the same as the English rule. Rule 2.—And this also. It will be observed that in this case the decree extends to the personal estate alone. If relief is required against the real estate, this rule will not apply. , Rule 3.—This rule again applies exclusively to personal estate. Rule 4.—This rule follows the English rule. In this case the decree sought for must be simply an execution of the trusts of the deed or instrument, (McLeod vy, Annesley, 16 Bea. 607; Jones v. James, 9 Hare, App. 80.) If any declaration is sought for respecting the administration of the property, or any relief which might affect the interest of other cestuis que trust, the case will not come under this rule. Rule 5.—Also follows the English rule. Rule 6.—Embodies English 1ules No. 6, 7, and 8. Rule 7.—This rule is English rule 9. As to this rule, see Stanfield v. Hobson, 16 Bea. 189; Sale v. Kitson, 3 DeG. M. & G. 119, and cases there cited; Young v. Ward, 10 Hare, App. 58. All necessary parties other than provided by this order (VI.) should be made at or before the hearing, and not added in the master’s office, merely to remedy a defect arising from the carelessness or negligence of the plaintiffs. (Patterson v. Holland, 6U. C L.J. 256.) In this case, however, such parties were allowed to be added in the master’s office, the defendants having had two opportunities of making the objec- tion, which they neglected. To a bill filed by the municipal council of an incorporated town to prevent injury to the property of the municipality, the Attorney-General is not a necessary party. (Guelph v. Canada Co., 4 Grant, 682.) Sach executors as have proved may sue without making the other executorg par- ties, although they have not renounced. (Forsyth v. Drake, 1 Grant, 223.) In all cases which cannot be brought within the terms of the foregoing rules, the old practice must prevail, and the person suing must bring before the court all the persons interested in the estate, the subject of his suit. The cases referring to the question of parties under the former practice in suits concerning real estate must necessarily be referred to. (Finch v. Finch, 2 Ves. Sr. 492; Herring v. Yor, 1 Atk. 290; Pyncent v. Pyncent, 3 Atk. 571; Mitford 173; Lord Cholmondeley v. Lord Clinton, 2 J. & W.1; Hopkins vy. Hopkins, 1 Atk. 590; Lloyd v. Johnes, 9 Ves. 58; Carte v. Ball, 3 Atk. 500.) , SUBPG@NA TO APPEAR AND ANSWER. 6 Subpcena to ap- VII. The writ of subpcena to appear and answer a prarand inswer bill of complaint is hereby abolished. (m) sate (m) As to old practice, vide Daniell’s C. P. 8rd Edit. 298 et seq. 16 APPEARANCE—BILL OF COMPLAINT; ITS FORM. [ORDERS VIII, AND 1x. ] APPEARANCE. ebpeerances VIII. In future no appearance is to be entered in any suit, either by the defendant or by the plaintiff on his behalf. BILL OF COMPLAINT. Bill of com- IX. A bill of complaint is to be in the form of a peti- Pinints 8 #Fm-4son, addressed to the Chancellor. (n) It must contain: 1, The name and description of each party com- plainant. (0) 2. The name of each party defendant. 3. A statement of the plaintiff’s case in clear and concise language. (p) 4, A prayer for the specific relief to which the plaintiff supposes himself entitled; but the prayer for general relief may be added. = (n) By order 5 of the Orders of Court promulgated on the 10th January, 1868, it is provided that, ‘‘after the lst day of February, next, all bills of complaint and peti- tions are to be addressed, ‘ To the Honorable the Judges of the Court of Chancery.’” (0) The proper place of abode and description of the plaintiff must be given, other- wise he will be ordered to give security for costs. (Dan. Chy. Practice, vol. 1, p. 249, and cases there cited.) See also Manby v. Bewicke, 2 Jur. N. 8. 671, (Lord’s Justices,) where Bailey v. Gundry, 1 Keen, 53, is confirmed. (p) The order as to the form of a bill, and as to what it must contain, (and having regard therefore to the requirements of this ordcr, and to the forms of bills in the several cases enumerated in schedule A. appended thereto,) is very explicit. It must still be borne in mind, however, that certain material parts of a bill are necessary, and which are not specifically alluded to in the order. Every bill must show clearly that the plaintiff has the right to the thing demanded, or at least such an interest in the subject matter as gives him the right to institute the suit concerning it; if otherwise, the defendant could demur; and this rule ap- plies not to one plaintiff only, but to all the plaintiffs. The interest, moreover, in the subject-matter must be an actually existing interest, a mere possibility, or even pro- bability, of a future title will be insufficient to sustain a bill; and the plaintiff must also make it appear that he has a proper title to institute 2 suit concerning it. This practice is laid down in Mitford on Pleading, 5th Ed. 177, 188. BILL OF COMPLAINT; ITS FORM. 17 [ORDER 1x.] To put the rule more fully. The plaintiff must shew: (a) That he is the person entitled io the relief, assuming that the facts justify any relief. (2). He must shew that the facts entitle him to the relief prayed against some person. (c) He must shew that the defendant or defendants, is or are the person or per- sons against whom he is entitled to relief. (2) He must shew that the court has jurisdiction to grant the relief prayed. The plaintiff must therefore allege, (4) His title distinctly to the subject matter ; if he be the owner, he must show that he is, or so far at least as to have a locus standi for some relief; he must allege the facts from which the court, assuming them to be true, can collect that he has diile, and the allegation should consist of those facts or instruments, or portions of instruments, from which the title appears, and thereupon to follow up those allegations by a specific allegation of the legal inference. (2) The plaintiff must shew that the facts alleged shew his title to relief. Every fact necessary to complete the chain of title, not merely title to estate but title to relief, must be stated with accuracy and precision. The bill must be divided into paragraphs and numbered consecutively, and each para- graph should be confined to a specific fact or class of facts. (This is re- quired by the 4th order of the Orders of the 13th of April, 1859.) No costs will be allowed when the order is violated. The prayer should be in conformity with the case made by the bill; its office is to show to what relief the plaintiff considers himself entitled: what is the decree that he seeks to obtain. The prayer should, like the bill, be divided into paragraphs, ac- cording to the several kinds of particular relief asked, and the last paragraph must always be the prayer for general relief. The facts relied upon must be distinctly averred ; thus the plaintiff being described asa shareholder is not sufficient. If the circumstance of his being a shareholder is necessary to be proved, the fact should be distinctly alleged. (Walbura v. Ingilby, 1M. &K. 61.; Banks v. Parker, 16 Sim. 176.) If the plaintiff’s case is, that there has been fraudulent conduct on the part of the defendant, a general allegation of fraud will not be sufficient. It must be shown in what the frand consists. (Kelly v. Rogers, 1 Jur. N. S. 514.) So with respect to general charges of collusion between two or more defendants. (Bothomley v. Squires, 1 Jur. N. 8. 694, V. C. K.) As to a general charge of defendant being trustee. (Steedman v. Marsh, 2 Jur. N.S. 891, V.C.W.; 4W. R. 476.) Ifan allegation will bear two meanings, it should be borne in mind, that the defendant is entitled to put that construction on the statement in the bill which is most against the plaintiff’s interest. (Vernon y. Vernon, 2M. & Cr. 145; Williams v. Flight, 5 Bea. 41; Loader vy. Clarke, 2 M. & G. 387; Stansbury v. Arkwright, 6 Sim. 481; Hammond v Messenger, 9 Sim. 327;) and White v. Smale, 22 Beav. 72, as to the plaintiff relying on allegations stated to be made by the defendant. The presumption is always against the pleader, because the plaintiff is presumed to state his case in the most favourable way for himself, and therefore, if he bas left any thing material to his case in doubt, it is asswmed to be in favour of the other party. (Lord Cottenham, C., Columbine v. Chichester, 2 Phil. 28; Attorney-General v. Mayor of Norwich, 2 My. and Cr. 422, 423; Vernon y. Vernon, 2 My. and Cr. 145; Bowes vy. Fernie, 8 My. & Cr. 6382.) 3 18 BILL OF COMPLAINT; ITS FORM. [orpDER 1x.] As to prayer for relief, see Dan. Prac. vol. 1, 226, 264; Hiern vy, Mill, 13 Ves. 114; Kerrick v. Saffery, 7 Sim. $17; Hanbury v. Litchfield, 2 M. & K. 634; Hell v. The Great Northern Railway Company, 5 De. G. M. & G. 66; 8. ¢., 18 Jur. 685. The prayer for relief, where the bill is for discovery merely, should be omitted, but when it had by mistake been added to such a bill, it was held that it was not alone sufficient to convert the bill into a bill for relief. (South Eastern Railway Company v. The Submarine Telegraph Company, 23 L, J., Ch. 183; 8. ¢. 17 Jur, 1044; 2W. R. 81.) The plaintiff cannot, at the hearing, rely upon facts proved by evidence which are not alleged upon the face of his bill. See Gordon v. Gordon, 3 Sw. 400, 472; Skarf v. Soulby, 1 M. & G. 365. ' Husband and wife.—The wife is joined as a co-plaintiff with her husband, where he is entitled to the legacy or other subject matter of the suit in her right. Where she is entitled for her separate use, she must sue by her next friend making her husband a defendant, but if he is out of the jurisdiction, it will be sufficient to charge that fact, and to name him as a defendant, ‘‘ when he shall come within the jurisdiction,” but in the case of Platel v. Craddock, 1 C. P. Cooper, 469, where the bill had been filed in the joint names of the husband and wife in respect of a trust fund limited to the wife for life for her separate use, with remainder to the husband for life, the court at the hearing allowed the bill to be amended by adding the name of a next friend to the female plaintiff. See also Davis v. Prout, 7 Beav, 288, 291; Meddoweroft v. Campbell, 18 Beav. 184. The next friend must bea substantial person, capable of paying costs. (Hind v. Whitmore, 25 L. J. Ch. 394.) Infanis—See Dan. Ch. Pr. vol. i., p. 72, as to suits on behalf of infants. The bill must contain the address and description of the next friend, (Major v. Arnott, 2 Jur. N. 8. 80, V. C. K.,) but the rule applicable to a suit by a married woman, that the next friend must be a person of substance, does not hold in an infant’s suit, Hind v. Whitmore, 2 Kay and J. 458.) Assignees of bankrupt.—In general a bankrupt or an insolvent debtor cannot sustain a bill in respect of property vested in his assignee under his bankruptcy or insolvency, although he alleges a surplus, and that there is collusion between the assignee and the person possessed of the property. (Heath v. Chadwick, 2 Ph. 649; Rochfort v. Battersby, 2 H. L. Cases, 388; 14 Jur. 229; Bradberry v. Brooke, 4 W. RB, 658; V. C. K., 4 W. R. 699.) See, however, Wearing v, Ellis, which was a suit by an insolvent debtor, 2 Jur. N.S. 1149; s.c. 26 L. J. Ch. 15; 6 De G, M. & G. 596; affirming decision of V. C. Stuart, 2 Jur. N. 8. 204.) Assignee of debt.—The assignee of a debt, cannot, unless some impediment exists in the way of his recovering his debt at Jaw by using the creditor’s name, maintain a suit in equity. (Hammond v. Messenger, 9 Sim. 827; Rose v. Clarke, 1 Y. & C. C. C. 584; Sewell v. Moxsy, 2 Sim. N. 8,189; s.c, 16 Jur. 608; Clark v. Cort, 1 Cr. & Ph. 154.) Tf judgment at law be assigned, the assignor ae well as the assignee must be a party, for the legal right of action remains in the assignor. (Cathcart v. Lewis, 1 Ves. Jr. 463; Blake v. Jones, 8 Anstr. 651; Ryan v. Anderson, 3 Mad. 174; Edney v. Jewell, 6 Mad. 165; Partington v. Bailey, 6 L. J. Ch. 179; Boomer v. Gibson, Registrar (Grant’s) notes, 21 Mar., 1854.) : a . BILL OF COMPLAINT; ITS FORM. 19 {ORDER IX.] In the several cases enumerated in schedule A., here- under written, the bill of complaint may be in the form, or to the effect, set forth in that schedule as applicable to the particular case; and, in cases not enumerated in that schedule, forms of pleading similar in principle may be adopted, whenever a more detailed statement is not necessary for the full developement of the case. (q) (g) The following are the forms of the bill of complaint. enumerated in schedule A., which for convenience of reference are introduced here instead of in the appendix. SCHEDULE A. FORM OF BILLS. 1. By a legal or equitable mortgagee, or person entitled to a lien as a security for a debt, seeking foreclosure or sale, or otherwise to enforce his security. : IN CHANCERY. A. BL and i (Enumerate all the parties plaintiffs. ) Cc. D. Plaintiffs. and E. F. and \ (Enumerate all parties defendants. ) G. H. Defendanis. OF is county: own Humbly complaining, shews, &c., A. B. of &c., (a) that ation of the witnesses) ) under ard by virtue of an indenture (or other document) dated, &c. (6) and made, &c., (and a transfer thereof, made by indenture, dated, &€., and made, &.,) the said A. B. is a mortgagee (or, an equitable mortgagee) of (or, is City oF Toronte, \ To tHe HonorasBie, &c. (a) The description must be fully set out or the plaintiff will be required to give security for costs; as to which see cases cited ate. When a billis filed by a next friend on behalf of an infant, the address of the next friend must be fully set out, (Major v. Arnott, 2 Jur. N. 8. 80; s.c. 4 W. R. 229.) (5) The names only of the parties are to be set out, not the substance or effect of the document. In framing a Dill for foreclosure or redemption all that is necessery to state to avoid demurrer is such a case as will warrant the court to refer it to the master to enquire as to the amount actually due. So a demurrer to a bill of foreclosure on the ground that it did not allege that the plaintiff had paid a valuable consideration for the mortgage, was overruled. (Kingsmill v. Gardner, 1 U. C. Jur. 2, 325.) The wife of a mortgagor who has berred her dower is an improper party to a fore= closure suit, and if made one the bill will be dismissed against her with costs. (Moffatt y. Thomson, 8 Grant, 111; apparently overruling Saunderson y. Castcn, 1 Gr, 349.) 20 BILL OF COMPLAINT; ITS FORM. [onDER 1x.] entitled to hold a lien upon) certain freehold property (or leasehold, or other pro- perty, as the case may be) therein comprised, being (insert a general description of the property) for securing the sum-of £——-—— and interest; that the time for payment thereof has elapsed; that £—— has been paid on account of princi- pal, and £————- on account of interest; (or that no sum has been paid on account of either principal or interest ;) that your orators have not been in the occupation of the premises, or any part thereof; (or, that your orators have been in the occupation of the premises, or of some part thereof, from the —— day of —— in the year to the day of in the year ;) that there is now justly due upon the said security, for principal, £ —, and for interest £——_——-._ That E. F. and G. H., the defendants hereto, are entitled to the equity of redemption of the said mortgaged premises (or, the premises subject to such lien.) Your orators therefore pray that they may be paid the said sum of £ and interest, and the cost of this suit; and in default thereof that the equity of re- demption of the said mortgaged premises may be foreclosed, (or, that the said mort- gaged premises may be sold, or that the premises subject to such lien may be sold, as the case may be, and the produce thereof applied in or towards the payment of the said debt and costs, and that the said E. F. and G. H. may be ordered to pay the balance of the said morgage debt and costs, after deducting the amount realized by such sale,) and for that purpose that all proper directions may be given and accounts taken (and for further relief.) (c) Where a mortgagee has assigned all his interest under the mortgage, he is an un- necessary party to a bill of foreclosure by his assignee, though the mortgagor alleges that the mortgagee has been paid in full. (Gooderham v. DeGrassi, 2 Grant, 135.) Where a mortgagor becomes bankrupt, his assignees (and not he) are the proper parties to a suit to foreclose; (Torrance v. Winterbottom, 2 Grant, 487;) so where he becomes bankrupt in England by force of the Imperial Act 12 and 138 Vic., Ch. 106, sec. 148. (Goodhue v. Whitmore, 7 U. C. L. J. 124.) The judgment creditors (under fi. fa. Jands) of the mortgagee are necessary par- ties in a foreclosure suit. (Sanderson v. Ince, 7 Grant, 383.) Where a bill has been filed before the 18th May, 1861, respecting property in which judgment creditors have an interest as such, the suit enures to their benefit and will keep their judgments alive, although they do not re-register their judgments or place any fi fa. in the sheriff’s' hands, and although they are not actually parties to the suit, (Commercial Bank v. Woodcock, 9 Grant, 141,) see also, Buckley v. Ryan 7 U. C. L. J. 822; and see further as to parties to foreclosure suits Forsyth v. Drake, 1 Grant, 223; 2 Spence Eq. Jur. 694-8; and Fisher on Mortgage, 187, 227. (c) This paragraph should be omitted in a bill for discovery in aid of defence at law. As to prayer for general relief, see Hill v. The Great Northern Railway Company, 5 De G. M. & G. 66; 8. c. 18 Jur. 685, where it was held that under such a prayer relief inconsistent with the allegations in the bill will not be granted. BILL OF COMPLAINT; ITS FORM. 21 {ORDER 1x,] 2. By a judgment creditor, who has registered his judgment, seeking a sale, or otherwise to enforce his charge or lien. IN CHANCERY. Ac Biicssiets tains sconnsadsyeate pig arsateaedesneavetes Plaintiff. and CuD wianwasareses cine seeses seeeeesee secese Defendant. To tHE HonorasBie, &c. lectéd forthe examina. Humbly complaining, &c., your orator, &c., that in tion of the witnesses.) term, in the year your orator, (or G. H., late of deceased, of whom your orator is the executor, or administrator, or assignee, under an assignment, dated, &c., and made, &c., or of whose executor or ad- ministrator, or administrator de bonis non, your orator is the assignee under, (d) & ») recovered a judgment in the court of —— against C. D., the defendant herein named, for the sum of £ —— , in an action theretofore brought by your orator against the said C. D., which judgment was duly registered in the registry of the county of —, on the — day of —, at which time the said C. D. had divers lands, tenements and hereditaments in the said county, and that the said C. D. is now the owner of the same lands, tenements and hereditaments, subject to the said judgments. Your orator therefore prays that he may be paid the amount of the said judgment, together with interest thereon, and his costs of this suit, or in default thereof that the said lands, tenements and hereditaments, or a competent part thereof, may be sold for the satisfaction thereof, and the proceeds of such sale applied accordingly; and for that purpose that all proper directions be given and accounts taken. (e) Crry oF Toronto, (or the county town S| (d) The character of the plaintiff must be described, without detailing the trans. actions whereby he acquired such character. (e) The act (24 Vic. Ch. 41, 1861,) entitled «An Act to repeal the Jaws relating to the Registration of Judgments in Upper Canada,” and whereby it is enacted (sec. 10) “‘that no judgment, rule, order, or decree for the payment of money of any court in Upper Canada, shall create or operate asa lien or charge upon Jands or any interest therein,” and whereby all statutes authorising the registration of judg- ments, decrees, and orders for the payment of money in Upper Canada, were thereby repealed; has abrogated and rendered obselete this form of pleading. 3. By a person entitled to the redemption of any legal or equitable mortgage, or any lien, seeking to redeem the same. IN CHANCERY. AL By cecorerves sovcrecee sa iene saduune aa sg aseresbiadiees aseese cool CAINIERS and On Dasviss wsacuamenvrasestesieveannri nuevas psssnrdeenaant. (or the county town selected Humbly complaining, &c., your orator, &c., that fice retells ioe ag under and be alae of an indenture (or other document) dated the day of —— , and made between (parties) (and the assurances hereinafter mentioned—that is to say, an indenture dated the —— day of ———, the will of ——-——, dated the day of ——-——) your orator is entitled to the equity of redemption of certain freehold property (or leasehold, or Crry oF TokonTo, \ THE Honorasie, &c. 22 BILL OF COMPLAINT; ITS FORM. [oRDER 1x.] other property, as the case may be) therein comprised, being (here describe the pro- perty shortly) which was originally mortgaged (or pledged) for securing the sum of and interest; and that C. D., the defendant hereinafter named, is now, by virtue of the said indenture, dated the ——-—— day of -——, (and of subse- quent 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 mortgage; (or lien;) and your orator believes that the amount of the principal money and in- terest now dne upon the said mortgage (or lien) is the sum of £-——--, or there- abouts ; and he bas made, or caused to be made, an application to the said C. D. to receive the said sum of £ ——, and any costs justly payable to him, and to re- convey to your orator the said mortyaged property, (or property subject to the said lien,) upon payment thereof, and of «ny costs due to him in respect of this security, but that the said C. D. has pot so done. Your orator therefore prays that he may be let in to redeem the said mortgaged property, (or property subject to the said lien, ) and that the same may be 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 that all proper directions may be given and accounts taken. 4, By a person entitled to an account of the dealings and transactions of a partner- ship dissolved or expired, seeking such account. IN CHANCERY. A. Bassscsessessevcerssseanes seevee seesesese sone ssaces sosese sesees LLGINIP, and C. Direecs senses aneessscs ceueneeneese secseesestepeesee es tecees ene Defendant, Cc ne ee Humbly complaining, &c., your orator, &c., that from tion of the witnesses.) J) the ——-—— day of — down to the — day of —, he and C. D., the defendant hereinafter named, carried on the business of in co-p.rtnership, under certain articles of co-partnership, dated the — day of — and made between (parties,) (or under a verbal agree- ment made between your orator and C. D., or through their respective agents, E. F. and G, H.,) on the ———— day of —j; and he says that the said co-part- nership was dissolved (or expired, as the case may be) on the day o ‘ Your orator therefore prays that an account of the partnership dealings and trans- actions between your orator and the said C. D. may be taken, and 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. Crry oF Toronto, a THE HonoRABLE, &0. 6. For dissolution of a co-partnership. IN CHANCERY. Tis Hi ososteotinemeaiurns ccnmsewcsecntastner stones a and CO. Dessrreeseesee seers ere scetteaescerseeses ssssssce cesses ene one Defendant. Crry oF Toronto, To tue Honorastz, &e. : (or the county ee Humbly complaining, &., your orator, &c., that your selected for the examin- : ation of the witnesses.) ) orator and C. D,, the defendant hereinafter named, are and BILL OF COMPLAINT; ITS FORM. 23 (ORDER Ix.] have been, since the —— day of —— co-partners in the trade or business of ——-—— under certain articles of co-partnership, dated &c., (or under a verbal agreement made between them, on the — day of -—-——,) which partner- ship was to continue for — years; (or for an indefinite time;) that the said business was carried on under the said agreement until — without any diffi- culty, (here state the facts relied on as warranting dissolution, as) that from the last mentioned day, until the present time, the said C. D. has greatly misconducted bim- self in the said business, by removing the books of the co-partnership from the shop or counting-house of the said firm, and denying your orator, or debarring him from access thereto: by discharging the clerks and servants of the said firm, and engag- ing others in his own interest in their room; by making false entries in the said bocks, or improperly keeping the same; all which was done with the view and has had the effect of excluding your orator from his due share in the management of the said business; by using the name of the firm for his own private purposes, and applying the moneys of the partnership to his own individual use; that there is nothing in the said articles, or in the said agreement, to justify such conduct; and your orator has made frequent applications to the said C. D. to desist therefrom, and to act in accordance with the said agreement and with his duty as a paitner, but without effect ; on which account your orator, on the —— day of —— gave notice to the said defendant that the said partnership should be dissolved from the day of ——-——. Your oratortherefore prays that the said partnership may be dis~ solved, and that the accounts of the said business may be taken from the commence- ment thereof, and the affairs thereof wound up and adjusted, and that your orator may have (such further relief, &c.) 6. Bill by a person entitled to the specific performance of an agreement for the sale or purchase of any property, seeking such specific performance. IN CHANCERY. As By seszsvsccusvessassecvasaverdes teicesneosen cess oseesedseveceasan. d LAMP, CO. Dane ceesceven eauemes piscscah seseeewries LaePenies oneeeee cos secenn Defendant. I THE HonoraBLE, &c. (or the county town etca : nelocted for the Sxamins Humbly complaining, &c., your orator, &c., that by an ation of the witnesses.) ) agreement, dated the -— day of —— and signed by C. D., the defendant hereinafter named, the said C. D. contracted to buy of your orator (or to sell to him) certain freehold property (or 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 to the said C D. an application specifi- cally to perform the said agreement on his part, but that he has not done so. Your orator therefore prays that the said agreement may be specifically performed, and for that purpose that all proper directions may be given, he the said A. B. hereby offering to perform the said agreement specifically on his part. 7. Bill for the specific performance of a parol agreement partly performed. IN CHANCERY. Ba Be cessves sdaies csndvonsevervivestaes seavenoaimainaentend COM and ésguoks veri siubeciansus Sr atesstanrte Defendant: City or ToRoNTo, i. tHE HonoraB1e, &c. (or the county town Humbly complaining, &c., your orator, &c., that on Sater the wie the ——_—— day of ———— your orator being seised in fee 24 BILL OF COMPLAINT; ITS FORM. [orDER Ix.] simple in possession (or C. D., the defendant hereinafter mentioned, being or pre- tending to be seised in fee simple in possession, or in fee tail, or for years, or in remainder expectant upon the determination of a certain estate for the life, &c., as the case may be) (f) of lot number ——~-——, your orator and the said C. D. entered into a verbal agreement for the sale and purchase of the said premises, at or for the price or sum of £ —— payable by equal annual instalments, with interest, upon the payment whereof a proper conveyance was to be executed of the said premises, free from incumbrances: (here state acts of part performance, as) that your orator, or the said C. D. was accordingly admitted, and entered into possession of the said lot, and has continued in possession thereof ever since, and is still in possession thereof, and has made divers and considerable improvements thereon, and has paid the sum of £—— , part of the said purchase money; and your orator submits that under the circumstances aforesaid the said agreement has been partly per- formed, so as to entitle your orator to a specific execution thereof ; for which purpose your orator has made ,frequent applications to the said C. D., but without effect, Your orator therefore prays that the said contract may be specifically performed by the gaid C. D., your orator being ready and willing and hereby offering to perform the same in all respects on his part, and that your orator may have such further and other relief, &c. 8, Bill to stay waste. IN CHANCERY. As Div sass sinsit gsc’ ole acdsee shat ga aig sps va) eeretalesatcduessncensennenk LAMMLL and Cy. Dieeses sie daashivsedganasheuinawa dy csiesiesesiedivig wasedss teams DEfENGanl. ber Meteosat tomy ees Humbly complaining, &¢., your orator, &c., that your ation of the witnesses.) } orator is and has been, from before the acts herein after complain- ed of until the present time, seised in fee simple (or in tail, or for life in possession, or remainder expectant upon the determination of an estate for the life of, &c., under and by virtue of an indenture of settlement, dated, &c., or possessed for the remainder of a term of — years, under and by virtue of an indenture of demise, dated, &c., and made &c.) of lot number: —; ardC.D., the defendant hereinafter named, is in possession of the said lot, as tenant, for a term of —— years, (or from year to year, or at will) of your orator, under and by virtue of an indenture of demise (or an agreement, dated, &c., and made, &c.) between your orator (or E. F. deceased, whose estate has come to your orator by descent, or devise, or purchase, or under and by virtue of his last will, dated, &c.) and the said C. D. (or G. H., whose estate has come to the said C. D. by operation of law, as executor, or administrator, or assignee in bankruptcy or insolvency of the said G. H., or by devise or purchase, under and by virtue of the-will of the said G. H., or an indenture of assignment, dated, &c., or as tenant for life, impeachable for waste, under and by virtue of the aforesaid indenture of settlement) has, since the- day of -_-—— committed waste on the said lot, by cutting down and removing from the said lot, and applying to his own use, a large number of the timber and other trees standing, growing and being thereon, and quarrying a large quantity of stone, being on and part of the said lot, and by pulling down, &c., houses, &., and Crry oF Toronto, s THE HonoraBue, &¢. died on is his executor, or administrator, or (f) If either party fills a representative character, say that the said the day of , and the said heir-at-law. BILL OF COMPLAINT; ITS FORM. 25 [ORDER 1x.] he continues and threatens and intends to continue to commit such waste as afore- said, and other waste and destruction on the said lot, although frequently requested by your orator to desist therefrom. Your orator therefore prays that the said C. D. may be restrained by the order and injunction of this honorable court from commit- ting such waste as aforesaid, or any other waste, spoil, or destruction on the said premises, and may account, &c., and that your orator may have such further and other relief in the premises. 9. Bill to stay trespass in the nature of waste. IN CHANCERY, AL Berccsscssecseessseecscesssssse sevssseeeeess ces cnees sevnee LUQintipf. and O. Berssssscrs senses seresnsse sete sere sense sesses soseeense severe Defendant, Coo Humbly complaining, &c., your orator, &c., that your tion of witnesses.) orator was at the time of the acts hereinafter complained of, and has been since up to the present time, the owner in fee simple (or seised in tail, or for life, or possessed for the remainder of a term of years, under and by virtue of an indenture, dated, &c. and made, &c., as the case may be) and in possession of lot number —— and that A. B., the defendant hereinafter named, has, from the ——-—— day of —— until the present time, continually trespassed on the said lot, by cutting down and removing from the said lot, and applying to his own use, divers valuable timber and other trees which were growing, standing and being on the said lot, (by quarrying and removing from the said lot and applying to his own use large quantities of stone which were on and part of the said lot,) and he continues/and threatens and intends to continue to trespass on.the said lot, in like manner, although frequently requested by your orator to desist therefrom. Your orator therefore prays that the said defendant may be restrained by the order and injunction of this honorable court from.committing the acts aforesaid, and other acts of a like nature, and may account for the value of the timber and other trees cut down, (or stone quarried, ) removed and applied to his own use as aforesaid, and that your orator may have such further and other relief as may seem meet. Crry oF Toronto, \ THE HoNoRABLE, &c. 10. Bill 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 sole benefit. IN CHANCERY. As. Bisscasavccavevs sanaad wainevene suc aeeseeadsadaes sovsoesee seeeneL Laintiff. and sees tevseeseeeee Defendant, ( oe ee To tue HonoraBxeE, &c. eacanacant or, bhelcounty pownee: Humbly complaining, &c., your orator, &c., that under me SPL etl ete oo } an indenture dated the —— day of —~— and made between Goarticn,) he is entitled to an equitable estate or interest in certain pro- perty therein described or referred to; and that C. D., the defendant hereinafter named, is a trustee for him of such property; and that being desirous to prosecute an action at law against ———— in respect of such property, he has made, or caused to be made, an application to the said defendant to allow him to bring such action in his name, and has offered to indemnify him against the costs of such ac- 4 \ 26 BILL OF COMPLAINT; FILING THEREOF. [ORDER IX., sEC. 2.] tion, but that the said defendant has refused or neglected to allow his name to be used for that purpose. Your orator therefore prays that the said A. B. may be di- lowed to prosecute the said action in the name of the said defendant, he herery offering to indemnify him against the cost of such action. 11. Bill by a person entitled to have a new trustee appointed in a case where there is no power in the instrument creating the trust to appoint new trustees, or when the power cannot be exercised, and seeking to appoint a new trustee, IN CHANCERY. A Bivswisaesiasnseudgeiasostdeetes acces deoswasdustesescaseseeh bvQUnliie and Gh, Diss virae scaaesiataca’ swisseia sins dsias coetv au sovabampanesiesesesiag CPONGANEs se Tae comes Humbly complaining, &c., your orator, &c., that un- tion of the witnesses.) ) der an indenture, dated the — day of —, and made between (parties, ) (or will of — , or other document, as the case may be,) your orator is interested in certain trust property therein mentioned or referred to ; and that C. D., the defendant hereinafter mentioned, 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 said in- denture, or other document, to appoint new trustees cannot be exercised.) Your orator therefore prays that new trustees may be appointed of the said trust property, in the place of, &., (or to act in conjunction with) the said C. D. Crry oF Toronto, le tHE HonoraBis, &c. A bill of complaint is not to contain any interroga- tories; all merely formal parts, except the address and conclusion, are to be omitted; and the signature of counsel may be dispensed with. (r) (r) By Order IV., of the 18th of April, 1859, it is ordered that, ‘From and after the tirst day of J uly next, every bill and answer filed, and every affidavit to be used in any cause or matter, shall be written in a plain legible hand, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. No costs shall be allowed for any bill, answer or affidavit, or part of any bill, answer or affidavit substantially violating this order; nor shall any affidavit violating this order be used in support of, or opposition to, any motion, without the express per- mission of the court.” Bill may be fled Suc. 2.—A bill of complaint may be filed either with mney the registrar or with a deputy registrar, at the option of the plaintiff; and the filing of a bill of complaint shall BILL OF COMPLAINT; FILING THEREOF. 27 [ORDER IX., SEC. 2.] have the same effect as the filing of a bill and the issuing 204 the service of a subpcena to appear and answer now have; and the samocfiect as the service upon a defendant of a bill of complaint, with Pepa to appear such endorsement thereon as is hereinafter provided, shall have the same effect as the service upon him of a writ of subpoena to appear and answer now has. (s) (s) By Order XLIV. of the Orders of June, 1853, ss. 2 and 8, it is provided that :— «Sec. 2.—A bill of complaint may be filed either with the registrar, or with a deputy-registrar, at the option of the plaintiff; but all the pleadings in any cause must be filed at the same office; and where a bill is filed in the office of a depaty- registrar the endorsement thereon must be varied accordingly. “Sec. 83.—When a bill is filed with a deputy-registrar, the deputy-master and deputy-registrar respectively in the county where such bill has been filed are to have all such powers and authorities in relation to such suit, as belong to the master and registrar respectively.” = But by Order XL., of the same orders, sec. 2, it is provided that all the affidavits upon which any notice of motion is founded must be filed at the time of the service of such notice of motion; and the affidavits either in support of, or in opposition to any special motion or petition, are to be filed, as heretofore, with the registrar. The plaintiff has prima facie a right to have the reference directed to the master resident in the county wherein the bill is filed. (Macara vy. Gwynne, 3 Grant’s Ch. R. 310.) The service of a bill of complaint by this order ‘‘shall have the same effect ag the service of a writ of subpcena to appear and answer now has.” As to the issuing of a subpcena, see Daniell’s Ch. Pr. 298. The filing of a bill, or the taking of a proceeding, in which bill or proceeding any title or interest in land is brought in question shall not be deemed notice of the bill or proceeding to any person not being @ party thereto, until a certificate by the registrar or a deputy-registrar of this court in the form mentioned in the act has been registered in the registry office of the county in which the land is situate, (See Con. Stat. U.C., pp 59, 884,) but no certificate is required to be registered of a suit or proceeding for the foreclosure of a registered mortgage. (Jbid.) As to the doctrine of lis pendens, see Bishop of Winchester v. Paine, 11 Ves. 198; Garth y. Ward, 11 Ves. 199; s. ¢., 2 Atk. 175; and see also Bellamy v. Sabine, 1 DeG. & J. 566, 578, 584. In this latter case the doctrine is very fully discussed. Where, however, the legal estate has been parted with, lis pendens, it would appear necessary to have the owner of the legal estate before the court, the power which the court bas of making a vesting order might obviate this apparent necessity, as it would seem from Order XLVI., sec. 10, that such owner, though not a party, might be ordered to convey the legal estate by the court, and obedience to its order enforced by process of contempt. Where a certificate of lis pendens has been registered and the bill is dismissed, it is not necessary to obtain an order discharging the certificate of lis pendens from the registry, the registration of the order or decree dismissing the bill being sufficient for all purposes. (Dexter v. Cosford, Grant’s Cham. Rep. 22.) As to this section, see also the English act, 15 & 16 Vic., ch. 86, sec, 4. 28 BILL OF COMPLAINT; OFFICE COPY. {ORDER IX., SEO, 111.1 An office copy of Suc. 3.—In lieu of serving a defendant with a subpcena sorts to appear and answer, an office copy of the bill of com- with the endorse Plaint is to be served upon him, with an endorsement ment in schedule . : B. thereon in the form, or to the effect set forth in schedule B., hereunder written. (¢) (¢) English act, 15 and 16 Vic., ch. 868, sec. 3. The following is schedule B. appended to these orders: SCHEDULE B. " FORM OF ENDORSEMENT ON BILL OF COMPLAINT. Your answer is to be filed at the office of the registrar, at Osgoode Hall, in the city of ‘Toronto, (or, when the bill is filed in an outer county, at the office of the deputy-registrar at as,) You are to answer or demur within four weeks from the service hereof, (or, when the defendant is served out of the jurisdiction, within the time limited by the order authorising the service.) (~) If you fail to answer or demur within the time above limited, you are to be subject to have such decree or order made against you as the court may think just, upon the plaintiff’s own shewing; and, if this notice is served upon you per- sonally, you will not be entitled to any further notice of the future proceedings in the cause. ; Norz.—This bill is filed by Messrs. A. B. and C. D., of the city of Toronto, in the ‘county of York, solicitors for the above-named plaintiff, (and, where the party who files the bill is agent, add, agents of Messrs. H. F. and G. H., of ——., Bolici- tors for the above-named plaintiff. ) Where the plaintiff sues in person, his place of residence is to be stated; and where that is more than three miles from the office where the bill is filed, an address for service must be designated in accordance with the provisions of section 3, Order XLIII. - (u) This is the time limited for the answer of a defendant where he is served with an office copy of the bill, within the jurisdiction of the court; where he is served under an order obtained for that purpose at a place out of the jurisdiction of the court, the time within which he is to answer limited by the order must be inserted in this notice, and which must be altered to conform with the order. By Order VII. of the Orders of the 10th of January, 1863, a defendant may be served out of the jurisdiction of the court with an office-copy of a bill of complaint, (as under statute 20 Vic., ch. 56, sec. 15,) and the time within which such defen- dant shall be required to answer the same, or to demur thereto, is limited as thereia provided. For this order see infra, ‘service out of jurisdiction.” BILL OF COMPLAINT; SERVICE. 29 {ORDER IX., SEC. Iv.] An office-copy of the bill so served under this statute and order, must be so endorsed that the time for answering or demurring correctly appears in the notice. With reference to bills filed for foreclosure or sale, a very important change in the practice has been made by the orders promulgated on the 10th day of January, 1863, Order No. 4 of these orders provides as follows: “DECREES FOR REDEMPTION OR FORECLOSURE OF MORTGAGES OR FOR SALE. IV. When the time for answering in either of the above classes of cases has elapsed, on production to the registrar of the court, of the affidavit of the service of the bill, and upon preecipe, the plaintiff is to be entitled to such a decree as would, under the present practice, be made by the court, upon a hearing of a cause pro confesso, under an order obtained for that purpose; and on every such bill is to be endorsed the following notice :—‘ Your answer is to be filed at the office of the reg- istrar, at Osgoode Hall, in the city of Toronto, (or when the bill is filed in an outer county, at the office of the deputy registrar at--—.) You are to answer or demur within four weeks from the service hereof (or when the defendant is served out of the jurisdiction, within the time limited by the order authorising the service.) If you fail to answer or demur within the time above limited, you are to be sub- ject to have a decree or order made against you forthwith thereafter; and if this notice is served upon you personally, you will not be entitled to any further notice of the future proceedings in the cause. Nore.—This bill is filed by Messrs. A. B. and C. D., of the city of Toronto, in the county of York, solicitors for the above named plaintiff, (and when the party who files the bill is agent, add agents of Messrs. E. F. and G. H. of ——, solicitors for the above-named plaintiff.) And upon bills for foreclosure or sale is to be added to such notice the following: And take notice that the plaintiff claims that there is now due by you for principal money, and interest, the sum of ——, and that you are liable to,be charged with this sum, with subsequent interest and costs, in and by the decree to be drawn up, and that in default of payment thereof within siz calendar months from the time of drawing up the decree, your interest in the property may be foreclosed (or sold) unless before the time allowed you as by this notice for answering, you file in the office above-named a memorandum in writing, signed by yourself or your solicitor, to the following effect: ‘‘ I dispute the amount claimed by the plaintiff in the cause’”’—in which case you will be notified of the time fixed for settling the amount due by you, at least four days before the time to be so fixed. This order is not to affect any suit now pending.” On every bill filed for foreclosure or sale of mortgaged property, must be endorsed the notice set out in the above order. Src. 4.—Service of an office copy of a bill of complaint upon any defendant is to be effected in the same manner that service of a subpoena to appear and answer is now ‘ : ; Mode of servin, effected; but it shall not be necessary to produce the an offs cay tt a. bill of com- original bill. Affidavits of the service of an office copy piaint. of a bill of complaint are to be in the form or to the 30 BILL OF COMPLAINT; SERVICE. [ORDER IX., SEC. IV.] effect set forth in schedule C., hereunder written; they are to state where, when, and how such service was effected ; but no copy of the bill is to be annexed. (w) (v) This order does not apply to the service of a bill of complaint on a corporation. (Counter v. The Commercial Bank, 4 Grant’s Chan. Rep. 230.) Service on a corporation has now been specially provided for by Orders of 19th March, 1857. These are as follows :— “THURSDAY, 197m MARCH, 1857. 1. When service of a bill of complaint has been made within the jurisdiction of the court, upon a corporation aggregate, by personal service thereof on the mayor, war- den, reeve, president, or other head officer, or on the township, town, city, or county clerk, cashier, manager, treasurer, or secretary of such corporation, or of any branch or agency thereof in Upper Canada, or other person discharging the like duties, and when no answer has been filled to such bill within twenty-eight days from the ser- vice thereof, the plaintiff may, after the expiration of twenty-eight days from the service of such bill, apply to the court, ex parte, for an order to take the bill pro con- fesso, and the court upon being satisfied of the due and proper service of such bill of complaint, and that no answer has been filed thereto by such corporation, may, if it think fit, order that the bill be taken pro confesso, against such corporation. 2. In cases where a foreign corporation aggregate, defendant to a bill of com- plaint, has no branch or agency in Upper Canada, then upon application to the court, supported by such evidence as may satisfy the court, in what place or country such corporation is situated, the court may order that an office copy of the bill may be served on such corporation in such place or country, or within such limits, and by personal or other service on such officer of such corporation as the court may think fit to direct. Such order is to limit a time (depending on the place of service) with- in which such defendant is to answer or demur to the bill, or obtain from the court further time to make defence to the bill, and where such corporation has neglected to answer or demur to such bill within the time limited by the order authorisiog such service, the plaintiff may apply to the court ex parte for an order to take the bill pro confesso against such corporation, and the court being satisfed of the due service of the said bill according to the exigency of such order, and that no answer has been filed for such corporation, may, if it think fit, order the same accordingly. 8. Such order to take the bill pro confesso does not require to be served, and all further proceedings may be ex parte against, such defendant unless the court order otherwise. . 4, This order is to apply as well to all suits and matters now depending in this court, as those hereafter to be commenced.” This order only applies to foreign corporations which have agencies in Upper Canada, and does not enable service of a bill, &c., to be effected on the agent of an Upper Canada corporation. (Campbell v. Taylor, Grant’s Cham. Rep. 2.) The practice has been to allow service on any agent within the jurisdiction of a foreign corpora- tion, but the affidavit of service must shew that it is a foreign corporation, and that the person served is an agent thereof. The bill may be served on the defendant personally, or service may be effected by leaving the office-copy with a grown-up person at his dwelling-house. The person BILL OF COMPLAINT; SERVICE. 31 [ORDER Ix., sE¢, Iv.] 2 thus served must, however, be an inmate of the house. (Edgson vy. Edgson, 3 DeG. & S. 629.) If service is effected by leaving the office-copy at the dwelling-house of the defendant, a notice of motion to take the bill pro con/esso must be served person- ally on the defendant, or on his solicitor, if he have one, as directed by Order XIIL., sec., 3; and three weeks’ notice must be given, as provided in the last mentioned order, and see Webster v. O’Closter, 6 Grant’s Chan. Rep, 278, Service on the husband, out of the jurisdiction, is good service on the wife, (Jones v. Geddes, 15 L. J., Ch, 65,) and as to such service, under special circumstances, see Holcombe v. Trotter, 9 Jur. 637; Gee v. Cottle, 3M. & Cr. 180; Steele yv. Plomer, 1 M. & G. 83; Dubois v. Hole, 2 Ver. 613; Thomas v. Selby, 9 Bea. 194. Service on a deputy-governor of a gaol where a defendant is a prisoner, is good service. (Newenham v. Pemberton, 2. Coll. 54; s.c., 9 Jur. 687.) Service on one of two partners, is not good service cn the other. (Young v. Goodson, 2 Russ. 255.) But substituted service will, in a proper case, be ordered, (Kinder v. Forbes, 2 Bea. 503,) and see the cases cited in notes to order as to sub- stituted service. Where service of the office-copy bill was made upon a solicitor acting on behalf of several defendants, and such solicitor gave a written undertaking to answer, but afterwards made default in so doing, the bill was ordered to be taken pro confesso. (Shaw v. Liddell, 4 Grant’s Chan. Rep. 852.) And see Ross y. Hayes, 6 Grants Chan. Rep. 277, in which case a two days’ notice of motion for an order pro confesso was held sufficient, and that notice might be served upon the solicitor. See English act, 15 & 16 Vic,, ch. 86, sec, 5. The following is the schedule C., referred to in the above order ;— i SCHEDULE ©. FORM OF AFFIDAVIT OF THE SERVICE OF AN OFFICE COPY OF A BILL. IN CHANCERY. Between An Bueisiasisscesissiuss sonescnensoneaesiawioosenseecceeneciavevrnsese, Plaintiff, and Gs Di and. Ee. W. soaves sxtscaseearesks sovscasreteseesveresssserereee Defendants, I, G. H., of , in the county of ———, yeoman, make oath and say (when the affidavit is made by several deponents it is to commence, We, G. H., of ———, in the county of —— —, yeoman, and J. K., of , in the county of —, gentleman, make oath and say; and first, I, G. H., for myself, make oath and say) that T did on the — day of , personally serve the above-named defendant C. D. with a paper which purported to be an office copy of the bill filed in this cause, by delivering to and leaving with the said defendant C. D., (if served otherwise than personally, say with a grown up person, (or as the case may be,) at the dwelling house of the said defen- dant C. D.,) the said office copy. I further say that upon the said office copy there was a certificate to the effect that the original bill in this cause had been filed at Osgoode Hall, in the city of Toronto, on the —-——-— day of —, which 32 BILL OF COMPLAINT ;, SERVICE OUT OF JURISDICTION. [oRDER Ix., SHO, Iv.] certificate purported to be signed’by A. G., registrar of the court, (where the bill has been filed in an outer county state the fact accordingly,) and that each page of the said office copy was sealed with a seal similar to. the one which I now look upon in the margin of this affidavit, I further say that upon the said office copy, at the time of the service thereof, there was endorsed the following memorandum— to wit, (here insert the endorsement set oyt in the preceding schedule.) $ & tty Src. 5.—Where a defendant in any suit is out of the ofie copy of » jurisdiction of the court, then, upon application supported bill when th . : . defendant isout by such evidence as may satisfy the court, in what place don a country such defendant is or may probably be found, the court may order that an office copy of the bill may be served on such defendant in such place or country, or within such limits as the court may think fit to direct. Such order is to limit a time (depending on the place germ of the or- of service) within which such defendant is to answer or demur to: the bill, or obtain from the court further time to make his defence to the bill. (w) (w) As a general rule the court will, on a prima facie case being made out for its interference, exercise the jurisdiction given to it by this order. (Maclean v. Dawson, infra; Meiklan vy. Campbell, 24 Bea. 100; s.c., 28 L. T. 851.) See also Innes v, Mitchell, 1 DeG. & J. 428; 26 L. J., Ch. 719; 5 W. BR. 748; Cook v. Wood, W. R. 424, Where the evidence relied on is correspondence with the defendant, the affidavit ought to state the date of the last: communication, otherwise the court is unable to judge as to the probability of the defendant having removed since his last letter. (Farry v. Davis, Grant’s Cham. R.7.) The-evidence must shew that the defendant is residing at the particular place at which it is desired to serve him, by some person who knows him to be the defendant, and who has seen him residing there at a recent period, or who has received letters from him, dated at, and’ bearing the post-mark of, the place, and which shew that he is residing there. (Zbid.) But the court will not necessarily limit the service to a particular spot, (Blenkinsopp v. Blenkinsopp, 8 Bea. 612; 8. c., 2 Ph. 1; Harrison v. Harrison, M. R. 15 April, 1848; Preston v. Dickinson, 9 Jur. 919.) The evidence, moreover, must shew that the defendant was a resident at the par- ticular place, and not merely that letters had been received from defendant dated at the place. (Kingston v. Monger, Grant’s Cham. R. 18.) An affidavit shewing the defendant’s residence seven weeks previously, is insufficient.. (Fieske v. Buller 7 Bea. 581.) See also Preston v. Dickenson, supra. No affidavit of merits is required; the court may be satisfied by an inspection of the pleadings, or by other means, whether the order should be granted. (Bienkin- sopp v. Blenkinsopp, supra; Whitmore v. Ryan, 4 Hare, 612; Maclean v. Dawson, 27 Bea. 25; 7 W. R. 354; 8. ¢., 32 L. T. 384; on appeal, 4 DeG. & J. 150;, 7 W. R, 488; 5 Jur. N. 8. 663; 83 L. T. 158.) BILL OF COMPLAINT; SERVICE OUT OF JURISDICTION. 83 [ORDER Ix., SEC. V.] Where several persons, even though members of the same family, are served, each must be served with a separate copy of the bill. (Jones v. Geddes, 9 Jur. 1002.) The order must limit a time within which the defendant is ‘‘to answer or demur;” see Brown y. Stanton, 7 Bea. 582; Blenkinsopp v. Blenkinsopp, supra; Preston v. Dickinson, supra; and as reported in9 Jur. 919; Whitmore v. Ryan, 4 Hare, 612, Care should be taken that the time be specified in the endorsement on the bill. (Baynes v. Ridge, 9 Hare, App. xxvii.; Chatfield v. Berchtoldt, 9 Hare, App. xxviii.) The endorsement on the bill should be the real time allowed for answering or demur- ring, otherwise the court will not grant the order pro confesso. (James v. Wertheimer, 5 U.C. L. J. 168.) Such an inconsistency, however, would be disregarded in the case of a substitutional service on a solicitor of the court, as he would not be misled by it. (Rainey v. Dickson, 5 U. C. L. J. 163, 164.) By the Consolidated Statutes of Upper Canada, ch. 12, sec. 71, p. 61, it is enacted, that ‘An absent defendant may be served at any place out of the jurisdiction of the court, with a copy of any bill or proceeding, without an application being previously made to the court for tbe allowance of such service, and the service shall be allowed on proof to the satisfaction of the court that the same was duly made.” (20 Vic., ch. 56, sec. 15.) Practically, however, this enactment was of no use, and the court would not, in default of answer, grant an order pro confesso, unless an order bad been obtained and personally served, limiting the time within which the defendant was to answer; and this, even although the endorsement on the office-copy bill served had been altered so as to give the defendant the same time to answer which the court would have given him on an application under this order. By Order VII. of the Orders of court promulgated on the 10th day of January, 1863, provision has been made, whereby the service out of the jurisdiction under the beforementioned statute (20 Vic., Ch. 56, sec. 15) can be effected, without a previ- ous application to the court for an order limiting the time within which the defend- dant is to answer or demur. This order is as follows: “SERVICE OUT OF JURISDICTION. VII. The time within which any defendant served out of the jurisdiction of this court with an office copy of a bill of complaint shall be required to answer the same, or to demur thereto, to be as follows: 1. If the defendant be served in the United States of America, in any city, town, or village within ten miles from Lake Huron, the River St. Clair, Lake St. Clair, the River Detroit, Lake Erie, the River Niagara, Lake Ontario, or the River St. Law- rence, or in any part of Lower Canada not below Quebec, he is to answer or demur within six weeks after such service. 2. If served within any state of the United States not within the limits above de- scribed other than Florida, Texas, or California, he is to answer or demur within eight weeks after such service. 3. If served within any part of Lower Canada below Quebec, ér in Nova Scotia, New Brunswick, or Prince Edward Island, he is to answer or demur within eight weeks after such service. 4. If served within any part of the United Kingdom, or of the Island of Newfound- land, he is to answer or demur Within ten weeks from such service. 6. If served elsewhere than within the limits above designated, he is to answer or demur within six calendar months after such service. 5 34 BILL OF COMPLAINT; SUBSTITUTED SERVICE. [ORDER IX., SEC. V. AND VI.] 6. The time within which any party served with any petition, notice, or other pro- ceeding other than a bill of complaint, is to answer or appear to the same, is to be the same time as prescribed for answering or demurring to a bill of complaint, ac- cording to the locality of service. 7. Any party may apply to the court to prescribe a shorter time than is hereinbe- fore provided for any other party to answer or demur to bill of complaint, or to answer or appear to any petition, notice, or other proceeding. 8. Any party may apply for leave to serve any other party out of the jurisdiction under the General Orders of this court of June, 1853. 9. Affidavits of service under this order and of the identity of the party served, may be sworn as follows: if such service be effected in any place not within the dominions of the Crown before the mayor or other chief magistrate of any city, town, or borough, in or near which such service may be effected, or before any British con- sul or vice-consul, or the judge of any court of superior jurisdiction. And if such service be effected in any place within the dominions of the Crown, not within the jurisdiction of this Court, such affidavit may be sworn before any the like officer, or any notary public, and in Lower Canada, before any commissioner for taking affida- vits appointed under any statute of this province. And such affidavit shall be deemed sufficient proof of such service and identity without proof of the official character, or of the handwriting of the person administering the oath upon such affidavit.” - Src. 6.—Orders for substitutional service of an office Where orders for cony of a bill of complaint may be obtained in the same vcore billet Manner, and in such cases, as orders for substitutional complaint ™Y service of a subpoena to appear and answer may be obtained under the present practice. (2) (z) Before the court will direct substituted service it must be shewn that the per- son on whom it is sought to effect such service is the agent of the party whom he represents for the particular purpose of the suit; (Bones v. Angier, 18 Jur. 1050; s.c. 2 W. R. 609:) or at any rate for a purpose closely connected with the suit ; the principle on which orders for substitional service are granted, being that there is reasonable ground to believe that the service will come to the party’s own knowledge. (Hope v. Hope, 19 Beav. 237; on appeal, 4DeG. M & G.828; s.¢. 28 L. J., Ch. 682; 2W.; R, 443, 545; Heald v. Hay, 9 W. R. 369; Sergison v. Beavan, 9 Hare, App. xxix.; s.¢c. 22 L, J. Ch. 287.) Service of a bill to restrain an action at law, on the attorney of the plaintiff at law, the plaintiff being out of the jurisdiction, is good substituted service, (Sergison v. Beavan, 22 L. J., Ch. 287; Hamond v. Walker, 3 Jur. N. S. 686; Hurst v. Hurst, 1 DeG. & Sm. 694; Howkins v. Bennett, 1 Gif. 215; 2L. T. N. 8.79; Brooker v. Smith, 4 L. T., N. 8. 545,) but see Crawford v. Cooke, Grant’s Cham. Rep. 57, where it was decided that the rule applies only to cases where the object of the suit is to restrain proceedings at law only, and not where any other relief is sought, If a defendant is resident out of the jurisdiction, and has given a general power of attorney to some one to act for him, and the subject of the pending suit is clearly within the terms of the power, an order for substituted service may be obtained. (Forster v. Menzies, 16 Beav. 568; s.c. 17 Jur. 657 ; Rickcord v. Nedriff, 2 Mer. 458; - BILL OF COMPLAINT; SUBSTITUTED SERVICE. 35 [ORDER Ix., SEC. VI.] Hydev. Forster, 1 Dick. 102;) and as to substituted service generally, Daniell’s Ch. Pr., 8rd ed., pp. 804 et seg; Marquis of Hertford v. Suisse, 13 Sim. 489; Sewell v. God- den, 1 DeG. &S.126; Zulueta v. Vinent, 3 Mac. & G. 246; Carwardine v. Wishlade, 15 Jur. 913; Murray v. Vipart, 1 Phil. 521; Hobhouse v. Courtney, 12 Sim. 140; Morritt v. Walton, 2. W. R. 643; Cooper v. Wood, 5 Beav. 891; Weymouth v. Lam- bert, 3 Beav. 383; Webb v. Salmon, 3 Hare, 251; Governors of Grey Coat Hospital v. Westminister Imp. Com. 4 Jur. N.S. 449; Cox v. Bannister, 8 W. R. 206; Farrow v. White, 1 J.& W. 643.) : An affidavit by a clerk of the plaintiff ’s"solicitor, stating that one of the defendants had told him that he held a power of attorney from two other defendants, who were out of the jurisdiction, to enable him to sell the property, the subject of the suit, was held not sufficient for obtaining an order for substituted service on such defendant. (Brooker v. Smith, 30 L. J., Ch. 670; 3.0.4. L. T. N.S. 545.) An admission by a party that he is an agent is insufficient, the fact must be proved. Mere hearsay evidence is not sufficient proof of a defendant being out of the jur- isdiction, so as to obtain an order for substituted service. (Brooker v. Smith, ante.) An order may be obtained against one partner for substituted service on the other, (Carrington v. Cantillon, Bunbury 107; Coles v. Gurney, 1 Mad. 187; Kinder v. Forbes, 2 Beav. 503.) But query, must not the subject of the suit arise out of the transactions of the partnership. (Kinder v. Forbes, ante.) As to service on a solicitor who has acted for a party in a former or other suit, see Scott v. Wheeler, 13 Beav. 239; Norton v. Hepworth, 1 M. & G. 54; Hurst v. Hurst, 1 DeG. & S. 694; Waterton v. Croft, 5 Sim. 502; or on a person in communi- cation with the absent defendant. (Christie v. Cameron, 3 W. R. 146; Watts v. Hughes, 8 W. R. 292; 2L. T. N.S. 208.) In cases of substituted service, the original order allowing the service.must be shewn to the person served. (Jones v. Brandon, 2 Jur. N. S. 437.) In this case V, C. Wood observed that the order ought to contain a direction tor shewing it to the person served with the process, permitted to be served on him. The effect of substituted service may be stated from the observations of Lord Cottenham, in Gibson v. Ingo, 2 Ph. 404, that the court intends to put the party in whose favour the order is made in the same situation as if there had been an actual service. Leave to proceed by substituted service must always be obtained before proceed- ing thereto, whatever be the nature of such substituted service. (Re. Boger, 3 Jur. N. S. 930.) As to the evidence by which application must be supported. (Brooker vy. Smith, ante, 30 L. J., Ch. 670.) The application should be made ex parte. (Dan- ford v. Cameron, 8 Hare, 829.) And where notice of motion for substituted service on the defendant's solicitor was served on the latter, he was held entitled to payment of the costs of his appearance on the motion. (Read v. Barton, 28 L. T. 36.) An order obtained under this section does not authorise service on the agent of a notice of motion to take the bill pro confesso, as he may in the meantime have ceased to be agent, a further order authorising service of notice of motion must be obtained. in 1 j f the There must be clear proof of agency in reference to the subject matter of t suit, but itis not necessary that the agent should have especial authority with reference to the suit. It should also be shewn that the defendant is out of the juris- 36 BILL OF COMPLAINT; ABSCONDING DEFENDANT. [ORDER Ix., SEC. VI. AND VII.] diction, and the order for substitutional service should state that the supposed agent can within a limited time move to discharge it. (Allan v. Pyper, 5 U. C. L. J., 118.) It must be shewn, however, that the person to be served is the agent, by evidence other than the statements of the alleged agent. (Legge v. Winstanley, 8 Grant’g Chancery R. 106.) Sc. 7.—In case it appears to the court by- sufficient evidence that any defendant against whom a bill has been filed, has been within the jurisdiction of the court at some time not more than two years before the filing of the bill, and that such defendant after due diligence cannot be found to be served with an office copy of the bill, and that againtanab- there is good reason to believe that he has absconded— gant. = in such case the court may order the defendant to answer within a time to be named in the order and may direct a copy of such order, witha notice to the effect set forth in schedule D., hereunder written, to be published in such manner as the court may think fit; and in case the defendant dues not answer or demur within the time limited by such order, the court, if it shall think fit, may order the bill to be taken pro confesso against such de- fendant, in the manner hereinafter provided. (y) (y) The following is the schedule D. referred to in these orders: SCHEDULE D. NOTICE IN CASE OF AN ABSCONDING DEFENDANT. To the order directing publication the following notice is to be added: C. D., take notice that if you do not answer or demur to the bill pursuant to the above order, the plaintiff may obtain an order to take the bill as confessed against you, and the court may grant the plaintiff such relief as he may be entitled to on his own shewing, and you will not receive any further notice of the future proceed- ings in the cause. As to who is an absconding defendant, seé Cope v. Russell, 2 Ph. 404; s.c. 12 Jur. 105; overruling s.c. 11 Jur. 1032; Allen v. Loder, 20, L. J. Ch. 658: Barton v. Whitcombe, 16 Bea. 205; s. c.17 Jur. 81; Crosse v. Crosse, 8 W. R. 838. A defend= ant who is keeping out of the way is an absconding defendant. (Bennett v. Powell, 2, W. RB. 667; see also, Hele v. Ogle, 2 Hare, 623; Graver v. Temple, 9 Sim. 528.) BILL OF COMPLAINT; ABSCONDING DEFENDANT. 37 (ORDER IX., SEC. VII.] The affidavit must show that the plaintiff has made enquiries at places and of per- sons where there is reasonable probability that the defendant would be heard of, (Anstey v Hobson, 2 W. R. 46; Harrison v. Stewardson, 2 Hare, 530.) See also Robson v. Earl of Devon, 2 W. R. 485. A mere allegation that the plaintiff bas used all possible diligence is not enough. (Jid.,) and in Lipsey v. Cruise, Grant’s Ch. R. 2, in moving for an order unCer this section to advertise a defendant as absconding, it was held that it must be shewn that the defendant cannot be found to be served with the bill; and so also an application for such an order was refused where it was sworn that defendant had absconded to Michigan, but it was not shewn that the de-» fendant could not be found there. (bid.) Where a party absconded and changed his residence several times within a few months, the court directed an advertisement to be inserted in a newspaper published at his place of residence in the province, and copies to be sent to him directed to each of the places named. (Stimson y. Stimson, 6 Grant’s Ch. R. 379.) Where a defendant more than two years before bill filed has been out of the juris- diction of the court, and has no solicitor, agent, or other person within the jurisdic- tion, upon whom substituted service can be made, and he cannot be found or heard of out of the jurisdiction, it would appear that the plaintiff cannot, either under this order, or otherwise, obtain leave toadvertise him. (Thurlowv, Treeby, 27 Bea. 624; 8 W.R. 159.) Such a case seems to be unprovided for by the orders, It is quite clear that unless the defendant has been in the jurisdiction within two years before the bill filed, the court cannot under this section by way of substi- tution for the ordinary process of service direct advertisement. (Jdid.) The Orders of the 29th June, 1861, enact as follows: ‘(DEFENDANT ABSCONDING OR BEING CONCEALED. In case it appears to the court by sufficient evidence, that any defendant against whom a bill has been filed, has been within the jurisdiction of the court at some time, not more than two years before the filing of the bill, and that such defendant, after due ‘iligence, cannot be found to be served with an office copy of the bill, and that there is good reason to believe that he has absconded from the jurisdiction, or that he is concealed within the same, the court may make such order as is prescribed by section 7th, of the 9th of the General Orders of June, 1853.” The words, ‘from the jurisdiction, or that he is concealed within the same,” ex- tend the application of this 7th section. This section applies to suits of any nature. In moving for an order under this section it is not sufficient to state that enquiries and exertions had been made to serve the defendant, the affidavit must shew what exertions have been made, so that the court can judge whether the defendant is absconding or otherwise. (Murney v. Knapp, Grant’s Cham. Rep. 26.) The omission of the name of the defendant against whom the bill is advertised is a fatal defect. (Jones v. Brandon, 3 Jur. N.S. 1146.) The order should direct the notice to be inserted ‘‘ at least once in every week reckoned from the time of the first insertion thereof up to the time for which the said notice is given,” which will remove the doubt expressed in Bazalgette v. Lowe, 24 L. J. Oh. 416, reversing 8. c. id. 368 ; and Millar v. Elwin, 25 Bea. 674; 6 W. R, 763; 4 Jur. N.S. 600. See further as to advertisements; Baker v. Dean, 6 W. R. 719; Wilkins v. Hogg, 41. 7T.,N.8. 12. In moving to take @ bill pro confesso against a defendant who has been advertised ~ 38 BILL OF COMPLAINT; ABSCONDING DEFENDANT. [ORDER Ix., SEC, VII, AND YIII.] under this section, it is necessary to show by affidavit that be cannot be found to be served with a notice of the motion, (Gilmour v. Matthews, 4 Grant, 376,) and the pa~ pers in which the advertisement has been ingerted must be produced and shown to thecourt. (Goodfellcw v. Hambly, Grant’s Cham. R. 62.) The words, ‘if it shall think fit,” give the court a wide discretion. (Zulueta yv. Vinent, 15 Bea. 272.) Where therefore the defendant had always resided abroad, and there appeared no desire on his part to avoid the process of the court, the appli- cation was refused, but without costs, (ibid,) but see Hele v. Ogle, 2 Hare, 623, cited ante. Care must be taken that no amendment of the bill is made pending the service in manner provided for by this section and the application for the order pro confesso. An order to take the bill pro confesso is gone, if an order be obtained to amend even a clerical error in the bill, (Weightman v. Powell, 2 DeG. & Sm. 570; 12 Jur. 958,) unless the application to amend be made, and it may be made ex parte, without pre- judice to an order to take the bill pro confesso. (See Order XIII. of Orders of June, 18538, sec. 8.) Src. 8.—In case it appears to the court by sufficient evidence that any defendant, against whom a bill of complaint has been filed for the foreclosure of a mortgage, or respecting the specific performance of any agreement, cannot be found after due diligence, to be served with an office copy of the bill of complaint, in such case the Proceedings against an ab- court may order the defendant to answer or demur sent defendant ai catch : . : who cannot be Within a time to be named in the order, and may direct discovered. . : : a copy of such order, together with a notice to the effect set forth in schedule D., hereunder written, to be pub- lished in such manner as the court may think fit; and in case the defendant does not answer or demur within the time limited by such order, the court, if it shall think fit, may order the bill to be taken pro confesso in the manner hereinafter provided. (z) (2) For the schedule D., see notes to the last section. This section does not apply to any but cases for foreclosure or specific performance. (Bank of Montreal v. Hatch, Grant’s Cham. Rep. 57.) As to evidence required to sustain an application under this section, and generally as to practice thereon, see notes to section 7 of this order. BILL OF COMPLAINT; AMENDMENT. 39 [ORDER Ix., SEO, IX. AND x.] come 7 Order of SEC. 9.—Orders of course to amend a bill of com- Order of courte | plaint may be obtained at any time before answer er answer. upon precipe. (a) (a) As to amending bill see Daniell’s Chancery Practice, 3rd ed. 276, and English Chancery Order IX., ss. 8-24. The time for vacation is not to be reckoned in the computation of the time ap- pointed or allowed for the purpose of ameniling or obtaining orders for leave to amend: vide Order V., of 1853, sec. 4. And see also Order of 30th June, 1858, whereby ‘it is ordered that the time of the long vacation is not to be reckoned in the computation of the time appointed or allowed for the purpose of answering either an original or amended bill.” The deputy-master in the county where the bill has been filed, is to grant orders for leave to amend before replication. (Vide Order XLIV., of 1853, sec. 4, art. 3.) Where a demurrer has been overruled, and an appeal from the decision is pending, the rule does not apply. (Ainslie v. Sims, 17 Beav. 174; and see Cooper y. Lewis 2 Ph. 178, and cases there cited; Fletcher v. Moore, 11 Beav. 617.) The order for leave to amend operates from the day of service only, (Price v. Webb, 2 Hare, 515,) but service may be dispensed with on an application ex parte therefor. See sec. 10 of this order. Where the plaintiff amends before answer, the time to answer or demur runs only from the service of the amended bill, (Cheeseborough v. Wright, 28 Beav. 178,) except as to amendment made under sec. 10. There may be any number of such orders obtained, defore answer. (Wharton v. Swann, 2 M. & K. 862.) Szc. 10.—Service upon any defendant of an order of course to amend, before answer, may be dispensed _ with, upon an application ex parte, when the court is der to amend ais- satisfied that such an order may be made without preju- Portals eanesy dice to the defendant’s rights; and when service upon any defendant of an order to amend has been dispensed with, the cause as to such defendant is to proceed as if the bill had been originally filed in the amended form. (0) (6) Where a plaintiff desired to amend by adding a judgment creditor who had ‘assigned his claim to the plaintiff as a party defendant, leave was given for that purpose, dispensing with service on the defendants already before the court. (Boomer y. Gibson, 4 Grant, 430.) 40 BILL OF COMPLAINT; AMENDMENT. (ORDER IX., SEC, XI. AND XII.] Sec. 11.—An order to amend the bill only for the $0 correct ehates, PUrpose of rectifying a clerical error in names, dates or orspullss sums, may be obtained at any time upon precipe. (c) (c) An order obtained under this rule was ‘held to render an order to take a bill pro confesso inoperative. (Weightman v. Powell, 2 DeG. & Sm. 570.) As to mis- nomers in copies of bills served on defendants, see Witham v. Salvin, 16 Jur, 420. Src. 12.—One order of course to amend the bill, as the plaintiff may be advised, may be obtained by the plaintiff upon a preecipe, at any time before filing the One order of replication, and within four weeks after the answer, or answer, the last of several answers has been filed: but no fur- ther order of course for leave to amend the bill is to be granted after an answer has been filed, except in the case provided for by the 11th section of this order. (d) (d) A plaintiff moving to amend after the time limited by this order, must shew that the order could not be complied with, though due diligence has been used. (McNab v. Gwynne, 1 Grant’s Chan. Rep. 127.) Where the plaintiff’s solicitor absconded before the time to amend the bill, as of course, had expired, and his departure was not known to the plaintiff till afterwards, and due diligence appeared to have been used by the plaintiff to proceed with the cause after becoming acquainted with such departure, the court granted leave to amend on payment of costs. (Carney v. Boulton, 1 Grant’s Chan. Rep. 423.) And where, after the time for amending, as of course, an order is obtained to amend by adding a party, ‘“‘ with apt words to charge him, or otherwise, as plaintiff shall be advised,” the plaintiff is rot at liberty to make any amendment whatevér, except such as is required for the purpose of introducing the additional party. (Gillespie y. Grover, 2 Grant’s Chan. R. 120.) This section will not apply to a case where a voluntary answer (which is at once treated as sufficient) is put in. (Rogers v. Fryer, 2 W. R. 67.) A second order of course to amend will be discharged as irregular. (Bennett y. Honeywood, 1 W. R. 490; Dolly y. Challin, 11 Beav. 61.) As to computation of time, the four weeks do not expire till twelve o’clock of the night of the last day included therein. (Preston v. Collett, 20 L. J., Ch. 228 ) And an order of course, obtained after an order to amend on payment of costs, made upon a special application, is irregular. (Edge v. Duke, 10 Beay. 184.) The last answer ‘means the last answer required to be put in previous to repli- cation,” (Arnold v. Arnold, 1 Ph. 806,) i. ¢, the last of several answers filed by several defendants. (Forman y. Gray, 9 Beav. 200; Duncombe». Lewis, 10 Beav. 278.) But see Dalton v. Hayter, 7 Beav. 586, as to which, however, compare the observations of the Master of the Rolls, in Sprye v. Reynell, 10 Beay. 351. BILL OF COMPLAINT; AMENDMENT. 41 [ORDER IX., SEC, XII. AND XIII,] E See further as to the case of answers required from several defendants. (Arnold v. Arnold, 1 Ph. 805; Bertolocci v. Johnstone, 2 Hare, 632 ; Baldwin v. Damar, 16 L. J. Ch. 448; Lester v. Archdale, 9 Beay. 156; Stinton v. Taylor, 4 Hare, 608.) An order of course, to amend obtained, but not served before a notice of motion to dismiss for want of prosecution, is a nullity, and is therefore no answer to the motion to dismiss. (Jones v. Lord Charlemont, 12 Jur. 889; 17 L. J. Ch. 449; and Comp. Morris v. Owen, 1 V. & B. 523.) And see as to the order to amend operating from its service. (Price v. Webb, 2 Hare, 515.) One order of course, only can be obtained, and an order obtained in violation of this rule will be discharged with costs. (Peile v. Stoddart, 11 Beay. 591; Horsley v. Fawcett, 10 Beay. 191; Bennett v. Honeywood, 1 W. R. 490.) An order of course, obtained after replication filed, to amend by adding parties, is irregular. (Hitchcock v. Jaques, 9 Beav. 192.) But query, may not such an order be obtained ex parte. See Bryan v. Wastell, Kay, App. xlvii.; ‘5. c., 2 W. R. 835. Adding a defendant is clearly an amendment within this order, and any further order can be obtained only upon special application. (Attorney-General v. Nether- coat, 2 My. & C. 604.) An enlargement of the time for taking out the order to amend may be obtained; but misconduct on the part of the solicitor is no ground for allowing further time. (Clarke v. Mayor of Derby, 10 Jur. 978.) See Masterman vy. Great Western Railway Company of Ireland, 20 L. J., Ch. 48; Macintosh v. Great Western Railway Company, ibid. 550, as to application of rule till the expiration of four weeks from an answer put in by a sole defendant to an amended bill. Where, by the order allowing a demurrer, leave is given to amend the bill, and the plaintiff afterwards neglects to amend, the proper course for the defendant is to move that the plaintiff do amend within a given time, otherwise that the order to amend may be discharged, and the demurrer allowed. (Nelson yv. Robertson, 1 Grant’s Chan. Rep. 5380.) A demurrer to a bill having ‘been filed, the plaintiff, before the demurrer came on for argument, obtained the common order to amend ; but not having amended within the time prescribed, held, that the bill was gone. (Hoflick v. Reynolds, 30 L. J. Ch. 407; 9 W. R. 481.) Where a demurrer is served and set down, and a common order to amend obtained, the plaintiff must pay the costs of demurrer also. (Hoflick y. Reynolds, 9 W. R. 398.) Where a demurrer is put in, and set down, that is not a case for a common order to amend. (Z0.) Sec. 13.—A plaintiff having obtained an order to amend his bill is to amend within fourteen days from qe tin must be the date of such order; otherwise the order to amend fustecn dove, becomes void, and the case as to dismissal stands in the same situation as if such order had not been made. (e) (e) The amended bill must be served within the fourteen days, even on new defendants. 6 42 BILL OF COMPLAINT; AMENDMENT. [ORDER IX., SEC, XIII, AND XIV.] This rule also applies to an amendment effected by special leave, (Cridland v. Lord de Mauley, 2 DeG. & Sm. 560,) and includes cases where liberty is given to amend upon the allowance of a demurrer; (Bainbrigge v. Baddeley, 12 Beay, 152; Armit- stead v. Durham, 11 Beay. 428; s.c., 138 Jur. 330;) but see Nicholson v. Peile, 2 Beav. 497; where, in the latter case, the plaintiff having submitted to a demurrer, obtained an order to amend, but did not do so within the time limited; he then obtained a second order, of course, to amend, sud no answer having been filed, a motion to discharge the second order was refused ; in this case, however, the orders were obtained before answer. Where the plaintiffs had in consequence of the misconduct of their solicitor, omitted to amend their bill within the time allowed, a motion for further time was refused; (Clarke v. Mayor of Derby, 10 Jur. 978;) and see Champneys v. Buchan, 3 Drew. 5; Dolly v. Challin, 11 Beay. 62; Armistead v. Durham, 76. 428; Bain- hrigge v. Baddeley, 12 Beay. 152; but see Carney v. Boulton, cited supra. Where. a plaintiff requires an answer to an amended bill, he must serve the defen- dant with a copy of such bill, endorsed in the form required by the orders requiring lim to answer the same. (Barry v Croskey, 2 Johns. & H. 130; 10 W. R. 5.) And service of a plain instead of an endorsed copy of such an amended bill, is, in effect, an intimation to the defendant, that no answer is required of him; and sub- sequent service of an endorsed copy is irregular, and may be set aside on motion by the defendant; (2d. ;) course which plaintiff should adopt to correct such an irregu- larity. (J0.) j Sze, 14.—Supplemental bills are abolished. When a suit is defective by means of some imperfection in the bill, and not in consequence of any event arising subse- quent to its institution, the court may at any time ietatiscaces. permit an amendment of the bill in furtherance of Plemental bil” Justice, and on such terms as it may think proper, for the purpose of altering the allegations in the bill, or of putting new matter in issue, as well as for the purpose of adding or striking out the names of parties, or of varying the relief prayed, or praying further relief. Such order is to be applied for by motion, the notice of which is to state the required amendment; and must be served upon the parties, or their solicitors, unless dispensed with. Upon the motion the court must be satisfied, by affidavit, or otherwise, of the truth of the proposed amendment, and of the propriety of permitting it to be made at the particular stage of the cause, under all the circumstances. BILL OF COMPLAINT; AMENDMENT. 43 [ORDER IX., SEO, XIV.] Upon pronouncing such order for amendment, the court is to give such direction as to the future conduct of the suit, in relation to answering such amendments, as also with regard to the evidence taken, or to be taken, and in all other respects, as the circumstances of the case may require. (f) a See Collett v. Preston, 3 M. & G. 438. The affidavit is made by the plaintiff and his solicitor, or by the solicitor alone, in case the plaintiff from being abroad, or otherwise, is unable to join. An affidavit by the solicitov’s managing clerk has been held insufficient ; (Christ’s Hospital v. Grainger, 1 Ph. 634;) but when the facts are within the personal know- ledge of the clerk, the court may require his affidavit, as well as that of the solicitor. (Ibid.) See too, Handfield vy. Woolley, 4 Sim. 122. A motion for leave to amend by striking out the name of a plaintiff, and mak- ing him a defendant, is never of course, and must be supported by the affidavit required by this section; (Macleod v. Lyttleton, 1 Drew. 86; Sloggett v. Collins, 18 Sim. 456;) and see Lloyd v. Makeam, 6 Ves. 145. The affidavit need not set out all the proposed amendments, (Payne v. Little, 19 L. J. Ch. 459,) but it must shew circumstances from which the court can itself judge as to the materiality and diligence; (Stuart v. Lloyd, 3 M. & G.181;) and seo Attorney-General v. Fishmonger’s Company, 4 M. & C. 1; Philips v. Goding, 1 Hare, 40. It must shew due diligence co-extensive with the whole time from the filing of the answer. (Winnall v. Featherstonehaugh, 9 Jur. 1054, on appeal to L.C., 10 Jur. 235.) Where the affidavit stated, that ‘‘having regard to these circum- stances, the amendments could not, with,” &c., this was held sufficient ; (Attorney- General v. Corporation of London, 13 Beay. 313 ;) see further as to due diligence, and the terms under which the order will be made after replication; Champneys y. Buchan, 3 Drew. 5. Any application made under this section, must be made promptly, and it will have been seen, that the affidavits on which it is founded, must shew due dili- gence, not merely in the progress of the suit, but in the matter of the amendments. (Edge v. Duke, 11 Jur. 213.) Notwithstanding this order, an application to amend at a late stage of the cause cannot be granted, if it appears that such amendment will be attended with any risk of doing injustice. (Aitchison v. Coombs, 6 Grant’s Chan. Rep. 648, 660.) In Bolton v. Ridsdale, 2 W. R. 451, V. C. Stuart seems to have thought that the section did not apply where the circumstances existed before the institution of the suit, but had been discovered subsequently thereto. But this case was reversed on appeal. (Vide, 2 W. R. 488.) The amendments or supplemental statements must not be of such a nature as to contradict the case ase be the bill; (Tomson v. Judge, 2 Drew. 414; 2 W. R. 574; s. c., 23 L. T. 217;) but see Allen v. Spring, 22 Beav. 615. But where a bill was filed asserting a legal right, which, on the hearing, the plaintiff was ordered to establish at law, it was held on appeal, reversing the decision below, that he might 44 BILL OF COMPLAINT; AMENDMENT. [ORDER Ix., SEC. XIv.] introduce by amendment facts existing before, but discovered after the institution of the suit, which it was alleged would render the trial at law unnecessary ; (Bolton v. Ridsdale, 24 L. J. Ch. 70; s. v., 2 W. R, 488;) vide the case in the court below, 2 W. R. 451; but see Mollett v. Enequist, (No. 2,) 26 Beav. 466. Query, does this section enable a defendant, even though he have the conduct of the suit, to file a supplemental statement. (Lee v. Lee, 9 Hare, App. xci.) When a defendant moved that the plaintiff might be ordered to enter on the record, ‘a statement of the defendant’s marriage, and of the nature and effect of a settlement made thereon,” the application was refused on the ground that such an order would be tantamount to allowing a defendant to amend a plaintiff’s bill. (Langdale v. Gill, 1Sm. & G. 24; 8. ¢., 16 Jur, 1041; 1 W. RB. 51.) The court refused to give special leave to amend by introducing new matter, where the matter of the proposed amendment could be proved under the pleadings without such amendment. (Wilmott v. Boulton, 1 Grant’s Ch. Rep. 479.) : As to.amending bill at hearing of cause, in what cases allowed, vide Steet v. Hogeboom, 3 Grant’s Ch. Rep. 128. The plaintiff upon a motion to amend will be required to satisfy the court of the truth of the proposed amendment, and as to the propriety and expediency, with a view to the ends of justice of permitting the amendment, under all the circumstances, and at the particular stage of the cause. (Applegarth v. Baker, 2 Grant’s Ch. Rep. 428.) It would seem that if the proposed amendment would, in fact, make a new bill the order to amend will not be granted, (City Bank v. Amsden, 7 U. C. L. J. 298; Street v. Hogeboom, 3 Grant 136, 145.) Where the plaintiff moves to amend under this section he must shew that he could not amend under section 12, though he had used due diligence. (McNab v. Gwynne, 1 Grant, 127; and see Carney v. Boulton, 1 Grant, 423. Asto the costs of amendment under this sec. each case must depend on its own peculiar circumstances, (Applegarth v. Baker, ante,) though amendment is allowed only in general on the payment of costs. (Chisholm v. Sheldon, 1 Grant 108.) The court will not allow an amendment by striking out the naime of a plaintiff without providing that security for costs be given. Daniell’s Ch. P., 8rd edit. 457, In Thomas vy. Torrance, Grant’s Chm. 46; after service of a notice of motion for decree, leave was given to amend by adding parties on payment of the costs of the application and of the motion for decree so far as it had gone. See also the remarks of the Chancellor Blake, in Rumble v. Moore, Grant’s Chambers 59, as to the amend- ment where bill is defective for want of parties. The court will frequently at the hearing, where the suit is defective for want of parties or otherwise, allow it to stand over with liberty to amend by adding parties or otherwise. (Chisholm v. Sheldon, 1 Grant, 108; see, however, Street v. Hoge- boom, 3 Grant, 128, 186, 145; Aitchison v. Coombs, 6 Grant, 648, 660.) Where a cause has been ordered to stand over at the hearing with liberty to amend by adding parties, the plaintiff has no right to amend by changing the venue, (Fenton v. Cross, Grant’s Chm. 25,) or indeed to introduce any amendment uncon- nected with the liberty to add parties, (Chisholm v. Sheldon, 1 Grant, 294, 425; Gillespie v. Grover, 2 Grant, 120.) An amendment rendered necessary by the ad- ding of parties, or connected strictly therewith, is allowable, (Jbid, 1 Grant 294.) Where a plaintiff does make an amendment unconnected with such leave, a demur- rer to the bill would not be a proper mode of objecting to the amendment. (Martin v. Kennedy, 2 Grant, 80.): The proper course is to move to expunge the amendment. BILL OF COMPLAINT; REVIVOR AND SUPPLEMENT. 45 [ORDER IX., SEO. XV. AND XVI., AND ORDER 67H JUNE, 1862.] Where a cause was ordered to stand over to amend by adding parties, or if dead, their representatives, and one of the parties had died and no representative had been appointed, a motion for leave to proceed in his absence, or that a representative ad litem might be appointed, was refused with costs. (Williams v. Page, 27 Beav. 373.) At the hearing a suit was found defective for want of parties, and was ordered to stand over, with liberty to amend by adding parties. It was brought on a second time, still defective for want of parties. The court dismissed it as against all the defendants. (Williams v. Page, 28 Beay. 148.) Where a suit involves a question in which the children of the plaintiff are inter- ested, and a child is born after the bill is filed, the court will, on the objection taken at the hearing, order the cause to stand over, with liberty to amend by bringing the child born since the institution of the suit before the court. (Leyland v. Leyland, 10 W. R. 149.) Amendment sub- . stituted for bills Sec. 15.—[Abrogated and discharged by order of of revivor; bills of revivor and court dated the 6th day of June, 1862.] supplement, original bills in the nature of Dills of revivor, or original bills in the nature of supplemental bills. ee ee Src. 16.—jAbrogated and discharged by order of euit abates after court dated the 6th day of June, 1862.] (g) decree. (g) Sections fifteen and sixteen of this order (No. IX.) are abrogated and discharged by order of court dated the 6th of June, 1862. These sections are omitted from the text. The order of the 6th of June, 1862, is as follows : “Sections fifteen and sixteen of General Order, number nine of the General Orders of this court of the 3rd of June, 1853, are hereby abrogated and discharged. Bills of Revivor.—Bills of Revivor and Supplement, Original Bills in the nature of Bills of Revivor, and Original Bills in the nature of Supplemental Bills are abolished. Upon any suit becoming abated by death, marriage, or otherwise, or defective by reason of some change or transmission of interest or liability, on the part of any plaintiff or defendant by devise, bequest, descent, or otherwise, it shall not be necessary to exhibit any bill of revivor, or supplemental bill, or to proceed by any of the modes provided for by the sections of General Order number nine by this Order rescinded, in order to obtain an order to revive such suit, or a decree or order to carry on the proceedings, but an order to the effect of the order to reyive, or of the usual supplemental decree under the former practice of this court may be obtained as of course upon precipe upon an allegation contained in such preecipe, of the abate- ment of such suit, or of the same having become defective, and of the change or transmission of interest or liability. And an order so obtained when served upon the party or parties who would be defendant or defendants to a bill of revivor or sup- 46 BILL OF COMPLAINT; REVIVOR AND SUPPLEMENT. (ORDER IX., SEC. XV. AND XVI., AND ORDER 6TH Jonz, 1862.] plemental bill according to the former practice of this court shall, from the time of such service, be binding upon such party or parties in the same manner in every re- spect as if such order had been regularly obtained according to such former practice of the court, and such party or parties shall thereupon become thenceforth a party or parties to the suit; provided that it shall be open to the party or parties so served within fourteen days after the service of such order to apply to the court by motion or petition to discharge such order on any ground which would have been open to him or them on a bill of revivor or supplemental bill, stating the previous pro- ceedings in the suit, and the alleged change or transmission of interest or liability, and praying the usual relief consequent thereon; provided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect. as against such’ party until a guardian or guardians ad litem shall have been duly appointed for such party, and the period of fourteen days shall have elapsed thereafter.” This order is adapted from sec. 52, of 15 and 16 Vic., cap. 86, (the English Act “For the improvement of Jurisdiction of Equity,”) and it would seem to apply to suits commenced before the order came into operation, and even in cases where the abatement took place before that period. (Lowes v. Lowes, 16 Jur. 968; 8. ¢. 1 W. R. 14; Cf. Jones v. Woods, 20 L. T. 50.) The practice as to the manner in which abated suits may be revived as provided by the above order, (which has the same effect as a bill of revivor,) is laid down in Daniell’s Ch. Practice, 3rd ed., 1154-55, 1159; as to the persons entitled te revive, p. 1178; as to the effect of revivor, p. 1181; and against whom the suit may be re- vived, p. 1182. It was said that there can be no revivor after the lapse of twenty years from abatement, (Bland vy. Davison, 21 Beav. 312,) but see to the contrary, Alsop v. Bell, 24 Beav. 451. An order to revive was made against the representatives of a defendant who had demurred and died ten years after the allowance of the demurrer, leave having been given to the plaintiff toamend. (Deeks v. Stanhope, 24 L. J. Ch. 580; 8. ¢., 1 Jur. N. 8. 418.) The common order to revive is obtained as of course, (Bonfil v. Purchas, 16 Jur. 965; s.c., 1 W. R. 12,) nor need_the allegation referred to in the order be proved. (Gordon vy. Jesson, 16 Beay. 440; 8. c., 22 L. J. Ch. 828; Martin v. Hadlow, 9 Hare, App. lii.,) but where there are special circumstances arising out of the case, a spe- cial application to the court is necessary. (Martin vy. Hadlow, udi supra; Phippen vy. Brown, 1 Jur. N. S. 698; Goodall v. Skerratt, 1 Sm. & G., App. vii.) If ob- tained ex parte, it is of course liable to be objected to by any parties to the suit. (Jackson v. Ward, 7 W. R. 426.) Where a femme sole entitled to property, which in the event of her marriage would be settled to her separate use instituted a suit respecting such property, and married after replication, but before decree, the court made an order giving her leave to name her next friend, and reviving the suit against her husband. (Trezevant v. Broughton, 5 W. R. 517.) See also Robinson v. Hewetson, 1 W. R. 100; 8. ¢., 20 L. T. 154. But a fact inconsistent with an existing order made upon a petition can- not be introduced into the petition by amendment. (In re Keen, 7 W. RB. 577.) The words ‘‘change of interest” have been held applicable to the case of a neces- sary party coming into existence during the pendency of the suit. (Fullerton v. Martin, 1 Drew. 288; 1 W. R 49; Phippen v. Brown, 1 Jur.N. 8S. 698; Pickford v. Brown, 1 K. & J. 648.) And in Jebb v. Tugwell, 20 Beay. 461; s, c., 24, L. J. Ch. BILL OF COMPLAINT; REVIVOR AND SUPPLEMENT. 47 (ORDER !X., SEC. XV. AND XVI., AND ORDER 6TH JUNE, 1862.] 670; 25 L.T.171; the principle was extended by making a supplemental order binding the interest of an infant born just before the decree, but through inadver- tence not made a party to the suit. (Comp. Barrett v. White, 8 W. R. 526; Notley v. Palmer, 1 Jur. N.S. 221; 3 W. R. 201.) Where a mortgagee, one of two co-plaintiffs, had died before decree, the survi- ving plaintiff was allowed to revive against the devisees and executors of the deceased. (Hall v. Clive, 20 Beay. 575. See also Smith v. Horsfall, 24 Beav. 331.) A common order to revive a suit must be based on a true statement of facts, and will be discharged with costs as irregular, if the allegations in it are untrue. (Brignall v. Whitehead, 10 W. R. 69; 5 L. T. N. 8. 301.) And an order to tax a pill of a solicitor, deceased, will be revived upon an ex parte motion by his execu- tors. (Waugh, Jn re., 30 L. J. Ch. 796; 9 W. R. 775.) Under this order it seems clear that an order of revivor and supplement may in an ordinary administration suit, but not in suits for specific performance, be obtained as of course, with the addition of the words, ‘‘that the personal representatives may admit assets or account.’”’ (Collard v. Roe, 5 Jury, N. S. 1242; Edwards v. Batley, 19 Beavan 457; 23 L. J. Ch. 872; Cartwright v. Shepheard, 20 Beav. 122.) In Flocton v. Slee, 5 Jur. N. S. 422, 1090; s.c¢., 7 W. R. 893, the common order to revive was granted in favour of personal representative of a plaintiff who had died before decree; and also where he had died after decree, in Morritt v. Walton, 2 W. R. 544; and Jackson v. Ward, 7 W. R. 426; 1 Giff. 30; in which case in would seem that the language of this order is general, and applicable to every case where there has been a transmission of interest by the death of a plaintiff or defendant in a suit, and therefore it was that the court in this case made the supplemental order ex parte, where the sole plaintiff had died after decree. A settlement made in favour of a ward of court, and her children is also a ‘‘ transmission of interest” within this order. (Atkinson v. Parker, 2 DeG. M. & G, 221; 22 L. J. Ch. 20; 1 W. RB. 43.) A suit was instituted for specific performance of an agreement, and the purchaser was ordered to compiete. The purchase money was paid, and the conveyance delivered to the purchaser, and only a small sum for interest on the purchase money, and the costs of the suit, remained due. The purchaser died, and the common order to revive was obtained, but his executors refused to pay such interest and costs. The vendor thereupon filed u supplemental bill on behalf of himself and all other the creditors of the testator, praying for payment, and if the executors should not admit assets, for accounts and enquiries: held, that the simple order to revive was regular without any addition, the plaintiff having no reason to suppose that there would be any necessity for filing a supplemental bill. (Collard v. Roe, cited supra.) When a plaintiff in a foreclosure suit lad after decree assigned all his interest in the suit, the assignee will be allowed to revive on paying the costs thereof. (James y. Harding, 24L. J. Ch. 749; 8. ¢., 3 W. RB. 474.) An estate on which there were two equitable mortgages was ordered to be sold, and the produce divided according to their priorities, which, however, were not declared by the decree. Afterwards a second mortgagee instituted a second suit, claiming priority over the first, upon a title paramount to that of the mortgagor, which was discovered in the first suit. Held, that a bill of revivor was unnecessary, and relief was given in the secord suit. (Langstaf v. Nicholson, 25 Beav. 160.) This order, however, does not apply where a co-plaintiff is in such a position that he ought to be a defendant. (Jervoise v. Clark, 2W. B. 337.) If one of two creditors, plaintiffs in an administration suit obtain letters of admin- 48 BILL OF COMPLAINT; REVIVOR AND SUPPLEMENT. [ORDER Ix., SEC. XV. AND XVI., AND ORDER 61TH JuNH, 1862.] istration de bonis non to the testator’s estate upon the death of the executor defendant, the suit cannot be revived by the co-plaintiff against him under this order. (Tate or Yate v. Leithead or Lighthead, 9 Hare, App. li.; s. ¢., 16 Jur. 964; 22 L. J.Ch.9; 1 W. R,4; 20L. T. 59.) See, however, Cresswell v. Bate- man, 6 W. R. 220. : Where there is a sole plaintiff and sole defendant, who dies having appointed the plaintiff his executor, the latter may obtain an order to revive under this order against the persons beneficially interested. (Pedder vy. Pedder, 8 W. R. 15; 5 Jur. N. 8. 1145; 29L, J. Ch. 64; 6U. C. L. J. 192.) Where a sole plaintiff, after issue joined, and before decree, becomes lunatic, and a committee is appointed, such committee is entitled to a supplemental order under this section. (Dangar v. Stewart, 9 W. R. 266.) Where a suit by a tenant for life against trustees had, after decree, become abated by his death, and his executors refused to revive; held, that another of the tenants for life who had been served with the decree, and had obtained an order to attend the proceedings, was entitled to revive and carry on the suit, without filing a supple- mental bill. (Dobson v. Faithwaite, 5 L. T. N. 8. 513.) A suit abated by the death of the sole plaintiff, intestate, may be revived by a com- mon order. (Ward v. Shakeshaft, 7 Jur. N. 8S. 1227; 10 W. R. 6.) Upon the death of a plaintiff in a creditor’s suit the common order to revive was made in favour of another creditor whose debt had been proved and allowed, (Inchley v. Allsop, 7 Jur. N. 8. 1181; 9 W. RB. 649,) and it would appear that this would be done, even though the master had not made and signed his report in the cause. (J0.) As to the practice on a special case, and the occurring necessity of revivor; see Wilson v. Whateley, 1 Johns. & H. 331; 7 Jur. N.S. 908; 30 L. J. Ch. 673; ond Brown, Jn re., 7 Jur. N. 8. 650; 9 W. R. 430. _ Where, on the death of a sole plaintiff, an order is made on behalf of a defendant that the personal representative revive, or the bill be dismissed, such dismissal must be without costs. (Hill v. Gaunt, 7 Jur. N. 8. 42.) A defendant in an administration suit died abroad, his executors proved his will at the place of his death, but refused to prove it in England; an order was made for the appointment of a representative of the deceased. (Bliss vy. Putnam, 29 Beav. 20; 6 Jur. N. 8. 12.) Where several incumbrancers are found by the master to be necessary parties to an administration suit, it is doubtful whether an order to revive will be granted under this order. (Wilson y. Auchterlony, 1 W. R. 34.) It would seem that where the relief sought is larger than that which would formerly have been given under the usual supplemental decree, (as to which see Mitford Pl. 85, et seq.,) it is doubtful whether the common order to revive should be obtained; see Rudge v. Weedon, 5 Jur. N. 8S. 723; 7 W. RB. 519; Scawen v. Nicholson, 22 L. J. Ch. 682. But the mere fact that under the old practice a sup- plemental bill in the nature of an original bill would have been necessary, does not exclude the operation of this order; (Cresswell v. Bateman, 6 W. R. 220,) where suit was revived against the person entitled in remainder upon death of tenant in tail. See also Stable v. Winter, 3 W. R. 680; and under the old law, Lloyd v. Johnes, 9 Ves. 58. It would seem that the existence of special questions, such as whether it will be for the benefit of an infant to continue an abated suit may be a reagon for not BILL OF COMPLAINT; REVIVOR AND SUPPLEMENT, 49 (ORDER IX., SEC, XV. AND XVI., AND ORDER 67H JUNE, 1862.] granting the order as of course on precipe, see Phippen v. Brown, 1 Jur. N. 8. 698; Notley v. Palmer, 3 W. R. 201; Barrett v. White, 3 W. R. 526; and Goodall v. Skerratt, 1 Sm. & G. App. vii., and infra. When a suit has abated, but proceedings have been taken in ignorance of it, the court may on the cause being set down treat it as a motion, and affirm the proceed- ings. (Houston v. Briscoe, 7 W. R. 394.) As to procedure under the old order (sec. 15.) see Goodeve v. Manners, 4 Grant’s Ch. R. 101. Where a suit abates after decree and the plaintiff does not revive the defendant may do so. It would seem, however, that he should give notice of his intention to the party prima facie entitled to revive. (Noble v. Stowe, 31 L. J. Ch. 885; 6 L. T. N.S. 800.) Where a sole plaintiff dies leaving infant heirs, who prima facie would be entitled to revive, and they neglect to do so, the proper course of a defendant wishing to re- vive would seem to be, to have a guardian ad litem appointed to the infants and serve the guardian with notice of his intention to revive. (Beamish v. Pomeroy, Grant’s Chm. R. 82; Noble v. Stowe, ante.) Where after order or decree pronounced in a suit, but before it is drawn up the suit abates, the order or decree should be drawn up before reviving. (Beamish v. Pomeroy, ante.) It will be observed that section 14 of Order IX., provides for the amendment of a bill where the suit is defective by reason of some imperfection in the bill, and not in consequence of any event arising subsequent to its institution. Sec. 15, provided for the amendment where the suit became defective or abated by any event subse- quent to its institution, and before final decree. Sec. 16 made provision for amend- ment after final decree. These two latter sections of Order IX. having been repealed, and the order of the 6th of June, 1862 promulgated in their place, it would seem, having regard to English decisions upon the effect of the latter order, which has in some cases been held to apply to cases of abatement after decree only; that by the abrogation of section 15, no provision for the revival of suits which have become abated before decree, has been retained under this new enactment. : The decisions in England on this subject, to which attention is directed, are as follow: Watson v. Loveday, 3 W. R. 386; Price v. Hamblett, 1 W. R. 363; and see 10 Hare, App. xxxi., and note at page 72, from which it would seem that a suit may be revived before decree, under the order of the 6th of June, 1862, but that in cases where supplemental matter is sought to be introduced on the record, it must be done by supplemental bill; see, however, Pickford v. Brown, 1 K. & J. 643, where V. C. Wood, after consulting with the other judges, made a supplemental order against an infant before decree ; and see also Lash or Lersh v. Miller, 4 DeG. M. & G. 8413 s. ¢., 1 Jur. N.S. 457; 3 W. R. 897; Hall v. Clive, 20 Beay. 575; Coch- rane v. Phillips, 3 W. R. 461, which seem to overrule Price v. Hamblett, and Watson y. Loveday. Itis possible that the observations of the court in these two latter cases, however, did not refer to the mere revivor of suits, but to the putting in of supplemental matter. Where a defendant dies before answer, the suit cannot be revived; (Bland v. Davison, 21 Beav. 312; Williams v. Jackson, 7 W. R. 104; 5 Jur. N. 8. 264;) and under the old practice, (Crowfoot v. Mander, 9 Sim. 396.) Where defendant dies after hearing, and. before decree, an order of course, may be obtained. (Petre v. Petre, 1 W. R. 362; 8. ¢., 21 L. T, 186.) 7 50 BILL OF COMPLAINT; REVIVOR AND SUPPLEMENT. [ORDER IX., SEC. XV. AND XVI., AND ORDER 67H JUNE, 1862.] Also where suit abates between hearing and delivery of judgment, decree may nevertheless be drawn up; (Collinson v. Lister, 20 Beav. 855, and Belsham ‘v. Per- cival, 8 Hare, 157; and cases cited in reporter’s note;) and where an issue at law had been directed, and the plaintiff died before it was tried, and no order to revive had been taken out, it was held to be no ground for a new trial. (Bird v. Kerr, 4K. & J. 270.) The order to revive should be served personally on the defendants, but where a defendant was out of the jurisdiction, substitutional service on his solicitor was allowed in Foster v. Menzies, 10 Hare, App. xxxvi., n.; 8. ¢.,17 Jur. 657; and under old practice, Hart v. Tulk, 6 Hare, 618. So, where the defendants were very numerous; (Morritt v. Walton, 2 W. R. 643 ;) and, where estate is vested in trus- tees for sale ; service on trustees was held sufficient without serving cesiuis que trusts. (Grimston v. Oxley, 1 W. R. 100.) See also Order VI., sec. 2, rule 7. Tn Smith’s Ch. Pr., 3rd ed., p. 736, it is laid down generally, that in cases of this kind service on the solicitor is sufficient, but there seems to be no authority for such a doctrine, Query, if an answer or order pro confesso is necessary against a defendant first made party by revivor. It would seem that in England an appearance by or for him is necessary; (Cross v. Thomas, 16 Beav. 592; 8. ¢., 17 Jur. 386; Foster v. Menzies, 10 Hare, App. xxxvi.,n; s.c., 17 Jur. 657; 1 W. R. 344; Lowes v. Lowes, 16 Jur. 968; and see Smith’s Ch. Pr., 3rd ed., 736 ;) but see, however, contra, Hanbury v. Ward, 18 Jur. 222; and Ward v. Cartwright, 10 Hare, App. lxxiii.; 8. ¢., 22 L. J. Ch. 1006; 1 W. R.520; where appearance seems to have been thought unnecessary. In Martin v. Purnell, 3 W. R. 395, however, executors against whom an order to revive had been obtained, were held entitled to answer. If a party affected by the order to revive wishes to discharge it, he should apply within the fourteen days stipulated. -An application to discharge an order after six months had elapsed was refused with costs. (Deeks v. Stanhope, 24 L. J. Ch. 580; s.c., 1 Jur. N.S. 413.) See as to the practice where infants are made parties by revivor, and as to ap- pointing a guardian ad litem to them. (Kirkpatrick v. Fouquette, 4 Grant's Ch. 549.) Where, after decree, a defendant mortgaged his interest in the suit, and subse- quently a, decree on further directions was made, without making the mortgagees parties, they were allowed to be brought before the court under this order on precipe. (Freeman v. Penningtou, 5 L. T. N. 8. 514; 31 L. J. Ch. 216.) The practitioner will observe on a comparison of the order of June, 1862, with the section of the English act, from which it is adapted, that it is much larger in its application than the English section. The order promulgated in June, 1862, enables the revivor of a suit where the same has become abated, ‘on the part of any plaintiff or defendant, by devise, bequest, descent, or otherwise.’ These words are not in the English act, and it has been expressed as an opinion of the court, that the Order of June, 1862, is sufficiently large to bring every possible abatement within the application of the order. In the Times Fire Insurance Co. v. Macdonell, which suit had become abated in consequence of the company having been wound up under the Joint Stock Companies’ Winding up Act and Amendment Act in England, an application was made to Spragge, V.C., by motion, on notice, to amend the bill by substituting the name of the official manager appointed under the authority of the said acts by the Court of Chancery in England, in place and stead of the company as plaintiff. The Vice-Chancellor doubted whether the order to revive onght not to BILL OF COMPLAINT; BILLS OF REVIEW, 40. 51 (ORDER IX., SEQ. XVII.] have been taken out preecipe, but on looking into the authorities cited, made the order as asked, observing that this case appeared to him to be the only one which would not come within the very general and extensive application of the Order of June, 1862. As to form of order under this order, see Book of Forms, Part the Second; also Ely v. Hensly, 1 W. R. 190; and Seton on Decrees. Sc. 17.—Bills of review are abolished. When the reversal of a decree is sought upon the ground of error apparent upon the face of the decree, that object may be attained by re-hearing the cause, whether the decree has or has not been enrolled. One re-hearing may be pl al had upon petition, signed by counsel, as in the case of an ordinary re-hearing, as well before as after the enrolment; but no petition for a second re-hearing is to be filed without leave of the court first had, upon special motion for the purpose ; provided that this order is not to be construed to authorise the re-hearing of a cause in the ordinary acceptation of the term after enrolment. (h) (h) Where since making an order the law has been altered on which the order was founded, the proper course is to present a petition for re-hearing, the order to be heard with the cause. (Fleming v. Fleming, 9 W. R. 757.) Petition cannot be presented without the signature of counsel. (Buckerridge v. Whalley, 31 L. J. Ch. 416; 8 Jur. N. 8. 473; 6 L. T. N.S. 312.) The court will, on further directions, amend a defective decree as far as possible without a re-hearing. (Robertson vy. Meyers, 1 Grant, 560.) So where a necessary provision has been omitted in a decree the court will amend it although passed and entered, on an ex parte petition. (Moffatt v. Hyde, 6 U. C, L. J., 94.) It would seem, therefore, that a re-hearing is not necessary except where the de- cree is sought to be reversed and not merely amended. Where the decree directa sums of money to be paid reciprocally by the parties, but is silent as to setting one off against the other, that object cannot be obtained on motion, a re-hearing under this section is necessary. (Robertson v. Meyers, 2 Grant, 431.) The petition should set out all the objections to the decree, for on the argument the petitioner cannot ask the decree to be varied in any particular not objected to by the petition, and on a second petition he is confined to the parts objected to by the first petition, (McMaster v. Campton, 5 Grant, 549.) Src. 18.—Bills in the nature of bills of review ; bills to impeach decrees on the ground of fraud ; bills to sus- 52 BILL OF COMPLAINT; BILLS OF REVIEW, &C. [ORDER 1X., SEC. XvVIII.] Bills in the ma-nend the operation of decrees; bills to carry decrees reviews eeeryinto operation, are abolished. Any party heretofore impeach decrees ppd theape: entitled to file a bill of review, praying the variation or hilis to earry de Teversal of a decree, upon the ground of matter arising tion, abolished, Subsequent to the decree, or subsequently discovered, or any description of bill by this order abolished, is to pro- ceed by petition in the cause: this petition must. pray the relief which is sought, and must state the ground upon which it is claimed. The petition is to be verified by affidavit, and must be served upon the solicitors of all parties interested; and in case any such party has no solicitor, then upon such party; and where the re- versal or variation of a decree is sought upon new matter, such proof as would have been requisite upon a motion to file a bill of review must be supplied. Upon the hearing of the petition, the court, in its discretion, may either make a final order, or direct the petition to stand over, with liberty to the parties inter- ested in sustaining the decree to file a special answer to the same; and may make such order as to the produc- tion of further proof, and the manner thereof, and the further hearing of the petition, as the court may deem meet. (2) (i) See as to the present practice under this section, the Orders of the 9th May, 1862, which so far as they affect this section are as follow - ‘A petition filed under the eighteenth section cf Order IX., of the General Orders of this Court of the 8rd of June, 1853, is to be set down to be heard in court in the paper of motions for decrees. And when it is ordered that any new party or any present party may answer the petition, and that the petitioner shall be at liberty to set down the petition again, it is to be set down in like manner, and upon the copy of such petition to serve is to be endorsed the following memorandum or notice, namely: ‘If you do not appear on the petition the court will make such order on the petitioner's own shewing as shall appear just,’ and upon the copy which is to be served of the order to answer such petition when the court shall deem it advisa- ble to make such order, is to be endorsed the following memorandum or notice, namely: ‘If you do not answer the petition the court will make such order on the petitioner’s own shewing as shall be just in yourabsence. And if this order is served personally you will not receive any notice of the future proceedings on such peti- tion.’ And when the party so served yhall answer the petition, the same is to be set down to be heard upon notice in the same paper. BILLS OF REVIEW AND DISCOVERY. 53 (oRDER IX., SEC, XVIII. AND XIX.] Petitions set down to be heard under the foregoing Order, are to be set down not Jess than ten days before the day for which they are so set down, and notice thereof when notice is required is to be served on all proper parties, not less than seven days before such day.” A party who applies for permission to file a bill of review on the ground of having discovered new evidence, must shew that the matter so discovered has come to the knowledge of himself or his agents for the first time since the period at which he could have made use of it in the suit, and that it could not with reasonable diligence have been discovered sooner, and that the evidence is of a character that if it had been brought forward in the suit, it might have altered the judgment. (Hosking v. Terry, on appeal before the Privy Council, 8 Jurist N. 8. 975.) See also, Mitf. PI. 102, et seq., 8rd ed; McNeill v. Cahill, 2 Bligh. 228; Hughes y. Hosking, 11 Moo. P. 0.1; Young vy. Keighly, 16 Ves. 348; Portsmouth v. Effingham, 1 Ves. Senr, 429; Smith’s Ch. P., 1 vol., 814; Story’s Equity Pleadings, 403; City Bank v. Bostwick, (not reported,) 1 March, 1862, V. C. Hsten ; also Manaton v. Molesworth, Wortley v. Molesworth, 1 Eden 25, where it was laid down, that ‘a bill of review with matter come to the parties knowledge since the hearing, lies where the plaintiff in the bill has since the hearing discovered matter which would vary the decree; and where if such matter was known to the other party, he was not in conscience obliged to have discovered it to the court. For if the matter was known to the other party, and such as in conscience he ought to have discovered, he obtains the decree by fraud,-and it ought to be set aside by original bill.” See also Ken- nedy v. Daly, 1 Sch. & Lef. 355; and Ord v. Noel, 6 Madd. 127; where it was held that to enable a party te file a supplemental bill in the nature of a bill of review it is necessary that the new matter should be discovered after the decree, or at least after the time when it could have been introduced into the cause; and the matter should not only be new but material, and such as if unanswered in point of fact would clearly entitle the plaintiff to a decree, or would raise a question of so much nicety and difficulty as to be a fit subject of a judgment in a cause. In Bingham v. Dawson, 1 Jac. 243, leave to file a supplemental bill in the nature of a bill of review to introduce new evidence was refused, where the proper means of searching for it had not been used previously to the decree. See also Kidd v. Cheyne, 18 Jur. 348. The decree must be contrary to the forms of the court; not merely erroneous in judgment. (Trulock y. Robey, 15 Sim. 265; on appeal, 2 Ph. 895; Perry v. Phelips, 17 Ves. 173; Tommey vy. White, 1 H. L. Cases 160; Gould v. Tancred, 2 . Atk. 584; Henderson v. Cook, 4 Drew. 306; Green v. Jenkins, 1 DeG. F. & J. 454; 8 W. BR. 880; 2L. T.N. 8. 811; 6Jur. N.S. 515; 29 L. J. Ch. 505.) And as to what constitutes new matter see further, Re Warwick and Worcester Railway Company, ex parte Kelly’s executors, 9 W. R. 329; Hungate v. Gascoygne, 2 Ph. 25; Wason v. Westminster Improvement Commissioners, 4 L. T. N. 8. 80. Should not leave be obtained before presenting petition, in the case of facts dis- covered since the decree. (Henderson v. Cook, (Eng.) 5 U. C. L. J. 71.) Sxc. 19.—No bill is to be filed for discovery merely, Pils Pr ais. except in aid of the prosecution or defence of an action i “tain cases. at law. (x) (k) To a bill for discovery in aid of an action at law to which action the defendant has pleaded, the defendant will not be permitted to set up a legal defence in bar unless he has relied upon that defence at law. (Peel v. Kingsmill, 1 Grant, 584.) 54 PLEAS; DEMURRER. [ORDER X. AND XI.] A bill will not lie for the discovery of facts which the plaintiff can prove aliunde at law. (Hamilton v. Phipps, 7 Grant, 483.) rm PLEAS. — X. Pleas are abolished.. All defences are to be pre- sented to the court by demurrer or answer, or both, according to circumstances. Pleas abolished. DEMURRER. XI. A defendant may demur to a bill of claimant at any time within one month after service upon him of an office copy of the bill. Upon filing of a demurrer by a defendant, either party is at liberty to set the same down for argument immediately. (?) Demurrers, when to be filed, and how argued. () A demurrer is an allegation by a defendant which, admitting the matters alleged by the bill to be true, shews that they are insufficient for the plaintiff to proceed upon, or to oblige the defendant to answer. Whenever any ground of defence is ap- parent on the bill itself, either from matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. A demurrer may be general, that is, to the whole equity; or it may be partial,, that is, that the suit is not, as to its frame, properly constituted. For the forms of demurrers, see the Book of Forms, Part the Second. A general demurrer for want of equity admits all the facts alleged in the bill to be true; and so admitting them, submits to the judgment of the court that the plaintiff on his own shewing has no equity. The principle on which a demurrer is heard and decided is this: the court assumes to hear the cause on the bill alone, every allegation thereof being taken as proved; if the court sees that any relief, however small, might be granted, the demurrer will be over-ruled; secws, if the court sees that no relief whatever could be given. A’demurrer may be bad in point of form, though well founded in substance. It must be strictly confined to submission, that on the matter stated in the bill there is no equity; it must not suggest any fact or any matter not in the bill. See Mitford. Pl. 107, 108; Beam. Ord. 26; Bowser v. Maclean, 9 W. R. 112; Daniell’s Chan. Pr., 8rd ed., vol. 1., page 437, 488, 439; and as to the different kinds of demurrers, pp. 441, 478; Smith’s Chan. Pr., pp. 288, 299; and Mitford Pl. pp. 126, 156. A demurrer for want of equity raises the question to be determined by the court, before any further proceedings are taken in the suit, whether the plaintiff is, having: regard to the case made by his bill, entitled to any relief. In any doubtful case, the court will not decide the question raised upon the bill upon demurrer, but will overrule the demurrer, without prejudice to the question being raised by the defendant at the hearing, see Brownsword vy. Edwards, 2 Ves. Sr. 242; Mortimer v. Hartley, 3 DeG. & Sm. 316, 821; Evans y. Evans, 18 Jur. 666; Bowser v. Maclean, 9 W. BR. 112; Kirwan v. Daniel, 6 Hare, 493. DEMURRER. 55 . [oRDER XI.] In a demurrer for want of parties, if the absent parties are neeessary for any part of the relief prayed by the bill, it is an objection on demurrer. (Penny v. Watts, 2 Phil. 152.) A demurrer for want of parties must state who the necessary parties are. (Atty. Gen. v. Jackson, 11 Ves. 869.) By the same case it would appear that it is not necesary to name them. But in a more recent case it was held that a demurrer for want of parties must shew who are the proper parties. (Rawlings v. Lambert, 1 J. & H. 458.) % Where two grounds of demurrer are taken, namely, for want of equity and for want of jurisdiction, they should be made the subject of distinct demurrers. (Bar- ber v. Barber, 4 Drew 666; 5 Jur. N. §. 1197; 8 W. R. 16.) An order for leave to amend not served does not prevent the defendant demurring to the bill. (Price v. Webb, 2 Hare, 515; 18 L. J. 50.) An infant cannot demur until a guardian ad litem has been appointed. If a mar- ried woman wishes to demur alone, an order is necessary: she cannot demur sepa- rately from her husband without an order. A lunatic may demur by his committee, unless their interests are adverse; in which latter case a guardian ad litem should be appointed for the lunatic. The Statute of Frauds may be set up by demurrer. (Barkworth v. Young, 4 Drew. 2; Wood v. Midgley, 5 DeG. M. & G. 44.) The Statute of Limitations may also be set up by demurrer. (Hoare v. Peck, 6 Sim. 51.) The following cases may be referred to on the question of demurrer generally to a bill for relief: Webb v. Epgland, 29 Bea. 44; Crowther v. Crowther, 23 Bea. 308; Threlfall v. Lunt, 7 Sim. 627; Bothomley v. Squire, 83 Drew. 517; Le Texier v. Margravine of Anspach, 15 Ves. 164; Angell v. Angell, 1S. & 8. 88; Henderson vy. Cook, 4 Drew. 306; Morison v. Morison, 4 Drew. 315. As toa demurrer for multifariousness, see Rayner vy. Julian, 2 Dick. 677; Sal- vidge v. Hyde, 5 Madd. 138 ; Innes v. Mitchell, 4 Drew. 57 ; Campbell v. Mackay, 1M. & C. 603, The rule is almost without exception that all the statements in the bill are admitted for the purposes of the demurrer. (Cuddon v. Tite, 1 Giff. 895; Camp- bell v. Mackay, 1 M. & Cr. 603; and the caees cited in Daniell’s, supra.) For excep- tions to this rule, see Loker v. Rolle, 3 Ves. Jr. 7; Flint v. Field, 2 Anstr. 543 ; Taylor v. Barclay, 2 Sim. 213; King of Two Sicilies v. Wilcox, 1 Sim. N. 8. 301; Daniell’s Ch. Pr. 477. As to demurrers ore tenus generally, see Rump v. Greenhill, 20 Beav. 512; ». ¢., 24L. J. Ch. 90; Scane v. Hartrick, 7 Grant’s Ch. Rep. 161. See also, Henderson vy. Cook, 4 Drew. 306; Cooper v. Earl Powis, 3 DeG. & Sm. 688; and Hook v. Dorman, 18. & 8. 227. In Barber v. Barber, 4 Drew. 666; s.c., 5 Jur. N. 8. 1197, it was decided that the objections for want of equity and want of jurisdiction should be taken by sepa- rate demurrers; see also Wellesley v. Wellesley, 4 M. & Cr. 554, 556. As to setting down s demurrer for argument, see Egremont v. Cowell, 5 Beav. 617; Smith’s Ch. Pr. 296. From the above order it would appear that the demurrer might be set down for 56 DEMURRER. [oRDER xI.] argument by either party immediately on its being filed, but it has been held that it being reasonable that the plaintiff should have an opportunity of submitting to a demurrer if a defendant set down a demurrer immediately on the filing thereof, he will be considered to have waived his right to taxed costs on a submission to it within four days, both inclusive, see Baldwin v. Borst, Grant’s Cham. Rep. 82. In setting down a demurrer it is not necessary to do so by petition and order as in England, the contrary practice having become established here. (Jdid.) And see also Martin v. Reid, 6 U. C. L. J. 148, as to the practice of setting down demurrers, gffirming Baldwin v. Borst. The costs to which a defendant is entitled, on the plaintiff submitting to a demur- rer, and amending within the time limited are 20s. (Jbid.) The costs must be paid on serving the order to amend. A defendant appearing at the hearing and waiving all objection to an order pro confesso, may shew that the bill is open to demurrer for want of equity. (Greig v. Green, 6 Grant’s Ch. Rep. 240.) Where a demurrer on two grounds fails as to one and succeeds as to another, it seems that no costs will be given. (Benson v. Hadfield, 5 Beay. 546.) This practice has been adopted in our court, see Paine v. Chapman, 6 Grant’s Ch. Rep. 388; where a demurrer having been held good on one ground, though overruled as to the other, the defendant was allowed to answer without costs. And where a plaintiff submits to a demurrer and obtains the common order to amend, but does not amend within the time prescribed by the order, the bill is gone. (Hoflick v. Reynolds, 9 W. R. 898, 481; 30 L. J. Ch. 407.) As to the form of the common order to amend, it would seem pr@per for it to state that in default of amendment within the time limited the bill should be dismissed. (Zbid.) If the plaintiff obtains the common order to amend (which it seems from the last cited case is irregular) upon payment of costs, ‘to be taxed,” &c., he must pay the costs of the demurrer also. (Hoflick v. Reynolds, 9 W. R. 398.) A demurrer to part of a bill, unaccompanied by an answer to the rest is informal and would be overruled. (Martin v. Kennedy, 2 Grant’s Ch. Rep. 80.) See also Barnes v. Taylor, 4 W. R. 577; Burch v. Coney, 14 Jur. 1009 ; Chetwynd v. Lindon, 2 Ves. Sen. 450; Weatherhead v. Blackburn, 2 V. & B. 121; Osborne v. Jullion, 3 Drew. 552,596; Hicks v. Raincock, 1 Cox, 40; Robinson v. Thompson, 2 V. & B. 121; Burton v. Robertson, 1 J. & H. 38. From these cases it would appear, that where a defendant answers part of the bill and demurs to the rest, he must take care to distinguish precisely each part of the bill to which he demurs; he may demur to the whole bill with the exception of a particular part, but the demurrer must in that case show distinctly what is demurred to and what is answered. A demurrer and answer under an order to answer, &c., not demurring alone, is not irregular, if the answer goes to any thing material. (Osborne v. Jullion, 8 Drew. 552; Baker v. Mellish, 11 Ves. 73; Weatherhead v. Blackburn, 2 V. & B. 123.) As to the effect of allowing a demurrer without liberty to amend—see Coningsby v. Jekyll, 2 P. W. 800; and Lord Chancellor Talbot said, that ‘after a demurrer to the whole bill allowed, the bill is regularly out of the court, and no instance of leave to amend it.” See also Mitford, 13-175;- Lloyd v. Loaring, 6 Ves. 773; Smith v. Barnes, 1 Dick, 67; Watkins v. Bush, 2 Dick. 663, 701 ; Baker v. Mellish, 11 Ves. 72; Nowell v. Andover Railway Co., 7 Jur. N.S. 839 ; Wellesley v. Wellesley, supra ; Tyler v. Bell, 1 Keen 826; s.c., 2M. & C. 89; Sibson v. Edgworth, 2 DeG. & S. 73; Osborne v. Jullion, supra; Tryon v. Westminster, 3 L. T. N.S. 262; Rawlings v. Lambert, 1 J. & H. 458; Schneider vy. Lizardi, 9 Beav. 461; and Holmes y. Waring, 8 Price, 604. DEMURRER.—ANSWER. 57 [ORDERS XI., XII.] Where the court instead of allowing a demurrer, ‘gives the plaintiff liberty to amend, it would seem that the plaintiff cannot take any step in the cause until he has amended; see Chance v. Henderson, Grant’s Cham. 30; where an application under the above circumstances by the plaintiff for an order to examine the defen- dant on commission in Lower Canada was refused with costs. If one defendant demurs, and the others have answered, and the demurrer be allowed, the demurring defendant may move to have his name struck out of the record with costs. (Barry v. Croskey, 2 J. & H.136; 10 W. R. 76.) The proper practice would be for the plaintiff to dismiss his bill as against the demurring defendant. A demurrer allowed puts an end to a pending injunction even though liberty to amend be given, (Schneider v. Lizardi, supra,) the effect of a demurrer to the whole bill allowed being to put an end to the suit. A demurrer may be allowed without prejudice to a new bill. (Oriental Navigation Co. v. Briggs, 10 W. R. 125.) Where after amendment, after demurrer allowed, a copy of the bill as amended is served without endorsement requiring answer, such service is sufficient, and it is irregular to serve the defendant a second time with an endorsed copy of the amended bill. (Barry v. Croskey, 10 W. R. 5.) If a defendant put in an answer after a demurrer has been overruled, he thereby waives his right to appeal from the order overruling the demurrer. (Simpson v. Smyth, 1 Grant Er. & Ap.1; 2 U. C. Jur. 129.) Where a demurrer is overruled, time to answer can only be obtained upon a special application. (Jones v. Saxby, 1 Swans. 194; Rowley v. Eccles, 1 Sim. & 8. 511; Trim v. Baker, 1 Sim. & S. 469.) The usual practice is to apply for an order for time to acswer immediately after the demurrer has been overruled. After demurrer overrruled the defendant cannot demur again. (Bancroft v Wardour, 2 Bro. C.C. 65.) But he may demur again if the bill be amended. Bo- Banquet vy. Marsham, 4 Sim. 573.) ‘ Asa general rule the pleader will observe that any ambiguous or inconsistent statements in a bill will, on demurrer, as indeed in any other pleading, be construed adversely to the pleader. (Vernon v. Vernon, 2 M.&Cr.145 ) The statements are taken strictly as they are pleaded, the defendant not being allowed to displace such statements by any inferences of facts which may not-be inconsistent therewith. (Simpson v. Fogo, 1 J. & H. 18.) It may be a matter of practical utility to refer to some cases, laying down as a rule the principle as to what averments will prevent a demurrer from lying to the bill. For these, see Plumbe v. Plumbe, 4. Y. & Coll. Ex. 850; Bowser v. McLean, supra; Jackson v. N. Wales Railway Co. 13 Jur. 69; Wormald v. DeLisle, 3 Beav. 18; Sibson v. Edgeworth, supra; Smith v. Kay, 30 L. J. Ch. 45, H. L.; Bothomley y. Squire, 3 Drew. 517; Dent v. Turpin, 2 J. and H. 139. Notice of filing a demurrer must be givenon the same day. See Order XIX, of the Orders of 1853. ANSWER. XII. Answers may be in a form similar to the form set out in schedule E. to these orders. The signature Form of the an‘ of counsel is unnecessary ; but the name of the party 8 58 ANSWER; ITS FORM. [ORDER XII., SEO, I.] or solicitor who files the same is to be endorsed thereon, in conformity with the 2nd and 8rd sections of order XLII. The answer is to be verified by the oath of the defendant, and the jurat is to be in the form set forth in schedule F. (m) (m) The schedule E, is as follows: SCHEDULE E. FORM OF AN ANSWER. IN CHANCERY. An Be sxeescs atom tetnvcnsatevinissivamereiaransaces ttle cocccssese Plaintiff. and C.D. and EB. Finesse sescesce, cree SPOT aa ea vcie SORES eI . Defendants. The answer of C. D., one of the above-named defendants, to the bill of complaint of A. B., the above-named plaintiff. ‘In answer to the said bill I, C. D., say as follows :” “T believe that the defendant E. F. does claim to have a charge upon the farm and premises comprised in the indenture of mortgage of the —— day of ——., in the plaintiff’s bill mentioned. ‘Such charge was created by an indenture dated, &c., made between myself of the first part, &c. “To the best of my knowledge, remembrance and belief, there is not any other mortgage, charge, or incumbrance affecting the aforesaid premises.” Such statements as are considered necessary or material are to be introduced with as much brevity as may consist with clearness; and where a defendant seeks relief under section 4 of Order XII., the answer is to ask the special relief to which he thinks himseli entitled. ENDORSEMENT. This answer is filed by Messrs. A. B. and C. D., of the city of Toronto, in the county of York, solicitors for the above-named defendants (and, where the party who filed the answer is agent, add, agents of Messrs. E. F. and G. H., of. solicitors for the above-named defendants.) Where the party defends in person the answer must be endorsed, in conformity with the 8rd section of Order XLIII. Schedule F. is as follows: SCHEDULE F. FORM OF JURAT TO ANSWER, The defendant C. D. on the at my chambers in an day of ——, appeared before me ———, and signed the foregoing answer in my presence, ANSWER; ITS FORM. 59 (ORDER XII., SEO. 1.] and thereupon was sworn before me that he had read the said answer and knew the contents thereof, and that the same was true of his own knowledge, except as to matters which are therein stated to be on his information and belief, and as to those matters he believed it to be true. IN THE CASE OF AN ILLITERATE PERSON. The defendant C. D., not being able to read or write, E. F., solicitor (or clerk to the solicitor) for the said defendant, was sworn before me at my chambers in , on the day of —— , that he had truly and faithfully read the contents of this answer to the said C. D., and that he appeared perfectly to understand the same; and the said C. D. was thereupon sworn that he heard the said answer subscribed by him with his mark read over to him by the said E. F., and that he knew the contents thereof, and that the same was true of his own know- ledge, except as to matters which are therein stated to be on his information, and as to those matters he believes it to be true. As to the general nature of answers, and form thereof, see Daniell’s Ch. Pr, 3rd ed., vol. 1, p. 578. The answer is to consist of a clear and concise state- To state the de ment of such defence or defences as the defendant may tence concise. desire to make. (n) (n) The most usual course of defence to a bill, is by answer. A defendant is only bound to answer as to questions of fact; questions being in effect questions of Juw he may pass over; but it is more usual in drawing an answer to submit them to the court. An objection for want of parties may be taken by answer as well as by demurrer; and it is more usual to take the objection by answer, than to demur simply for want of parties. It is a prudent and a proper course to do so, for this reason, that the court does not look with favour on a demurrer for want of parties. The objection can also be taken at the hearing, and that too, whether it appears on the face of tbe bill, or upon the matter averred by the answer. The court, however, on a bill being so objected to, usually orders the cause to stand over, with liberty to the plaintiff to amend. The answer may be read as evidence by the plaintiff for himself against the answering defendant, but cannot be read_by a defendant as evidence for himself, ex- cept upon the question of costs. The remarks as to the frame of a bill, apply equally to answers. A defendant cannot call witnesses to prove any substantive issue that he has not -Yaised by his answer. Hence the frequent necessity of averring new matter not averred in the bill, destructive of, or qualifying the equity claimed by the plaintiff. An answer is a full defence as to both law and fact; therefore every objection which can be taken by demurrer, may also be taken by way of answer. By the answer the pleader can answer as to the facts, and conclude by submitting that on the face of the bill there is no equity. When, however, an objection of this sort is taken by the answer, it is usual to crave that the defendant may have the same be- nefit as if he had demurred to the bill. 60 ANSWER. [orpER XII, SEC, &] Persons sui juris answer in their own names. 94 REPLICATION. [oRDER XVIII., SEC. I.] the order pro confesso, or on bill and answer, he must reply to the answer, which course is analogous to traversing it; and the defendant is thereupon compelled to prove the matters contained in it. The replication may be filed at any time after all the defendants have put in their answers, or when the order to take the bill pro confesso as to some, (the others having answered), has been obtained. A plaintiff can have a cause heard in a different manner against different defend- ants, that is to say, he may have it heard on the order pro confesso against one, on bill and answer against another, and may reply as to the others; the form of repli- cation expresses the manner in which the suit is to be heard against each defendant, as will be seen by referring to the form, infra. The replication, when engrossed, is filed with the registrar, or deputy registrar, (if the bill is filed in an outer county,) and notice of the filing must be served on the same day on the solicitors of all the defendants who have answered. A replication when filed, must, like all other pleadings and proceedings, be endorsed in conformity with the 2nd and 8rd sections of Order XLIIIJ. of the Orders of June, 1853, The 2nd and 3rd sections of Order XLIII. are as follows: “Sec. 2.—Upon every writ sued out, and upon every information, bill, demurrer, answer, or other pleading or proceeding, there shall be endorsed the name or firm and place of business of the solicitor, or solicitors by whom such writ has been sued out, or such pleading or other proceeding has been filed; and when such solicitors are agentsonly, then there shall be further endorsed thereon the name or firm, and place of business of the principal solicitor or solicitors. Sec. 8.—Every party suing or defending in person is to cause to be endorsed or written upon every writ which he sues out, and upon every information, bill, demur- rer, answer, or other pleading or proceeding, his name and place of residence, and also (when his place of residence is more than three miles from the office where such pleading or other proceeding is filed) another proper place, to be called his address for service, not more than three miles from the said office, where writs, no- tices, orders, warrants, and other documents, proceedings and written communica- tions, may be left for him.” It is important to observe that this order requires every pleading or proceeding to be endorsed as therein mentioned. Every affidavit filed and notice of motion served, ought to be endorsed. Very little attention has been given by practitioners generally to the requirements of this order in regard to the endorsement of proceed- ings in the cause, other than the bill, demurrer, or answer. It frequently happens, that from the state of the cause a replication can be filed against one defendant before it can be filed against another; but o replication can be filed once only in each cause. Where a plaintiff had set the cause down and served notice of examination with- out having filed a replication, he was allowed to file one nunc pro tunc on the pay- ment of costs. (Beckett v. Rees, 1 Grant, 434.) After the plaintiff has filed his replication, it is irregular to obtain an order of course to amend. (Hitchcock v. Jaques, 9 Beay. 192.) So after publication has passed the plaintiff, if he wishes to amend, must first withdraw his replication. (Anon, 1 Atk., 51; Turner v. Williams, 2 Fowl. 46.) It is irregular to file a replication to the answer of a deceased defendant, (Daw- REPLICATION. 95 [ORDER XVIII, SEC. 1.] son Y. , 2 L. J. Ch. 143,) and by the same case a replication irregularly filed is a proceeding in the cause until it is taken of the files. A plaintiff has been permitted to withdraw his replication and set his cause down for hearing on bill and answer. (Rogers v. Goore, 17 Ves. 1380.) As a general rule, however, as we have before seen after a replication has been filed it cannot be withdrawn and the bill amended further than by adding parties, unless a special application for leave is made to do so. In the case of such an ap- plication in addition to the affidavit usually required on a motion for leave to amend a further affidavit is necessary shewing that the matter of the proposed amend- ment is material and could not, with reasonable diligence, have been sooner intro- duced into the bill. (Daniell’s Ch. Pr., 3rd ed. 668.) The application to file a second replication is not granted of course, nor it seems, except in cases of necessity. (Stinton v. Taylor, 4 Hare, 608.) But it has been held that when some of the defendants answer after replication has been filed, the plaintiff should move for leave to file a further replication. (Rogers v. Hooper, 2 Drew. 97; s.c., 23 L. J. Ch. 449.) When, after a notice of motion by one of two defendants to dismiss the bill, for want of prosecution, a replication was filed to the answer of that defendant, the court refused the motion, but only on the terms of the plaintiff undertaking to dismiss the bill against the other defendants, and paying the costs. (Heanley v. Abraham, 5 Hare, 214.) In a case where replication had been filed by the mistake of the plaintiff ’s solici- tor, the court enlarged the time for publication of the evidence. (Wragg v. Wragg, 11 Jur. 701.) A replication to the answer of a deceased defendant is irregular. The suit should first be revived against his representatives. (Deeks v. Stanhope, 2 W. R. 651.) The following is the schedule J., referred to in this ordex: SCHEDULE J.. FORM OF REPLICATION. IN CHANCERY. Ais B sveies'sssuensesines tgn'sas sosiaiwectexssbisncetietaeyeue teensisctssaneseseeseacieese ElOIDtE, and C.D., E. F., and G. H...... wcseseeeee se Rvsisess Wearersiieseees suesvevess Defendants. The plaintiff in this cause joins issue with the defendants E. D., (all the defend- ants who have answered,) and will hear the cause upon bill and answer against the defendant E. F., (all defendants against whom the cause is to be heard upon bill and answer,) and on the order to take the bill pro confesso against the defendant G. H. (as the case may be.) Applications for leave to withdraw replication cannot be made after witnesses have been examined. (Gascoyne v. Chandler, 3 Swan. 418; Bousfield v. Mould, 1 DeG. & Sm. 347.) A supplemental answer may by consent be filed after the replication has been filed, without withdrawing it. (Parsons v. Hardy, 21 L, J. Ch. 400.) 96 Where no order to amend has been obtained, replication to be filed, or cause to be set down on bill and answer, within one month after answer. REPLICATION. [oRDER XII., SEC. I, AND IIT.] a Szc. 2.—When the plaintiff has not obtained an order to amend his bill, he is either to file his replication, or set down the cause to be heard on bill and answer, within one month after the filing of the last answer. (6) (6) ‘Filing of the last answer.” As to the meaning of these words, see Arnold v. Arnold, 1 Ph. 805; Dalton v. Hayter, 7 Bea. 586; Forman vy. Gray, 9 Bea. 196, 200; Sprye v. Reynell, 10 Bea. 851; the last answer means “ the last answer required to be put in previous to replication;” (Arnold v. Arnold; supra,) i.c., the last of several answers filed by several defendants. (Forman v. Gray, 9 Bea. 200; Duncombe vy. Lewis, 10 Bea. 273; Stinton v. Taylor, 4 Hare, 608.) But in Dalton v. Hayter, supra, the words were held to mean “the last answer of one of several defendants,’’ but see Sprye v. Reynell, supra. When an order to amend has been obtained after answer, the repli- cation is to be filed, or the cause set down on bill and answer, within the fol- lowing periods. When no answer has te2n filed, and notice of an application for further time to answer, has been served, within seven days after the service of the notice of amend- ment, then with- in fourteen days after service of the notice of amendment. Where an appli- cation has been made for further time lo answer an amended bill, but such applica- tion has been re- fused, then with- in fourteen-days after such re- fusal, Sc. 3.—When the plaintiff has obtained an order to (1.) (2.) amend his bill after answer, he is either to. file his replication, or set down the cause to be heard on bill and answer, within the times following, viz. : When the plaintiff amends his bill, and no answer is put in thereto, and no notice of an application for further time to answer is served within seven days after service of the notice of the amendment of the bill, the plaintiff, after the expiration of such seven days, but within fourteen days from the time of such service, is either to file his replication’ or set down the cause to be heard upon bill and answer; otherwise any defendant may move to dismiss for want of prosecution. Where the plaintiff amends his bill after answer, and a defendant, within seven days after the service of the notice of the amendment of the bill, serves notice of an application for further time to answer the amendments, but such appli- cation is refused, the plaintiff is, within fourteen FILING PLEADINGS.—NOTICE. 97 (ORDER XIX., SEC. I.] days after such refusal, either to file his replica- tion, or to set down the cause to be heard on bill and answer ; otherwise any defendant may move to dismiss the bill for want of prosecution. (8.) When a defendant puts in an answer to amend- Where an amen. ded bill has been ments, the plaintiff must either file his replication, answered. ae or set down the cause to be heard on bill and ‘rom the filing of such answer. answer, within fourteen days after the filing of such answer, unless he obtain, in the meantime, an order for leave to amend the bill; otherwise any defendant may move to dismiss the bill for want of prosecution. FILING PLEADINGS. NOTICE. XIX. When any party or solicitor causes an answer, 0n the same day that an answer, j i i 1 ice demurrer. or rep- demurrer, or replication, to be filed, he is to give notice Seminbnst Or 1eHs ici filed, notice is to thereof, on the same day, to the solicitor of the adverse ee party, or to the adverse party himself if he act in adverse party. person. (g) (g) A certificate of the aie will be conclusive as to the filing of a pleading. (Beavan vy. Burgess, 10 Jur. 63. In Jones v. Jones, 8 W. R. 638, it was held that omission to give notice of the filing of answer did not deprive the defendant of his right to move to dismiss; and see Lowe v. Williams, 12 Bea. 482; but our court has refused to act upon these decisions as rendering this order of no effect; and accordingly in Kay v. Sanson, Grant’s Cham. Rep. 71, it was held by Spragge, V. C., (Esten, V. C. concurring, ) that when a motion is made to dismiss the bill for want of prosecution, the party moving must shew that notice of having put in an answer has been duly served. It would seem that although under this order any party filing a pleading is to give notice thereof on the same day, an omission to serve such notice will not entitle the opposite party to treat such proceeding as a nullity, or as irregular. (Smith v. Muirhead, 2 Grant’s Ch. R. 395.) The order would appear to be directory only, ard being had to the opinion of the court as expressed in the last cited case. On the argument of this case, Bradstock v. Whatley, 6 Beay. 61, (where the court relieved the party from the effects of the irregularity on payment of costs), and Wright v. Angle, 11 Jur. 987; 8. c., 6 Hare, 107; and Johnson y. Tucker, 11 Jur. 466; 8.c., 15 Sim. 599; 16 L. J. Ch 442; were cited. In the last mentioned case 13 Teg: 98 EVIDENCE; PRODUCTION OF DOCUMENTS. [oRDER XX., SEO. I.] a replication was ordered to be taken off the files because notice of the filing of it had not been given on the day on which it was filed. It seems difficult to reconcile the decision of the court in Smith v. Muirhead, with Johnson v. Tucker; but see, how- ever, Lowe v. Williams, where the omission to give the notice is treated as an irregu- larity from the effects of which the party would be relieved on an application, put on payment of costs. There is no penalty attached to any neglect or omission to give the notice on the same day, no penal consequence attached to a disobedience of the direction contained in the order. If the notice reached the opposite party on the following day the question is does it make the filing irregular, or is it not rather a non-compliance with the directions in the order which may be corrected without resorting to the extreme measure of setting the filing aside. (Ibid.) This seems to be the principle upon which the court decided Smith v. Muirhead. It is clear, however, that if the party filing the pleading is seeking to obtain an advantage thereafter from his own proceeding he must produce to the court evidence of having complied with the terms of the order. (Kay v. Sanson, supra.) It must be observed that Wright v. Angle, supra, has since been followed in a recent cnse of Lloyd v. The Solicitors’ Life Assurance Co., 24 L. J. Ch. 704; 8. ¢., 3 W. BR. 640; where the notice had not been given till the fourth day after the replication had been filed, and it was held that the proper course was not to move to take it off the files, but to move to enlarge the time for taking the next step in the cause. In this case the V. C., with a view of discouraging the practice of making such applications on a mere slip, refused to give any costs. After pleadings have been filed they cannot be produced from the files before any other court without an order being first obtained. (Cottle v. Cummings, 2 Grant’s Ch. R. 580.) EVIDENCE TO BE USED AT THE HEARING, jut may obtain, XX. (A)Kither plaintiff or defendant may, at any order for produe- time after answer, or when the application is on behalf tion of books and ee : : . Papers at any of the plaintiff, after the time for answering has expired, ewer. obtain an order of course upon precipe, requiring the adverse party to produce, within a time to be limited by the order, all deeds, papers, writings and documents in his custody or power, relating to the matters in question in the cause, under oath, and to deposit the same with the registrar of the court, for the usual purposes. But neither plaintiff nor defendant is to be held bound to produce, in pursuance of such order, any deeds, papers, writings, or documents, which a defendant now admit- ting the same by his answer to be in his custody or power would not be bound to produce. (4) Under the old practice production of documents was obtained by motion in court, grounded on admissions in the defendant’s answer. (Wigram on Discovery, EVIDENCE; PRODUCTION OF DOCUMENTS. 99 {ORDER XX., SEC, I.] 200; Daniell’s Chan. P., 2nd edit. 1662.) Now it is obtained under this order ; (Nicholl v. Elliott, 3 Grant’s Ch. R. 536;) and it is important to consider the numer- ous cases which have arisen and which give its interpretation. The application may be made by the plaintiff at any time after answer, or after the time for answering has ex- pired, and by the defendant ai any time after he has filed his answer; an order obtained by a defendant before he has filed his answer, unless obtained by special leave of the court, would be irregular and would be discharged with costs. The order is ob- tained on precipe and is usually termed ‘‘ the four day order for production,’’ four days being the time usually limited therein, and it should be obtained from the regis- trar’s office in Toronto, if the bill be filed there, or from the office of the deputy- registrar of the county in which the billis filed. When obtained a copy is served upon the solicitor of the party required to produce. If he does not comply with the order within the time thereby limite¢, w certificate of such non-compliance must be obtained under the hand of the registrar or deputy-registrar, as the case may be, and a motion made ex partein chambers for an order ist; tbis order will be granted on the production of such certificate and of the four day order with an admission or an affidavit of service thereof. The order nisi thus obtained must be served on the party required to produce personally—service on his solicitor is unnecessary, although in practice usual, but it is insufficient. See Order XLVI, of the Orders of 1853, sec. 9, which requires that the order nisi be personally served on the party required to obey the same. Care must be taken that upon the copy of the order nisi when served is endorsed the notice referred to in Order XLVI. of these orders, sec. 6. If this order be disobeyed an attachment will issue on motion made in chambers therefor. In moving for anattachment proof must be tendered of the personal service of the order nisi and notice, and the affidavit should shew that the original order was shewn to the party served, and a certificate of non-compliance with the order nisi under the hand of the registrar must be produced, dated on the day on which the motion for the order absolute is made. Such is the practice in its simple form; but where a party complies by filing an insufficient affidavit, the practice will be hereinafter re- ferred to under the authority of tke reported decisions thereon. Where a party de- fendant filed an insufficient affidavit, in England, it was held that the plaintiff might except. (Lazarus v. Mozley, 5 Jur. N. 8. 1120.) In our court the practice is to move ez porte for an order nisi, and if the court thinks it a case requiring notice, it will order the motioa to be made after notice given therefor. When a defendant had filed three insufficient affidavits, and upon the plaintiffs obtaining an attachment filed a fourth one, the court refused to take it off the file as irregular. (Harford v. Lloyd, 23 L. J. Ch. 710.) It has been settled in England that a defendant who has made an affidavit under this order cannot be cross-examined thereupon. (Manby v. Bewicke, on appeal, 26 L. J. 20; s.c., 4 W. BR. 757; over-ruling Kay v. Smith, 20 Bea. 566; s.c., 24L. J. Ch. 748; 3 W. R. 622.) This practice has not, however, been followed in this country. A question has been raised (Law v. The London Indisputable Policy Co., 10 Hare, App. xx.) whether a company or a corporation answering under their common seal are within this section. But in Ranger v. The Great Western Railway Company, 4DeG. & J. 74; 7 W. R. 426; 33 L. T. 129; 28 L. J. Ch. 741; 5 Jur. N.S. 1191; the affidavit as to documents was directed to be made by one of the company’s offi- cers. This practice has been generally adopted in our courts, and the affidavit as to documents is usually required to be made by one of the principal officers of the corporation, and the process for non-production would, as against a corporation, be followed up by orders nisi and absolute, and thereafter by sequestration. The affidavit should be made in the form settled by the court, and which is as follows : 100 EVIDENCE; PRODUCTION OF DOCUMENTS. [oRDER Xx,, BEC. I,J SCHEDULE K. FORM OF AFFIDAVIT AS TO PRODUCTION OF DOCUMENTS UNDER ORDER XX. IN CHANCERY. Between, &c., I , of —_-——-——-make oath and say as follows: (1). 1 say I have in my possession or power the documents relating to the mat- ters 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, (8). I further say, (State upon what grounds the objection is made, and verify the facts so far as may be.) (4). I further say that I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit, set forth in the second schedule hereto annexed. (5). I further say, that the last mentioned documents were last in my posses- sion or power on (state when.) (8) I further say, (State what has become of the last mentioned documents, and in whose possession -they now are.) (7). I farther say, according to the best of my knowledge, remembrance, information, and belief, that I have not now, and never have had, in my own possession, custody or power, or in the possession, custody or power of my solicitors or agents, or solicitor or agent, or in the possession, cus- ‘tody or power of any other person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other document what- soever, relating to the matters in question in this 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 schedules hereto. Note 1.—(/f the party denies having any, he is to make an affidavit in form of seventh paragraph, omitting the exception.) Nore 2.—(This form of affidavit, though not obligatory, will be satisfactory.) Anu affidavit in the form prescribed’ must be obtained from the party required to produce, inasmuch as the production can only be enforced upon the admissions con- tained therein, and cannot be obtained upon the oath of any person other than the party required to produce. (Atkyns v. Wright, 14 Ves. 211; Lamb v. Orton, 1 Drew 414; 22 L. J. Ch. 713.) The court would refuse produc'ion on the affidavit of the party seeking it, and who might allege a certain document to be in the pos- session of the party against whom he sought the production ; (Lamb v. Orton, supra;) and see Wing v, Harvey, 1 Sm. &Gif. App. x.; 17 Jur. 481; where the court, on the EVIDENCE; PRODUCTION OF DOCUMENTS. 101 {oRDER XX., SEC, 1.] application of the plaintiff and on the affidavit of his solicitor, refused production of documents alleged to bein the defendant’s possession. The practitioner will there- fore see the importance of procuring a sufficient affidavit from the party against whom he seeks production. A plaintiff’s right to production rests on the same grounds as his right to discov- ery generally; (Swinborne v. Nelson, 16 Beav. 416; Clegg v. Edmonson, 22 Beav. 125-187 ; Quin v. Ratcliff, 3 L. T. N. 8. 365; Rumbold v. Forteath, 3K. & J. 44;) whether the documents are to be produced or otherwise, is a matter to be deter- mined by the court; whether they are sufficiently protected by the affidavit and the grounds therein disclosed, is also a matter for the determination of the court; but in any event the common affidavit must be made as to documents which must be set out. (Quin v. Ratcliff, 9 W. R. 65; 6 Jur. N.S. 1827; 3 L.7., N.S. 363; and see also Nicholl v. Elliott, 3 Grant’s Chan. Rep. 536.) The defendant may resist production, but he cannot decline to make a sufficient affidavit, and the question of privileged documents is not a matter for his determination solely. (The Rajah of Coorg v. The East India Company, 25 L. J. Ch. 845; 2 Jur. N. 8. 407; Devaynes v. Robinson, 20 Beav. 42; Lafone vy. Falkland Islands Company, 27 L. J. Ch. 25; Betts v. Menzies, 26 L. J. Ch. 528; Lancaster v. Evors, 1 Phil. 349.) The defendant is not obliged to produce documents in his possession relating exclusively to his own title. (Sutherland v. Sutherland, 17 Bea. 209; -Clegg v. Ed- monson, supra; Lind v. Isle of Wight Ferry Company, 8 W. R. 540; 2L.T.N. 8. 503 ; Bishop of Winchester v. Bowker, 9 W. R. 404; Felkin v. Lord Herbert, 9 W. R. 756; Howard vy. Robinson, 4 Drew. 522; Lawlor v. Murchison, 3 Grant’s Ch. Rep. 553.) The principle seems to be that a party must not only shew that the documents in question relate to his title, but that they do not relate to the plaintiff’s. The rule is pretty clearly laid down in Combe v. The Corporation of London, 1 Y. &C.C.C. 631; 6 Jur. 571; 15 L. J. 80; 10 Jur. 57; to protect a defendant from the production or discovery of a document relating to the subject in dispute it is not sufficient that it should be evidence of Ais title or contains evidence which he intends or is entitled to use in support of his case, it must contain no matter supporting the plaintiff's case, or impeaching the defence, and the defendant must swear with a reasonable degree of distinctness that the document does contain no such matter. See also Adams v. Fisher, 3 M. & Cr. 526; Lancaster v. Evors, 1 Phil. 8349; Wigram Discovery, p. 91; and Marquis of Bute v. Glamorganshire Canal Co.,1 Phil. 681; 15 L.J.60; 9 Jur. 1063. If documents merely shew the title of the plaintiff and some of the defendant’s, who are in the same interest, and they do not shew any title whatever in the defendant asking their production, they will be protected. (Lloyd v. Purves, 4 U. C. L. J. 287.) Where the plaintiff’s and defendant’s cases were so interwoven and inseparably connected that nothing could relate to the one without relating to the other, the defendant was ordered to produce papers connected with his own case, though he swore that they did not relate to the plaintiff’s title or the case made by the bill. (Hamilton v. Street, 1 Grant’s Ch. R. 327.) Where a party to w suit admits the possession of documents relating to the matters in question, the opposite party is prima facie entitled to their production, and the party in whose custody they are must assign some ground for exempting them from the generalrule. (Howcutt v. Rees, 2 Grant’s Ch. R. 268.) As has been before observed, though the defendant may not be compellable to produce such documents, he cannot, in any case, decline to make the affidavit in the form prescribed. (Rumbold v. Forteath, 8K. & J. 44.) The affidavit must be in 102 EVIDENCE; PRODUCTION OF DOCUMENTS. [ORDER XX., SEO. 1.] strict terms, following the order to produce, and must set forth the numbers and particulars of the documents. (Lazarus v. Mozley, 5 Jur. N.S. 1119; 85 L. T. 3.), In this case the defendant swore that he had no documents in his possession, except such entries as might be contained in the books of his firm, which he objected to produce, stating that they were only in his possession jointly with another, who was not a party to the suit, the court required him to file an affidavit shewing the num- ber and particulars of such documents. See also Atkyns v. Wright, 14 Ves. 211. The court will not compel production by a defendant of documents in the possession of an agent for himself and a person not a party to the suit who is tenant in com- mon with him of the property to which the documents relate. (Edmonds v. Lord Foley, 10 W. R. 210; Bayley v. Cass, 10 W. R. 3870). The defendant moreover is not allowed to decide for himself as to the relevancy of the documents in question. (Caton v. Lewis, 22 L. J., Ch. 946; Bowes v. Fer- nie, 8 M. & C. 682; Mansell v. Feeney, 9 W. R. 610; 4 L. T. N. 8. 437.) See also Lafone y. Falkland Islands Company, 27 L. J., Ch. 25. The plaintiff’s case as made by his bill, will, so far as an application for production is concerned, be assumed to be true, and for obvious reasons, if the court were obliged to wait until the hearing, it would be tantamount to refusing production altogether. (Gresley v. Mousiey, 2 K & J. 288; Rumbold v. Forteath, 3 K & J. 44.) The plaintiff, as a general rule, has aright to inspect all documents in the defend- ant’s possession as will assist his case; and the right is even in certain cases extended to mortgagors, although generally a mortgagee is not compelled to produce his title deeds except upon payment of principal, interest, and costs. (Howard v. Robinsop, 4 Drew. 522; 5 Jur. N.S. 186; 28 L. J. Ch. 671; 7 W. R. 228; this case will also be found in5 U.C.L. J. 168; Bugden v. South, 26 L. J. Ch. 425; Jones v. Jones, Kay, App. vi.) A prior mortgagee has no right to see the deed of a subsequent mortgagee. (Howard v. Robinson, supra.) The mortgagee of a term is not entitled to the production of title deeds in the hands of a purchaser without notice of the fee. (Hunt v. Elmes, 27 Beav. 62; 5 Jur. N. 8.645; 28 L. J. Ch. 680; 7 W. R. 471.) This latter case is the most recent authority upon the question, and it was held that a purcbaser for value without notice was not bound to produce the title deeds of an estate to a mortgagee whose security preceded the purchase, although the bill charged that the deeds were fraudulently retained by the mort- gagor. A mortgagee was compelled to produce mortgage deed to mortgagor, that the latter might inspect an endorsement upon the instrument. (Phillips v. Evans, 2Y. &C. C. C. 647.) See also the following cases on production :—(Gandee v. Stansfield, 4 DeG. & J. 1; 7 W.R 3821; Wynne v. Humberstone, 27 Beav, 421; 28 L. J. Ch. 281; on appeal 32 L. T. 306; Greenwood v. Greenwood, 6 W. R. 119; Peile v. Stoddart, 1 M. & G. 192; De la Rue v. Dickinson, 8 K. & J. 888; Bates v. Christ’s College, 26 L. J. Ch. 449; Hampson v. Hampson, 26 L. J. Ch. 612.) Letters passing between co-defendants are not privileged. (Betts v. Menzies, 26 L, J. 628.) Letters passing between solicitor and client are privileged. (Ford v. De Pontes, 7 W. R. 299; Lawrence v. Campbell, 4 Drew, 486; 7 W. R. 336; Wal- singham v. Goodricke, 8 Hare, 122.) See also the later cases of Marsh v. Keith, 1 Drew. & 8. 342; 9 W. R. 115; Bluck v. Galsworthy, 2 Gif. 543; Telford v. Rus- kin, 1 Drew. & S. 148; Thomas v. Rawlings, 5 Jur. N. 8. 676. As to agents, see Steele v. Stewart, 1 Ph. 471; Carpmael v. Powis, 1 Ph. 687; Glyn v. Caulfield, 3 M. & G. 468, 467, and the cases there cited; Calley v. Richards, 19 Beav. 403; Lafone v. Falkland Islands Co. 4 K. & J. 35; and Colyer v. Colyer, 9 W. R. 452; 4.1L. T.N. 8.184.) As to arbitrators, see Ponsford vy. Swaine, 4L. T. N. 8.15; 1 Jo. & H. 433. The court refused the production of documents pawned before the institution of the suit. (Liddell vy, Norton, Kay, App. xi; 28 L. J. Ch. 169; Re Williams, 7 Jur. EVIDENCE; PRODUCTION OF DOCUMENTS. 103 (ORDER XX., SEC. I.] N. 8. 823; North v. Huber, 7 Jur. N. 8. 767.) A solicitor’s lien is no defence against production. (Hope v. Liddell, 20 Beav. 488; on appeal 7 DeG. M. & G. 881; 24 L. J. Ch. 691; 1 Jur. N S. 665; Gaskell v. Chambers, 28 L. J. Ch 888; 26 Beav. 303: Re Cameron’s Coalbrook Railway Company, 25 Beay. 1; Re Greg- son, 26 Beay. 87.) An undertaking not to part with documents is no ground for resisting production. (Penkethman v. White, 2. W. R. 380) Depositing documents with a third person is no answer for non-production. (Rogers v. Rogers, 6 Jur. 497.) Documents in the hands of trustees cannot be ordered to be delivered up when the cesfuis que trusts are not parties to the suit. (Ford v. Dolphin, 1 Drew 222; Thomas v. Torrance, Grant’s Cham. 46 ; see also Penney v. Goode, 1 Drew 474; 22 L. J. Ch. 871; Taylor v. Rundell, Cr. & Ph. 104; Reid v. Langlois, 1M. & G. 627; Lazarus v. Mozley, supra;) as to the production of documents not in the exclusive possession ot the defendants, but only in their possession jointly with other persons, not parties to the suit. Where an absent party is interested in documents the court will not as a general rule order their production, unless such absent party be brought before the court. (Sweet v. Hunter, 9 Jur. 807; Bugden v. Tylee or South, 21 Beav. 545; 26 L. J. Ch. 425; 3 Jur. N. S. 783.) This will not apply however in a case where such absent party is not a necessary party to the suit. (Richardson v. Hastings, 7 Beav. 354; 13 L. J. 416; Robertson v. Shewell, 15 Beav. 277.) The order should be obtained before the hearing; after decree, or on cause being set down for further directions, it was held that there could be no order for produc- tion. (Rippin v. Dolman, 2 W. R. 432.) But see Hart v. Montifiore, 5 L. T. N.S. 441; where it was held that a defendant can after decree obtain an order to produce against a co-defendant. The documents are to be deposited in the office of the registrar, or deputy registrar if the bill be filed in an outer county. If it appear from the affidavit that the documents are in constant use in the business of the deponent, and are necessary for the purposes of his business, the court will order production at the place of business ; (Grane v. Cooper, 4 M. & C. 263;) or they may by arrangement be produced at the solicitor’s office. (Groves v. Groves, 2 W. BR. 86.) If production be not obtained before the hearing, it can be enforced under the decree in the master’s office. The master on an application being made to him for that purpose will give a direction for all deeds, books, papers, and documents to be brought into bis office, and issue a warrant which should be underwritten in terms of the master’s direction. The direction must be entered in the ‘‘ Master’s Book.” It will be necessary to consider the practice as to production in the master’s office, and the process for enforcing it. Having made the application, and obtained the direction and warrant, the latter should be eerved, and on the day of its return, search should be made as to the filing of the affidavit and the production of the documents, which under this practice must be left in the master’s office. The common direction of the master that a party shall produce before him all deeds and documents, entitles the master to require them to be left, and refusal to leave is a disobedience of his warrant. (Shirley v. Ferrers, 1 M. & C. 304; Sidden v. Leddiard, 1 Sim. 388.) This latter case expressly decides that the order to produce involves an order to leave. If no affidavit be filed, and the documents be not deposited, an application should be made to the master for his certificate of default, and upon this certificate the party requiring the production should move in Chambers for an order nisi for produc- tion, The master’s certificate of non-production must be dated on the day of the motion. (Hopkinson v. Leach, 8 Swan. 98; Carleton v. Smith, 14 Ves. 180.) The 104 EVIDENCE; PRODUCTION OF DOCUMENTS. [oRDER xXX., SEC. I.] order nisi thus obtained need not be endorsed with the notice under Order XLVI, section 6, when served; and if the defendant appears by a solicitor, service on the lat- ter will be good service. (Hobson v. Sherwood, 6 Beav. 63; 12 L.J. N.S. Ch. 447; 7 Jur. 687.) The practice as to the service of an order nisi for non-production in the master’s office, differs in these particulars from the practice under the ‘four day order.” If the order nisi be disobeyed, then a further certificate as to default must be procured from the master dated on the day of the motion, and an order absolute and attachment will be granted. If an affidavit be filed, but the documents be not deposited, it is in the discretion of the master to grant a certificate. (Henna v. Dunn, 6 Mad, 840.) And if the master issues an irregular certificate, the practice is to move to discharge the order nisi, and to take the certificate off the files. (Kemp v. Wade, 2 Keen 686.) As to production in master’s office, see also Wormsley vy. Sturt, 22 Bea. 398. The principle upon which production will be ordered in the master’s office is the same as relates to production under the “ four day” order; reference may therefore be made to the decisions already cited, which refer to this practice. As to who may inspect. The order must be followed. A stranger may not; nor any person not strictly within the terms of the order. (Summerfield v Pritchard, 17 Bea. 9; 17 Jur. 861.) An agent may, but he must be a legal agent, or a general agent, and not an agent appointed for the special purposes of the inspection. (Draper v. The Manchester, Sheffield, and Lincolnshire Railway Co., 9 W. R. 117; 6 Jur. N. 5. 1239; 80 L. J. Ch. 95; 3 L. T. N. 8. 402; on Appeal, 9 W. R. 215; 80‘L. J. Ch. 236; 7 Jur. N. 8. 86.) A co-defendant cannot inspect. (Bartley v. Bartley, 1 Drew. 233 ) The information derived from documents produced must not be made public, nor should it be communicated to persons not parties to the suit. (Williams v. The Prince of Wales Insurance Company, 23 Bea. 838; 3 Jur. N. 8. 55; Reynolds v. Godlee, 4 K. & J, 88; Enthoven v. Cobb, 5 DeG. & Sm. 595; on Appeal, 2 DeG. M. & G. 682.) As soon as the purposes of discovery are answered, the documents will be - ordered to be re-delivered to the producing party. (Dunn v. Dunn, 3 Drew. 17; 18 Jur. 1068; on appeal, 7 DeG. M. & G. 207; 1 Jur. N. 8, 122.) A defendant cannot obtain an order for the production of documents in the posses- sion of his co-defendant. (Attorney-General v. Clapham, 10 Hare, App. Ixviii.; Burbidge v. Robinson, 2 M. & G. 244; but see Wynne v. Humberston, 27 Beav. 421; 5 JurN. 8.5; 82 L, T. 268, 806; Hart v. Montifiore, 5 L. T. N. 8. 441.) ree Sxc. 2.—The affidavit to be made by a party who has madewhere -” been served with an order for the production of docu- party refuses to : a . produce. ments under the preceding section may be in the form or the effect set forth in schedule K., hereunder written. (¢) (7) For schedule K., see notes to the preceding section. Exbibits may b 3 ibit whi i meer fe Sxc. 3.—Any exhibit which, according to the present vit, upon order. practice of the court might have been proved viva voce EVIDENCE ; EXHIBITS, 105 [ORDER XX., SEC, 111.] at the hearing, may be proved by the affidavit of a wit- ness who would have been competent to prove the same at the hearing; an order having been taken out for that purpose. (%) (k) Exhibits may be proved by affidavit at a hearing on bill and answer. (Killaly v. Graham, 2 Grant, 281.) Documents used on the examination of witnesses before the court must be pro- perly marked by the officer and referred to in the evidence, otherwise they cannot be read at the hearing. (Hollywood v. Waters, 6 Grant, 329.) A patent which has been lost cannot be proved by parol evidence, the proper proof is an exemplification of the patent. (McCollum v. Davis, 8 U. C. Q. B. 150.) A memorial coming from a registry office, if 30 years old does not require proof, and is of itself good secondary evidence of the deed; (Marvin v. Hales, 6 U.C.C.P. 208); if less than 30 years old, however, it must be proved before it can be used as secondary evidence. (Jdid.) It would seem also for the purposes above mentioned, that a copy of the memo- rial certified by the registrar is as good evidence as the memorial itself. (Lynch v. O'Hara, 6 U. C. C. P. 259.) Letters are admissible as exhibits though not mentioned in the pleadings. (Wil- mott y. Boulton, 1 Grant, 479.) Where an instrument is produced upon notice by an adverse party, who claims an interest in the cause under such instrument, the party calling production is not bound to prove its execution. (Chisholm y. Sheldon, 2 Grant’s Chan. Rep. 181; and Pearce v. Hooper, 3 Taunt. 60; Rearden v. Minter, 5 Man. & Gr. 204.) This section is practically of little force now, for as by the recent Orders of 10th January, 1863, for which see note to next section, the hearing of a cause is to fol- low immediately after the examination of the witnesses, it has been held that where a cause has been set down for examination and hearing, exhibits must be proved vivd voce and not by affidavit. (Dickenson v. Duffill, per V. C. Esten, 20th Feb- ruary, 1863.) Where the evidence being closed, and at the time when the argument was about to be proceeded with, the plaintiff’s counsel desired to put in a docu- ment which either proved itself, or could be proved by affidavit, the V. C. allowed the document to be put in, but refused to permit an affidavit to be read to prove it. By Order of court promulgated on the 28th April, 1862, itis provided as fol- lows :— READING DEPOSITIONS IN OTHER CAUSES. « Any party shall be entitled in future upon notice, without order to use deposi- tions taken in another suit, in cases where under the present practice he is entitled to use such depositions upon obtaining the common order for that purpose.” The true test of their admission seems to be whether the first suit raised the ame issue, and was virtually between the same parties, i. e., be-ween persons representing the same interests as the first. (Lawrence v. Maule, 4 Drew. 472; 28 L. J. Ch. 681; s.c., 7 W. R. 314; Borough v. Whichcote, 3 Bro. P. C. 595; Cokev. Fountain, 14 106 EVIDENCE. [oRDER XX., SEO. IV.] 1 Vern. 418; Eade v. Lingood, 1 Atk. 204; Humphreys v. Pensam, 1M. &C. 580; Mackworth v. Penrose, 1 Dick.:50.) The fact that the plaintiff in the second suit was a co-defendant in the first suit, will not prevent the court from allowing the depositions of the witnesses in the first suit to be read, if the party against whom they are to be read had an opportunity of cross-examining the witnesses. (Nevil y. Johnson, 2 Vern. 447; Askew v. Poulterers’ Company, 2 Ves. Sen. 89.) It is not necessary that the witnesses whose depositions are to be used should be dead; (City of London y. Perkins, 8 Bro. P. C. 602;) but see Carrington v. Cornock, 2 Sim. 567. It is necessary, says Daniell, in his Chan. Pr., 8rd ed., p. 697, *‘ That to entitle a party to read the depositions taken in another cause, that the person against whom they are offered in evidence, or the person under whom he claims, should have been a party to such other cause.” (Coke v. Fountain, 1 Vern. 413.) Causes may be recntios Src. 4.—Causes may be brought to a hearing upon heari on 1 1 ieg° hearing upon ~—_ evidence adduced upon affidavit, by consent of parties ; dence, by consent, and, when the evidence in a cause has been taken orally, a When tes con Affidavits of particular witnesses, or affdavits as to par- Been ue ke ticular facts or circumstances, may be used by consent, b a by affidavit, by ot by leave of the court; and such consent to hear the consent of parties, or by order of the cause upon affidavit evidence, or to admit the affidavits court, . . . : of particular witnesses, or affidavits as to particular facts Infants, &c., “ i : hound bysuch | and circumstances, may be given on behalf of married consent, wi e % ca ie ties approbation of women, or infants, or other persons under disability, oe with the approbation of the court. (J) (4) This section is qualified in its application by Orders II. and III. of the Orders of court promulgated on the 10th day of January, 1863. These orders are as fol- lows :— “HRARINGS. II. Causes are to be heard at the same time that the witnesses are examined upon the close of such examination. No evidence to be used on the hearing of a cause is to be taken before any examiner or officer of the court, unless by the order first had of the court or. a judge thereof, upon special grounds adduced for that purpose. III. When the examination of witnesses before a judge is to be had in any town or place, other than that in which the pleadings in the cause are filed, it shall be the duty of the party setting down the cause for such examination, to deliver to the registrar or deputy registrar with whom the pleadings are filed, a sufficient time before the day fixed for such examination, a preecipe requiring him to transmit to the registrar or deputy-registrar, at the place where such examination of witnesses is to be had, the pleadings in the cause; and at the same time to deposit with him a sufficient sum to cover the expense of transmitting and re-transmitting such pleadings, and thereupon it shall be the duty of such registrar or deputy-registrar forthwith to transmit the pleadings accordingly. } The fee payable to the deputy-registrars for setting down causes under the fore- going order is to be two pounds.” EVIDENCE. 107 (ORDER XX., SEC. Y.] It also corresponds with the English Act, 15 & 16 Vic., ch. 86, sec. 36. And see English Orders, 5th Feb., 1861, Rules 10, 11 and 24. Sec. 5.—Any witness who has made an affidavit filed Avy witness who has made an affi- an ar ing Aavit, to be used by any party to a cause, to be used at the hearing % Ge yondan of thereof, is to be subject to oral cross-examination before the cause, may the court or a deputy-master, or an examiner specially ™+ appointed for that purpose, in the same manner as if the evidence given by him in his affidavit had been given by him orally; and such witness is to attend before the court, or deputy-master, or examiner, as the case may be, upon being served with a writ of sudpena ad testifi- candum or duces tecum; and the expenses attending such cross-examination and re-examination are to be paid by the parties respectively, in like manner as if the witness to be cross-examined were the witness of the party cross-examining, and are to be deemed costs in the cause of such parties respectively, unless the court think fit to direct otherwise. (m) (m) English act 15 & 16 Vic., ch. 86, sec. 38. The obligation to produce the witness is on the cross-examining party. (Winthrop y. Elderton, 1 W. R. 318; Spicer v. Dawson, 22 Beav. 282; Keymer v. Pering, 10 Sim. 179.) In England under the Order of February 5th, 1861, Rule 19, itis other- wise. The cross-examination takes place immediately after the affidavit is filed, or may do so. (Clarke v. Law, 2 K. & J. 28; 2 Jur. N. 8. 228; 4.W. R. 85; Bayley v. Cass, 10 W. R. 370.) As to abandonment of affidavit or cross-examination, see Clarke v. Law, supra ; Davey v. Durrant, 24 Bea. 411; 27 L. J. Ch. 503; 4 Jur. N.S. 898; on Appeal, 2 DeG. & J. 506; Oldfield v. Cobbett, 12 Bea. 91.) Nor can a witness require the paragraph in his affidavit on which he is cross- examined to be shewn to him before answering the question put. (Gwynne v. Watney, 31 L. T. 231). Where a document is referred to in an affidavit it will be ordered to be produced, in order to enable a proper cross-examination to be had thereon. (Bell v. Johnson, 1 Jo. & H. 682; 4.1L. T. N.S. 637.) But the mere fact of the plaintiff during a viva voce examination of a defendant producing documents for the purpose of having them proved, will not entitle the defendant to their pro- duction for the general purposes of the suit. (Howcutt v. Rees, 2 Grant’s Ch. R. 268.) See Order of court of 17th September, 1856, which is as follows: ‘ Witnesses 108 EVIDENCE. [ORDER XX., SEC. V.] and parties may be examined before any examiner of this court in those counties in which there may be no deputy-master, until the appointment of a deputy-master in any such county.” And the Order promulgated on April 6th, 1857, which is as fellows: ‘‘ Whereas it is absolutely necessary for the proper despatch of business in the court, that the change hereinafter provided be made in the practice as regards the examination of witnesses and parties; it is therefore ordered that all examin- tions, out of examination term, of parties or witnesses, whether in o suit or in any matter or otherwise, be taken until further order before a deputy-master, or before a special examiner appointed for that purpose, unless the court or a judge thereof in chambers shall otherwise order upon application to be made for that pur- pose, which may be ex parte, but must be supported by affidavits setting forth the special grounds on which it is made.” These orders are, however, qualified by Orders II. and III., of Orders of 10th January, 1863. For these orders see note to preceding section. Any party desiring to cross-examine a witness Who pois stent has made an affidavit in any cause, intended to be wsed bouts notice of 4 2 ie E 2: i8-examM~ at the hearing thereof, is to give forty-eight hours’ no-istom tice to the party on whose behalf such affidavit has been filed, or to the party intending to use the same, of the time and place of such intended cross-examination, in order that such party may, if he think fit, be present thereat. 7 : : . The re-examina- The re-examination of any such witness is to follow ion i fotow im immediately upon the cross-examination, and is not to modately the be delayed to any future time. (7) - (n) As to evidence to be used at the hearing, the following points may be noticed: where evidence taken in Chancery is required to be used in another court, the proper course is to move on notice for-an order for the purpose, and if the order be granted an officer of the Court of Chancery is sent to the other court with the de- positions, retaining them in his possession, and merely allowing the other court the use of them. (Thompson v. Ward, 5 U. C. L. J. 41.) Where a bill charged a defendant with notice, the plaintiff was allowed to give evidence of conversations in which notice was given to the defendant, though the bill did not mention the conversations: the fact of notice, and not any particular conversation being the point in issue. (Barnhart v. Patterson, 1 Grant’s Chan. Rep. 459.) Where the evidence was not sufficiently clear to entitle the plaintiff to a decree, but was such as rendered his equity probable, the court gave him the option of an issue at law, or to have his bill dismissed zithout costs. (Carfrae vy. Vanbuskirk, 1 Grant, 539.) EVIDENCE. 109 [ORDER XX., SEC. V.] When the plaintiff and defendant mutually leave matters in the dark, of which it ig necessary the court should have some evidence, a reference on these points will be directed ; (Bethune v. Caulcutt, 1 Grant’s Chan. R. 81; Farquharson v. Williamson, 1 Grant, 93; Chisholm v. Sheldon, 1 Grant, 108; Musselman v. Snider, 3 Grant, 158 ;) or the court will order the cause to stand over with liberty to supply the proof. (Attorney-General v. Garbutt, 5 Grant, 181.) So where the defendant had omitted to give evidence of matters of defence set up by his answer through over- sight, the cause was ordered to stand over with liberty to both parties to go into evi- dence on those points. (Northey v. Moore, 5 Grant, 609.) The plaintiff may go into evidence to contradict the answer though not put in issue by the bill. (Schram v. Armstrong, 1 U. C. Jur. 2, 327.) Where the bill is amended by adding plaintiff’s evidence of witnesses taken pre- viously may be read at the hearing; (Chisholm v. Sheldon, 2 Grant, 178;) where, however, the amendment is by adding defendant’s, such evidence of course could not be read against the new defendants. (Jbid, p. 180.) This order, although entitled ‘‘ Evidence to be used at the hearing,”’ does not refer to the question of evidence generally. ‘I'he first and second sections refer to produc- tion of documents in the cause, when and how obtained, and the affidavit required to be made thereon. The practitioner must not be misled by the terms of the marginal note to section 2, ‘‘ affidavit to be made where party refuses to produce,” inasmuch as, the affidavit is required as of necessity in all cases, and as will have already been seen, production cannot be enforced until an affidavit has been filed. Section 3 refers to the manner of proving exhibits. The present practice thereon has been referred to in the note to that section. Sections 4 and 5 refer to evidence which has been adduced by affidavit, which practice by consequence of the orders of the 10th January, 1863, providing that causes are to be heard on the close of the exam- ination of witnesses will be hereafter but seldom resorted to. Indeed, these latter orders provide that no evidence is to be used on the hearing which has been taken before any examiner or officer of the court unless by special order first obtained therefor. The cause having been set down for examination of witnesses and hearing, in manner hereinafter referred to in the notes to the order providing therefor, the evidence is taken very much in the same manner as on a trial at nisi prius of an action at law. The witnesses come into court, they are examined viva voce, before the jadge, whe takes down their evideuce in writing, and when taken down it is read over to the witness, who thereupon signs the depositions. The depositions so taken down constitute the evidence to be used at the hearing, which at the close of the evidence is immediately proceeded with. This practice will materially diminish the delay and expense of proceedings in Chancery, and at the same time is a great advantage to suitors. which will no doubt be properly appreciated. The very just remarks of C. J. Wilmot, often quoted, in which he speaks ‘‘ of the benefit of a viva voce examination, where the looks, the manner, and deportment of the witness are extremely material to confirm or discredit his testimony,” have now their full force and advantage, since the judge having the evidence and its incidents fresh in his mind, proceeds to hear the arguments of counsel and to determine the decision in the cause immediately the evidence is closed. When the cause is at issue by the filing of the replication, and the same has been get down for examination and hearing, the duty devolving on the practitioner is to prepare his evidence. The first question for consideration, is what is necessary to be proved, and the manner in which the proof is to be effected. When a cause is heard upon bill and answer, the answer will be taken to be true in all points, and no other evidence is to be admitted. 110 EXAMINATION OF PARTIES. [ORDER XXII., SEC. 1.] It seems, however, to be generally conceded, that an exhibit may be proved on the hearing upon bill and answer. (Chalk v. Raine, 13 Jur. 981; following Rowland v. Sturgis, 2 Hare 520; Neville v. Fitzgerald, 2 Dru, & War. 630; and over-ruling Jones v. Griffith, 14 Sim. 262.) A party may support his case:—Ist, by evidence contained in the pleadings ; Qndly, by documentary evidence; 8rdly, by evidence of witnesses; and 4thly, by affidavit. As to admissions on the record. The plaintiff cannot read his bill in support of his case unless where it is corroborated by the answer; thus if the plaintiff states an indenture in his bill, and the defendant in his answer admits it to have been properly executed, and to be of the tenor and effect set forth in the bill; in such a case the plaintiff having read the admission in the answer, can read his bill to shew the extent of the admission made by the defendant. Where a bill has been taken pro confesso it may be read in evidence against the defendant against whom it has been taken pro confesso. No proof can be admitted of any matter which is not noticed in the pleadings ; (Whaley v: Norton, 1 Vern. 488; Gordon v. Gordon, 3 Sw. 472; Clarke v. Turton, 11 Ves. 240; Williams v. Llewellyn, 2 Y. & J. 68; Hall v. Maltby, 6 Pri. 240, 259; Montesquieu v. Sandys, 18 Ves. 802; Powys v. Mansfield, 6 Sim. 565;) these cases support the proposition that every fact must be introduced into the bill which the plaintiff intends to prove, and the same rule applies to answers. (Smith v. Clarke, 12 Ves. 477.) INTERROGATORIES FOR THE EXAMINATION OF PARTIES AND WITNESSES. Pogatoris forthe XXI. No written interrogatories for the examination vertigo wit, Of either parties or witnesses, either before or after de- ere cree, are to be filed, except by leave of the court. Ex- aminations are to be viva voce, and, may be conducted either by the parties or by their solicitors or counsel. EXAMINATION OF PARTIES, Anypartytoa XXII. Any party to a suit may be examined as a suit may be ex- . . ° . . amined atime Witness by the party adverse in point of interest, with- poriy ara out any special order for that purpose; and may be com- pelled to attend and testify in the same manner, upon the same terms, and subject to the same rules of exam- ination, as any other witness, except as hereinafter pro- vided. And any person for whose immediate benefit a suit is prosecuted, or defended, is to be regarded as a party, for the purpose of this order. Provided always, that when it appears upon the hearing that any party EXAMINATION OF PARTIES. 111 [ORDER XXII., SEC, I. AND I1.] examined under this order is united in interest with the examining party, the evidence so taken is not to be used on behalf of either the examining party or the exam- inant, but may be struck out at the hearing at the in- stance of any party affected thereby. (0) (0) A party having received notice of being examined by the opposite party is not entitled to call for the production of papers in such opposite party’s possession, merely the better to enable him to give his testimony. (Howeutt v. Rees, 2 Grant, 268.) Sec. 2.—Any party defendant may be examined as a Kaas witness as heretofore, upon order for that purpose, on Ree ee a: behalf either of the plaintiff, or of a co;defendant, upon oe orga points as to which the party to be examined is not in- terested. And any party plaintiff may be examined, 22mm - os . - ae a imi ir- under similar circumstances, by a co-plaintiff, or by acumstmas, aith- defendant. Provided, that where any party having an" interest has been examined under this order, such evi- The examination dence is not to be used on behalf either of the examining party may be Fe struc! party, or of the party examined, but may be struck outhearing at the hearing at the instance of any party affected thereby ; but such examination is not to preclude the court from making a decree, either for or against the party examined. (p) (p) By the Orders of the 28th April, 1862, as to examination of parties to suits, which is as follows :— «Any party defendant may be examined as a witness without order, on behalf either of the plaintiff or of a co-defendant; and any party plaintiff may be examined asa witness without order, by a co-plaintiff, or by a defendant, in cases where un- der the present practice such examination may be had upon the common order being obtained for that purpose.” Under this section a defendant may be examined for the purposes of a motion be- fore the time for answering has expired. (McClennaghan v. Buchanan, 7 Grant’s Chan, R. 92.) The notice of motion must have been previously given. (Jdid.) Although under this section any party to a euit may be examined by his adversary, yet the wife of such party cannot be so examined; but if she consent to be examined, her evidence cannot: be afterwards objected to. (Peterborough v. Conger, Grant’s Cham. 85; Con. St. U. C., cap. 32, sec. 5.) 112 EXAMINATION OF PARTIES, (ORDER XXII,, SEO, I1I.] Where a defendant is examined under order—which, however, is not now neces- sary—by 2 co-defendant, and the plaintiff and other co-defendants cross-examine him, he is thereby made a good witness in the cause against the parties so cross- examining. (Grimshaw v. Parkes, 6 U. C. L. J. 142.) Where a plaintiff examines a defendant whose interest in the suit is such that a decree for the plaintiff must necessarily operate for the benefit of such defendant, such examination does not disentitle the plaintiff to relief against the other defend- ants. (McLellan v. Maitland, 1 Grant, 268.) This is a decision prior to the pas- sing of this order. It would seem that where a defendant (though he has parted with all interest in the property in question to a co-defendant) is interested in upholding the title of such co-defendant as being derived from himself, he will not be a competent witness on behalf of such co-defendant. (McDonald v. Jarvis, 5 Grant’s Chan. R. 568.) Any party exam. SEC. 3.—Hvidence taken under the first section of Any Dery cet ‘ idence on hisown this order may be rebutted by adverse testimony; and behalf as to an. . . . point to which he ANY party examined as therein provided, may be fur- has been exam- ° : : . inedin chiet ther examined, on his own behalf, in relation to any matter respecting which he has been examined in chief. And any party | And where one of several plaintiffs or defendants, who united in interest with theparty are joint contractors, or united in interest, have been so eXamined may Hire eyidaheotis examined, any other plaintiff or defendant, 8o united in interest, may also be examined on his own behalf, or on behalf of those united with him in interest, to the same extent as the party actually examined. Provided The explanato es examination wii nevertheless, that such explanatory examination must follow th i- . . . . : . nation ia chief, be proceeded with immediately after the examination in chief, and not at any future period, except by leave of the court. A party under ~~ Sec. 4.—Any party to the record who admits, upon examinationmay dace dace wr his examination, that he has in his custody or power Meet any deeds, papers, writings, or documents relating to tion." ** the matters in question in the cause, is to produce the same for the inspection of the party examining him, upon the order of the court, or of the deputy-master, Orders of deputy OF examiner, as the case may be, before whom he is ject to appeal,” examined, and for that purpose a reasonable time is to be allowed. Either party may appeal from the order EXAMINATION OF PARTIES. 113 [ORDER XXII., SEC, V. VI., AND VIL] i - . . . : No order to be of such deputy-master, or examiner; and thereupon Necro iens ~ 1 } ; tq ments entitled to such deputy-master, or examiner, is to certify under his pitts hand the question raised and the order made thereon; and the costs of such appeal are to be in the discretion of the court. But no party shall be obliged to produce any deed, paper, writing, or documents which would have been protected under the previous practice. Sec. 5.—Any person refusing or neglecting to attend : 7 * * ; When a part; at the time and place appointed for his examination lune uatan a’ l l 1 at the time and under the first section of this order may be punished as*1,%? aprted for a contempt; and the party who desires the exami- ion. he nad nation, in addition to any other remedy to which he ouneiss ®re may be entitled, may apply to the court, upon motion, either to have the bill taken pro confesso, or to have itte taken pom %é « 5 < fesso. or dismissed dismissed, according to circumstances; and the court, according to cir- upon such application, may, if it think fit, order either acoe that the bill be taken pro confesso, or that it be dismis- sed, as the case may be; and when, from the circum- stances of the case, such order cannot be made consis-or the court in tently with the rights of other parties to the suit, then may make other the court may make such order as to the enlarging the time for passing publication, or otherwise, as may seem just. (¢) (g) Where a defendant out of the jurisdiction has answered but refuses to be exam- ined under commission at the instance of the plaintiff, the cause will be allowed to be heard pro confesso. (Prentiss v. Bunker, 4 Grant, 147.) Src. 6.—When the examining party uses any portion of the evidence taken under the first section of this ‘here any part 1 7 tion tak di order, (but not otherwise,) then it shall be competent for the frat rection s es : 2 a epee Gee those against whom it is used to put in the entire Vir used, the exams : : . + nant may put dence so taken, as well that given in chief, as that in the Srilece explanation. Sxc. 7.—Any party plaintiff examined under the first 15 114 DISMISSAL OF BILL. ~ foRDER XXIV., suc. 1.] When parties section of this order may be so examined at any time ines after answer; and any party defendant may be examin- ed at any time after answer, or after the time for answering has expired, as the case may be; and such examination may be had without reference to the exami- nation terms hereinafter established. EXAMINATION OF WITNESSES. s XXIII. [Abrogated and discharged by order of court, dated the 23rd day of December, 1857.] (r) ' (r) This order is abrogated and discharged by Order II. of the Orders promulgated on the 23rd December, 1857; and the notes upon the subject will be found appended to those orders, infra. ‘ DISMISSAL OF THE BILL FOR WANT OF PROSECUTION. XXIV. Any defendant (s) may move the court, upon move to dismis, NOtice, (¢) that the bill may be dismissed with costs, (w) in certaineases. for want of prosecution, and the court may order the same accordingly in the following cases, viz. :— (s) English Consolidated Order, No. XXXIII., Rule 10. A defendant who has taken the benefit of the Insolvent Act may move to dismiss with costs. (Lever or Levi v. Heritage, 26 Bea. 560; 5 Jur. N.S. 215; but see Blanshard vy. Drew, 10 Sim. 240; Kemball v. Walduck, 18 Jur. 69;) scews, where the defen- dant is in contempt. (Anon. 15 Ves. 174.) Nor does the omission to give notice of the filing of the answer deprive him of the right. (Jones v. Jones, 3 W. R. 688.) A bill cannot be dismissed for want of prosecution after decree; (Bluck-v. Colnaghi, 9 Sim. 411, and see note;) or pending a reference as to title; (Gregory v. Spencer, 11 Bea. 143; Collins v. Greaves, 5 Hare, 596;) or pending an order to stay pro- ceedings; (Futvoye v. Kennard, 2 Gif. 633; 9 W. R. 297; 3 L. T. N.S. 687;) or pending a demurrer. (Anon. 2 Ves. Jun. 287.) It is not enough for the plaintiff to shew in answer to a motion by one of several defendants, that he has not got in the answers of the other defendants; he must shew that he has used due diligence to get them in. (Earl of Mornington v. Smith, 9 Bea. 251; Baldwin v. Damer, 11 Jur. 723; Stinton v. Taylor, 4 Hare, 608.) But a motion to dismiss by one defendant who had put in his answer so long before as to be entitled to move, but whose co-defendant appearing by the same solicitor had not done so, was refused with costs. (Winthrop v. Murray, 7 Hare, 150.) The plaintiff should acquaint the defendants who are in a position to move to dis- miss, that the answers of the other defendants had not been got in, if such is the case. (Adair y. Barrington, 2 W. R. 361.) DISMISSAL OF BILL. 115 [ORDER XXIV., SEC. I.] If the plaintiff appears on the motion and undertakes to speed the cause, and pays the costs of the motion, the court will usually grant the plaintiff time before dismis- sing his bill. Under the old practice, where the plaintiff undertakes to speed, he should file his replication within a week; (McNab v. Gwynne, 1 Grant’s Chan. R. 151;) and that although he required a commission to examine witnesses out of the jurisdiction. (bid.) Where a long delay has taken place, however, the court has discretion to refuse the request of the plaintiff for further time, and to dismiss his bill at once; (Hancock y. Rollison, 5 Jur. N. 8. 1199; 1L.T. N.S. 25; 6U.C. L. J. 192;) where a delay of five months having taken place the court dismissed the bill at once. c Setting down and giving notice of motion for decree is a sufficient answer to a motion to dismiss for want of prosecution; (Towers v. Foott, Grant’s Cham. Rep. 32; see also Hughes v. Lewis, 7 U. C. L. J. 22.) So the service of an order to amend, duly obtained, is a sufficient answer to such motion. (Hill v. Hill, 2 Grant’s Chan. Rep. 692.) In such cases, however, the defendant would be entitled to bring on the motion for costs, if he was in a position to move to dismiss. (Towers v. Foott, and Hughes v. Lewis, supra.) The service of a notice of motion for an order to amend, is, however, no answer to a motion to dismiss. (McNab v. Gwynne, 1 Grant 127.) After a demurrer not set down, the bill cannot be dismissed for want of prosecu- tion till the demurrer is disposed of. (Done vy. Allen, Dick. 55.) A defendant is entitled to the order to dismiss, though, through the death of a co- defendant, and the inability of the plaintiff to find his representatives, the plaintiff cannot proceed. (Hall v. Green, 2 U.C. Jur. 42.) In such a case, however, the court would probably grant the plaintiff a reasonable time in which to revive before dismissing. (J/bid.) Where a defendant had answered, and the time for replication had expired, a motion to dismiss was refused, it appearing that such defendant was the president of an incorporated company, which was also a defendant, and had not answered. (Rees v. Jacques, 1 Grant, 352.) Sec. 1 of Order XVIII. seems to render this case 2 obsolete. The dismissal of a bill for want of prosecution cannot be set up in bar to another suit for the same matter. (Hansard v. Hardy, 18 Ves. 460.) The court will pot therefore dismiss a bill for want of prosecution without preju- dice to the plaintiff filing a new one, as it would be mere surplusage. (Gwynne v. MeNab, 2 Grant 124.) The certificate of the registrar or deputy-registrar to be used on the motion should shew that no replication has been filed, and also that no further proceedings have been had. (Thompson vy. Buchanan, 3 Grant, 652,) The defendant should also shew that an office copy of the answer has been duly served, (idid,) or that notice of the filing of the answer has been duly served. (Kay v. Sanson, Grant’s Cham. 71.) (t) The notice ought to state the names of the parties fully and correctly. (Davis y. Barrett, 7 Bea. 171; and see Rowlatt v. Cattell, 2 Hare. 186; Pollard v. Doyle, 2W.R. 509.) Where the notice omits the name of w defendant it is irregular. (Pellard y. Doyle, supra.) Where it appeared that the plaintiff had not, through accident, received any per- 116 DISMISSAL OF BILL. [ORDER XXIV., SHO. I.] sonal notice of the motion to dismiss, an order to dismiss for want of _ prosecution was discharged, on the plaintiff undertaking to speed the cause, and paying the costs of the application and of the order of dismissal. (Campbell v. Ferris, Grant's. Cham. Rep. 50.) (uw) Asto the costs included under the costs of a bill dismissed with costs for want of prosecution, see Finden v. Stephens, 11 Jur. 898; on appeal 12 Jur, 319; Stevens v. Keating, 1 M. & G. 659; 14 Jur. 157; Rumbold v. Forteath, 4 Jur. N. S. 608; Betts v. Clifford, 1 Jo. & H. 74. As to where the dismissal will be without costs see Blanshard v. Drew, 10 Sim. 240; Knox v. Brown, 2 Bro. C. C. 186; Kemball v. Walduck, 18 Jur. 69; but see, contra, Lever or Levi v. Heritage, 26 Bea. 560; Haddon v. Pegler, 5 Jur. N. 8. 1123. As to allowing a plaintiff to dismiss his own bill without costs, see Goodday v. Sleigh, 3 W. R. 87; Lister v. Leather, 26 L. J. Chan. 557; 8 c., 5 W. R. 666, and cases there cited. In Broughton vy. Lashmar, 5 M. & Cr. 136, the plaintiff was allowed to dismiss a bill filed under a mistake, under which both he and the defend- ants had laboured, without costs. Where a bill has been dismissed with costs as against some of the defendants for want of prosecution, it is no longer competent to the plaintiff to move to dismiss his bill without costs as against the the rest. (Troward v. Attwood, 27 Bea. 85.) (1.) If the plaintiff, not having obtained an order to enlarge the time, does not obtain and serve an order for leave to amend the bill, (v) or does not file the replication, (w) or set down the cause to be heard on bill and answer, within one month after the answer, or the last of the answers has been filed ; (x) or (v) A motion to dismiss pending an order giving leave to amend is irregular. (Emerson v. Emerson, 12 Jur. 978.) But the same rule does not apply where the order was that in default of amendment the bill should, zpso facto, stand dismissed. (Dobede v. Edwards, 11 Sim. 454.) And an order to amend obtained, but not served, before the notice of motion to dismiss is a nullity, and therefore no answer to the motion; (Jones v. Charlemont, 12 Jur. 389 ;) secus if served, but the plaintiff must in that case pay the costs. (Waller v. Pedlington, 4 Beay. 125; Lester vy. Archdale, 9 Beav. 156; Findlay v. Lawrance, 11 Jur. 705.) (w) When after notice the plaintiff files a replication, the court will only order that the plaintiff pay the costs of the motion. (Corry v. Curlewis, 8 Beav. 606.) But the defendant may bring his motion on for the costs, and such costs ought to be taxed costs. (Hughes v. Lewis, Johns. 696; s.c., 6 Jur. N. §. 442; 8 W. R. 292; 29 L. J. Ch. 424; 2 L. T.N. 8. 693; following Atty. Genl. v. Cooper, 9 Sim. 379.) (x) As to the meaning of these words see Arnold v. Arnold, 1 Phil. 805; Dalton y. Hayter, 7 Beav. 586; Forman v. Gray, 9 Beav. 196, 200; and Sprye v. Reynell, 10 Beay. 351; Duncombe v. Lewis, 10 Beav. 273; Stinton v. Taylor, 4 Hare, 608. It is now determined that the term ‘‘last answer” in this section means the last answer DISMISSAL OF BILL. 117 [ORDER XXIv., SEC, I, AND IL] of the particular defendant making the motion to dismiss. But the term ‘last answer” with respect to the order for amending bills, it must be borne in mind, means the last answer of all the defendants. (Collett v. Preston, 8M. & G. 432.) (2.) If the plaintiff, not having obtained an order to enlarge the time, does not amend the bill within fourteen days after the date of the order for leave to amend; or (y) (y) Tbis rule is vot confined to orders of course, but applies to all orders to amend. (Armistead v. Durham, 11 Beav. 428; and see Bainbrigge v. Baddeley, 12 Beav. 152; in both which cases the order to amend was given after demurrer allowed. ) When the order was that the plaintiff should amend within a month, and in default that the bill be dismissed, an order to dismiss ex parte was held regular. (Dobede v. Edwards, 11 Sim. 454.) Where a demurrer is filtd, and before it comes on for argument, the plaintiff obtained the common order to amend but does not amend within the period specified, the bill is gone, (Hoflick v. Reynolds, 30 L. J. Ch. 407.) (8.) If the plaintiff, not having obtained an order to enlarge the time, does not set down the cause to be heard, and serve a notice of hearing within one month after publication has passed. (z) (z) Where a plaintiff had set down the cause within the month, but had afterwards countermanded the notice of hearing, and struck the case out of the list of causes, a motion to dismiss for want of prosecution was refysed, but under the circumstances without costs, Blake, C., remarking that it was doubtful whether such notice could be countermanded, and if it were, whether the defendant has not a right nevertheless to goto a hearing. (Richardson y. Moser, Grant’s Cham. 19.) Sec. 2.—(a) Where the plaintiff has amended his bill, after answer, any defendant may move the court upon notice, that the bill may be dismissed with costs, for want of prosecution ; if the plaintiff, not having obtained an order to enlarge the time, does not file the replica- tion, or set down the cause to be heard on bill and answer, within the times following, viz.:— (1.) Within fourteen days after service of the notice of the amendment of the bill, where no answer 118 DISMISSAL OF BILL. [ORDER XXIV., SEC. II., III, AND IV.] has been filed, and the defendant has not obtained or applied for time to answer. (2.) Within fourteen days after the refusal of an application for further time, in cases where the defendant, desiring to answer, has not put in his answer within seven days after service of the notice of the amendment. of the bill, and the application for further time has been refused. (3.) Within fourteen days after the filing of the an- swer, in cases where the defendant has put in an answer to the amendments, unless the plaintiff, within such fourteen days, has obtained leave to re-amend the bill. (a) English Consolidated Order No. XXXIII, Rule 12. As to this section, see Brown y. Butter, 21 Beav. 615. Sec. 3.--In every other case, where the plaintiff is de- laying the suit unreasonably, any defendant may move the court, upon notice, that the bill may be dismissed with costs, for want of prosecution, after the expiration of one month from the time of filing his answer, in case the plaintiff, not having obtained an order to enlarge the: time, does not obtain and serve an order for leave to amend the bill, or does not file the replication, or set down the cause to be heard, on bill and answer, within such month; and, upon the hearing of such motion, the court is to make such order for the dismissal of the bill, or for the expediting of the suit, or as to the costs, as under the circumstances of the case may seem just. Sec. 4.—In all cases where a person or party obtains an order from the court, or from a master, upon condi- tion, and fails to perform or comply with such condition, LEGAL RIGHTS ; HOW DECIDED, 119 [oRDER XXv1.] he is to be considered to have waived or abandoned such eee order, as far as the same is beneficial to himself; and 2 See any other party or person interested in the matter, on Perform it. the breach and non-performance of the condition, may either take such proceedings as the order in such case may warrant, or such proceedings as might have been taken if no such order had been made. SETTING DOWN THE CAUSE.—HEARING.—SUBPENA TO HEAR JUDGMENT. XXV. [Abrogated and discharged by order of court dated the 23rd day of December, 1857.] (0) (5) This order is abrogated and discharged by Order II. of the Orders promul- gated on the 23rd December, 1857; and the notes upon the subject will be found appended to these orders, injra. LEGAL RIGHTS; HOW DECIDED. XXVI. (ce) In cases where according to the present owt may deter. practice the court is in the habit of refusing equitable of party seeking relief until the party seeking such relief has established goiring parties to his legal title or right in a proceeding at law, the court will itself determine such title or right without requiring the party seeking such relief to proceed at law to estab- lish the same; but the court may require the right or title to be established at law, whenever, in its discretion, it considers that course expedient. (c) English act 15 & 16 Vic., ch. 86, sec. 62. When some of the parties were infants and therefore unable to bind themselves, it was held that the court had no power, even by consent, to decide a purely lega question so as to bind the infants. (Webb v. Byng, 2 Jur. N.S. 1242.) See further, Dufaur v. Sigel, 4 DeG. M. & G. 520; 22 L. J. Ch. 678, 681.) INJUNCTION TO STAY PROCEEDINGS AT LAW. { Practice as to ins XXVII. (d) No injunction to stay proceedings at Practice as to i law is to be granted, for default of answer to the bill ; proceedings at 120 INJUNCTION STAYING PROCEEDINGS AT LAW. [orDER xxviz.] law, assimilated Hut such injunction may be granted upon interlocutory to practice as to i : ses : special injune- ~anplication, in like manner as other special injunctions tions, are granted. (d) English act 15 and 16 Vic., ch. 86, sec. 58. The plaintiff can obtain an injunction immediately on the filing of the bill. (Harris y. Collett, 26 Bea. 225.) As to injunctions to stay proceedings at law and the plaintiff’s right thereto. See Senior v. Pritchard, 16 Bea. 473; Lovell v. Galloway, 17 Bea. 38; Fitzgerald vy. Bult, 9 Hare, App. Ixv. ; Garle v. Robinson, 3 Jur. N.S. 688 ; Magnay v. The Mines Royal Company, 3 Drew. 130; 24 L. J. Chan. 413; Fox v. Hill, 2 DeG. & J. 858; 82 L. T. 230; and Harris v. Collett, 26 Bea, 222. An affidavit of merits must be made in support of the application. (Mollett v. Enequist, 25 Bea. 609; 27 L. J. Chan. 815; 4 Jur. N. 8. 1009; 31 L. T. 279.) In what cases granted ez parte. See Fisher v. Baldwin, 1 W. R. 484; John v. John, 1L, T. N.S. 885; Zulueta v. Vinent, 15 Bea. 575. Under the ‘‘Common Law Procedure Act,” courts of law have power to grant in- junctions in certain cases. (Sec. cclxxxiii., Harrison’s Common Law Procedure Act, p. 460, e¢ seg. notes and cases there cited.) The existence of this jurisdiction, however, does not interfere with the power of a court of equity to restrain actions at law upon the grounds on which it formerly acted in such cases. (Magnay v. The Mines Royal Company, 24 L. J. Chan. 413; Croskey v. Europeanvand American Steam Shipping Company, 1 J. & H. 108; The British Empire Shipping Company v. Somes, 26 L. J. Chan. 759; 3 K. & J. 433; Hodgson v. Duce, 4 W. R. 576; Walker v. Micklethwait, 1 Drew. & Sm. 49; Kingsford v. Swinford, 7 W. R. 215; Gompertz v. Pooley, 4 Drew. 448: 7 W. BR. 275; Evans v. Bremridge, 2K. &J. 174, 181; on appeal 20 Jur. 311; 27 L. 7. 8; 25 L. J. Chan, 334; Terrell v. Higgs, 1 DeG. & J. 388, 390.) : A bill will not lie for the discovery of facts which the plaintiff in equity may prove aliunde in his defence at law. And where several persons severally liable on pro- missory note or bill of exchange, are jointly sued at law by the holder, one of the defendants in the execution at law, cannot obtain discovery against the plaintiff at law, and the other defendants as between themselves, not being litigating parties, but witnesses; a bill filed for this purpose is demurrable. (Hamilton v. Phipps, 7 Grant’s Chan. R. 488, and the cases there cited.) And as to the practice with re- ference to injunctions to stay proceedings. (Fitzgerald v. Bult, 9 Hare, App. Ixv.; Lovell v. Galloway, 17 Bea. 1; Senior v. Pritchard, 16 Bea. 478; Mollett, v. Ene- quist, 4 Jur. N. 8. 1009.) Tf, however, a defendant at law had pleaded equitable pleas, to which the plaintiff had replied, and he then filed a bill for an injunction setting up the same case as his defence at law, the injunction will be refused. (Farebrother v. Welchman, 3 Drew. 122; 24L. J. Chan. 410; Protherov. Phelps, 25 L. J. Chan. 105; Terrell v. Higgs, supra.) The mere fact of an equitable defence being pleaded at law, does not pre- vent a bill being filed, at least if the true equitable question is not likely to be touched. (Evans v. Bremridge, 26 L. J. Ch. 102; 26L. T. 164; 4 W.R. 860; 2K. & J. 181; Clarke v. Lawrie, 28 L. T. 125, Exchequer.) As to proceeding in law and equity at the same time, see Boyd v. Heinzelman, 1 V. & B. 381; Hole v. Pearse, 5 Hare, 408; Williams v. Roberts, 8 Hare, 315. AS INJUNCTION STAYING PROCEEDINGS AT LAW. 121 (ORDER XXVII.] to restraining plaintiff where he proceeds at law and in equity at the same ti (Wedderburn v. Wedderburn, 2 Beav. 208.) A party case a the same time file a bill for specific performance and bring an action for use and occupation; (Carrick v. Young, 4 Madd. 487; Ambrose y. Nott, 2 Hare, 649;) or an action for damages for breach of contract. (Prothero v. Phelps, 25 L. J. Chan. 105.) See also the cases cited supra in note as to ‘‘order to elect,” page 68 et seg. A party mispleading at law, is not entitled to seek relief in a Court of Equity, (Morrison v. McLean, 7 Grant’s Chan. Rep. 167.) And where a defendant at law filed his bill, seeking to restrain proceedings at law, and alleging as grounds for such relief, facts, which if they had been properly pleaded at law, would have afforded a good defence, the court, without enquiring into the merits, dismissed the bill. (Zbid.) Matters which are properly cognizable at common law, and which have been, or might have been the subject of cognizance in the common law court, will not be dealt with by Courts of Equity. ] _ Query, whether the Court of Chancery in this province will in any case grant an injunction to restrain an action in the Division Court. (Heward v. Harris, 5 Grant’s Ch. Rep. 226.) Has not the Division Court itself full power and jurisdiction to do (to) justice without compelling a party to resort to the Court of Chancery ? ed.) The court expects great promptitude where w party applies to stay a trial at law, and a party may by his delay deprive himself of the benefit, if any, which he might otherwise have derived from his application to the Court of Equity for relief. (M’Lure vy. Ripley, 2 M. & G. 276, note.) The court will, however, not only on a proper_case interfere to restrain trial, or execution at law; (Turner v. Wright, 1 J. & W. 290; Williams v. Roberts, 8 Hare, 815;) but even after execution, to stay money in the hands of the sheriff, or delivery of possession. (Daniell’s Ch. Pr., 3rd ed., 1220.) And so where the owner of land sold a portion thereof, and let the purchaser into possession, who made improve- ments, and afterwards agreed to sell all his improvements to his vendor; and for the purpose of ascertaining the amount to be paid referred the matter to arbitrators, who made an award, but the terms of which were not complied with, and the vendor brought an action of ejectment against the party in possession, and sought to execute his writ of possession; the court granted an injunction restraining the vendor from executing his writ. (Cook v, Smith, 4 Grant’s Ch. Rep. 441.) It must be observed that injunctions to stay proceedings at law are granted either before oz after the commencement of the action, or to stay the trial; or after ver- dict, to stay judgment; after judgment to stay execution, or proceedings under an execution ; and if execution has taken place to stay the money in the hands of the sheriff. (Eden on Injunction, 44.) Where an instrument has been obtained by fraud or undue influence, proceedings on it at law will be restrained. (Lloyd v. Clark, 6 Beav. 309.) It is essential that a plaintiff seeking to restrain an action at law should shew some grounds upon which the action can be maintained, for if he does not do so, his bill will be open to a demurrer; (Derbyshire, Staffordshire, and Warwickshire Railway Co. y. Serrell, 2 DeG. & Sm. 353;) where it was held that a bill seeking to restrain an action at law and not shewing any grounds on which the action could be sustained was demurrable; and see the cases there cited. Nor has a court of equity any jurisdiction to relieve a plaintiff against a judgment 16 122 INJUNCTION STAYING PROCEEDINGS AT LAW. (ORDER XXVII., SEO. 1.] at law whee the case in equity proceeds upon 2 ground equally available at law and inequity. (Harrison v. Nettleship, 2M. & K. 423.) This principle has been upheld in numerous decisions which have followed Harrison v. Nettleship; ex gr.; Davies v. Stainbank, 6 DeG. M. & G. 685; Thomp- son v. Derham, Thompson v. Goodman, 1 Hare, 379, 880; and especially since the Common Law Procedure Act already referred to; and see Farebrother v. Welchman cited supra, 8 Drew. 122. Neither will a court of equity restrain execution upon its own opinion of a point of law after a court of law has decided it in favour of the demand. If w party has not effectually availed himself of a defence at law, ora court of law has erroneously decided a point of pure law, it is no ground for equita- ble interference. (Simpson v. Lord Howden, 3 M. & C. 108.) A court of equity will not relieve against a mistake in pleading. In Stephenson v. Wilson, 2 Vern. 825, the defendant at law by mistake pleaded a false plea, aud the verdict went for the plaintiff, although the merits were not tried, yet equity would not relieve; and again, in Blackhall v. Combs, 2 P. W. 70, it was held that the court would not re- lieve on a matter purely of mispleading; and in Protheroe v. Forman, 2 Sw. 238, it is stated that Lord Thurlow was very tenacious of the doctrine, that a party who had had an opportunity of trial at law, and would not avail himself of it, could not come to a court of equity for relief. The court is very tender how they help a defen- dant after a trial at law in a matter where such defendant had an opportunity to defend himself Still such cases there are in which equity will relieve after a ver- dict in a matter where the defendant at law might properly have defended himself. (Protheroe v. Forman, 2 Sw. 232.) See also Field v. Beaumont, 1 Sw. 204; Hol- worthy v. Mortlock, 1 Cox, 141; Stevens v. Praed, 2 Ves. Jun. 519; Bateman vy. Willoe, 1S. & L. 201; Ware v. Horwood, 14 Ves. 31; Dunny. Cox, 11 Hare, 61; as cases where a court of equity will not relieve against a mistake in pleading, or in the conduct of a cause at law. , That a court of equity will sometimes relieve after verdict, although a defence might have been made at law, but has been omitted without any laches on the part of the defendant. is clear; see Protheroe v. Forman, cited supra; and Hankey v. Vernon. 2 Cox, 12; where an injunction was granted. In tbis case the defendant failed in proving a material fact at law, of which he afterwards obtained a discovery from the adverse party in equity. He would not bave been permitted to prove the fact, however, by any other witnesses whom he could have examined at law. Where an injunction is granted staying execution on a verdict or an award, it is on the terms of paying the amount into court. (Clarke v. Manners, 2 U.C. Jur. 4.) After a decree or an order obtained for administration which is in effect a judg- ment for the benefit of all the creditors, all proceedings at law by any of them will be restrained. The principle under which the court acts is clearly laid down in Drewry v. Thacker, 8 Sw. 541. ‘It has indeed been long settled that when tbis court bas taken into its hands the administration of assets, it will stay proceedings against them at law.” (Morrice v. The Bank of England, Ca. t., Talbot, 217; Martin v. Martin, 1 Ves. Sr. 211; Douglas v. Clay, Dick, 893 : Perry v. Phelips, 10 Ves. 40; Brooks v. Reynolds, 1 Bro. C C.,183; s.¢., Dick, 603: Clarke v. Ormonde, Jac. 128; Largan v, Bowen, 1 8. & L. 299; Rouse v. Jones, 1 Ph. 462; Vernon v. Thellusson, 1 Ph. 466; Belmore v: Belmore, 12 Ir. Eq. R. 493;) but not until a decree, or an order, has been obtained. (Rush v. Higgs, 4 Ves. 638; Teague v. Richards, 11 Sim 46.) See also Ranken v. Harwood, 5 Hare, 215; Lee v. Park, 1 Keen, 714. The creditor restrained would be entitled to his costs at law up to the time when INJUNCTION STAYING PROCEEDINGS AT LAW. 123 [ORDER XXVII., SEC. I. AND II.] he first had notice of the decree. (Dyer v. Kearsley, 2 Mer. 482n; Jackson v. Leaf, 1J. & W. 229; Vernon v. Thellusson, cited supra ;) and he can prove for such costs in addition to his debtif he discontinues his action; Goate v. Fryer, 8 Bro. C.C 22;) but he will not be entitled to the costs of the motion to restrain his proceedings. (Curre v. Bowyer, 3 Mad. 456; Powell v. Powell, 12 Ir. Eq. R. 501.) But see Jones v. Jones, 5 Sim. 678. And if the creditor proceeds he will be ordered to pay the costs of the motion to restrain his proceedings, which may be set off against the costs of his action at law to which he would be entitled, namely, such costs as he had incurred previous to his receiving notice of the decree or administration order. (Gardner v. Garrett, 20 Beay. 469.) ‘ It seems also that the court will restrain a person within its jurisdiction, from taking proceedings in courts out of its jurisdiction; as in foreign countries, the United States, and elsewhere. It interferes, not upon any pretension to control or overrule the decisions of such courts, but in persongm, on the circumstance of the party on whom the order is made being within the power of the court. See the Marquis of Breadalbane y. The Marquis of Chandos, 2M. & C. 711; Bushby v. Munday, 6 Mad. 297. (The principles upon which this case was decided will be found at page 309.) And see Lord Portarlington v. Soulby, 8 M. & K. 104, where the question as to the jurisdiction of the Court of Chancery to stay the proceedings of parties in foreign courts is very fully discussed; and Bunbury v. Bunbury, 1 Beav. 318. But see also Ostell v. Le Page, 2 DeG. M. & G. 892; Kennedy v. Cassillis, 2 Sw. 318; Carron Iron Co. v. Maclaren, 5 H. Lerd Cases, 439. As to the old practice with respect to granting injunctions to stay proceedings at law, see Daniell’s Ch. Pr., 2nd edit., 1470; Anderson y. Noble, 1 Drew, 143; and Lovell v. Galloway, 17 Beav. 3. The present practice as to granting injunctions is fully considered in Smith’s Ch. Pr,, 7th edit., 819, e¢ seg.; Daniell’s Ch. Pr., 8rd edit., 1209, 1266. The bill must pray specially the relief. (Wood v. Beadell, 3 Sim. 273.) Sec. 2.—On any motion to obtain or dissolve a special amaavits may bo a, . . . used to support injunction, affidavits may be used either to support or or contradict the 1 answer. contradict the answer. (e) (e) English act, 15 & 16 Vic., ch. 86, sec. 59. A defendant who had not submitted to be cross-examined upon his answer was not allowed to read it in opposition to @ motion for an injunction. eae vs Wheelton, 23 Bea. 397; 3 Jur. N. 8. 124; 5 W. R. 887; 28 L.T. 316). But it seems that the plaintiff cannot cross-examine the defendant on such answer unless the latter intends to use it. (Iéid.) See also Abadom vy. Abadom, 24 Bea, 243; and Rehden vy. Wesley, 26 Bea. 432. DECREES MERELY DECLARATORY. XXVIII. No suit is to be open to objection on the ground that a merely declaratory decree or order is 124 DECLARATORY DECREES.—PARTIAL DECREES. [ORDER XXVIII. AND XXIX,] Bought thereby; but the court may make a binding No suit to be ob declaration of right without granting consequential only declaratory order sought. relief. (f) (f) English act, 15 & 16 Vic., ch. 86, sec. 50. Where a declaration is asked, and also an injunction, such injunction is conse- quential relief. (Marsh v. Keith, 1 Drew & Sm. 342; 9 W. RB. 115.) It has been held (notwithstanding the cases of Fletcher v. Rogers, 10 Hare App. xiii; 1 W. R. 125; ond Wright v. King, 2 W. R. 405), that this order gave the court no power to declare futurerights, (Lady Langdale v. Briggs, 26 L. J., Ch. 27, 45; 2 Jur. N.S. 982.) See also this case as reported in 8 Sm. & G. 246; 26 L. J., Ch. 100; and see Burt v. Sturt, 1 W. R. 145; Greenwood v. Sutherland, 10 Hare, App. xii; Garlick v. Lawson, 10 Hare, App. xv.) In this latter case the court refused to make a binding declaration as to the interest of parties entitled in reversion. Reference should also be made to Gosling v. Gosling, 1 Jo. 265; 5 Jur. N. 8. 910; and to Fyfe v. Arbuthnot, 1 DeG. & J. 406; and Bell v. Cade, 10 W. RB. 38. With these authorities for reference, it seems clear that Fletcher v. Rogers, and Wright v. King, cannot now be relied upon. Nor will the court, under this order, make an order guarding against claims which may never arise. (Jackson v. Turnley, 1 Drew. 617; 22 L. J. Ch. 949; 17 Jur. 643; 1 W. R. 461; Rooke v. Lord Ken- sington, 2K. & J. 753; 25 L. J. Ch. 795; 28 L. T. 68.) The court will not make a decree declaratory of a mere legal right. (Trustees of the Birkenhead Docks v. Laird, 4 DeG. M. & G. 782, 788; 23 L. J. Ch. 457; 18 Jur. 883; Bristow v. Whitmore, 4 K. & J. 743; 7 W. R. 150; Norman yv. Johnson, 8 W. R. 800; 6 Jur. N.S. 905.) The court canvot under this order make a declaration of right, unless it is one on which the court could act, if required, by granting consequential relief. (Bristow v. Whitmore, 4 K & J. 743.) Therefore if the court could not act by granting consequential relief, if required, it will not entertain the suit. (Macklem vy. Cummings, 7 Grant, 818.) PARTIAL DECREES, XXIX. When questions arise between parties (who are some only of those) interested in the property respecting which the question arises; or where the pro- perty in question is comprised with other property in the same settlement, will, or other instrument, the court may adjudicate on the questions arising bétween such parties, without making the other parties interested in Court may decide the propert: pecting which th sti i Taper en oe property respecting which the question arises, or the parties inter- ested in property, interested under the settlement, will, or other instrument, PERSONAL REPRESENTATIVE.—DECREE. 125 [oRDER Xxx.] parties to the suit, and without requiring the whole oT under seettle trusts and purposes of the settlement, will, or instrument ony marine the to be executed under the direction of the court, and without (iret or un- der the settle- parties, or ascertaining the particulars or amount of the property touching which the question or questions have application is fraudulent, or collusive, or that for some other reason the application ought not to be entertained, ment, &c., with- terested in the taking the accounts of the trustees, or other accounting tent, parties. arisen ; (g) but when the court is of opinion that the it may refuse to make the order prayed. (g) This order only applies when some of the persons interested in the question at issue, in every point of view, are before the court. (Swallow v. Binns, 9 Hare, App. xlvii.; 17 Jur. 295.) Thus when the question was between the claims of the surviving children, and the representatives of deceased children under a settle- ment, the court refused to proceed, in the absence of any party representing the interests of the deceased children. (Jdid.) A party will not be allowed to proceed with the case under this order by striking out the names of some of the defendants, who are out of the jurisdiction and proceeding without them. (Lanham v. Pirie, 2 Jur. N. 8.1201; 26 L. J. Ch. 80.) It must be remembered that this order does not render the decree of the court binding on the absent parties as Order VI., sec. 2, rule 6 does, when notice of the decree has been served upon them. (Doody v. Hig- gins, 9 Hare, App. xxxiii.; 2 Jur. N. S. 1068.) This order enables the court to direct the administration of one or more specific trusts created by an instrument, without directing the performance of all. (Parnell y. Hingston, 3 Sm. & G. 337; Prentice v. Prentice, 10 Hare, App. xxiii.) Taken from English act, 15 & 16 Vic., ch. 86, sec. 51. DECREE MAY BE MADE IN THE ABSENCE OF A PERSONAL REPRESENTATIVE, XXX. Where, in any suit or other proceeding before the court, it is made to appear that a deceased person who was interested in the matters in question has no legal representative, the court (4) may either proceed in the absence of any person representing the estate of such deceased person, or may appoint some person (2) to re-Court may pro- ceed without any present such estate for all the purposes of the suit or personal repre, other proceedings, on such notice to such person or per- ee oe an sons, if any, as the court may think fit, either specially, been sppointed; 126 PERSONAL REPRESENTATIVE.—DECREE. 4 [ORDER xXxx.] or it may appoint or by public advertisement ; and the order so made, (k) some person to : . represent the es and any orders consequent thereon, shall bind the estate ate for the pur- * ¥ poses of the suit. of such deceased person in the same manner in every respect as if there had been a duly constituted legal personal representative of such person, and such, legal personal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the court. (A) English act, 15 & 16 Vic., ch. 86, sec. 44, This order does not apply to cases where parties have a substantial or bene- ficial interest, but applies only to cases of mere formal parties. (Sherwood v. Free- land, 6 Grant’s Ch. R. 305; 4 Upper Canada L. J. 43.) To induce the court to act under this order it is necessary first, that the interest of the deceased defendant in the matter in question in the suit should be of little consequence, and secondly that there should be a difficulty in obtaining representation to his estate. (Daniell’s Chan. Practice, 8rd edit., 1158.) Thus, it was held that a suit instituted by credi- tors under a trust deed made for their benefit, might proceed against the trustees, without a personal representative of a deceased debtor, the author of the trust, where no such representative existed and the estate was insolvent. (Chaffers v. Headlam, 9 Hare, App. xlvii.; Davies v. Boulcott, 1 Drew & Sm. 23; 8 W. R. 206; where the deceased was the grantor of an annuity, and had died insolvent, and whose execu- tors had renounced probate.) In Rogers v. Jones, 1 Sm. &G. 17; 16 Jur. 968; 1 W.R. 14; 20L T. 50; and Bessant v. Noble, 26 L. J. Ch, 286; when one of two executors, co-defendants in an administration suit, who was also a residuary legatee, but who had not proved the will or acted in the trusts thereof, died insolvent and with- out a representative, after the usual order for taking the accounts had been made, it was held that the suit might proceed as if his legal personal representative had been served. And in Band v. Randle, 2 Eq Rep. 439; 2 W. R.831; where one of the executors of the testatrix in the cause bad died intestate and insolvent, and ineffec- tual attempts had been made to obtain representation to him, the court allowed an administration suit to proceed in the absence of such representation. As @ general rule, when the next of kin expressly refuses to administer, the court, it seems, will incline to act under this order. (Haw. v. Vickers, 1 W. R., 242; Tarratt v. Lloyd, 2 Jur. N. S. 871.) In Whiteaves y. Melville, 5 W. R. 676; Davies v. Boulcott, ante, the court paid no attention to a notice calling upon him to admin- ister. As to cases where a will has been proved abroad, see Hewitson v. Todhunter, 22 L. J. Ch. 76; Sutherland v. DeVirenne, 2 Jur. N. 8. 801; Bliss v. Putnam, 29 Beavan, 20; 380 L. J. Ch. 88; 7 Jur. N.S. 12. This order, too, would apply where the claim of a deceased defendant is conse- quent on a remote possibility, (Magnay v. Davidson, 9 Hare, App. lxxxii.,) and when the interests of the deceased defendant are identical with those of the plaintiff, or with those of other parties represented; (Hewitson v. Todhunter, supra; Cox v. Taylor, 22 L. J. Ch. 910; and Long v. Storie, Kay App. xii; 23 L. J. Ch. 200;) and where the interest has been transmitted to a person who dies without perfecting “ PERSONAL REPRESENTATIVE.—DECREE, 127 (ORDER Xxx.] title; see Davies v. Boulcott, supra; Swallow v. Bintis, 9 Haro, App. xlvii.; 17 Jur. 295; and the Dean of Ely vy. Gayford or Edwards, 16 Beav. 561; 22 L, J. Ch. 629; 7 Jur. 219. But it has been held that this order does not apply, when the personal represent - ative would have active duties to perform. (Fowler v. Bayldon, 9 Hare, App. xxviii.) Nor is it said when he would represent interests adverse to the plaintiffs; (Headden y. Emmott, 22 L. T. 166;) but see also the report of Dean of Ely v. Gayford, supra; and Gibson v. Wills, 21 Beav, 620. Where the object of the suit is to administer the estate of the intestate this order will not apply; (Silver v, Stein, 1 Drew 295; Groves v. Levi or Lane, 9 Hare, App. xlvii.(); 16 Jur. 1061;) but see also Jones v. Foulkes, 10 W. R. 55; where by consent the order was made under the general jurisdiction; and see Donald vy. Bather, 16 Beav. 26. Nor will this order apply where the object is to set aside the deed executed by the intestate ; (James v. Aston, 25 L. J. Ch. 843; 2 Jur. N.S. 224;) nor when a decree is sought against a person to be represented; (Bruiton v. Birch, 22 L. J. Ch. 911;) see also Goddard v. Haslam, 1 Jur. N. S, 251; 3 W. R. 357, ; As to where a party is jointly liable; see Ashmall v. Wood, 25L. J. 28; 1 Jur, N. S. 1180; 4 W. BR. 60, 110. When the entire adverse interest is unrepresented the court will not appoint a per- son to represent that interest. (Gibson v, Wills; Headden v. Emmott; and Bruiton v. Birch ; all cited supra.) When the cause has been ordered to stand over for amendment for want of parties, by adding them or their representative, and one of them having died in the meantime without leaving one, an application to proceed in the absence of a representative of the party deceased was refused with costs. (Williams v. Page, 27 Beay. 373.) Under this order the court will not appoint a person to receive money qut of court payable to a deceased person, even though the amount be small, (Rawlins v. Mc- Mahon, 1 Drew. 225). (4) The proper person to be appointed under this order is the person who would be appointed administrator ad litem. (Dean of Ely v. Gayford, supra.) Reference may also be made to Sutherland v. DeVirenne ; Hewetson v. Todhunter; Ashmall v. Wood; all cited supra; and Hele v. Lord Bexley, 15 Beav. 840. No appointment can however be made without the consent of the person sought to be appointed. (Hill v. Bonner, 26 Beav. 372; 7 W. R. 81; The Prince of Wales, &c., Company v. Palmer, 25 Beav 605; and Vacy v. Vacy, 1 L. T. N. 8. 267.) (%) As to the form of the order to be made on an application under this order, see Hele v. Lord Bexley, supra; Whittington v. Gooding, 10 Hare App. xxix.) The application can be made ex parte, but notice should be given, before the order is drawn up, to the persons entitled to administer. (Davies v. Boulcott, supra.) The order may be and is usually made at the hearing. (Hewetson v. Todhunter, supra; and in Chaffers y. Headlam, supra, it was made on motion on notice to all parties. 128 MISJOINDER OF PLAINTIFF. ‘ foRDER XxxI.] Sdfita not to b MISJOINDER OF PLAINTIFFS, dismissed for the migcrmc te = XXXT. No suit is to be dismissed by reason only of the misjoinder (7) of persons as plaintiffs therein ; (m) but whenever it appears to the court that, notwithstand- ing the conflict of interest in the co-plaintiffs, or the want of interest in some of the plaintiffs, or the existence of some ground of defence affecting some or one of the plaintiffs, the plaintiffs, or some or one of them, are or is entitled to relief, the court may grant such relief, and may modify its decree according to the special circum- stances of the case, and for that purpose is to direct such amendments, if any, as may be necessary ; and at the hearing, before such amendments are made, may treat-any one or more of the plaintiffs as if he or they were defendant or defendants in the suit, and the re- maining or other plaintiffs was or were the only plaintiff or plaintiffs on the record; and where there is a mig- joinder of plaintiffs, and the plaintiff who has an interest has died, leaving a plaintiff on the record without any interest, the court may, at the hearing of the cause, order such an amendment of the record as may appear just, and proceed to a decision of the cause, if it shall see fit; and give such directions as to costs or otherwise, as may appear just and expedient. (1) English act, 15 & 16 Vic., ch. 86, sec. 49. As to misjoinder, see Mitford on Pleading, 5th edit. 399, 401. The rule of pleading as to misjoinder remains. But misjoinder would not be a good cause of demurrer, for the court can order the wrongly joined plaintiff to be treated asa defendant, and therefore the ground of demurrer would fail. (Drew. Eq. Pleader, 48.) (m) This order applies to a plaintiff suing on behalf of himself and others. (Cle- ments v. Bowes, 1 Drew. 684, 694; 22 L. J. Ch. 1022; 1 W. R. 442; Beeching v. Lloyd, 3 Drew. 227; Evans v. Coventry, 8 Drew. 75; on appeal, 5 DeG. M. & G. 911, 918; Stupart v. Arrowsmith, 3 Sm. & G. 176; 2 Jur. N. 8. 153.) This order is imperative. (Clements v. Bowes, supra ; and see also Barton v. Barton, 8 K. & J. 612.) Where the suit is by a plaintiff filling two characters, see Carter v. Sanders, 23 L. J. Ch. 679; and where by husband and wife, Hope v. Fox, 1 J. & H. 456; 9 W. R. 860; 7 Jur. N.S. 186. This latter case was a suit to set aside an invalid FORECLOSURE OR REDEMPTION, 129 (ORDER XXXII., SEO, I, AND II.] appointment by a married woman, under a power vested in her alone, and it was held that it should not be instituted by the husband and wife as co-plaintiffs, but by the wife suing by next friend. Refer also to the authorities cited in this case. SUITS FOR FORECLOSURE OR REDEMPTION. XXXII. (n) In any suit for the foreclosure of the Mortgagor may equity of redemption in any mortgaged property, or for donner possanilon redemption, the mortgagor may be ordered to deliver Up premises after ze possession of the mortgaged premises upon the final foreclosure or order for foreclosure, or for the dismissal of the bill, as the case may be. (n) See Orders of 29th June, 1861, which contain the following order : “DELIVERY OF POSSESSION AFTER FINAL FORECLOSURE. In any suit for foreclosure or for redemption, the mortgagor, or other person entitled to the equity of redemption, being in possession of the premises foreclosed, may be ordered to deliver up possession of the same upon or after final order of foreclosure, or for the dismissal of the bill, as the case may be.” This new order provides for an apparent omission in the Orders of 1853, by extend: ing the application of the latter ‘after final order of foreclosure.” The court had, previously to 1861, declared in Lazier v. Ranney, 6 Grant’s Chan: R. 323, 4 U. C. L. J. 48, that an application made under Order XXXII. of the Orders of 1853, after the final order of foreclosure had been made and acted upon by the plaintiff, was ‘‘ within the clear intention and spirit of the order,” and held that the plaintiff was entitled to it, together with his costs of the application. An application under these orders cannot be made ez parte. Notice of the intended motion must be served, and an order drawn up thereon which must also be properly served, and possession must be demanded. This practice was confirmed in Nevieux v. Labadie, Grant’s Cham. R. 13, where in moving to commit for a contempt in not delivering possession in obedience to an order made in pursuance of this section, it was held, per Esten, V. C., that it must be shewn that the possession was demanded. This section only applies to mortgage cases, and possession cannot be given under it, in a suit for specific performance. (Mavety v. Montgomery, Grant’s Cham. R. 21.) Sec. 2.—(0)In any suit for the foreclosure of the equity of redemption in any mortgaged property, the court, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, (p) may direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the court MAY tp foreclosure think fit to direct,(q) and, if the court so think fit, without Se neue = arn ee : the mortgaged previously determining the priorities of incumbrancers, premises, 17 1380 FORECLOSURE OR REDEMPTION. {ORDER XXXII., SEC. II.] ither “immedi- ‘V1 i : i cy ad before OF GIVING the usual or any time to redeem; (r) but if such determining the . determining He request be made by any such subsequent incumbrancer, the usual timet© oy hy the mortgagor, or by any person claiming under them respectively, the court is not to direct any such sale without the consent of the mortgagee, or the persons claiming under him, unless the party making such re- but asum must qyest deposit in court a reasonable sum of money, (s) to be deposited in : y court, unless the he fixed by the court, for the purpose of securing the mortgagee con- sent to the sale. Herformance of such terms as the court may think fit to impose. (0) English act, 15 and 16 Vic., ch. 86, sec. 8. The discretion given to the court by this section is intended to be exercised for the advantage of all parties. The court will not act under it when such a course would be an act of oppression towards the mortgagor. (Hurst v.- Hurst, 16 Bea. 875.) And see also Robert v. Price, 1 W. R. 808, and Hiorns v. Holtom, 16 Jur. 1077, as to the course the court will pursue when the mortgagor dissents. In a foreclosure suit against an infant, the court—it being clearly for his benefit—ordered an immediate sale. (Mears v. Best, 10 Hare, App. li.; Wigham v. Measor, 5 W. R. 894; Siffken v. Davis, Kay App. xxi.) And where it is considered beneficial to the interests of an infant defendant, the court will direct a sale instead of a foreclosure, without requiring ny deposit to cover the expenses of such sale. (Bank of Upper Canada v. Scott, 6 Grant’s Ch. R. 451.) The principles on which the court acts in directing a sale of a mortgaged estate are fully laid down in Hurst y. Hurst, 16 Beav. 872; Smith v. Robinson, 1 Sm. & G. 140; Laslett v. Cliffe, 2 Sm. & G. 278; Wickham v. Nicholson, 19 Beav. 38. (p) As to the manner in which the court will exercise its discretion under this section when some of the incumbrancers object, see Wickham v. Nicholson, 19 Bea. 88; Messer v. Boyle, 21 Bea. 559; Jones v. Bailey, 17 Bea, 582; Footner v. Sturgis, 5 DeG. & Sm. 736; Tuckley v. Thompson, 1 J. & H. 126; Bethune v. Caulcutt, 1 Grant’s Ch. R. 81; and where some of the parties interested are not before the court a sale cannot be decreed. (Jdid.) It was said that there can be no sale of mortgaged property, except subject to the mortgage, without the consent of the mortgagee. (Wickenden v. Rayson, 6 DeG. M. & G. 210; 25 L. J. Ch. 162; 26 L. T. 192.) But see Whitfield or Whitbread v. Roberts, 5 Jur.N.8. 118; 7 W. B. 216; 28 L. J. Ch. 234; 83 L. T. 24. And as to conduct of sale, see Hewitt v. Nanson, 28 L. J. Ch. 49; 7 W. B. 5. In Meyers v. Harrison, 1- Grant’s Ch. R. 449, it was held that a mortgagee was entitled to a decree for a sale or foreclosure at his option as against the mortgagor. (q) Where infant defendants are interested see Bank of Upper Canada v. Scott, supra. The court will not direct a sale in the first instance, but fix a day for pay- ment, and in default, direct a sale. (Smith v. Robinson, 1 Sm. & G. 140; 22 L. J. Ch. 482; Lloyd v. Whittey, 17 Jur. 754; 22 L. J. Ch. 1088.) But otherwise if all parties consent. . (Anning v. Lavers, 1 W. R: 19.) FORECLOSURE OR REDEMPTION. 131 [ORDER XXXII., SEO. 11.] (r) The usual time is six months. (Lloyd v. Whitty, supra.) Prima facie a mort- gagor is entitled to six months to pay the amount of the mortgage money; and to induce the court to exercise the discretion vested under this order in it, some spe- cial ground must be shewn, and evidence offered that the court would be acting in furtherance of justice in restricting the rights of the mortgagor, (Rigney v. Fuller, 4 Grant’s Chan. R. 198.) When a sale was manifestly for the benefit of all parties, in Staines v. Rudlin, 9 Hare, App. liii., 16 Jur. 965, the court ordered it to take place ina month; and in Wigham v. Measor, 5 W. R. 394, Marriott v. Kirkham, 10 W. R. 840, an immediate sale was ordered. The court will not, under this section, order a sale on an interlocutory application. (Wayn v. Lewis, 1 Drew. 487; 22 L. J. Ch. 1051; 1W. R. 344.) Nor will a sale be directed after a decree for foreclosure has been made, (Jbid,) even if the mort- gagee applies. (Girdlestone v. Lavender, 9 Hare, App. liii.) But see Laslett v. Cliffe, 2 Sm. & G. 278 ; where a sale was directed after a decree for foreclosure had been ob- tained, the application being at the instance of the plaintiff having the carriage of the decree. Had it been otherwise see Campbell v. Moxhay, 18 Jur. 641. (s) The amount required to be deposited is £20. The party asking the sale has 14 days from the day of hearing within which to place the deposit in court. If the’ amount be deposited within the time limited the decree for sale will go, otherwise it will be for foreclosure. See also Orders promulgated on the 29th June, 1861, as to ‘conduct of sale,” as follows: ‘* Where, upon a bill for foreclosure, a sale is asked for by a defendant, it shall be competent to the court to require as a condition that the party asking the same shall conduct the sale at his own expense, dispensing in such case with a de- posit, if the court shall think fit.” But the Order of June, 1861, does not entitle the defendant to insist upon a sale instead of a foreclosure, against the consent of the mortgagee, without paying in the usual deposit upon his undertaking the conduct of the sale. The object of the order was to enable the court to grant the defendant that indulgence, upon the consent of the plaintiff, in cases where tHe plaintiff desired to bid at the sale. (Taylor v. Walker, 8 Grant’s Ch. R. 506.) Where, at the hearing of a cause, a sale instead of a foreclosure had been asked for, and was directed by the decree, which omitted, however, to provide that in the event of the sale failing the defendant would stand foreclosed, the court, upon petition setting forth the facts, and that the attempts at sale which had been made had proved abortive, ordered the defendant to pay the amount which had been found due within one month, or, in default, foreclosure. (Goodall v. Burrows, Henderson v. Richmond, 7 Grant’s Chan. R. 449.) And where the prayer of the bill is in the alternative for either sale or foreclosure, the court will, at the instance of the plain- tiff, make a decree for sale, and in the event of a sale failing to produce sufficient to cover the claim of the plaintiff, order foreclosure. (Blachford v. Oliver, 8 Grant’s Chan. R. 391.) Where, however, a decree is sought to be changed from a sale to foreclosure, the cause must be set down to be re-heard, and notice served upon the defendant, and that, too, although the bill had been taken pro confesso, (McClelan v. Jacobs, 9 Grant’s Chan. R. 50.) The rule that a mortgagee of several estates may refuse to be redeemed in respect of one, unless redeemed on both, does not apply where a sale is asked by a prior incumbrancer. (Merritt v. Stephenson, 6 Grant, 567; 7 Grant, 22.) Where a mortgagor had conveyed the equity.of redemption to a trustee under a 132 FORECLOSURE OR REDEMPTION. (ORDER XXXII., SEO, III, IV., AND V.] marriage settlement, and the trustee asked a sale on further directions, it was held that he could only have it on the usual terms of paying in the deposit, and in default thereof a foreclosure. (Machell v. Campbell, 5 U.C. L.J.117; see also Whitfield v. Roberts, 5 Jur. N..S. 113.) Sxc. 8.—Instead of foreclosure, the bill in any such In case of sale, suit may pray a sale of the mortgaged premises, and that mortgagor may be ordered to i i pay balance or any balance of the mortgage debt which may remain due teemortsee after such sale may be paid by the mortgagor, and the same may be decreed accordingly. (¢) (t) Where the mortgagor has assigned his equity of redemption the order for the payment of the balance of the mortgage debt must be made against him and not against the assignee, and for that purpose the mortgagor must be a party to the suit. (Turnbull v. Symmonds, 6 Grant, 615 ) : Asurety ofthe SEC. 4.—When any person is surety for the payment Te maioapauot ® mortgage debt, such person may be made a party and ordered to” ’ pay any balance to any suit for the foreclosure of the equity of redemption main due after a of the mortgaged property, and the relief specified in the oe last section may be prayed against both the mortgagor and his surety, and the same may be decreed accord- ingly. (wu) ‘ (z) On a transfer of a mortgage, the mortgagee covenanted that if default were made in payment of the mortgage money, he would pay the same. Held, that this did not constitute him a surety within the meaning of this section. (Clarke v, Best, 8 Grant’s Ch. R. 7.) Where themort- SEC. 5.—When a suit has been instituted for the fore- gagee’s debt is Payabloby instal Closure of the equity of redemption in any mortgaged men ke, and pome for default 3 5 5 on. au the bil may property or default in the payment of interest, or of an ie we Pe diomissed, be- instalment of the principal, any defendant may move to pagaiens of the dismiss such bill upon paying into court the amount then terest and.costs; due for principal and interest, with costs. (v) (v) Upon default in payment by a mortgagor of any instalment of, or of interest upon mortgage money, the mortgagee has a right to call in the whole amount secured by the mortgage. (Cameron vy. McRae, Sparks v. Redhead, 8 Grant’s Ch. R. 311.) FORECLOSURE OR REDEMPTION. 133 [ORDER XXxXIv., SEO, VI.] A motion under this section can only be made before decree. As to the practice “hereunder it' has been held that when a bill is filed for the foreclosure of a mortgage payable by instalments, and the defendant moves to dismiss on payment of the in- stalmept and interest then due; the interest upon the mortgage money is only to be computed up to the day named for payment in the mortgage (the interest due on the last gale day) and not to the time of making the application. (Strachan v, Murney, 6 Grant’s Ch. R. 878; 4 U, C.L. J. 42.) It would seem to be proper practice that on producing an affidavit of tender of a sufficient sum to cover the amount due and the costs then incurred, and a certificate of the state of the cause, an order cgn be obtained to tax the plaintiff ’s costs, upon paying which, together with the amdunt due on the mortgage, into court, an order will be granted to dismiss the bill. Where default is made in payment of interest on a mortgage of leaseholds, and there is the usual proviso for redemption on payment of principal on a given day, and of interest in the meantime, although the day for payment of the principal has not arrived, the mortgagee may file a bill to foreclose, (Burrowes v, Molloy, 2 Jo. & Lat. 521.) The relief granted to a mortgagor’ under this section, will also be granted to him or his assignees on a bill filed on his or their own behalf. (Moore v, Merritt, 6 Grant, 550.) Sec. 6.—When a suit has been instituted for the pur- pose and under the circumstances specified in the lastana after the ae- section, any defendant may move to stay the proceedings sigomey noclay: in the suit, after decree, but before sale or final foreclo- dtunieseneee; © gure, upon paying into court the amount then due for principal and interest, with costs. When an application is made to stay the proceedings . : and the decree under this section, the decree may afterwards be enforced, ee by order of court, upon any subsequent default in the dent default, payment of any further instalment of the principal, or of the interest. (w) (w) After payment of what is payable upon a mortgage, pursuant to this section, it is irregular to take any further proceeding in‘the cause until another instalment falls due. (Carroll v. Hopkins, 4 Grant’s Chan. R. 431.) And where a decree of foreclosure obtained upon a mortgage payable by instalments, has been stayed upon payment of the amount actually due, and a subsequent default occurs, the proper order to make is to direct the whole sum secured to be paid by a certain day, with liberty to the defendant to pay the sum actually due, and stay proceeedings thereon. (Strachan v. Devlin, Grant’s Cham. R. 8.) Where there was a suit by a first mortgagee (in possession) against the mortgagor and numeroas other mortgagees, the court, having regard to the rights of all Parties, refused a motion by the second mortgagee, that, on payment of the plaintiff’s prin- 184 FORECLOSURE OR REDEMPTION. (ORDER XXXII., SEO. VII.] cipal, interest, and costs, the estate might be conveyed to him and all proceedings stayed ; but directed enquiries as to the priorities and incumbrances of the parties. (Paine v. Edwards, 8 Jur. N. 8. 1200; 10 W. R. 709; 6 L. T, N.S. 600.) On the application, Paynter v. Carew, Kay, App. xxxviii., was relied upon. Wh forecl, —_ i When a foreclo- Suc, 7. (z)—When the cause is heard upon an order down to be heard i j i down to bebeatd to take the bill pro confesso, in a suit for the foreclosure take the bi?" of the equity of redemption in any mortgage property, Pietuctiof orthe the plaintiff is to producewt the hearing— affidavit specified in this order,may have a decree withouta refer © (1.) The mortgage deed, and the assignments thereof, ence to the mas- ter. if any. (2.) An affidavit which is to state the amount advanced upon the security,—the amount paid, whether by receipt of rents or otherwise,—and the amount remaining due for principal and interest, distin- guishing how much for principal and how much ‘for interest. The affidavit is to state whether the mortgaged premises, or any part of them, has been in the occupation of the mortgagee or of any one under whom he claims; and, when there has been any such occupation, the affidavit is to state its nature,—the time it continued,—and the fair rentable value of the property. Upon production of such proofs and documents, the court may at once determine the amount due; and when a foreclosure is ordered, the time and place for the payment of the mortgage money may be fixed by the decree, without a reference to the master, or any further enquiry. (z) This section is in effect abrogated and repealed by the Orders of court promul- gated on the 10th day of January, 1863. It provided that when a foreclosure suit is set down to be heard, upon an order to take the bill pro confesso, (which practice in such suits is now abolished,) the plaintiff, upon production of the affidavit speci- fied in this order, might have s decree without a reference to the Master, FORECLOSURE OR REDEMPTION. 1385 (ORDER XXXII., SEC. VII.] The 4th Order of the Orders of the 10th day of January, 1863, provides as follows: ‘‘DECREES FOR REDEMPTION OR FORECLOSURE OF MORTGAGES, OR FOR SALE. IV. When the time for answering in either of the above classes of cases has elapsed, on production to the Registrar of the court, of the affidavit of the service of the bill, and upon preecipe, the plaintiff is to be entitled to such a decree as would, under the present practice, be made by the court upon a hearing of a cause, pro confesso, under an order obtained for that purpose; and on every such bill is to. be endorsed the following notice :—‘‘ Your answer is to be filed at the office of the Registrar, at Osgoode Hall, in the city of Toronto, (or when the bill is filed in an outer county, at the office of the Deputy-Registrar at —-——.) You are to answer or demur within four weeks from the service hereof, (or when the defendant is served out of the juris- diction, within the time limited by the order authorising the service.) If you fail to answer or demur within the time above limited, you are to be subject to havea decree or order made against you, forthwith thereafter; and if this notice is served upon you personally, you will not be entitled to any further notice of-the future pro- ceedings in the cause. : «‘ Nore.—This bill is filed by Messrs. A. B. & C. D., of the city of Toronto, in the county of York, solicitor, for above named plaintiff, (and when the party who files the bill is agent, add, agents of Messrs. E. F. and G. H., of , Solicitors for the above plaintiff.”) And upon bills for foreclosure or sale is to be added to such notice the following: ‘And take notice that the plaintiff claims that there is now due by you for principal money and interest, the sum of £——, and that you are liable to be charged with this sum, with subsequent interest and costs, in and by the decree to be drawn up, and that in default of payment thereof within six calendar months from the time of drawing up the decree, your interest in the property may be foreclosed (or sold) unless before the time allowed you as by this notice for answering, you file in the office above named a memorandum in writing, signed by yourself or your solicitor, to the following effect: ‘I dispute the amount claimed by the plaintiff in the cause’—in which case you will be notified of the time fixed for settling the amount due by you at least four days before the time to be so fixed.” This order is not to affect any suit now pending.” Except in cases of suits now pending, the last mentioned order entirely suspends the operation of this section of Order XXXII. of the Orders 1853. This section (7) applied to cases only where the account was taken by the court, and the amount found due for principal, interest, and costs was ascertained and em- bodied in the decree, and a time fixed for payment thereby. The practitioner availed himself of this section, where he had ascertained that a reference to the Master as to incumbrancers was unnecessary—the expense of such reference was thereby avoided— the account taken by the court at the hearing on production of an affidavit in terms of this section and the mortgage and assignments (if any) serving every pur- - pose.. Where a reference was taken, it was unnecessary to produce any such evidence to the court. Where a plaintiff in suits for foreclosure or sale asks a reference to the master to enquire as to other incumbrancers, he takes such reference at the peril of costs, if there are in reality no other incumbrancers on the estate. (Hamilton v. Howard, Burnside vy. Lund, 4 Grant’s Chan. R. 581.) Where an account had to be taken un- der this section before the decree was drawn up and the defendant (mortgagor) died before the account was taken, a motion to take the account notwithstanding the death, on the ground that the bill was pro confesso, and that the decree would bear date prior to the death, was refused. (Galbraith v. Armstrong, Grant’s Cham. Rep. 83.) 136 SUITS FOR FORECLOSURE OR. SALE. [ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858.] Where asaleis Where a sale is ordered, the judge at chambers, or ordered in a fore- I itheard . . 1 Grew an order to (He Master acting in the matter, as the case may be, is fake the py"? to give such directions as he may think right for bringing joieecuectionsin. Other incumbrancers ; and the matter is to proceed in peepee. other respects as in ordinary cases when a sale has been and the sale is to proceed in other ordered... (y) respects a3 in ordinary cases. (y) The practitioner will observe that where a decree for foreclosure is taken, the incumbrancers to be made parties are those subsequent in point of registration or otherwise to the plaintiff’s mortgage; but where the decree is for a sale, all incum- brancers, except prior mortgagees, must be brought before the court, and provision . therefor must be inserted in the decree, otherwise there would be difficulty in work- ing out the decree at the subsequent stages of the cause, as for instance in shewing a good title to a purchaser under the sale. Wheres suit for Sxc. 8.—Where a suit for the forclosure of the equity foreclosure is prought to of redemption of any mortgaged property has been ordinary way» brought to a hearing in the ordinary way, neither the be taken at. amount of the mortgage debt, nor the time and place of foreamaster, payment, are to be determined at the hearing, but the ie case is to be adjourned to chambers, or a reference to the master directed, as may be thought most conven- ient. (2) (2) With regard to the practice as to ‘suits for foreclosure or redemption,” the Orders promulgated on the 6th of February, 1858, regulate ‘the proceedings in suits Sor foreclosure or sale,” and it has been considered judicious to refer to these orders under this section. They are as follow: ‘““PROCEEDINGS IN SUITS FOR FORECLOSURE OR SALE. “In suits instituted by mortgagees or judgment creditors for sale or foreclosure, ‘“‘when all incumbrancers have not been made parties, or further enquiries are “sought, the complainant is to bring in to the Master’s office, together with the “decree, a certificate from the Registrar of the county wherein the lands lie, setting ‘forth all the registered incumbrances which affect the property in the pleadings ‘mentioned, and such other evidence as he may be advised; and upon his ex parte ‘‘application for that purpose the Master is to direct all such persons as appear to “him to have any lien, charge, or incumbrance upon the estate in question, to be ‘‘made parties to the cause. (a) (2) Subsequent incumbrancers should not be made parties by bill, but, under this SUITS FOR FORECLOSURE OR SALE. 137 [ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858. | order, be made parties in the Master’s office. If they are made parties by bill the court will not allow any costs in respect of so making them parties, The owners of the equity of redemption must be made ‘parties to the bill, and should be so made before decree. The Master has not the power to make the owners of the equity of redemption parties to the suit in his office. (Whan v. Lucas; Mur- ney v. Pringle ; y. Courtney, Grant’s Chamber R. 58.) But by the Orders of court promulgated on the 29th of June, 1861, it is provided as follows: “PARTIES INTERESTED IN THE EQUITY OF REDEMPTION MADE PARTIES IN THE MASTER'S OFFICE. In any case in which it shall appear conducive to the ends of justice, that parties interested in the equity of redemption should be allowed to be made parties in the Master’s office, by reason of the parties so interested being numerous or otherwise, it shall be competent to the court, at the hearing, or afterwards, to direct that parties so interested may be made parties in the Master’s office, upon such terms as to the court shall seem fit; such order to be only made where one or more parties inter- ested in the equity of redemption are already before the court.” Where unnecessary parties are made, final order will not be granted, until the costs of making them are deducted, and a new day appointed for payment. (Rice v. Brooks, Grant’s Chamber R. 71.) The real representatives of a subsequent incum- brancer are unnecessary parties. (Taylor v. Stead, Grant’s Chamber R. 74; Grim- shawe v. Parks, 6 U. C. L. J. 142.) Where a plaintiff in suits for foreclosure or sale asks for areference to the Master to enquire as to other incumbrancers, he takes such reference at the peril of costs, if there are in reality no other incumbrancers on the estate. (Hamilton vy. Howard; Burnside vy. Lund, 4 Grant’s Chan. R. 581.) Where a person, made a party in the Master’s office, appears and disclaims, he will not be allowed any costs, as he would effect the same object by staying away. (Hatt v. Park, 6 Grant, 553.) ~ «© When the bill is filed by a subsequent incumbrancer seeking relief against a ‘prior mortgagee, such mortgagee must be made a party previous to the hearing ‘‘of the cause. But when the plaintiff in any such cause prays a sale or foreclosure, ‘subject to a prior mortgage, such mortgagee is not to be made a party either “ originally or in the Master’s office.” “Upon the office copy of the decree to be served upon persons made parties in the “‘ Master’s office, under the provisions of this order, there must be endorsed a notice “to the effect set forth in schedule A. to these orders annexed.” (6) (b) By the Order promulgated on the 5th of October, 1859, it is provided as follows: ‘That all office copies of decrees to be served on parties, added in the Master’s office, may be certified by the Deputy-Registrar where the reference is made to.” The office copy decree must be duly authenticated by the stamp of the Registrar or Deputy-Registrar when served. (Elliott v. Helliwell; Feehan v. Hayes, Grant’s Cham. 6.) «© When a reference has been directed as to incumbrances, or to settle priorities, “jn any case provided for by this order, the Master, before he proceeds to hear and «determine, is to require an appointment to the effect set forth in schedule B. to this : 18 1388 SUITS FOR FORECLOSURE OR SALE. [ORDER xxxIL., AND ORDERS 6TH FEBRUARY; 1858,] ‘‘ order annexed, to be served upon all persons made parties before the hearing, ‘whether the bill has been taken pro confesso against such persons or not.” (c) (c) It is not necessary to serve the mortgagor with schedule B, (Baby v. Wood- bridge; Murney v. McLellan, 5 U. C. L. J. 67.) It would also seem improper to serve it on any owner or part owner of the equity of redemption, as such person could rot be foreclosed by merely failing to attend thereon, but would be entitled to the usual six months to redeem, notwithstanding such non-attendance, ‘« When any person who has been duly served with an office copy of the decree, or “with an appointment under the provisions of this order, neglects to attend at the ‘time appointed, the Master is to treat such non-attendance as a disclaimer by the ‘cparty so making default; and the claim of such party is to be thereby foreclosed, ‘unless the court order otherwise, upon application duly made for that purpose.” ‘‘ The Master’s report in the cases specified in this order, must state the names of ‘all persons who have been made parties in his office, and of those who have been ‘served with the appointment hereinbefore provided. The names of such as have ‘made default, having been duly served, must then be stated; and then the report ‘‘must go on to settle the priorities, &c., of such as have attended, and these latter ‘are to be certified as the only incumbrancers upon the estate.” (d) (@) The practice as to the payment of the mortgage money is regulated by the Orders promulgated on the 29th day of June, 1861. The Order as to ‘the payment of morigage money,” is as follows: “PAYMENT OF MORTGAGE MONEY. Where the Master is directed to appoint mortgage money to be paid at some time and place, he is to appoint the same to be paid into some bank at its head office, or at some branch or agency office of such bank, to the joint credit of the party to whom the same is made payable, and of the registrar of this court; the party to whom the same is made payable to name the bank into which he desires the same to be paid, and the Master to name the place for such payment. Where money is paid into some bank, in pursuance of such appointment aforesaid, it shall be competent to the party paying in the same, to pay the same either to the credit of the party to whom the same is made payable, or to the joint credit-of such party and the Registrar. If the same be paid to the sole credit of the party, such party shall be entitled to receive the same without the order of this court. Where default is made in the payment of money appointed under this order to be paid into any bank, the certificate of the cashier, where the same is made payable, or of other, br iines bank officer, shall be sufficient evidence of such default, Where the affidavit of the party entitled to receive the same is by the present practice requi! i affidavit shall still be necessary.” z . eee ae Another Order promulgated on the same 29th of June, 1861, regulates the pro- Srae where state of the account is changed after decree or report. This Order is as follows: : “PROCEEDING WHERE STATE OF ACCOUNT CHANGED AFTER DECREE OR REPORT. Id’ cases where, after a decree or decretal order for the sale or forecl mortgage property, the state of the account ascertained by decree, or eset ores. or by the report of the Master, shall be changed by payment of money, by receipt of SUITS FOR FORECLOSURE OR SALE. 139 [ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858.] rents and profits, by occupation rent, or otherwise, before final order for foreclosure or sale obtained, it shall be competent to the plaintiff or other party to whom the mortgage money is payable, to give notice to the party by whom the same is paya- ble, that he gives him credit for a sum certain, to be named in such notice, and that he claims that there remains due to him in respect of such mortgage money a sum certain, to be also named in such notice; and in case, upon the final order for fore- closure or sale being applied for, the judge shall think the sums named in such notice proper to be allowed and paid under the circumstances, the order for final foreclosure is tu go without further notice, unless the judge shall direct notice to be given; or it shall be competent to the party to whom the mortgage money is payable, to apply to a Judge in Chambers for a reference to a Master, or for an appointment to fix such sums respectively, and in the latter case either upon notice, or ex parte, as the judge may think fit, and the order to be made thereupon is to be served, or service thereof dispensed with, as the judge may direct. It shall be competent to the party to whom such notice may be given to apply to a Judge in Chambers for an appointment to ascertain and fix the amounts proper to be allowed and paid instead of the amounts mentioned in such notice ; or for a refer- ence to a Master for the like purpose; and in case the judge shall think a reference a Master proper, the same may be made ex parte, unless the judge shall otherwise irect.” ‘‘Where a mortgagee has proceeded at law upon his security, he shall not be “entitled to his costs in equity, unless the court, under the circumstances, shall see ‘fit to order otherwise.” (e) (e) This order is merely made for the purpose of preventing unnecessary and har- rassing proceedings against mortgagors and not for the purpose of preventing a pru- dent cr reasonable exercise by the mortgagee of his right to sue at law and in equity. So where a mortgagee brings a suit in good faith the court will not enter too nicely into the question of the necessity or propriety of the action. The main question is, whether the suit at law is in bona fide, or for the purpose of making costs. (Dallas v. Gow, Grant’s Cham. 65; 5 U. C. L. J. 280.) So where the plaintiff in equity brought an ejectment suit, for the purpose of preserving the property, he was allowed his costs in both suits. (Lbid:) SCHEDULE A: Wheréas a suit has been instituted by the within named complainant for the fore- closure (or as the case may be) of certain lands, being the west half of lot No. 19, in the second concession of the township of Toronto, (or some other sufficient descrip- tion of the property,) (2) and I have been directed to enquire whether any person other than the p'aintiff, has any charge, lien, or incumbrance upon the said estate ; and whereas it has been made to appear before me that you have some lien, charge, or incumbrance upon the said estate, and I have therefore caused you to be made a party to this suit, and appointed the day of ——— for you to appear before me, either in person or by your solicitor, to prove your claims. Now, you are hereby required to take notice: 1st. That if you wish to apply to discharge my order making you a party, or td add to or vary the within decree, you must do so within fourteen days from the ser- vice hereof; and if you fail to do so, you will be bound by the decree and the fur- ther proceedings in this cause as if you were originally made a party to the suit. 2nd. That if you fail to attend at my chambers at Osgoode Hall, in the city of 140 SUITS FOR FORECLOSURE OR SALE. [ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858.] Toronto, (or as the case be,) at the time appointed, you will be treated as disclaim- ing all interest in the property in question, and it will be disposed of in the same way as if you had no claim thereon, and your claim will be in fact foreclosed by such non-attendance. A. B., Master. Note (a).—When the decree is for the sale of the debtor’s lands generally at the suit of 2 judgment creditor, say for the sale of all the lands of (the debtor) within the county of York (or as the case may be.) SCHEDULE B. IN CHANCERY. AL Ba, ssssessse sssseseee coceessopscnsse soonen cesses soaces sonescoee LLQINLE, and CO. Diy sssreeres sessersecsen cnenee cneuenes seveaceee enevevece ove vee Defendant. Having been directed by the decree in this cause to enquire whether any person other than the plaintiff has any lien, charge, or incumbrance upon the lands in the pleadings mentioned, being the west half of lot 10, in the 2nd concession of the town- ship of York, (or some other plain description, ) I do hereby appoint day of , at my chambers at Osgoode Hall, in the city of Toronto, (or as the case may be,) to proceed with the said enquiries. And you are hereby required to take notice that if you fail to attend at the time and place appointed, you will be treated as dis- claiming all interest in the land in question, and it will be dealt with as if you had no claim thereon, and your claim will be in fact foreclosed. E. F., Master. As to right to file bill to foreclose.—A mortgagee who holds several mortgages on the same land, one of which is not due, cannot file a bill to foreclose that one with the others. (Thibodo vy. Collar, 1 Grant, 147.) A mortgagee holding several mortgages on the same property can file a separate pill on each mortgage, but the court will, in such case, exercise its discretion as to costs. (Noble v. Line, 5 U. C. L. J. 163.) The chartered banks of this province have a right to foreclose mortgages held by them as security. (B. U. C. v. Scott, 6 Grant, 451.) Where a subsequent mortgagee files a bill, and the prior mortgagee afterwards files a bill on his mortgage, the subsequent mortgagee is entitled to his costs of the first suit, incurred prior to his being made a party in the second suit. (Allan v. McDougall, 6 U. C. L. J. 64; followed in Goodhue v. Whitmore, 7 U. C. L. J. 124.) _ A person holding mortgages in trust for sale to indemnify him against loss on account of the mortgagor, is not entitled to foreclose in case of default; he is only entitled toa decree for sale, allowing the mortgagor the usual time to redeem. (Paton v. Wilkes, 8 Grant, 252.) ce ( A mortgagee cannot file a bill to foreclose before his estate has become absolute at law by default in payment. (Bonham y. Newcomb, 2 Vent. 385.) Parties to foreclosure swits.—Where » mortgagor becomes bankrupt, -his assignees (and not he) are the proper parties to a foreclosure suit. (T i - ia hGRaR ay (Torrance v. Winterbot: SUITS FOR FORECLOSURE OR SALE. 141 (ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858.] So where a mortgagee assigns all his interest to a co-mortgagee he is an unneces- sary party to a foreclosure suit by the co-mortgagee, either originally or in the Mas- ter’s office; (Russell v. Robertson, 5 U. C. L. J. 118;) and that although such mort- gagee has been in possession. (Jbid.) Where, after a mortgage being given, the equity of redemption is severed, so that different persons are entitled to redeem in respect of different parcels, these different persons must be made parties in a suit to foreclose the mortgage. (Buckley v. Wilson, 8 Grant’s Ch. R. 566.) In a suit for foreclosure or sale the surviving trustee and executrix of the mort- gagor, being also tenant for life of the property, sufficiently represents the persons interested in remainder. (Marriott vy. Kirkham, 3 Giff. 586; 8 Jur. N.S. 379; 381 L, J. Ch. 312; 10 W. R. 240; 6L.T.N.S. 17.) By a foreclosure decree on an equitable mortgage, the mortgagor was declared a trustee, and an order was made vesting the estate in the mortgagee. (Lechmere v. Clamp, 30 Bea. 218.) See also as to parties to foreclosure suits, page 20 supra. Form of decree of foreclosure.—Where there are several judgment creditors, the decree should give them successive rights of redemption although very short periods must be fixed for that purpose. (Carroll vy. Hopkins, 4 Grant, 431.) Where a foreclosure decree did not reserve a day to shew cause by an infant defen- dant, and the infant on attaining his majority applied to put in an answer and raise a fresh defence, the application was refused on the ground that on account of the frame of the decree the relief could not be obtained without a re-hearing. The decree should reserve a day to shew cause ; (Mair v. Kerr, 2 Grant, 223;) see further as to the form of a decree of foreclosure against the infant heir of the mortgagor. (Saunderson y. Caston, 1 Grant, 349.) A decree of foreclosure against the widow and devisee of a deceased mortgagor, should contain a declaration that on payment of the amount due, the widow should, if she chose, be let into dower. (Thibodo v. Collar, 1 Grant, 147.) Where a decree of foreclosure had been drawn up without inserting a direction to enquire as to incumbrances, and it appeared that there were several judgment credi- tors, the decree was allowed to be amended on the payment of costs. (Moffatt v. March, 3 Grant, 163.) Where portions of an estate under mortgage are conveyed away by the mortgagor, one day for payment of the amount will be given to all the persons interested in the equity of redemption. (Hill v. Forsyth, 7 Grant’s Ch. R. 461.) Where there were two rival claimants to the equity of redemption, and the mort- gagee was ignorant which of them was really entitled, the court directed the usual redemption by, and conveyance to, the person prima facie entitled to the equity of redemption, with a right to the other claimant at any time before the day appointed for payment to shew himself entitled. (Rumsey v. Thompson, 8 Grant, 372.) Form of decree for sale.—It is prudent to insert in a decree for a sale, that if the sale do not bring the amount due, or is abortive, that then there should be w foreclosure, otherwise the only remedy will be to sell on the usual terms for what the property will fetch by filing a petition to carry out the decree; (Goodall or Goodhill vy. Burrows, 7 Grant, 449; 6 U. C. L. J. 189;) orto obtain an order on petition that the defendant do pay the amount within one month or in default foreclosure. (Jbid, 7 Grant, 450.) Time and place for payment of, and attendance to receive mortgage money.—W here 142 SUITS FOR FORECLOSURE OR SALE. [ORDER XXXU., AND ORDERS 6TH FEBRUARY, 1858,] a mortgagee attends to receive the mortgage money, his attendance so early as to allow a reasonable time for payment of the money before the end of the time named will be sufficient. (Saunderson v. Caston, 2 Grant, 436.) So where the attor- ney of the mortgagee attended during the last fifteen minutes of the two hours appointed, the attendance was held sufficient and the final order was granted. (Mitchell v. Hayes, Grant’s Cham. 56; 5 U. C. L. J. 232.) A mortgagee cannot be compelled to receive payment before the day fixed, though the full amount of principal and interest up to that day be tendered. (Brown v. Cole, 14 Sim. 427.) The court will grant an order changing the place appointed for payment. (Jones vy. Bailey, 1 Grant, 353.) In foreclosure suits the money should be paid into a bank, (see Order 29th June, 1861, supra,) and the foregoing cases are now only of import- ance where money, other than mortgage money, is directed to be paid by decree or order at a specified time and place. Enlarging time for payment.—The time for payment of the mortgage money will be enlarged on the application of the mortgagor, if the property be ay ample security and there is a probability of his being able to pay at the end of such enlarged time. The usual terms on which the order is granted are the payment-of all arrears of interest and of costs, and the order contains a reference to a Master to compute subsequent interest and tax subsequent costs in case the parties differ. (Ford v. Steeples, 1 U. C. Jur. 1, p. 282.) In this case, the ground upon which the order was granted was that the mortgagor had effected a sale of the property for £50 more than the plaintiff’s claim, and that he expected to receive the purchase money in fall in two or three months, and the court enlarged the time for six months on the usual terms. A proper case must be shewn and the security should be ample. (Edwards v. Cunliffe, 1 Madd. 287; Ismoord v. Claypool, 1 Ch. Rep. 262; Holford y. Yate, 1 K. & J. 677; Anon, Barn. 221; Cocher v. Beirs, 1 Ch. Ca. 61; Ford v. Wastell, 6 Hare, 229.) Strong grounds need not be shewn, as the court is indulgent to mortgagors, but some reason should be assigned, otherwise the application will be refused. (Nanny y. Edwards, 4 Russ. 125.) The security should be ample. (Eyre vy. Hanson, 2 Beay. 479.) The interest and costs will be required to be paid forthwith, even in case of infants. (Coombe v. Stewart, 13 Beay. 111.) In Finch v. Shaw, 20 Beav. 555, an extension was granted pending an appeal to the House of Lords, the mortgagor being required however to pay the full amount due for principal, interest, and costs, and the costs of the application, into court; the mortgagee to receive the dividends of the money when invested on his undertaking to re-pay them should the decree be reversed. Subsequent interest is to be computed on the principal sum only; (Whatton v. Cradock, 1 Keen, 269; Brewin v. Austin, 2 Keen, 211 ;) and see further as to grant- ing extension of time and the terms on which it is granted, as to payment of interest and costs, and where default is made in such payment. (Jones v. Creswicke, 9 Sim. 804; Geldard v. Hornby, 1 Hare, 251; Eyre v. Hanson, 2 Beay. 478; Edwards v. Cunliffe, 1 Mad. 287; and see 2 Keen, 212; Ellis v. Griffiths, 7 Beav. 83.) The order will, in all cases, proceed to foreclose the mortgagor upon non-payment at the appointed time of the sum, upon the conditional payment of which the order SUITS FOR FORECLOSURE OR SALE. 143 [ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858.] is made, (Edwards v. Cunliffe, 1 Mad. 287; Eyre v. Hanson, 2 Bea. 478;) and if the condition be not complied with, the order of foreclosure absolute may be made as of course, and its discharge has been refused with costs; (Jones v. Roberts, McClel. & Y. 567 ;) thought it was sworn to have been obtained by surprise and pending a treaty between the parties. But the order has been discharged, if the mortgagee, by his own act, (as by receiving rent,) vary the amount due between the date of the order, enlarging the time, or the Master’s report made thereon, and of the order absolute. (Ismoord v. Claypool, 9 Sim. 317, note ; Nanfan v. Perkins, 9 Sim. 808, note ; Cromp- ton v. Earl of Effingham, 9 Sim. 311, note; Jones v. Creswicke, 9 Sim. 304; Ford v. Wastell, 6 Hare, 229; 2 Ph. 591; Lee v. Heath, 9 Sim. 306, note ) In opposing a motion to enlarge the time for payment of mortgage money found due by the Master’s report, the mortgagee swore tbat in consequence of non-payment by the mortgagor, he had been obliged to raise money to meet liabilities of his own at a rate much beyond the rate payable under the mortgage; on granting the exten- sion, the mortgagor was required to pay such a sum, in addition to the rate reserved by the mortgage, as would cover the interest payable by the mortgagee. (Howard vy. Macara, Grant’s Cham. R. 27; and see also Smith v. Heron, Grant’s Cham. R. 28.) An affidavit of the defendants’ solicitor, stating his belief that the defendants had exerted themselves and were still endeavouring to raise the money, and that the pro- perty was worth much more than the debt, was held insufficient on which to obtain the order to enlarge the time. (Anon, 4 Grant, 61.) The application for enlargement must be made in Chambers. (Jdid.) Final order, foreclosure.—A mortgagee will not be entitled to a final order of fore- closure against the mortgagor or a subsequent mortgagee, unless he be in a position to reconvey the legal estate unincumbered. (Ross vy. Thompson, 2 Grant, 624.) Where a decree of foreclosure was erroneous, the final order was refused on default in payment at the time appointed. (Commercial Bank v. Grabam, 4 Grant, 419.) In a suit to foreclose a mortgage given to partners to secure a partnership debt a final order was granted though one of the co-partners had not executed the power of attorney to receive the mortgage money, or made any affidavit of non-payment, such co-partner being resident out of the jurisdiction and never having interfered with the mortgage transaction. (Counter v. Wylde, 1 Grant, 538.) Where, however, the plaintiff and defendant were both resident out of the jurisdiction in Great Britain, it was held that an affidavit of non-payment by the agent only was insufficient, as under such circumstances it was thought quite likely the defendant might have paid the plaintiff without the agent knowing any thing about it, (McKechnie v. Mc- Kechnie, Grant’s Cham. 42.) In a suitof foreclosure by the executor and devisees of a deceased mortgagee, where the executor alone had attended at the time and place appointed, and it did not appear that the debts of the estate had been paid, the attendance was held sufficient and final order granted. (Evans v. Parker, 2 Grant, 555.) Where the mortgagee had become bankrupt, and he and his assignees filed a pill to foreclose, the final order was granted though one of the assignees, on account of bis absence from the country, had not executed the power of attorney or made an affidavit of non-payment. (Lyman v. Kirkpatrick, 2 Grant, 625.) Where the day appointed fell upon a Sunday, the final order was refused, though attendance had been made on the Saturday and Monday preceding and following. (Holcumb v. Leach, 3 Grant, 449.) Where a mortgagor sought to set aside a final order of foreclosure on the grourtd that mesne incumbrancers had not been made parties, an application made by him for that purpose seven months after the date of the final order, was refused, as the 144 SUITS FOR FORECLOSURE OR SALE. [ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858.] objection could and ought to have been madeat the hearing, or in the Master’s office. (Cameron y. Lynes, Grant’s Cham. 42.) Where after default in payment at the time and place appointed, the mortgagee receives any thing on account, the default is thereby waived and a final order will not be granted until a new account be taken and new day appointed. Where, however, after default, the mortgagee merely enters into possession, it would seem that the default would not be waived, at any rate if the occupation rent be shewn to be less than the amount of interest accrued since the day appointed, s0 that the account would notbe changed, (Greenshields v. Blackwood, Grant’s Cham. 61.) The local agents of the Bank of British North America cannot grant powers of attorney to third parties to receive money ordered to be paid to the bank in a fore- closure suit. (B. B. N. A. v. Rattenbury, Grant’s Cham. 65.) Where a defendant in a foreclosure suit was served with the Master’s first warrant and absconded, and the subsequent warrants had been left at his place of residence within the jurisdiction, the final order was allowed to go on default in payment. (White v. Courtney, Grant’s Cham. 66.) If wife and husband join in a mortgage of the wife’s property a decree and final order of foreclosure against both will foreclose the wife. (Mallack v. Galton, 3 P. W. 352.) : Ina foreclosure suit against puisne mortgagees and the mortgagor, an order must be made foreclosing the former absolutely, before proceeding to foreclose the mort- gagor. - (Whitbread v. Lyall, 3 Sm. & G.; 20 Jur. 671; 27 L. T. 278.) Final order for sale-—On moving for final order for sale, it is sufficient to shew that default was made in payment of the plaintiff’s claim, and it need not be shewn that default was also made in payment of the claims of incumbrancers. (Irvine v. Whitehead, Grant’s Cham. 10.) Opening foreclosure.—A final order of foreclosure absolute drawn up and entered was set aside at the instance of a purchaser of the equity of redemption who had acquired his interest after the institution of the suit to foreclose, but who had no actual notice of the suit till some time after the final order was granted. (Hilliard v. Campbell, 7 Grant, 96.) A foreclosure decree cannot be opened at the euit of a plaintiff, who admits part - the decree and impeaches the rest. (Patch v. Ward, 11 W. R. 185; 7 L.T.N.S. 13.) The court will, in some cases, open the foreclosure even after the final order has been signed and enrolled. (Thornhill v. Manning, 1 Sim. N. S. 451.) See also Burgh v. Langton, 5 Bro. P. C. 213, Toml. Edit. ; 2 Eq. Ca. Ab. 609; 15 Vin. Abr. 476, Pl. 2; where foreclosure was opened under peculiar circumstances after the mortgagee had been in possession for sixteen years. If the mortgagee, after final order, proceed at law on the covenant, or on some collateral security, as a bond or promissory note, he thereby opens the foreclosure. (Dashwood v. Blythway, 1 Eq. Ca. Ab. 817; 15 Vin. Abr. 477, Pl. 3.) “If the decree of foreclosure has been obtained by fraud or collusion, the court will open the foreclosure. (Loyd v. Mansell, 2 P. W’ms. 78; Gore v. Stacpoole, 1 Dow, 18; Harvey v. Tebbutt, 1 J. & W. 197.) SUITS FOR FORECLOSURE OR SALE. 145 (ORDER XXXII., AND ORDERS 6TH FEBRUARY, 1858.] But the court will not, for an error in a matter of form, open foreclosure after long possession, (Jones v. Kenrick, 5 Bro. P. C. 244, Toml. Ed.,) especially if the property has been improved or altered, or has been dealt with. (Tooke v. Bishop of Ely, and Lant v. Crispe, 5 Bro. P. C. Toml. Ed. 181, 200.) The foreclosure may also be opened by the act of the mortgagee (Cook v. Sadler, 2 Vern. 235) if he sue the mortgagor on his covenant or bond, where the estate proves insufficient to satisfy the mortgage debt. The mortgagee has a general right to enforce all his remedies at the same time. If he proceeds by foreclosure first, and then finding his estate insufficient to satisfy the debt, he proceeds to sue at law on his covenant, he can only do so by opening the foreclosure and giving a new right of redemption to the mortgagor. If, however, he proceeds at law upon his covenant first, and obtains part payment of his debt, he may still foreclose for the residue. The principle is, that if the mortgagee takes his legal remedy first, the mortgagor retains his*right to redeem, and the mortgagee electing to take the estate first, cannot be allowed to get both it and the debt. There is authority for the proposition that if an incumbrancer, seeking to open a foreclosure and to redeem, on the ground that he was not a party to the suit, be in an obscure station and his means doubtful, he will be ordered to give security for costs in case he do not redeem, (Bird v. Gandy, 7 Vin. Abr. 45, Pl. 20; Stevens v. Williams, 1 Sim. N. 8. 545.) Power of sale.—The judgment creditors of a mortgagee have such an interest in the due exercise of a power of sale, that equity will grant them relief against such mortgagee exercising it to their disadvantage ; (Commercial Bank v. Watson, 5 U. C. L. J. 168;) and query, whether the power can be exercised at all without their concurrence. (Jbid.) Pending an appeal to the Court of Error and Appeal, in @ suit to set aside a mort” gage, a mortgagee was enjoined from exercising a power of sale contained in the mortgage; (Commercial Bank y. Bank of Upper Canada, Grant’s Cham. 64;) and from preceedings to ale, under a decree for sale on a mortgage. (Bank of Upper Canada v. Pottroff, 8 U. C. L. J. 382.) Redemption suits—A suit for redemption which fails, cannot, under the prayer for general relief, be turned into a suit for an account. (Patch v. Ward, 11 W. R. 185; 7L. T. N.S. 413.) After a foreclosure decree absolute a mortgagor will not be allowed to redeem, although he alleges the decree was obtained by fraud; he must seek t8 have it set aside. (Patch v. Ward, 11 W. R. 185.) REFERENCES TO THE MASTER, XXXIII. In all cases where according to the present ; ‘ Matters whicl practice, a reference to the master would be directed wena be referred the court may dispose of such matters itself, if it think Serthepresent” fit, and may direct the proceedings to be taken in full Ieuan oy court, or at chambers, as it may find expedient. (f) ee The plaintiff has, prima facie, aright to have the reference directed to the Ae resident in the county wherein the bill is filed. (Macara v. Gwynne, 3 Grant’s Chan. R. 310.) 19 146 JUDGES’ CHAMBERS.——PROCEDURE. [ORDER XXXIV., SEC. 1.] and the court Suc. 2.—The court may obtain the assistance of assivtance of 2° accountants, merchants, engineers, actuaries, or other scientific persons, in such way as it may think fit, the better to enable it to determine any matter in evidence in any cause or proceeding, and may act on the certifi- cate of such persons. (g) (g) English act, 15 & 16 Vic., ch. 80, sec. 42. As to the effect of the powers given by this section in extending the jurisdictfon of equity, see M’Intosh v. The Great Western Railway Company, 3 Sm. & G. 146; Mildmay v. Methuen, 1 Drew, 216; 22 L. J. Ch. 2973 16 Jur. 965. As to the employment of accountants, (Re London Birmingham and Bucks Railway Company, 6 W. R. 141.) They need not always be employed in. the presence of the parties. (Zbid). As to the employment of scientific persons to testi documents, believed to have been forged, see Groves v. Groves, Kay App. xix; 23: L. J..Ch..199:; 2 W. R. 86.. JUDGES’ CHAMBERS.—BUSINESS TO BE DESPATCHED. THERE, AND MODE OF PROCEDURE. XXXIV. In future one of the judges of the court One of the judges will sit daily at chambers for the despatch. of the follow- to sit daily in chambers for theing business, and of such other matters as the court despatch of busi- news. from time to time shall think may be more conveniently disposed of in chambers than in full court, viz.: (2) (h) English act, 15 & 16 Vic., ch. 80, sec. 11. Sub-sections 2, 4, 5, 7, 8, 9, 10, of this Order, are contained. in English act, 15. & 16 Vic., ch. 80, sec, 26, ; (1.) For the sale of the estates of infants, under statute 12 Victoria, chapter 72. (2.) As to the guardianship, maintenance and advance- ment of infants. (2) (i) The proceedings may originate in chambers. (Smith’s Ch. P. 558.) Evi- ieee be produced as to the age, fortune or property, and relations of the. ‘ant. (3.) For the administration of estates under Order XV. JUDGES’ CHAMBERS.—PROCEDURE, 147 [ORDER XXXIV., SEC. I. AND 11.] (4.) For time to answer or demur. (5.) For leave to amend bills. (6.) For changing the venue. (7.) To postpone the examination of witnesses, or to allow the production of further evidence. (8.) For the production of documents. (f) () See Sergison v. Livingstone, 17 Jur. 83; 1 W. R.109. English act, 15 & 16 Vic., ch. 86, sec 18, and notes, under the title ‘production of documents.” In cases of great difficulty the consideration of the case has been adjourned into court. (Thompson v. Teuton, 9 Hare, App. xlix.) (9.) Relating to the conduct of suits or matters. g (2) The question who is to have the conduct of the proceedings will be deter= mined in chambers, as well when they are carried on in two suits asin one. (Stone v. Van Heythuysen, 18 Jur. 344.) (10.) As to matters connected with the management of property. Src. 2.—A judge sitting at chambers may exercise A judge sitting the same power and jurisdiction, in respect of the busi-have the same” power as to mat- ness brought before him, as is exercised by the court ;(m) ter brought be : fore him as the all orders made by a judge at chambers are to have the court force and effect of orders of the court;(m) and all or any of the powers, authorities, and jurisdictions, given to the master of the court by any act or acts now in force, or by any general order or orders of the court, may be exercised by the judge sitting at chambers. (0) (m) English act, 15 & 16 Vic., ch.-80, sec, 18—-Morgan’s Chancery Acts and Orders, 8rd edit., p. 140. (n) English act, 15 & 16 Vic., ch. 80, sec. 15, Morgan, tid, 141. (0) English act, 15 & 16 Vic., ch. 80, sec. 86. English Order (consolidated) No. +» Bule 61, 148 JUDGES’ CHAMBERS.—PROCEDURE. (oRDER XXXIV., SEO, IIJ., AND IV.] In Moffatt y. Ruddle, 4 Grant, 44, the court held, that whatever applications could under this order be made in chambers must be so made. And Jn re Stuart, 4 Grant, 44; a judge sitting in chambers granted an application de lunatico inqutrendo, it being held that this order gave to a judge in chambers authority to act in such a matter. And also see Jn re Paton, 4 Grant, 147; where it was held that under this order a judge in chambers was authorised to grant a writ of habeas corpus. The court refused to hear otherwise than in chambers a motion to enlarge the time appointed for payment of mortgage money. (Anon., 4 Grant, 61.) It would seem that an order which would in reality amount to a decree in the cause will not be granted in chambers even on consent, but must be obtained in court. (Craig v. Craig, Grant’s Cham. 41.) Src. 3.—The court may adjourn for consideration in ane mey ,. chambers any matter which in the opinion’of the court ter to chambers} may be disposed of more conveniently in chambers; and any judge sitting in chambers may direct any matter to and the Judge ®t he heard in open court which he may think ought to be Soe nteourt,80 heard ;(p) and such matter is to be adjourned at the request of either party, subject to such order as to costs or otherwise as the court may think it right to impose. (p) English act, 15 & 16 Vic., ch. 80, secs. 27 and 37. As to costs see Wallis vy. Bastard, 17 Jur. 1107; 2 W. R. 47; Leeds v. Lewis, 3 Jur. N. 8. 1290; Dicken v. Hamer, 2 L. T. N.S. 276; Hatch v. Searles, 2Sm. & G. 147; Yeomans v. Haynes, 24 Bea. 127; Lister v. Bell, 5 Jur, N.S. 115; 28 L. J. Ne d aoe y. Henderson, 4 Jur. N. 8. 202; and Re Fellows’ settlement, 2 Jur. As to the practice in an adjournment from Chambers; see Saunders v. Walter, 9 Hare, App. v.; 22 L. J. Ch. 11; 16 Jur. 1008. i a order is varied by the Orders promulgated on the 28th day of April, 1862, as ollows: “APPEALS FROM ORDERS MADE IN CHAMBERS. One judge will sit daily in each week for the dispatch of business in chambers. Matters adjourned from chambers under section third of order thirty-four of the General Orders of the 38rd day of June, 1853, and applications in the nature of re-hearings to discharge or vary orders made in chambers, are to be heard in full court on the last Wednesday of every month, except during examination terms.” Sc. 4.—The course of proceeding in chambers is ordi- The course of oe a narily to be the same as the course of proceeding in chambers to bi si : : . ordinarily the court upon motion. (7) When an application is made to same as the 7 7 courseofproceed-® judge at chambers, where, according to the present ings urt, . . ment’ practice, a motion would have been made to the court, JUDGES’ CHAMBERS.—PROCEDURE. 149 [ORDER XXXIV., SEC. IV. AND v.] mae Ts yt Notice of th ice of the application (where the proceeding is not Notice of the ap ex parte) is to be served on the opposite party, inthe Sete Bre Same manner as notice of the motion would have been. % ™ton: In other cases, an appointment is to be obtained from anaim other the presiding judge, which may be in a form similar to suey 37 S7cint the form set forth in schedule M. hereunder written, Pas with such variations as the circumstances of the case may require. (r) x (g) See English Consolidared Orders No. XXXV. » Rule 26. (r) Schedule M. is as follows: SCHEDULE M. FORM OF APPOINTMENT. IN CHANCERY. A. aL Plaintiff, an C. D.,--+ Defendant. Thereby appoint the—————day of ——_——to proceed, (here state the nature of the business for which the appointment is made,) when all parties are to attend at chambers in Osgoode Hall, in the city of Toronto, at the hour of noon. (To be signed by judge.) Note. If you do not attend either in person, or by your solicitor, at the time and place above mentioned, such order will be made and proceedings taken in your absence, as the judge may think just and expedient. G. H., solicitor for—— No state of facts, charges, or discharges, are to be brought in. But, when directed, copies, abstracts, or extracts of or from accounts, deeds, or other documents, f° state of tacts, are to be supplied for the use of the judge. But no co- brought into pies of deeds or documents are to be made, where the originals can be brought in, without special directions. (s) (s) The same provision made as to Master’s Office, (Order XLIL, sec. 5.) See English Consolidated Orders, No, XXXV., Rule 26. Sec. 5.—When it appears to the judge, upon the hearing of any matter, that, by reason of absence, or for any other sufficient cause, the service of notice of the 150 JUDGES’ CHAMBERS. —PROCEDURE. (ORDER XXXIV., SEO, VI.] ‘Bervice of notice anplicati i t be mad Service of notie?application, or of the appointment, cannot be e, or an eppointment, ought to be dispensed with, the judge, if he think fit, may Pith upon a suf wholly dispense with such service, or may, in his discre- tion, order any substituted service ; or notice by adver- tisement, or otherwise, in lieu of such service (¢). (#) English Consolidated Orders, No. XXXV., Rule 18. Sec. 6.—When, in the prosecution of any proceeding Now parties may under a decree, it appears to the judge at chambers that chambers; = some persons, not already parties, ought to be made parties, and ought to attend, or be enabled to attend the and upon service proceedings before him, he may direct an office copy of if ffi om of the decree the decree to be served upon such parties, and upon due they are to be . bound as if they Service thereof such persons are to be treated and named ad been ies : . orginally. a8 parties to the suit, and shall be bound by the decree in the same manner as if they had been originally made parties to the suit. The office copy of i ; The offic copy of Elvery office copy of a decree directed to be served beendoredin ynder this section is to be endorsed with a notice to the the manner set forth in schedule effect set forth in schedule N. to these orders, with such variations as circumstances may require. (w) (u) Schedule N. is as follows: SCHEDULE N. NOTICE TO BE ENDORSED ON AN OFFICE COPY OF A DECREE UNDER ORDER XXXIV., SECTION 6. To Mr.—_———~—-——-the person upon whom service has been directed. 5 (Set out the order.) . If you wish to apply to discharge the foregoing order, or to add to or vary the decree, you must do so within fourteen days from the service hereof. (When the order fixes a time for the further proceedings, add) And if you fail to attend at the time and place appointed, either in person or by your solicitor, such order will be made and proceedings taken in your absence, as the judge may think just and expe- dient; and you will be bound by the decree and the further proceedings in the cause in the same manner as if you had been originally made a party to the suit without any further notice. - oe : JUDGES’ CHAMBERS.—TAKING ACCOUNTS. 151. [ORDER XXXIV., SEC. VII., AND ORDER XXXV., SEC. I] Src. 7.—Any party served with an office copy of a A,party served with an office decree under th i i fad er the preceding section may apply to GHG Ser ot cere court, at any time within fourteen days from the date of aeue oe onde such service, to discharge the order, or to add to or 17 Chas the decree. (v) (v) See English Consolidated Order, No. XXIII., Rule 18. Directions as to the persons to be served may be obtained in Chambers, - Balinhard v. Bullock, 9 Hare, App. xiii.) The rule as to serving parties with ates of the decree applies to infants. (Clarke v. Clarke, 20 L. J. 88; 1 W. RB. 48 ;) and to parties out of the jurisdiction. (Chalmers y. Laurie, 10 Hare, App. xxvii.; 1W. R ae an a this section, and its application, see also Maybery v. Brooking, 7 De. TAKING ACCOUNTS, XXXV. When an account is taken at chambers the_ . The judge at residing judge may give such special di i i chambe' p g judg yg pecial direction, if any, Sieber may. as he may think fit, with respect to the mode in which to the manner in 18 BC. the account is to be taken or vouched; and, in cases where Sogn isonet te ed an he shall think fit so to do, he may direct that in taking voucheds the account the books of account in which the accounts required to be taken have been kept, or any of them, ona maydinect shall be taken as primd facie evidence of the truth of at books of ao the matters therein contained, with liberty to the parties he". Prime interested to take such objections thereto as they may be advised. (w) (w) See English act, 15 & 16 Vic. ch. 81, sec. 54. As to special directions for taking the accounts, see Millar v. Craig, 6 Beay. 443 ; Allfrey y. Allfrey, 10 Beav. 353. As to vouching the account, see Lodge v. Prichard, 3 DeG. M. & G. 906; Ewart vy. Williams, 7 DeG. M. & G. 68, 74, 75. As to production of books, see Ogden v. Battams, 1 Jur. N.S. 791; Sleight v. Lawson, 3 K. & J. 292; Stainton v. Carron Company, 24 Beay. 346; Newberry v. Benson, 23 L. J. Ch. 1003; 2 W. R. 648. When a decree for an account had been made against a mortgagee in possession, without directing annual rests, the court has no power under this section to.add to the decree by directing it to be taken with annual rests. (Nelson v. Booth, 8 DeG.. & J.119; 27 L. J. Ch. 782; 6 W. BR. 845.) 152 TAKING ACCOUNTS.—SALES ; CONDUCT OF. [ORDER XXXV., SEO, II, AND III., AND ORDER XXXVI., SEC. 1] See English Order, No. XXXV., Rule 19, and Partington v. Reynolds, 4 Drew, 253 Delavante v. Child, 6 Jur. N. S. 118; Mutter v. Hudson, 2 Jur. N.S. 84. In Lodge v. Prichard, 3 DeG@. M. & G. 906; before the court below, 1 Sm, & G. App. viii.; it seems to have been thought that this section was not retrospective ; but in a recent case of Ewart v. Williams, 7 DeG. M. & G.68; 24 L. J. Ch. 414, it was held that it empowered the court to give special directions as to the mode of taking an account, which, though not yet taken, had been directed by an old decree to be taken. Special directions under this section may be determined by the judge in Chambers. (Attorney-General v. Attwood, 9 Hare, App. lvi.; 1 W.R. 64; Newberry - y. Benson, 23 L. J., Ch. 1008; 2 W. R. 648.) Sxc. 2.—An accounting party is to bring in his ac- An accovntpe count in the form of debtor and creditor, and verify the in his account in same by affidavit, unless the judge shall otherwise direct. the form of debtor and creo The items on each side of the account are to be numbered ony consecutively, and the account is to be referred to by the affidavit as an exhibit, and not to be annexed thereto, and is to be left at judges’ chambers. Andany person §pc, 3.—Any party seeking to charge any account- desiring to counting party beyond what he to haye received, is to give notice thereof to the account- to state the amount sought nad the rarticu- S0Ught to be charged, and the particulars thereof, in a lars, as far as he chargeanac, ing party beyond what he has by his account admitted has admitted is : 3 ing party, stating, as far as he is able, the amount to be charged, may beable, Short and succinct manner. (z) (x) Sees. 2, 8, of this order, are taken from English Orders XXIX. and XXX., 16th of October, 1852, now consolidated as Order No. XXXV., Rules Nos. 33 & 34. Where an accounting party brings in his accounts and the other side is dissatisfied with them, the latter may examine the accounting party viva voce ; but he must give notice of the points on which he wishes to examine. (Wormsley v. Sturt, 22 Bea. 898.) The accounting party may be ordered to produce documents. (Jdid.) SALES. XXXVI.—Sales under the decree or order of this court are to be conducted in the following manner :—(y) (y) _The conduct of the sale is ordinarily entrusted to the plaintiff ; (Knott v. Cot- tee, 27 Bea, 33;) even though he would not have been entitled thereto according to the contract if performed without suit. (Dale v. Hamilton, 10-Hare, App. vii.) When, however, it appears to be for the benefit of all parties it may be given to a SALES; ADVERTISEMENT. 153 {ORDER XXXVI., SEC. I., IL, IIL, AND IV.] defendant, (Knott v. Cottee, supra,) and every party to the suit having the title deeds is bound to facilitate the sale. (Jbid.) Generally the first mortgagee has the conduct thereof. (Hewitt v. Nanson, 28 L, J. Ch. 49.) (1.) No copy of the decree, or order, or any part thereof, is to be brought into the judge’s chambers copy of decree. or master’s office, but the original decree or order is to be used, unless the judge or master requires such copy. 2.) An appointment or warrant is to be obtained from Appointment or PP warrant. the judge or master, and served upon all necessary parties. (8.) At the time appointed thereby the party having the conduct of the sale is to bring into the judge’s 44vettisement. chambers or master’s office a draft advertisement, but no particulars or conditions of sale, or any draft or copy thereof. (z) (z) The particulars of the advertisement must be verified by affidavit, and the pro- priety of effecting the sale in the manner, or at the place mentioned in the advertise- ment should appear, and if any particular auctioneer is desired by the party having the conduct of the sale, or by any other party appearing on the settling of the adver- tisement, an affidavit must be produced, shewing the proposed auctioneer to be a fit and proper person to conduct the sale. Where an estate was sold under the decree of the court, and in the conditions of sale it was stated erroneously that the property was subject to dower, when in reality the dower attached to the equity of redemption only, in consequence of which the property brought a much less sum than it otherwise would, a re-sale was ordered on the application of the executors of a party who had been surety to the creditor, at whose instance the sale was had, and under the circumstances the costs of the appli- cation were ordered to be charged upon the estate. (Jones v. Clarke, 1 Grant’s Chan. B. 368.) (4.) Such draft advertisement is to contain the fol- lowing particulars, viz. :—Ist. The style of cause. 2nd. That the sale is in pursuance of the order or decree of this court. 3rd. The time and place of sale. 4th. A short and true description of the pro- perty to be sold. 5th. The manner in which the 20 154 SALES $’ ADVERTISEMENT. i (ORDER XXXVI., SEC. V, AND VI.] Its contents. property is to be sold, whether in one lot or several, and if in several in how many, and what lots. 6th. What proportion of the purchase money is to be paid down by way of deposit, and at what time or times, and whether with or without interest, the re- sidue of such purchase money is to be paid. 7th. Any particular or paticulars in which the proposed conditions of sale differ from the standing con- ditions. Attendance on = (5,) At the time named in such appointment or war- appointment or ‘ . . warrant. rant, the judge or master is, in the presence of all parties served, or of such of them as attend to settle such advertisement, to fix the time and place of sale; to name an auctioneer, where one is to be employed; and to make every other neces- sary arrangement preparatory to the sale, so that nothing may remain to be done but to insert the advertisement; and all the before mentioned mat- ters must be done at one meeting, namely, upon the return of the appointment or warrant, where itis practicable, and no adjournment of such meet- ing is to take place, and no new meeting is to be appointed for the aforesaid purposes, unless it be unavoidable. (a) (a) In infancy matters under 12 Vic., ch. 72, the advertisement is settled by a judge in chambers, on an ex parte application. (6.) The advertisement is to be inserted by the party conducting the sale, at such times and in such manner as the judge or master has appointed at the meeting before mentioned. Insertion of ad- vertisement, (7.) The judge or master may fix an upset price or reserved bidding, where it is thought expedient, seri urea without further order; but this must be done at SALES ; BIDDINGS, 155 [ORDER XXXVI,, SEC, VII] the meeting before mentioned, and it must be eee a sanauet notified in the conditions of sale; the master or his clerk is to conduct the sale where no auctioneer is employed; the deposit is to be paid to the vendor, if present, or if not, to his solicitor, at °° the time of sale, and is to be forthwith paid by him into court: biddings need not be in writing, Biaainge. and all parties, except the one having the conduct of the sale, may bid thereat, provided it be noti- fied in the conditions of sale ; a written agreement is to be signed by the purchaser at the time of sale ;(6) after the sale is concluded the auctioneer, where one is employed, is to make the usual affidavit according to the present practice, and where no auctioneer is employed the master or his clerk is to certify to the court to the same effect, but the master is to make no report allow- ing the purchaser in any case. Agreement. (2) This conflicts with the Order of 22nd February, 1862, which directs the con- tract to be printed. Before the passing of this order the court would allow a reserved bid by the plain- tiff and defendant if all parties consented. (Phillips v. Conger, 1 U.C. Jur. 2, page 231.) Where the plaintiff omitted to ask for a reserved bid on the settlement of the advertisement, and the advertisement was issued, liberty was given in chambers to have a reserved bid, and the advertisement and conditions of sale altered accord- ingly. (Frazer vy. Bens, Grant’s Cham. 71.) If reserved biddings are fixed, they must be made one of the conditions of sale. If it is considered desirable to have reserved biddings fixed, a valuntion of the property should be made, and an affidavit filed with the Master setting forth the estimated value and the sum at which the estate ought to be sold. The Master, with such evidence before him, fixes the reserved biddings, which he commits to writing, and encloses under a sealed cover and delivers to the person appointed to sell the property. The affidavit for the purpose of enabling the Master to fix a reserved bid should clearly state, as near as circumstances will admit, the value of the property by reference to an exhibit containing such value, so that the value may not be dis- closed by the affidavit when filed. The reserved biddings must not be opened until the time of the sale, and should Lot be divulged to any person, either at, or at any time after the sale. Where pro- perty, however, was (in consequence of there being no bidding equal to the price 156 SALES$ BIDDINGS; CONTRACT. (ORDER XXXVI., SEO, VII., VIII., AND IX.] reserved) declared not sold, and the price reserved was afterwards disclosed to a person present who agreed to purchase the estate at the reserved price, the court held that he could not repudiate his purchase. (Else v. Barnard, 6 Jur. N.8. 621.) Leave was given to the plaintiff to bid at the sale without taking from him the carriage of the decree, where he was the first incumbrancer, and the property clearly insufficient to pay his demand. (Steele v. Devonport, 11 Ir. Eq. R. 389.) A mortgagee having bid at the sale of the mortgaged property, and become the purchaser without having obtained an order previously for leave to bid, the court granted him an order nune pro tunc. (Hx parte Pedder, re Hadwen, 3 Dea. & Ch. 622; 1 Mont. & A. 327.) Although it is the usual and the prudent practice for a mortgagee to apply to the court for leave to bid, the court will not rescind the sale where the mortgagee has purchased the property without such leave if the purchase has been made by him bona fide. (Ex parte Ashley, re Bell, 3 Dea. & Ch. 510; 1 Mont. & A. 82.) These cases seem to conflict with the practice which has been adopted in our court, where the practice has always been for the mortgagee having the conduct of the sale either to transfer the conduct thereof, if he desired to bid, to a defendant, or if that were impossible to obtain an order from the court upon a special application for that purpose for leave to bid. The order provides that ‘all parties except the one having the conduct of the sale may bid thereat, provided it be notified in the conditions of sale ;” and the third of the standing conditions of sale provides that “the parties to the suit with the exception of the vendor are to be at liberty to bid.” Notwithstanding the before cited cases it would seem that the order is not directory only, and can only be varied in its application by the special order of the court for that purpose first obtained, and it is clear that the master has no power to make any provisions under this section which are not strictly within the terms of the order, and in a recent decision it has been held as the settled rule of the court, that the plaintiff or his solicitor cannot bid at a sale under a decree without the leave of the court; non-compliance with this rule will vitiate the sale. (Popham y. Exham, 10 Ir. Ch. R. 440.) we Form of contract (8,) (c) [Abrogated and discharged by Order of court Signing. dated the 26th day of February, 1862.] Filing of con- ee 0m (9.) (e) [Abrogated and discharged by Order of court me dated the 26th day of February, 1862.] {¢) Sections 8 and 9 of this Order are abrogated and repealed by Order of court promulgated on the 26th day of February, 1862, which Order is as follows: “SATURDAY, 22np FEBRUARY, 1862. It is ordered that sections 8 and 9 of the 86th of the General Orders of this court of the 8rd of June, 1853, be and the same are hereby repealed; and it is further ordered, that in future all sales are to be with the approbation of one of the Masters of this court, who is to report the same to the court, such report to be in the form hereunder set forth, or as near thereto as circumstances will permit, that ig to say : SALES; CONTRACT. 157 (ORDER XXXIV., SEO. X, AND XI.] “IN CHANCERY. (Title of Cause.) Pursuant to the decree (or order) of this honourable court, bearing date the —— day of and made in this cause, I have, under the General Orders of this court, in the presence of (or after notice to) all parties concerned, settled an adver- tisement and particulars and conditions of sale for the sale of the lands mentioned or referred to in the said decree, (or order,) aud such advertisement having, according to my directions, been published in the (naming the newspaper or newspapers) once in each week for the four weeks immediately preceding the said sale, (or as the case may be,) and bills of the said sale having been also, as directed by me, published in different parts of the township (town or city) of ——-—— and the adjacent country and villages, (or as the case may be,) the said lands were offered for sale by public auction according to my appointment, on day of ————, by me, (or by Mr. — of ——, appointed by me for that purpose, auctioneer, ) and such sale was conducted in a fair, open and proper manner, when ———_——. of ——-—_— was declared the highest bidder for, and became the purchaser of the same at the price or sum of £_——-; (or when sold in different lots, that A. B. became the purchaser of lot No. 1, at the price or sum of £ , C. D. of lot No. 2, at the price or sum of £——,, as the case may be ;) all which having been proved to my satisfac- tion by proper and sufficient evidence, I humbly certify to this honourable court. Under the printed conditions of sale is to be printed a blank form of contract in these words, or to this effect :—‘‘I agree to purchase the property (or lot No. —) mentioned in the annexed particulars, for the sum of £ , and upon the terms mentioned in the above ‘conditions of sale,’ which is to be signed by the purchaser.” Witness, The practice under this order may be shortly stated as follows: The affidavit of the auctioneer must be procured; (for form of which, see Book of Forms, Part the Second, infra;) the contract in the form prescribed by the order; the affidavit as to the insertion of the advertisements, (together with the newspapers in which they have been inserted,) and the publication of the bills or posters, should be filed in the Master’s office to whom the cause stands referred, who thereupon issues ‘his warrant, to hear and determine and to settle his report as to the sale; on the return of which warrant, the evidence as to the sale is gone into, if the proceedings of the sale are regular, and the report is thereupon settled and signed; the report must then be filed, and fourteen days after filing, like other reports, it stands confirmed, and the sale is thereby also confirmed. Previous to the Order of the 26th of February, 1862, the sale papers referred to in the abrogated section (8) had to be filed in the office of the Registrar at Toronto, and that, too, whether the advertisement was settled, and the proceedings as to the sale were taken before the master or a judge in chambers. (Patterson v. Stanton, 4Grant’s Cham. Rep. 100.) But this practice is now ren- dered obselete by the new order, and every sale, made under a decree of the court, must now be confirmed in manner and form thereby provided. (10.) Such sale must be objected to by motion to the court to set aside the same, and notice of such motion must be served upon the purchaser and ection to sale. the other parties to the cause. (11.) At any time after the confirmation of the sale the purchaser may pay his purchase money and 158 SALES; PAYMENT OF PURCHASE MONEY. [ORDER XXXVI, SEC. XI.] Payment of pur- interest, or the balance thereof, into court without chase money into ? Z eee x cea ite oe further order, but with the privity of the Registrar, sion. and upon notice to the party having the conduct of thesale; and shall thereupon be entitled to be let into possession of the estate, and may either proceed, according to the present practice, to Dies obtain possession thereof, or, if such possession be wrongfully withheld from him, may at his own expense obtain an order against the party in possession for the delivery thereof to him. (d) (4) A purchaser under a decree cannot take possession; (Hutton v. Mansell, 2 Bea. 260;) or pay his money into court, (Denning vy. Henderson, 1 DeG. & Sm. 689; 16 L. J. Ch. 178; but see Dempsey v. Dempsey, 1 DeG. & Sm. 691,) without accepting the title, and an application to pay the money into court, and to be let into possession without prejudice to objections to the title, will be refused; (Rutter v. Marriott, 10 Bea, 33; Crooks v. Street, Grant’s Cham. 95; 8 U. C. L. J. 187; but vide Marfell v. Rudge, 2 Y. & C. Ex. R. 566;) nor will a purchaser be relieved (when he purchases under a decree of the court) from his purchase merely because there are irregularities in the decree. (Baker v. Sowter, 10 Bea. 348.) Secus, if there is a want of jurisdiction or parties ; (ibid ;) and see, as to equitable interests being bound by the decree; Re Williams, 5 DeG. & Sm. 515. A purchaser under a decree is entitled to his costs when the title is bad. (Smith v. Nelson, 2 8. & 8. 557.) An order upon the purchaser to pay his purchase-money into court cannot be obtained until the title has been accepted or approved of, or the Master’s report obtained in its favour; and such an order obtained before such acceptance or report, upon affidavit of service of notice of motion, was discharged with costs. Applica- tions of purchasers to pay purchase-money into court, and to be let into possession without prejudice to objections to the title, are always refused. (Rutter v. Marriott, 10 Beav. 33; and see Crooks v. Street, Grant Cham. 95 ; 8U.C.L. J. 187; Hut- ton v. Mansell, 2 Beay. 260.) But see Miller v. Pridden, 26 L. J. Ch. 183 ; 3 Jur. N. 8.78; and Morris v. Bull, 17 L, J. Ch. 9; 12 Jur. 4; Dempsey v. Dempsey, 1 DeG. & S. 691; where purchasers were allowed to pay in their purchase-money without accepting the title, where there were any special circumstances to induce the court to allow it to be paid in, as for the purpose of preventing the accruing of interest. In Dempsey v. Dempsey, cited supra, notwithstanding the general rule, the court may, under special circumstances, permit a purchaser to pay his purchase money into court before he has accepted the title ; but in such case express provision must be made against his taking possession until he shall have accepted the title. A similar order was made in Morris y. Bull, cited supra, on the authority of Hinde v. Dakins, 1 C. P. Cooper Rep. temp. Cottenham, 378. But see Ouseley v. Anstruther, 11 Bea. 399; 18 L. J. Ch. 157; where the court held that, on an application by a pur- chaser to pay in purchase money without prejudice to objections to the title, such an order would be contrary to the rule of the court, but that the rule was not inflexible, although in this case the court refused to make the order even with the consent of the purchaser. The application had been made by parties to the suit. On an application to pay in the purchase money, only the vendor's solicitor is entitled to appear on the motion. e pina SALES; PAYMENT OF PURCHASE MONEY. 159 [ORDER XXXVI., SEC, XI.] It is irregular to pay the purchase money to the.party, it ought to be paid into court. (Bennett v. Hamill, 2 Sch. & Lef. 581.) And as to payment of purchase money into court, see Offen v. Harman, 8 W. R. 129. A purchaser under a decree having re-sold with a profit before the confirmation of the sale, the person to whom he has sold is to be considered as a substituted pur- chaser, and must pay the additional purchase money into court for the benefit of the parties to the suit. (Hodder v. Ruffin, Taml. 341.) Where an estate was sold under a decree, and one of the conditions of sale was that the purchaser pay the purchase money into court on a given day at his own expense, it was held that the purchaser was entitled to the costs of a reference as to the title reported good by the Master. (Camden v. Benson, 1 Keen, 671.) When a purchaser neglects to pay in his purchase money, and no objec- tion is made to the title, the court will order him within a limited time to pay in the amount with interest; or in default direct a re-sale of the property, and that the purchaser pay costs of motion and deficiency, if any, on such re-sale. (Crooks v. Crooks, 4 Grant’s Ch. R. 376.) It is a clear rule of equity that persons purchasing under a decree of the court are bound to see that the sale is made in accordance with the decree. (Colclough v. Sterum, 3 Bli. 181.) A purchaser should therefore not only ascertain that the title to the property is good; but should satisfy himself that the sale has been made according to the decree; that all persons who are necessary to convey are before the court; if he takes a title which a decree in an imperfect suit does not protect, he must suffer the consequence. (Jbid.) Where, however, there is error in the decree itself, the court will not compel a purchaser to take an estate sold under it, even though the parties may proceed to rectify the error. (Lechmere v. Brasier, 2 J, & W. 287; Calvert v. Godfrey, 6 Bea. 97; Sherwood v. Beveridge, 18 Jur. 1042; but see Baker vy. Sowter, 10 Bea, 343.) If the purchaser neglect to pay in his purchase money in due time, the plaintiff may apply for an order that the purchaser may, within a given time, pay in his money, together with interest and the costs of the application, which will be ordered accordingly. The order, however, cannot be obtained, until the purchaser has either accepted the title, or, upon a reference, (see sec. 12,) a report that & good title can be made is obtained. (Rutter v. Marriott, 10 Bea. 33.) The order obtained must be served, and it should be endorsed as provided by Order XLVI., sec. 6, and if the purchaser neglects to comply, it may be enforced in the usual way. The court will not allow a purchaser to take possession without prejudice to objec- tions to the title, even upon payment of his purchase money into court. (Hutton v. Mansell, 2 Bea. 260; Morris v. Bull, 12 Jur. 4.) It would seem that a purchaser at a sale uncer a decree or order of the court having a right to insist upon covenants from the grantors cannot be compelled to accept title under a vesting order instead of a conveyance. (Slater v. Fisken, Grant’s Cham. R.1; 4U.C.L. J. 261.) The purchaser has aright to require proof that the persons whose estates are sold were living at the date of the sale. (Idid.) If the purchaser delay paying in his purchase money, and such delay is not occa- sioned by default of the vendor, the purchaser will not be entitled to an earlier receipt of the rents, although intermediate payments on account of rent may have accrued due, which in such case always belong to the vendor; for the purchaser may always entitle himself to the receipt of the rents by applying specially for an order to be at liberty to pay in his purchase money, without such order operating as an acceptance of the title. (Hooper v. Goodwin, 1 Coop. 95; Lloyd v. Waite, 1 Turn. 70.) ~~ 160 SALES; INVESTIGATION OF TITLE. [ORDER XXXVI., SEC. XII.] To enforce possession the purchaser should apply on notice of motion to a judge, in chambers, which must be served on the person in possession, for an order for delivery, of possession within a limited time, and upon service of the order and of a demand as hereinbefore referred to, (see page 129,) and the person in possession being a party to the cause, the purchaser may proceed by writ of assistance as previously directed. If a person, not @ party to the suit, be in possession, the purchaser must proceed by ejectment, Investigation of title. (12.) (e) When an enquiry into title has been directed by the court, the vendor is to deliver an abstract of the title to the purchaser, and if the purchaser does not object to the title and obtain and serve an appointment or warrant from the judge or master, to consider the same, within fourteen days after the delivery of such abstract, he is to be deemed to have accepted such title; at the time of serving*the appointment or warrant the purchaser must deliver to the vendor a written notice of the objections to the title; at the time appointed a duplicate of such notice is to be brought into the judge’s chambers or master’s office by the objecting party, and such objections are to be argued before the judge or master, who is to allow or disallow such objections ; and such allowance or disallowance is to be subject to ap- peal by way of motion to the court; (f) the judge or master is to make no report upon the title, but the judge or master is merely to mark the objec- tions allowed or disallowed, as the case may be; such objections so marked are to be filed, and such allowance or disallowance is to stand abso- lutely confirmed, unless appealed from within fourteen days after such filing. 7 (e) This section regulates the practice in regard to all enquiries as to title, whether under sales by the direction of the court, or otherwise. When the abstract is served there should also be served at tho same time a notice that if the purchaser do not object to the title and obtain and serve an appointment or warrant within fourteen days he will be deemed to have accepted the title, SALES ; INVESTIGATION OF TITLE. 161 “ [ORDER XXXV1, SEC, XII.] Whatever a vendor puts on his abstract he is bound to prove and verify if required. Parr v. Lovegrove, (Eng.,) 5 U.C. L.J. 22; which see as to making and shewing a good title generally. If the Master report against the title he should state in what points the title is defective. (Green v. Monks, 2 Mol. 325.) A purchaser of an entire estate divided into shares, the title to one of which is defective, cannot be compelled to accept the remaining shares. (Hurd v. Robertson, 5 U.C. L. J. 67.) (f) Held, on appeal from the Master’s report, that a purchaser is entitled to call for a release from all judgment creditors who have registered their judgments in the county where the lands sold are situate, or the creditors join in the conveyance to the purchaser, although it appears that the purchase money will be exhausted in dis- charging prior incumbrances. If the vendor cannot procure such release or concur- rence in the conveyance, the court will not compel the purchaser specifically to per- form the contract. (Spohn v. Ryckman, 7 Grant’s Chan. R. 388.) Everything connected with the title may be the subject of enquiry; (Bennett v. Rees, 1 Keen, 408;) see also Lesturgeon v. Martin, 3 M. & K. 255; and contra, Saul v. Bolton, where an enquiry was directed having regard to the requisitions only. (Seton on Decrees, 8rd ed., 594.) The direction and enquiry should be, whether the vendor can make a title, not whether he could at the time of entering into the contract; (Langford v. Pitt, 2 P. W. 630; Parr v. Lovegove, 4 Drew. 170;) and so even though the vendor had no title at the date of his contract. (Hoggart v. Scott, 1 R. & M. 293.) There should also be a direction and an enquiry as to when the title was first shewn, with a view to granting or refusing costs; (Bennett v. Rees, 1 Keen, 409; Wilkinson v. Hartley, 15 Beav. 183; but see Lyle v. Yarborough, John. 70;) for as a rule the vendor will only be entitled to costs from the date of completion of title ; (Anon, cited 1 Mad. 536;) and will, up to such date, be ordered to pay costs. (Harford y. Purrier, 1 Mad. 536.) This portion of the enquiry is omitted where other questions besides that of title are in dispute. (Gibbins v. North Eastern Metropolitan District Asylum, 11 Beav. 1.) If the decree contains no such direction, and a report is made in favour of the title without enquiring as to the time of completion, it would seem that the vendor will be allowed his costs. (Croome v. Lediard, 2M. & K. 293.) A title is first shewn when a complete abstract is delivered ; (Parr v. Lovegrove, 4 Drew. 170, 6; see also Avarne vy. Brown, 14 Sim. 308 ;) and is first made when such abstract is proved and verified; (ibid;) as to what is a complete abstract, see Lord Braybroke v. Inskip, 8 Ves. 436. Upon an enquiry as to title the purchaser is entitled to the best assurance as to the title which circumstances will admit, by means of enquiries and examination to sift the vendor’s conscience, and by the production of all deeds and documents. (Per Eldon, C. in Jenkins v. Hiles, 6 Ves. 653.) The right to object to the title rests only with the purchaser, it is not competent for the vendor to assert his own title to be bad. (Bradley v. Munton, 15 Beay. 460.) Questions as to the application of the conditions of sale are questions of title. (Wood vy. Machu, 5 Hare, 158.) The identity of a person or of parcels apparently different on the deeds is a matter of title. (Sherwin v. Shakspeare, 17 Beav. 267-75.) An enquiry as to title will be directed as to any species of property, a contract 21 162 SALES; INVESTIGATION OF TITLE. [ORDER XXXVI., SEO. XII.] respecting which the court will specifically perform, such as shares in railway and mining companies. ‘(Curling v. Flight, 2 Phil. 613; Shaw v. Fisher, 2 DeG. & Sm. 11.) An enquiry as to title will be directed before answer, if it be admitted on the motion that there is no other question than that of title; (Balmanno v. Lumley, 1 V. & B. 224; see also 1 Mer, 872;) secus where there is no such admission. (Matthews v. Dana, 3 Mad. 470.) : , Though the Master report against the title, the purchaser will not be discharged if the title can be made good within a reasonable time. (Chamberlain v. Lee, 10 Sim. 414; Coffin v. Cooper, 14 Ves. 205; Sidebotham v. Barrington, 4 Beav. 110.) The Master should report unconditionally whether the title be good or not; it would be improper to report that a good title could be made subject to the performance of certain conditions, or with the concurrence of a third party. (Magennis v. Fallon, 2 Mol. 561, 575, 583; Lewis v. Loxam, 1 Mer. 179.) Where a report allowing the title is appealed against, and the appeal is dismissed, the title cannot be further objected to. If, however, the appeal is allowed, further objections may be made on the delivery of a fresh abstract. (Brook v. ——, 4 Mad. 2 =’ Even though the Master report in favour of the title, if on an appeal the court think it too doubtful to force on a purchaser, they may dismiss the bill. (Robinson v. Mil- ner, 1 Hare, 578, n; Willcox v. Bellaers, T. & R. 491.) Where on an appeal from the report allowing the title the court is dissatisfied with evidence of a fact which had satisfied the Master, they will refer it back, the vendor offering to produce additional evidence. (Andrew v. Andrew, 8 Sim. 390.) It would seem that if the decree omit the reference as to title, though the defen- dant did not object to the omission at the settlement of the minutes, the decree would be amended on a re-hearing at his instance, and an enquiry directed. (Hughes v. Jones, Eng., 5 U. C. L. J. 46.) As soon as the sale is confirmed, in manner hereinbefore mentioned, the pur- chaser’s solicitor proceeds to investigate the title, and if on looking into thegabstract he finds any objections to it which cannot be settled out of court, he follows the course provided by this section. , “ As to the conveyance on sale by court, and parties therelo.—The draft conveyance is prepared by the purchaser’s solicitor, at the purchaser’s expense. The conveyance, when settled and approved, must afterwards be executed by the parties, at the ven- dor’s expense. Where the purchaser requires the execution of the decd to be attested by his own solicitor, that requisition ought not to be refused, unless under epee! circumstances. (Viney v. Chaplin, 27 L. J. Ch. 484; 4 Jur, N.S. 619; 6 . R. 562; 81 L. J. 142.) If any party refuses to execute, an order may be obtained, upon motion in chambers, notice of which must be served on the party for him to execute the deed. The order thereupon obtained can be enforced in the usual way, by order absolute and attachment. The decree usually, and indeed invariably, contains a provision that the Master shall settle the conveyance in case the parties differ about the same. It has been held tbat the purchaser must pay the costs of his attendances in the Master’s office, unless he can make out a special case for exemption. (Hodgson v. Shaw, 16 L. J. Ch. 56; 11 Jur. 95.) The mortgagor and his heirs are unnecessary and improper parties to the convey- SALES; INVESTIGATION OF TITLE. 163 {ORDER XXXVI., SEO. XII.] ance of the mortgaged estate. (Jn re Williams, 21 L. J. Ch. 487; Ross v. Steele, Grant’s Cham. 94; 8 U. C. L. J. 187.) The wife of the mortgagor is also an unnecessary party to such conveyance, if she has barred her dower in the mortgage. (Moore v. Shinners, Grant’s Cham. 59.) In sales under the decree of the court, the Canada Company are bound to covenant against their own acts as to lands granted by the Crown, and as to other lands they must give full covenants. (Scarlett v. The Canada Company, Grant’s Cham. Rep. 90.) Where the mother of infants makes an application for the sale of their estate under Order XXXVILI., infra, she will be required to join in the conveyance in order to surrender her life interest. (Jn re Kennedy, Grant’s Cham. 97; 8 U. C. L. J. 188.) As a rule the purchaser has a right to a covenaut for the production of all docu- ments necessary to make out a good sixty years’ title. Not, however, if they are not in the power of the vendor; (Cooper v. Emery, 1 Ph. 388;) nor merely because they are mentioned in the abstract. (Ldid.) As to covenants to be entered into by trustees, see Worley v. Frampton, 5 Hare, 560. The conveyance should be dated from the time the title is shewn. (Townsend v. Champernowne, 8 Y. & C. 505.) If the decree do not contain a direction to settle the conveyance, it can be inserted on petition. (Trevelyan v. Charter, 9 Beay. 140.) Where the vendor has contracted that certain parties shall join in the conveyance, the purchaser can insist upon their so joining, and the court will not consider whether such parties are necessary or proper. (Benson v. Lamb, 9 Beay. 502.) The vendor (if the sale be under a mortgage) cannot be compelled to do more than enter into the usual covenant that he has done no act to incumber the property. (Worley v. Frampton, 5 Hare, 560, 566.) This case was followed by Esten, V.C., in Ireland vy. McMaster, (not reported,) Chambers, May, 1862. Upon the conveyance being executed, the purchaser is entitled to have the title deeds delivered up to him. Where the property sold consists of several lots, the rule of the court is, that the purchaser of the largest single lot is to have the title deeds, and not the purchaser of divers lots, which in the aggregate exceed in value and extent the largest single lot. (Scott v. Jackman, 21 Beav. 110.) The words “largest lot’’ have reference to quantity, and not to price. (Griffiths v. Hatchard, 18 Jur. 649; 2 W. R. 672.) The purchasers of the other lots are entitled to a covenant for production of the title deeds. (Peterson v. Elwes, 6 W. R. 611; but see Strong v. Strong, 4 Jur. N. 8S. 943; 6 W. R. 455.) If the order for payment of the purchase money contains no direction for delivery of the title deeds, an order for such purpose may be obtained on motion in Chambers. On completion of the purchase, the ven- dor’s solicitor should obtain from the purchaser a written authority to make use of his name to consent to any application that may be made to the court to deal with the purchase money. The costs of the purchaser’s appearance, on such an applica- tion, will not in general be allowed. (Barton y. Latour, 18 Bea. 526; but see Strong y. Strong, supra.) Rescinding the contract.—If, upon an investigation of the title, the judge or master certifies against the title, the purchaser should apply on motion in Chambers to be discharged from his purchase ; and that his costs, charges, and expenses of investi- gating the title and consequent thereon, may be paid. 164 SALES; INVESTIGATION OF TITLE. [oRDER xxxvi,, sxc, x11.] A purchaser at a sale under a decree of the court, cannot move to be discharged from his purchase until the report. has been confirmed, the report being the only evidence that the court can receive as to the purchase having been made. (Maceul- loch v. Gregory, 2 W. R. 575.) A purchaser under a decree was discharged from his _ purchase on the ground of misrepresentation where the facts were that the occupa- tion was hostile, and possession could only be obtained, by ejectment; (Lachlan v. Reynolds, 1 Kay, 52; 23 L. J. Ch.8; 2 W. R. 49; 22 L. T. 2115) and see also Drys- dale v. Mace, 23 L. J. Ch. 618; 2 W. R. 280; McCulloch v. Gregory, 1 K. & J. 286; 24 L. J. Ch. 246; 24 L. T. 807; 3 W. BR. 281.) And as to rescinding the contract on the ground of misdescription, see Leyland v. Illingworth, ez parte Webster, 2 L. T. N. 8. 456, 587; 8 W. R. 695; Turner v. The West Bromwich Union, 9 W.R. 155; 3 L. T. N. 8. 662. An agreement between two persons not to bid against each other, is not in itself a ground for setting the sale aside, nor for opening the biddings. (Jn re Carew, 26 Bea. 187; 28 L. J. Ch. 218; 4 Jur. N. 8.1290; 7 W. R. 81; 82 L. 1.154.) The dictum of Lord St. Leonards, V. & P. 93, was disapproved in this case. If it appears that the purchaser is not a responsible person, and unable to perform his contract, the vendor, instead of proceeding to enforce the contract, may apply to have the pur- chaser discharged from his bidding, and that the estate may be re-sold; (Hodder v. Ruffin, 1 V. & B. 544;) and in such case the purchaser will be ordered to pay as well the expenses arising from the non-completion of the purchase, the application and the re-sale, as also any deficiency in price arising from the second sale. (Harding v. Harding, 4 M. & C. 514; but see Re Healey, Grant’s Cham. BR. 54.) The order is obtained on application at Chambers, on notice to the purchaser and the parties in the cause, and upon an affidavit of the facts on which it is grounded. If the purchaser is desirous of being discharged from his contract, and of substi- tuting another person in his stead, an order for such purpose may be obtained on application at chambers ; but the court requires to be satisfied by affidavit that there is no under-bargain, for the new purchaser may give the other 2 sum of money to stand in his place, and so deceive the court. (Rigby v. Macnamara, 6 Ves. 515; Vale v. Davenport, 6 Ves. 615.) Opening biddings.—Where estates are sold under the decree of the court, the court considers itself to have greater power over the contract than it would have over a contract made outside the cause; the chief object of the court is to obtain as great a price for the estate as can possibly be got. ‘The court, therefore, is in the habit, after the estate has been sold, of ‘‘ opening the biddings,” (that is, of allowing a person to offer a larger price for the property than it was originally sold for,) and, upon such offer being made, and a proportionate sum paid in, of directing a re-sale of the pro- perty. (Daniell’s Ch. Pr. 2nd edit. 1209.) A lot at a sale under the court having been sold for £780 and an advance of £80 having been offered, the biddings were opened on the usual terms, although the application was opposed. (Terson v. Haw- kins, 18 Jur. 721; 3 W.R. Dig. 71.) See also Barlow v. Osborne, 6 H. L. GC. 556, 27 L. J. Ch. 808 ; 4 Jur. N. 8. 367; 81 L. T. 45; 6 W. R. 815; as to opening biddings and ordering a re-sale on an advance of price being offered. The court will not grant the application except upon an advanced bidding. As a general rule ten per cent, was usually considered o sufficient advance. (Anon, 3 Mad. 494.) In some cases, ‘how- ever, the court require more, and in some it will be satisfied with less. (Brooks Vv. Snaith, 8 V. & B. 144; Bourn v. Bourn, 13 Sim. 189; Wallond v. Wallond, 9 Jur. 479; Manners v. Furze, 17 L. J. Ch. 485 ; Terson v. Hawkins, 18 Jur. 721 ; Farlow vy. Weildon, 4 Mad. 460.) The biddings are not opened when estate sold by private contract. (Millican v. Vanderplank, 11 Hare, 136.) Any person may apply to open the biddings, but the court exercises its discretion if the party had attended the sale or the circumstances of the application are suspicious. (Tyndale v. Warre, Jac. 525. ? SALES; CONDITIONS. 165 (ORDER XXXVI., SEC, XIII.] Lefroy v. Lefroy, 2 Russ, 606; In re Jones, 1 Giff. 284; 29 L. J. Ch. 139; 6 Jur. N. S. 1243; 8 W. R. 56.) The biddings may be opened more than once. (Preston v. Barker, 16 Ves. 140.) Applications to open biddings must be made before the report on the sale is con- firmed; when it was attempted to re-open the biddings on a sale by order of the court after same confirmed, on the ground of an advanced bidding, the court held the reason insufficient and refused the application; (Ware v. Watson, 7 DeG. M. & G. 739; 25 L. J. Ch. 199; 2 Jur. N.S. 129; 4 W. R. 223; Sir Thomas Jones’s Settled Estates, 1 Gif. 284; 8 W.R. 56; 5 Jur. N. S. 1248 ;) and the purchaser after the sale is con- firmed is considered to be so far the absolute owner that he may sell the estate at an advanced price for his own benefit. (Dewell v. Tuffnell, 1 K. & J. 824.) See also Bridger v. Penfold, 1 K. & J. 28; Osborne v. Foreman, 8 DeG. M. & G. 122; 25 L, J. Ch. 840; 2 Jur. N.S. 861; 27 L. 1.9. Millican v. Vanderplank,.11 Hare, 136.) Where fraud is alleged on the part of the purchaser the court will open the bid- dings, notwithstanding the report has been confirmed. (Fergus v. Gore, 1 Sch. & Lef. 350.) The order is obtained on motion in Chambers, notice of which must be served on all the parties to the cause and on the purchaser. When the biddings are opened the parchaser is entirely discharged from his purchase, and is entitled to have his de- posit and purchase money (if paid) returned to him and his costs of the former purchase. 1858, January 14, V. C. Hsten held that this section applied to references as well under decrees for specific performance, as to sales under a decree of the court. (13.) The standing conditions of sale are to be those Aisaiing cosidh set forth in schedule O. attached to these orders. #5 of sale. (9) (g) Schedule O. is as follows: SCHEDULE 0. CONDITIONS OF SALE. Ist. No person shall advance less than £2 at any bidding under £100, nor less than £5 at any bidding over £100, and no person shall retract his bidding. 2nd. The highest bidder shall be the purchaser; and if any dispute arise as to the last or highest bidder, the property shall be put up at a former bidding. 8rd. The parties to the suit, with the exception of the vendor, are to be at liberty to bid. ‘ 4th. The purchaser shall, at the time of sale, pay down a deposit in the proportion of £10 for every £100 of his purchase money to the vendor or his solicitors, and shall pay the remainder of the purchase money on the —— day of —— next; and upon such payment the purchaser sball be entitled to the conveyance, and to be let into possession ; the purchaser, at the time of such sale, to sign an agreement for the completion of the purchase. 5th. The purchaser shall have the conveyance prepared at his own expense, and tender the same for execution. 166 SALE; INFANTS’ ESTATE, 12 VIC., OH. 72. [ORDER XXXVIi., SEO, I.] 6th. If the purchaser shall fail to comply with the conditions aforesaid, or any of them, the deposit and all other payments made thereon shall be forfeited and the premises may be re-sold; and the deficiency, if any, by such re-sale, together with all charges attending the same, or occasioned by the defaulter, shall be made good by the defaulter. APPLICATION FOR THE SALE OF INFANTS’ ESTATE UNDER 12 VICTORIA, CH. 72, Petition to be in XXXVII. A petition for the sale or other disposition matter of the in- of the real estate of an infant, is to be intituled both in fant and the mat- ter of thestatute.the matter of the infant and in the matter of the 12th Victoria, chapter 72. (A) (Ah) The application to settle the advertisement of sale may be made to a judge ex parte. Where an executor has obiained a final order of foreclosure of mortgage belonging to the estate, and applies fora sale thereof and order for conveyance by the infants, the petition and affidavits should be styled in the matter of the infants, &c., and not in the foreclosure suit. (Ae Hodges, 1 Grant, 285.) As to the practice under the statute before the Orders of 1858, see Re McDonald, Re Taylor, 1 Grant, 90, 91. : In applications under this order the court considers whether the sale will be for their ultimate benefit, and not whether it is for the present comfort of them and their mother ; the interests of the infants only are looked after, not those of the mother or any other person. (Re McDonald, Grant’s Cham. 97; 8U.C. L. J. 188.) The court will order a sale of part of the infants’ property in order to save the rest if it would be for the ultimate benefit of the infants. (bid.) In this case the court ordered the infants to be examined by the Master touching their consent to the sale, pursuant to sec. 6 of this order. The court will not direct a sale of infants’ estate merely because the ancestor was indebted, it must be shewn that the estate will sustain loss, or that the creditors are about to enforce payment of their demands by suit. (Re Boddy, 4 Grant, 144.) Where the mother of infants makes an application for the sale of their property which has been settled upon the infants by their ancestor, she must shew that the pee areas - an pepe ne of which to maintain them. (Jn Re Kennedy, Grant’s Cham. 97 ; .C. L, J. 188.) She will also have'to join in th ‘ surrender her life interest. (J did.) : oer ar A person ne kel ae infants’ estate is not bound by his contract unless an order for sale thereof be obtained under this order. (Fj Yaevi ee Cham. 52.) (In re aggie, Grant’s A person so contracting is bound, though the sale be without the sanction of the court, if he afterwards consent to an infancy order being made under this order: he would be relieved, however, if great delay occurred in getting the infancy order; he would not be relieved, however, upon an application made after the infancy order had been obtained, even though great delay had occurred in obtaining it. (I bid.) SALE; INFANTS’ ESTATE, 12 VIC., CH. 72. 167 [ORDER XXXVII., SEC, II., II., AND Iv.] Where a purchaser of infants’ estate, who had gone into possession, made improve- ments, and paid part of his purchase money, moved to be relieved from his contract on the ground of inability to complete it, he was so relieved, but only on the terms of forfeiting the improvements and purchase money so paid so far as they had gone to the infants. (J6id.) It would seem that a purchaser becoming insolvent will be relieved from his pur- chase, and his being required to make good any deficiency on a re-sale is in the dis- cretion of the court. (Jn re Heely, Grant’s Cham. 54; but see Hodder v. Ruffin, 1 V. & B. 544; Harding v. Harding, 4 M. & C, 514.) It will be observed on refer- ence to the reports of these cases that the applications were made on behalf of the vendor. , Sec. 2.—The petition is to be presented by the guar- position to be dian of the infant, or by a person applying by the same Dicnie! by petition to be appointed guardian, as hereinafter pro- vided. Sec. 3.—The petition is to state the nature and amount The petition is te of the personal property to which the infant is entitled ofpersonal —the necessity of resorting to the real estate—its na- the vale of the ture, value, and the annual profits thereof. It must state circumstances sufficient to justify the sale and dis- position of the estate, and the application of the pro- ceeds in the manner proposed. The prayer must state Mig lence specifically the relief that is desired; it must designate™™**"* the lands to be disposed of, and must propose a scheme rhe relief prayea for that purpose, and for the appropriation of the pro- sated. ene ceeds. If an allowance for the maintenance is desired, it must be so prayed, and a case must be stated to justify such an order, and to regulate the amount. (¢) (i) The petition must be verified by affidavit annexed thereto. Sxc. 4.—The petition may pray for the appointment 7he retition a . : s ? pointment of a of a guardian, as well as for the disposal of the infants’ Poardian as well estate. In that case a proper case must be made by the Soe ern petition, and established by the evidence, for the appoint- ment of the person propozed. 168 RECEIVERS. [ORDER XXXVI, SEC. 1.] Infant to bepro- = So, 5.—Upon all petitions for the sale of an infants’ judge or master. estate, the infant is to be produced before one of the judges at Chambers, or before a master. Infant to be ex. SEC. 6.—When the infant is above the age of. seven Sidgeormaster, years he is to be examined, apart, upon the matter of the petition, and his consent thereto, by the judge or master, as the case may be; and his examination is to be stated to have been taken under these orders, and is to be annexed to, and filed with the petition. Where the infant is under the age of seven years, the fact is to be certified by the judge or master before whom he has been produced. Witnesses tobe SEC. 7.—The witnesses to verify the petition are to examined viva 2 : poce before the be produced before the judge, or master, as the case may be; and are to be examined viva voce as to the matter of the petition, and the depositions so taken are to be stated to have been taken under this order. Masters to ex- eas =. Masters toex- = xc. 8.—The masters of the court are authorised to - ae ca : : ; dutapecial order, CXaMine infants and witnesses under this order, without special order or reference. Sec. 9.—Upon a petition so verified the court -may either grant the relief prayed at once, or make such order as to further evidence, or otherwise, as the circum- stances of the case may require. RECEIVERS. Receivers how =X XXVIII. (h) Receivers are to be appointed in the following manner: the party prosecuting the order for a receiver is to obtain an appointment or a warrant from siieast the Judge or master, and to serve the same on all neces- ane sary parties, naming in the copy thereof served the pro- posed receiver and his sureties; at the time appointed RECEIVERS. 169 [ORDER XXXVIII., SEC. 1.] the party prosecuting the order is to bring into the Attendance. judge’s chambers, or the master’s office, the recognizance __ or bond proposed as security: (2) the bond or recogni- aS zance is to be to the master; any other party desirous Ganka of proposing another person as receiver, is to serve no-*- tice of his intention so to do upon the other parties, naming in such notice the person proposed by him as receiver and his sureties, and is then in like manner to bring into the judge’s chambers or master’s office the re- cognizance or bond proposed by him as security: at the time named in the appointment or warrant the judge or master is, in the presence of the parties, or those who attend, to consider of the appointment of the receiver samen’ * and to determine respecting the same; and to settle and "= """™™ approve the proposed security; the master is to make no report approving of or appointing the receiver; but the judge or master is to appoint such receiver by signing a written appointment to the following effect, viz.: ‘In Cuancery, [style of cause |—I hereby appoint [receiver's name] receiver in this cause, [signature of judge'or master ;]’’ which appointment is to be signed without any warrant or attendance for that purpose: when Timgofsrpont- signed it is to be filed by the party who has procured the person named by him as receiver to be appointed, and is then to have the same effect as the filing of the mas- ter’s report appointing the receiver now has; but the same is not to be filed until after the execution and fil- ing of the securities settled and approved by the judge or master. y appointed by the court is, from the moment of his appointment, ‘an officer of the court itself. He will be protected by it in the proper discharge of the necessary duties of his office, the possession of the receiver not being permitted to be disturbed without the special leave of the court; (Brooks vy. Greathed, 1 J. & W. 178; Angel v. Smith, 9 Ves. 335;) and it will be considered as a contempt of court if any such interference takes place. ( Broad v. Wickham, 4 Sim. 511; Johnes v. Claughton, Jac. 573.) The reason for this is explained by Lord Eldon in Angel y. Smith, supra, Hyen a receiver appointed to get in property, part 22 (-) A receiver dul to be considered as 1T0 RECEIVERS. [orDER XXXVIII., SEC. I.] of which he finds in the possession of another receiver, should not take proceedings to deprive the latter of such possession without the authority of the court. (Ward v. Swift, 6 Hare, 312; Tink v. Rundle, 10 Bea, 318.) The general objects sought by the appointment of a receiver, are to provide for the safety of property, pending litigation, and until the hearing of the cause ; (Tullett v. ‘Armstrong, 1 Keen, 428 ;) or, during the minority of infants, to preserve property in danger of being dissipated or destroyed by those to whose care it is by law entrusted, or persons having immediate but partial interests therein, 224 COSTS; SOLICITOR’S LIEN. [ORDER XLY., sxc. I.] It is a general rule in suits for specific performance by the vendee against the infant heirs of the vendor that the decree should be without costs, the guardian’s costs being paid by the plaintiff; but if the purchase money be not paid the court will direct payment out of such purchase money. (Commander v. Gilrie, 6 Grant, 473.) See further as to costs in suits for specific performance. (Currah v. Rapelje, 2 Grant, 542.) As to the question of costs between a solicitor and his client and the solicitor’ s lien. —A solicitor is not justified in accepting from his client a gross sum in lieu of taxed costs without adopting some mode of extricating his client from the effect of that pressure which the law assumes while the relation of solicitor and client subsists, such as the intervention of a third party; (Morgan v. Higgins, (Eng.,) 5 U. C. L. J. 216;) 80, also, if a solicitor accept security for a gross sum in liew of taxed costs, without the intervention of a third party, or otherwise extricating his client from presumed pres- sure, the security will stand only for taxed costs. (1bid.) Where a client pays his solicitor’s bill under protest in order to obtain papers on which the solicitor has a lien, the objectionable items in the bill should be specified before payment. (Jn re Davie, ex parte White, (Eng.,) 6 U. C. L. J. 192.) A solicitor’s bill of costs does not carry interest; if the solicitor agrees with his client for interest, he is bound to inform him that such agreement is a special bar- gain beyond what is sanctioned by law or the ordinary course of the profession. (Lyddon v. Moss, (Eng.) 5 U. C. L. J. 239.) The papers in an application to tax a solicitor’s bill, under 16 Vic., c. 175, sec. 20, must be entitled in the matter of such solicitor. See sec. 25, and Duggan v. Cotton, 8U. C0. L. J. 15. Where a solicitor offers to reduce his bill, he is not chargeable with the costs of the taxation unless the bill be reduced one-sixth by taxation independent of the voluntary reduction, (Jn re Freeman, Craigie and Proudfoot, Grant’s Cham. 102; 8U.C. L. J. 189.) Where a solicitor irregularly proceeds to tax his costs in the absence of his client, the court, on a petition by the client, filed seven years afterwards, may order a re-taxation and the solicitor to pay costs of the application. (Clarke v. Manners, In re Manners, 4 Grant, 432.) The lien of the solicitor for his costs is subordinate to the equities between the parties to the suit, so where money is decreed to be paid by the plaintiff to the defendant, and costs by the defendant to the plaintiff, the party entitled to the larger sum can insist upon the amounts being set-off one against the other; secus however, where there are two debts due in different rights. (Wilson v. Switzer, infra.) Tf, however, the claim for set-off be for costs at law the set-off will not be allowed, 80 as to defeat the lien of the attorney-at-law, unless such lien can never arise by reason of an injunction staying the proceedings at law. (Wilson v. Switzer, Grant’s Cham. R. 75.) As against third parties the solicitor’s lien attaches only on property recovered in the suit, and not on other property of the client in the solicitor’s possession, (Verity vy. Wyld, (Eng.,) 5 U. C. L. J. 239.) ime A solicitor’s right of lien does not preclude a fair compromise, but where the seni i he to receive money to the exclusion of the solicitor, the solicitor may apply to the court to provide for his costs. (Zbid; and see Brunsdon vy. Allard (Eng.,) 6 U. C. L. J. 28.) Sa ’ COSTS; TAXATION OF. 225 [ORDER XLV., SEC. III. ] So where a solicitor notified a party decreed to pay money to his client of his claim for costs against the client, it was held that the service of a garnishee order onthé party so decreed to pay did not affect the lien of the solicitor created by the notification. (Symson v. Prothero, (Eng.,) 3 U. C. L. J. 175.) (2) The court leaves to the taxing-master the province of distinguishing what parts are unnecessary. (Moore v. Smith, 14 Bea. 896; Woods v. Woods, 5 Hare, 229; Burchell v. Giles, 11 Bea. 34.) See also as to this section, Re Skidmore’s Estate, 1 Jur. N. S. 696; 24 L. J. Ch. 711; Re Manchester and Leeds Railway Company, 8 Hare, 31; Re Courtois’ Will, 10 Hare, App. lxiv.; Hyder v. Coleman, 21 L. J. Ch. 592; Re Bedminster Charities, 12 Jur. 665; Re Lilley’s Trusts, 17 Sim 110; Canning v. Bell, 13 L. J. Ch. 804. Costs incurred in issuing procesy of con- tempt will not be allowed on taxation as between party and party. (Attorney-Gen- eral v. Carrington, 6 Bea. 460.) The master under this section may strike off such parts of the costs as might have been occasioned by an improper mode of framing the pleadings, and the affidavits on both sides. (Hanslip v. Kitton, 8 Jur. N. 8. 835.) He may look into the pleadings and tax the costs occasioned by any unnecessary amendments. (Burchell v. Giles, 11 Beav. 34; Watts v. Manning, 1S. & S. 421; Pledge v. Buss. Johns. 663; 6 Jur. N. S. 695.) And see Strickland v. Strickland, Bower v, Cooper, Mavor v. Dry, Mounsey v. Burnham, all cited supra. Sec. 8.—Where costs are to be taxed as between party and party, the master may allow to the party entitled to receive such costs the like costs as are taxable where costs are directed to be taxed as between solicitor and client in— Advising with counsel on the pleadings, evidence, and other proceedings in the cause. Procuring counsel to settle and sign such plead- ings and petitions as may appear to have been proper to be settled by counsel. Procuring and attending consultations of counsel. The amendment of bills. On proceedings in the master’s office. Supplying counsel with copies or extracts from necessary documents. But in allowing such costs, the master is not to 29 226 COSTS.—SOLICITOR. [ORDER XLV., SEO. 111. ] allow such party any costs which do not appear to have been necessary or proper for the attain- ment of justice, or for defending his rights; or which appear to have been incurred through over-caution, negligence, or mistake, or merely at the desire of the party. The following fees and disbursements may be charged and allowed in respect of the services hereinafter enumer- ated: SOLICITOR. Instructions for suiit.......cesesceeessevseseverensess £0 10 Instructions to defend...... cesccseersereeesseeee 0 10 0°10 Letter of notice before instituting suit.......... 0 2 Instructions for petition where no bill filed.... Drafting bill, not exceeding 20 folios, includ- ING COPY tO keepisesssscviassvsenedacesursessees For every additional folio above 20, (to be’ allowed in the discretion of the master,) including copy to keep, per folio. ............ [No greater sum than 80s. to be taxed by the master for drawing any bill, without the special direction of one of the judges of the court upon the application of the solicitor requiring the same, for which application no charge is to be made. ] Drafting answer or other pleading, petition, or special affidavit, per folio.......ceceecccesseese [No greater sum than 30s. to be taxed for drawing any answer, petition, or affidavit, without the special direction of one of the judges of the court, as provided for in the case of bills; aud no greater sum is to be allowed for drawing any answer, petition or affidavit, than would have been taxed irrespective of this order.] Engrossed copies to file, copies to serve (other than copies on which a fee is paid to the 1 0 0 noose COSTS.—SOLICITOR. [ORDER XLy., SEC. I1.] master or registrar, for reading over or authenticating the same) each per folio Copies of orders or other papers or documents, not office copies, required to be served, per folio ...... iid san Romanisuaraneases Office copies to be authenticated by the regis- trar, and engrossment of affidavit read over by the master to the deponent, per folio.... Affidavits of service, including attendance to SWEET ssacvessasesvanes saheona RRO een Ae eens Precipe for any process including attendance Special attendance on the master’s warrant or appointment, or on examination of witnesses, or on hearing of cause or demurrer or Special MOLION...+crsensesseeee eutcgeabietscivdas When the hearing shall exceed one hour, then for every additional hour which shall be occupied by such hearing, and at which the solicitor shall be present in court, provided the same be noted in the registrar’s. book, or be proved by affidavit, (such affidavit to be without charge,) the same not to exceed 20S: ccssesennensarnenensinnesnns inualosye wactdadan ie For every additional hour beyond one hour in the master’s office......... iraaiemeudlcbe -aceaabes For every additional hour in the examination of witnesses where no counsel employed..... Attending consultations of counsel, per hour... [No special attendance to be allowed toa solicitor on proceedings upon which he appears also as counsel. ] Appointment to settle minutes, or to pass decree or order, copy and Service.......sss0» For every hour’s attendance before the regis- bo 227 228 COSTS.—SOLICITOR. [onpER XLY., SEC. 11I.] trar by his appointment, on settling minutes, the same being noted by the registrar....... For every hour’s attendance before the regis- trar by his appointment, on passing decree or special order, the same being noted by the registrar.....sssesssessceecevens inane siesoesina Where minutes settled, or decree or special order approved of or passed between the solicitors after appointment issued by the VOQISHVAL s.csccecoesecnrese soseesee veowereseneeces [In such case no fee to be allowed to either party as for attendance before the registrar in respect of the same settling or passing. ] Fee on all writs and orders of court to the party obtaining the same......ssse seeseeaseees Tnstructions for brief... ....ccsceceessceseseecesene Brief, per folio, including briefing and fair copy, subject to be reduced by the master, if the same contain superfluous matter, or be of unnecessary length. ..se..scscssseccoesoee Observations, or other original matter in brief, Per LOlIO.....ecerererenrsencdebocasessenereveccart [No fee or brief for second counsel to be allowed, unless by order of a judge; and a brief of depositions or special affidavits to be allowed only where fee and brief for second counsel is taxed, and then only by the direction of a judge upon special application. J Advertisement for sale of real or personal estate, under the direction of the court, in- cluding all copies, except for printing....... Copies for printing, per folio.........cesseccseeee Fee on conducting sale—including arrange- ments with auctioneer, correcting proof- sheet, (if any,) and attending at sale......... For every hour beyond three occupied at such alGsa ss sisi can su seeseecave Muacansonteooder icose ales oo oo orn oon a COSTS.—COUNSEL. [ORDER XLy., sEO. u1.] Drawing bill of costs and attending taxation... 0 5 0 Drawing judge’s appointment, and attending for his signature, and to serve.....sseceseeees Every necessary attendance...... cael sae Postages—the amount actually disbursed. [The sum allowed for copying and briefing shall be six- pence per folio, except where authenticated by the regis- trar, or read over by the master: provided that the same shall not in any case exceed one half of the amount which shall be allowed for drawing what shall be so copied or briefed. ] COUNSEL. On argument at judges’ chambers in cases proper for the attendance of counsel, to be increased at the discretion of the judge...... On settling and signing pleadings and petitions respectively, where from their special nature the master shall think the pleading or peti- tion a proper one to be settled by counsel... OR CONMNIEATONG soscavsas so mesnsamnswanerweecasers On special applications to the court, arguing demurrer or other special argument, or at the hearing of a cause...... as gassesaucgeenasans To be increased, in the discretion of the mas- COT, FO. crcscccnvacceevccccccseteccccessccessoeeeses [Any fee exceeding £5, to be allowed only by order of a judge, to be obtained at the cost of the solicitor making the application. ] G5 0 0 1 8 010 0 010 0 1 5 0 15 0 5.0 (0 MASTERS IN ORDINARY AND DEPUTY MASTERS; MASTERS AND MASTERS EXTRAORDINARY. Every summons or warrant.......s0000 sadeaieaws : Administering oath, or taking affirmation...... Marking every exhibit.......... saeuels nents sanwenes Drawing depositions, reports or orders, per TON 4.08 sainecbesisvowerenssavasiteaeiswapeerdeceaen 0 0 0 or ow 229 230 COSTS.—MASTER.—REGISTRAR. [oRDER XLy., SEC. II.] One fair copy when necessary, per folio........ Copy of papers given out when required, per FOlIO..ceveene veceeeeee Meeeenecee peneeaaeenenaeeens Every attendance upon a LeEfEVeENCe......ee revere For each additional hour....scsssecesserseeeee re Every certificate......s.sss00 ashen onda Gesu Filing each paper.....s..esseeeserre signs pees anieesens Taxing costs, including attendance...........++ Making up and forwarding answers and depo- PILLONS ss anacsadeiadiad snva eta eneis Sexiew ea sivede’s semee Every special attendance out of office, within tWO Mil€S.........cee eee eeeecseceneceeee Every additional mile above tw0.s....seseesseeee Reading over affidavit, per folio..........- sso Matter added, per folio......:.cesscessecevees eee REGISTRAR. Entering parties’ names and filing bill, answer or demurrer.....00 siete vanes vawilss etew Lexaaareee Entering and filing all other pleadings, interro-' gatories and depositions, or other evidence Filing and registering ee exhibits, or OLHSE PAV ETS isi dente sie cved isiecia sins vansiatewan sive . Subpeena, including filing preecipe Special writ, writ of commission............06008 Office copy of papers required to be given out, per folio... secre (iaeeneee piindisid gue sion anatvals , Examining and authenticating same, when office copy prepared by solicitor, per folio. Attendance on appointment of guardian....... Amendment of record when re-engrossment not necessary, per folio............ veviceweayene Q Drawing fiat on petition........ Sere eeesetes . Attending a judge for his signature to any CocuMeNt OF PAPEL riscevssecisaeissenarense bt aAonanne Horn oo oRDOCO OCS oO orooSO COSTS. —REGISTRAR.—SHERIFF.—CORONER. 281 [ORDER XLV., SEC. 111.] Making up and forwarding interrogatories... 0 1 8 Setting Cowi CAUse sc. siesnicseguestanrmdneaxe OO 8 Certificate of pleadings being filed............... 0 2 0 Certificate of state of cause.......ccccrceeeeee 0 2 6 Drawing minutes of decree or special order, Pee TAO. saviecesen jackal Npeanavacsdantweeeneaes 0! Lo 20 Drawing decree or order, per folio............. 0 1 0 Entering same, per foli0...6s.-cceimsccce sees O 0 6 Fee on payment of money into court............ 0 1 3 Fee on payment of money out of court......... 0 1 8 Fee on admission of solicitor.........c0ceee 0 5 0 Certificate on each office copy of the time of filing’ Billsaswene oes aerial elds Saiearateee UNA, Searching files in office............. shawesence OL: -E Commission appointing deputy master or regis- trar, or master extraordinary (m).......0... 010 0 (m) By Order of court rromu'gated on the 30th of April, 1859, the fees and dis- bursements which may be charged by and allowed to sheriffs and coroners in respect of the services therein enumerated are provided for. The Order is as follows :— SATURDAY, 307m APRIL, 1859. The judges, in pursuance of the authority vested in them under and by virtue of the statute in that behalf, do hereby order and direct that the sheriffs and coroners, in their several counties, shall be entitled to receive and take for the several services hereinafter mentioned, the sums specified for the same, and no other or greater fees or allowance: ReEceEivine, filing, entering, and endorsing every paper..... . eesti a eee £0 1 3 Return of all Process and Writs except Subpoenas... Sljdoueeseaseedoas O26 Warrant to Bailiff on Writ not executed by Sheriff or hepaty.. ses w 0 2 6 SERvina each Office Copy Bill, including affidavit of service ............. ww. 0 5 0 Szrvine each Warrant, Notice, Certificate, Subpoena, or other paper.. 0 2 6 Nz Exeat—Arrest on, when amount endorsed under £50......666 sssseae we 0 5 0 £50, and under £100... seceesseeseeeeene saipcaininiecine vedtpucova Mausteeviessy 20,10. 0) £100 and over.......-1 04 bah i laepewaeuianeeas seeevene vaadeheaa te sibidedelcaae ne eees 10 0 ATTACHMENT—not defined, arrest OD...ssses sercsesseeersesscetsss seseeereesereeeene O10 0 Arrest upon attachment in the nature of an execution, when the sum endorsed is under £50. .....0100 seorevoen soceeeceseeseneee 0 Over £60, and under £100.......01.seeceeee eee 0 £100 OF OVE seessesses ressesesessenserse tonenases snneaseen D eeceeen nee eneas Conneenee 0 282 COSTS.—SHERIFF.—CORONER. [oRDER XLV., SEC. 111.] Besides Poundage for sums endorsed, when sum endorsed is under LOO ssrserced socecsecs ce cesenscevscsseacerenssaveee ceressssnsetes sasesoeesousoonD DOP Cont, Exceeds £100, but is less than £1000, 5 per cent. for the first £100, and 24 per cent. for the residue. £1000 and over, 1} per cent. on whatever exceeds £1000, in addition to the poundage allowed up to £1000. : SxquestRation—Upon seizure of estate and effects under Writ of Se- QWeStLAtiON s..sssce cecesseee one e ceseeetereeecceececserer ttsensersseteeertereee 010 0 Schedule of goods taken in execution, including copy for defendant, if not exceeding 5 foliog....ccsese css cosrseees sressssscreers ssn O 5 0 Each folio above 5.sssecssecccess ensceeees crecesseeveesss cesses ectsecserceerenssenss OF 0 6 Removing or retaining property, reasonable and necessary disburse- ments, and allowances to be made by the master, or by order of the court or judge. Poundage upon sequestration, followed by sale. Where amount made under £100, atsssssisecssrseeresesessces sssseeees seeeee O DOP Cont, £100, but under £1000, 5 per cent. for the first £100, 24 per cent. for the residue. £1000, and over, 1} per cent. on whatever exceeds £1000, in addi- tion to the poundage allowed up to £1000, in lieu of all fees and charges for services and disbursements, except mileage in going to seize, and disbursements for advertising, and except disbursements necessarily incurred in the care and removal of property, to be al- lowed by the master in his discretion. For Srrvices not Speciriep—The like charges as are allowed at com- mon law for analogous services. By Order I. of the Orders of court promulgated on the 138th day of April, 1859 the fee for setting down causes other than those pro confesso is increased The Order is as follows: . “J, That from and after the first day of July next, the fee payable t d t received by the registrar of this court, on the setting ee a each cae eine than those ordered to be taken pro confesso shall be the sum of ten shillings.” And by Order III. of the Orders promulgated on the 10th day of January, 1863 fees payable to a deputy registrar for setting down a cause oe ae ze ae nesses and hearing is fixed at. £2 for each case set down. This Order abrogates the Order promulgated on the 6th day of February, 1858, as to fees payable to deputy registrars for setting down causes for examination of witnesses. PROCESS. XLVI.—No writ of execution shall be issuéd for the purpose of requiring or compelling obedience to any order or decree of the court; but the party required by PROCESS—ATTACHMENT.—SEQUESTRATION. 2338 [ORDER XLvI., SEC. I. AND I1.] such order or decree to do any act, shall, upon being Writofexecution duly served with such order or decree, be held bound to do such act in obedience to such order or decree. (z) (n) English Consolidated Order XXX., Rule 4. The party in contempt may be heard to shew that proceedings, subsequent to the order placing him in contempt, are irregular. (Morrison v. Morrison, 4 Hare, 590; King v. Bryant, 3 M. & Cr. 191; and see Wilson vy. Bates, 8 M. & Cr. 197; Haw- kins v. Hall, 1 Bea. 73; 4 M. & Cr. 280.) Src. 2.—If any party, who is by any order or decree ordered to pay money, or to do any other act in a limited time, shall, after due service of such order or decree, re- fuse or neglect to obey the same according to the exi- gency thereof, the party prosecuting such order or decree shall, at the expiration of the time limited for the per- formance thereof, upon filing with the registrar an affi- davit of the service of such order or decree, and of the non-performance thereof, be entitled without further order to a writ or writs of attachment against the dis- obedient party ; and in case such party shall be taken or ‘detained in custody under any such writ of attachment without obeying the same order or decree, then upon the sheriff’s return that the party has been so taken or detained, the party prosecuting such order or decree shall be entitled without further order to a commission Of g.qucstration. sequestration against the estate and effects of the dis- obedient party. (0) Attachment. (0) The attachment must be entered in the registrar’s book before it issues. (Smith v. Thompson, 4 Mad. 179.) The seizure of the defendant’s person under an attachment, does not destroy the plaintiff’s right to proceed against his property. (Roberts v. Ball, 3 Sm. & G. 168.) By C. S. U. C., ch. XXIV., sec. 18, ‘‘an act respecting arrest and imprisonment for debt,” a party cannot be attached for non-payment of money, which must be recovered by fi. fa. as at law. (See sec. 19.) Before this act, where a party was ordered to pay money into court, his becoming insolvent would not prevent his being arrested for contempt, on disobedience of the order. (Brewer v. Rose, 2 U. C. Jur. 6.) 30 234 PROCESS.—ATTACHMENT. [ORDER XLVI., SEO. TI. AND I1I.] A married woman being assumed to be under the control of her husband, upon default by her, the husband, and not she, will be in contempt. (Maughan v. Wilkes, Grant’s.Cham. 91; 8 U.C. L. J. 186.) Where an application for an attachment against a married woman for not bringing in accounts into the master’s office was refused on the above ground. It is not necessary in proceeding against a corporation for contempt to sue out a writ of distringas, the proper course is by orders nzsi and absolute for a sequestration. (Attorney-General v. Brantford, Grant’s Cham. 26.) On moving absolute an order nis¢ to deliver an abstract of title to the plaintiff or his solicitor, it must be shewn that it has not been delivered to either party named in the order. (Dick v. McNab, Grant’s Cham. 31.) — ss Effect of contempt.—As a general rule a party in contempt cannot take any step in the cause till he has cleared his contempt by doing the act required, and paying the costs of contempt. : ee A party in contempt, however, is entitled to move to discharge an order made adversely to him. (Futvoye v. Kennard, 3 L. T. N. S. 687; 2 Giff. 110.) And generally to take any proceedings to clear his contempt. Where a stay of proceedings was ordered against a plaintiff in contempt until clearance of contempt, and the plaintiff had not cleared his contempt, a motion by the defendant to dismiss for want of prosecution was refused as irregular. (Futvoye v. Kennard, 2 Giff. 583; 80 L. J. Ch. 262.) coe Clearing contempt.—A party in contempt in order to clear hia contempt, should do the act required, and pay the cosis of contempt. So where a party in contempt for not bringing in accounts into the master’s office filed the accounts, but did not pay : costs of contempt, an order was granted ex parte to remove the accounts filed in order that the party might be proceeded against for contempt. (Corbett Grant’s Cham. 26.) pe ee ae ae forty days belone and ee each session, & member of the Provincial Parlia- ment is privileged from arrest for contempt. (Wadsworth vy. Boul ( n 76; Meyers v. Harrison, 4 Grant, 148.) ( oneon, 20. Ge Chem, A solicitor while proceeding to attend an appointment with a pers is acting professionally, is privileged from arrest under atttebinent, ae (Eng.,) 40. C. L. J. 290; Byre v. Barrow, (Bng.,) 5 U. C. L. J. 45.) ; Query, whether the sheriff can be compelled to serve any pa - cess issuing from court; (Porter v. Gardner, Grant’s Cham. 6 ce peta where a sheriff will not return papers sent to him for service, is to give notice to the sheriff that unless the papers are returned by a day named, a motion will b di for an order that the sheriff do return them. (Ibid. ) _ pt ae, Hae pacnen stack Sec. 3.—If an attachment cannot be executed against executed. such party so refusing or neglecting to obey such order or decree, by reason of his being out of the jurisdiction of the court, or of his having absconded, or that with due diligence he cannot be found, and the court be satisfied = PROCESS.—-ENDORSEMENT ON ORDER OR DECRER. 235 [ORDER XLVI, SEC. IV., V., AND VI.] by affidavit that such is the case, the party prosecuting such order or decree shall be entitled to an order for a commission of sequestration against the estate and effects of the disobedient party; and it shall not be necessary for this purpose to sue out an attachment in the first instance. (p) (p) Property seized under a writ of sequestration cannot be sold without an order for that purpose previously obtained on motion, notice whereof must be given. (Forbes v. Connolly, Grant’s Cham. 6.) Where property sequestered is claimed by a third party, on motion an enquiry by the master will be directed as to ownership. (Re Brennan, 2 Grant, 274.) On the sheriff’s return of “ non est inventus,” and on affidavit to that effect, seques- tration will issue at once under this order, which is similar to the 188th of V.¢. Jamieson’s orders. (Prentiss v. Brennan, 1 Grant, 497.) Sec. 4.—Commissions of sequestration are to be cae, directed to the sheriff, unless some good reason exists for "bom directa. the contrary. Sec. 5.—Attachments with proclamations and com- Attachment with = ° < proclamation missions of rebellion are hereby abolished; and it shall and commission not be necessary, in order to enforce any order or decree, abolishea to obtain any order for, or sue out a warrant to, the sergeant-at-arms. (q) (p) English Consolidated Order XXX., Rule 5. So, Ti to bi Sec. 6.—Every order or decree requiring any party jime ©! dee to do any act thereby ordered shall state the time after * ‘Tt service of the decree or order within which the act is to be done ; and upon the copy of the order or decree which shall be served upon the party required to obey the same, there shall be endorsed a memorandum in the words, or to the effect following, namely, “If you, the within named, (here insert the name of the party), neglect to obey this order or decree hy the time therein limited, 236 PROCESS.—COSTS.—WRIT OF ASSISTANCE. [ORDER XLVI., SEC. VII. AND VIII.] Endorsement. yoy will be liable to be arrested by the sheriff; and you will also be liable to have your estate sequestered for the purpose of compelling you to obey the same order or decree without further notice.” (7) ; : (r) This section does not apply to process for contempt for default in the master’s office. Where an order of reference to arbitration is obtained, and an award made, the proper course in order to compel obedience to the award is to obtain an order, on notice, (specifying the acts to be performed,) that the party do perform the award within a time limited by the order, which must be endorsed in accordance with this section. (Wilson v. Switzer, Grant’s Cham. R. 44.) It would seem that merely making the award an order of court, though such be endorsed and served personally, is not sufficient to place the party in contempt on default, and it would certainly be insufficient if the award did not limit a time for the performance, as directed by this section. (Jbid,) core ehoienea. SEC. T.—Subpeenas for costs are hereby abolished: a decree or order directing the payment of costs is in future to fix a time for such payment; and such decree or order shall be enforced in the same manner as any other decree Payment of costs, . . how enfored. “or order directing the payment of money; for this pur- pose it shall be necessary to serve only a copy of so much of the decree or order as directs the payment of such costs, and the time to be fixed is to be a certain time after such service. (s) (s) It would seem that if the order do not fix a time for the payment of the costs payment of them could not be enforced until an order fixing such time had been obtained and duly served. (Saul v. Cooper, 4 Grant, 61.) Writ of attach- i i mentorinane SC. 8.—It shall not be necessary to issue any writ tion on d . nT ui eee tdci Of attachment or injunction upon any decree or order for amdwin delivery of possession, but the party prosecuting such decree or order, upon filing with the registrar an affidavit of service of the same, and of non-compliance therewith shall be entitled without further order to a writ of seattle ance. (¢) (¢) In applying for the writ of assistance the affidavit in support of the application PROCESS.—PRODUCTION. 237 [ORDER XLVI., SEC. IX. AND X., AND ORDER XLVII.] need not shew an existing non-compliance with the order to be enforced. (Webster y. Taylor, 18 Jur. 869.) For the form of writ, see Book of Forms, Part the Second. EC. J.— 4] t Order for produc- SEc. 9.—No order for the production of deeds, papers, Order for produ writings or documents, made under the 20th Order of this bow te served. court, shall require personal service; if the party re- quired to obey the same shall have a solicitor, it shall be proceeaings sufficient to serve the same upon such solicitor: but any pee fae oe writ or writs of attachment to be issued for disobedience" to any such order, must be obtained according to the oraer nisi to present practice by orders nis? and absolute, and such poe orders nist must be personally served. (w) (u) This section does not apply to production in the master’s office. Sec. 10.—Every person, not being a party in ae cause, who has obtained any order, or in whose favour an Persons net par order has been made, shall be entitled to enforce obedi- ence to such order by the same process as if he were a party to the cause; and every person not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing obedience to such order as if he were a party to the cause. (v) (x) See Heal v. Harper, 2 Grant, 695, where prior to this order all parties con- senting, the Canada Company were ordered to convey property. They had appeared in the master’s office under the decree, but it does not appear from the report whether they had been made parties in the Master’s office, or not. XLVII.—The power of the court and of the judge sit- rover geet ot ting in chambers to enlarge or abridge the time for doing afected by these any act, or taking any proceeding in any cause or matter upon such (if any) terms as the facts of the case require, or to give any special directions as to the course of pro- ceeding in any cause or matter, is unaffected by these orders. (w) (w) English Orders No. XXXV., Rule 62, and No. XXXVIL, Rule 17. This Order 238 APPOINTMENT OF GUARDIAN AD LITEM BY PARTY. [orbDERs 6TH guNE, 1853.] seems to reserve to the judges, whether sitting in court or in chambers, their inherent right to alter, in special cases, the times limited by the General Orders. The following cases may be consulted as to the operation of General Orders, and the construction which will be placed upon them. (Coyle v. Alleyne, 14 Bea. 171; Burrell v. Nicholson, 6 Sim. 212; Boehm v. DeTastet, 1 V. & B. 327; Matthews v. Chichester, 11 Jur. 49; on appeal from 5 Haré, 207; Beavan v. Mornington, 8 Ww. R. 669; Ferrand vy. Mayor, &c., of Bradford, 8 DeG. M. & G. 93.) In this latter case itis held that any judge of the court may dispense with the General Orders where justice requires. 6TH JUNE, 1853. I. The following Orders and parts of Orders, comprised in the General Orders of the third instant, namely, VI, section 9 of IX, section 8 of XII, section 8 of XIII, XV, XVI, XVIL, XX, XXV, XXVI, XXVII, XXVIII, XXIX, XXX, XXXI, XXXII, XXXII, XXXIV, XXXV, XXXVI, XXXVIIf, XXXIX, XL, XII, XLII, XLII, XLIV, XLV, XLVI—are to take effect from the date hereof, as to all suits, as well those now pending, as those subsequently instituted. If. Appointment of A party desirous of appointing a guardian for him to ardian ad . : kiem by party defend a suit, may go before a judge or master with the proposed guardian, and the judge or master may appoint such guardian if he shall think fit so to do. But he must be satisfied by affidavit that such proposed guardian is a fit person and has no interest adverse to that of the per- son of whom he is to be the guardian in the matter in question ; and if the affidavit is not sufficient for this purpose, he may examine the proposed guardian, or the person making the affidavit, viva voce, or require further evidence to be adduced until he is satisfied of the pro- priety of the appointment. (z) (x) See supra pp. 71-74. SOLICITORS STRUCK OFF THE ROLL.—MOTION FOR DECREES. 239 [orpERS 6TH FEB., 1854, ayp 307TH APRIL, 1855.] MONDAY, 61a FEBRUARY, 1854. It is ordered, that whenever hereafter any solicitor of when solicitors this court shall be struck off the roll of solicitors, or be sims is boven "Le oe ig oe . fied to Superior prohibited from practising as a solicitor, by order of this Courts of U.c. court, for malpractice or misconduct as a solicitor, or other sufficient cause, the registrar of this court shall forthwith certify such dismissal or prohibition, and the. grounds thereof expressed in general terms under the seal of this court, and shall transmit such certificate to each of the superior courts of Upper Canada. And that this court on receipt of any similar certifi- o, receipt of cate from the Court of Queen’s Bench, or Court of Com- aoe ee mon Pleas, of any attorney of either of the said courts stick off theroll respectively, having been struck off the roll of such court, *°U""™ or prohibited from practising therein, shall thereupon take proceedings for striking such person, being a soli- citor of this court, from the roll of solicitors; or for prohibiting his practising therein according to the course and practice, and in like manner and under like circum- stances observed in similar cases in the superior courts in England. MONDAY, 30TH APRIL, 1855. It is ordered, that in future all motions for decrees, motions for doe ’ ‘3 an and motions by way of appeal from the master’s report, of appeal tobe” . . Be! 10" a are to be set down in a paper of motions and will be cal- led on in their order, after other motions are heard. (y) Totions for decrees and appeals from Master’s reports are now by Order of Pres Rouk, 1862, heard on Tuesdays and Wednesdays in each week. And by a same Order it is provided that lists are to be prepared by the registrar. This Or er may be read with the Order of 28th of April, 1862, but it is in effect superseded by "i as by the last mentioned Order it is provided that ‘‘other motions” are to be hear on Mondays. See Order of the 28th day of April, 1862, infra. 240 EVIDENCE, &(0.—APPOINTMENT OF GUARDIANS TO INFANTS. [orpers 17ra sepremBer, 1856, anv 8TH NoveMBER, 1856.] WEDNESDAY, 17rH SEPTEMBER, 1856. Evidence maybe. Witnesses and parties may be examined before any ‘aken before ex- i > x . : : aminer where »o examiner of this court in those counties in which there eputy-master, i i, may be no deputy-master, until the appointment of a deputy-master in any such county. (z) (z) This Order is superseded by those subsequently promulgated, and particularly by Orders of the 10th day of January, 1863, for which see infra, which Orders pro- vide (Order II.) that no evidence is to be used on the hearing of a cause which has been taken before any examiner or officer of the court, unless by the order first had of the court or a judge thereof, upon special grounds adduced for that purpose. And indeed since the Orders of February, 1858, and the practice of going circuit has been adopted, the court has refused to act upon this Order of September, 1856, and that, too, even if all parties consented. (Phelan v. Phelan, 6 Grant’s Ch. RB. 384.) SATURDAY, 8ta NOVEMBER, 1856. guiniaus tein, © When infants or persons of unsound mind, not so decree.’ ““** found by inquisition, are made parties to suits after de- cree, or are served with a notice of motion under order XIII. of the General Orders of June, 1853, guardians ad litem are to be appointed for them in like manner as they are now appointed at any time after bill filed; and this order is to take effect from the date hereof as to all suits as well those now pending as those hereafter to be instituted. (a) (a) See notes to Order XIII., of the Orders of 1853, p. 71 et seg., and notes to Order XXXVIII, sec. 2, p. 175, supra. The Court of Cheabory, in acetianey susie: diction, can entertain applications relating to the property under its control, of per- sons of unsound mind, not found lunatic by inquisition. (Macfarlane, In re, 8 Jur. N.S. 208 ; 81 L. J. Ch. 885; 10 W. R. 869; 6L. T.N.S. 154.) As to property of a lunatic, and disposition thereof, see Scammell y. Light, 8 Jur. N. S. 1122; 11 W. B. 83; 71. T. N.S. 414; Leeming, Jn re, 3 DeG. F. & J. 43; Wheeler, Te re, 8 Jur. N. 8. 785; 6 L. T. N.S. 846; Trevylyan, In re, 81 L. J. Ch. 660; 10 W. RB. 828. Where one of three partners became lunatic, the court ordered the partner- ship property to be sold as a going concern, with liberty to all parties to bid. (Row- lands v. Evans, Williams vy. Rowlands, 8 Jur. N. 8.88; 31 L. J. Ch. 265 ; 10 W. R. SERVICE OF BILL ON CORPORATIONS. 241 [orpeR 17TH marca, 1857.] 186.) And where by the lunacy of a vendor a decree in a suit for specific perform- ance is necessary as ground for a vesting order, no costs will be given on either side. (Cresswell v. Haines, 8 Jur. N. 8. 208; 31 L. J. Ch. 237.) THURSDAY, 17tH MARCH, 1857. 1. When service of a bill of complaint has been made Service of bill on corporation ag- ithi Jurisdicti . gregate in U. C, within the jurisdiction of the court, upon a corporation srgate in 0. Co aggregate, by personal service thereof on the mayor, onde warden, reeve, president, or other head officer, or on the township, town, city, or county clerk, cashier, manager, treasurer, or secretary of such corporation, or of any branch or agency thereof in Upper Canada, or other person discharging the like duties, and when no answer has been filed to such bill within twenty-eight days from the service thereof, the plaintiff may, after the expira- tion of twenty-eight days from the service of such bill, apply to the court, ex parte, for an order to take the bill pro confesso, and the court upon being satisfied of the due and proper service of such bill of complaint, and that no answer has been filed thereto by such corpora- tion, may, if it think fit, order that the bill be taken pro confesso against such corporation. 2. In cases where a foreign corporation aggregate, defendant to a bill of complaint, has no branch or agency in Upper Canada, then upon application to the court, supported by such evidence as may satisfy the court, in what place or country such corporation is situ- ated, the court may order that an office copy of the bill may be served on such corporation in such place or country, or within such limits, and by personal or other service on such officer of such corporation, as the court samo as to foreign corpo- may think fit to direct. Such order ig to limit a time rations having ” no agency, &c., (depending on the place of service) within which such de- inv. c. 31 242 Order P. C. need not be served. \ Order applies to all suits. EXAMINATION BEFORE DEPUTY MASTER. [orpER 6TH APRIL, 1857.] fendant is to answer or demur to the bill, or obtain from the court further time to make defence to the bill, and where such corporation has neglected to answer or demur to such bill within the time limited by the order authorising such service, the plaintiff may apply to the court ex parte for an order to take the bill pro confesso against such corporation, and the court being satisfied of the due service of the said bill according to the exi- gency of such order, and that no answer has been filed for such corporation, may, if it think fit, order the same accordingly. 3. Such order to take the bill pro confesso does not require to be served, and all further proceedings may be ex parte against such defendant unless the court order otherwise. \. 4, This order is‘to apply as well to all suits and mat- ters now depending in this court, as to those hereafter to be commenced. (5) (4) See notes to Order IX., sec. 4, of the Orders of 1858, pp. 80 et seg., supra. Parties and witnesses to be examined out of term before master. MONDAY, 6tH APRIL, 1857. Whereas it is absolutely necessary for the proper des- patch of business in the court, that the change herein- after provided be made in the practice as regards the examination of witnesses and parties; it is therefore ordered that all examinations, out of examination term, of parties or witnesses, whether in a suit or in any mat- ter or otherwise, be taken until further order before a “deputy-master, or before a special examiner appointed for that purpose, unless the court or a judge thereof in EXAMINATION OF WITNESSES. 243 [ORDERS I. AND IL, 23RD DECEMBER, 1857.] chambers shall otherwise order upon application to be made for that purpose, which may be ez parte, but must be supported by affidavits setting forth the special grounds on which it is made. (ce) (¢) See note to Order of the 17th of September, 1856, supra. Since the practice of making circuits, one of the chief objects of which was that all evidence might be taken before one of the judges, has been adopted, the court has refused to direct the examination of witnesses to take place before an examiner in a county where uo resident master has been appointed, though consented to by the parties, notwithstanding this Order and the Order of the 17th of September, 1856. (Phelan v. Phelan, 6 Grant, 384.) WEDNESDAY, 23np DECEMBER, 1857. I. The judges of the Court of Chancery, in pursuance and in execution of all the powers enabling them in that behalf, do hereby order and direct that the rules, orders, and directions hereinafter set forth, shall henceforth be, and for all purposes be deemed and taken to be General Orders and Rules of the Court of Chancery, viz. : II. The orders numbered XXIII. and XXV. of the Orders promulgated on the 3rd day of June, 1853, are hereby abrogated and discharged. EXAMINATION OF WITNESSES. (d) The plaintiff is to select the place at which the Wit- xotiso for exami nesses in the cause are to be examined, which may be foe ete any one of the places at which examinations are held, as macin'in the hereinafter provided. The place selected is to be desig-'f compisint. nated in the margin of the bill of complaint; and the witnesses of all parties are to be examined at the place so designated before one of the judges of this court unless otherwise ordered. e notes to Order XX. of the Orders of 1853, pp. 98-114, and notes to Order (d) Se ie XL., sec. 7, pp. 180-182, supra. 244 EXAMINATION OF WITNESSES. [onver 11. 28RD DECEMBER, 1857, SEC. I. AND uJ Where a witness who had given evidence at law in an action between substantially the same parties as those in equity was afterwards committed to the penitentiary and refused to give evidence in equity, the court ordered his evidence given at nisi prius to be read from the judge’s notes. (Switzer v. Boulton, 2 Grant, 693.) Where the plaintiff sets down his cause for examination, and when it is called on is not prepared to go on, the defendant may have the cause struck out with costs of the day. (Cobourg and Peterboro’ Railway Co. v. Covert, 7 Grant, 411; overruling Wallace v. McKay, Grant’s Cham. 67.) And where a cause is set down by the plaintiff for examination and hearing under the Orders of January, 1868, and the plaintiff is not prepared when the case is per- emptorily called on, the defendant may either have the cause struck out with costs of the day, as in the above case, or he may have the plaintiff’s bill dismissed out of court with costs. (See sec. 8, of Order IIL., of these Orders infra.) Where the examination of a witness is closed and it is necessary that he should produce certain books, &c., at the hearing, the court may require him to do s0 by a subpoena duces tecum. (Vorley v. Jerram, 5 U. C. L. J. 71.) Examinations de bene esse. —Examinations of this kind are allowed where an impor- tant witness is about to go out of the jurisdiction; (M’Intosh v.G. W. R. Co. 1 Hare, 328 ; Botts v. Verelst, 2 Dick. 454; but see E. I. Co. v. Naish, Bunb. 320;) or there is danger of losing his evidence from old age; (say 70 years or more;) (Rowe v. —, 18 Ves. 261 ;) or dangerous illness; (Bellamy v. Jones, 8 Ves. 31;) or where heis the only witness to an important fact; (Shelley v. ——, 13 Ves. 56; Brydges v. Hatch, 1 Cox, 423; Shirley v. Earl Ferrers, 3P. W. 77; Pearson v. Ward, 2 Dick. 648;) and see E. Cholmondely v. E. of Oxford, 4 Bro. OC. C. 157; where. two persons were allowed to be examined de bene esse, they being the only ones who knew material facts. But see Anon, 19 Ves, 321. Where the ground of the application is that the person is the only one who knows the fact, the affidavit should state the particular points to which the proposed evidence is to apply, and that the proposed witness is the only person who knows the facts, and also the grounds for believing that he is the only one. (Rowe v. —, 18 Ves. 261; Hope v. Hope, 3 Beay. 317; Pearson v. Ward, 2 Dick. 648; 1 Cox, 177.) The order will be granted at the instance of the plaintiff in a proper case, imme- diately after bill filed; (Dew v. Clarke, 18. & S. 108;) but not at the instance of a defendant till he has answered. (Williams v. Williams, 1 Dick. 92.) Where the ground of the application is that the witness is dangerously ill or above 70 years of age, the order will be granted ex parte, in other cases notice of motion should be served. (Bellamy v. Jones, supra; Tomkins v. Harri 6 ; Hope v. Hope, 3 Beayv. 317.) i erent aes In this province the order will be granted where the practice requires it, though generally only where the proposed evidence is to be used fo: fini (Whitehead v. Buffalo, 5 U. C. L. J. 232.) See eee Notice of the place and time of examination should be duly served i that they may cross-examine. (Loveden y. Milford, 4 Bro. . Cc. 540.) fee Src. 2,—Any party to the suit may apply to the court, upon notice to all parties, to change the venue, and thereupon the court is to make such order as to the EXAMINATION OF WITNESSES. 245 [ORDER U1. 23RD DECEMBER, L857, SEC. 111, IV., AND V.] taking of the evidence in the cause as the circumstances Terms and places c . cing evi- of the case may require; and such order is to be upon nce im equity such terms and conditions, as to costs or otherwise, as the court may think right to impose. Sec. 3.—Witnesses resident out of the jurisdiction may be examined, as heretofore, upon commission. (e) (e) The party desirous of obtaining a commission for the examination of witnesses out of the jurisdiction applies to a judge in chambers on notice for an order for that purpose. His application must be supported by an affidavit which should set out the names and addresses of the witnesses proposed to be examined, that they are material and necessary, and that they are required to prove certain facts, and that the application is bond jide and not for the purpose of delay. If the opposite party elects to join in the commission he is at liberty to do so. On the order for the com- missicn having been obtained, the party applying for the commission should give to the other two days’ notice in writing calling upon him to name commissioners. Hach party is entitled to name four commissioners, and on the return of the appointment the names are struck before the registrar. The parties usually, to save expense, agree among themselves upon two persons to act as commissioners. When the com- missioners’ names are struck or agreed upon they are inserted in the commission, which is prepared by the registrar. When a commission to examine witnesses has been executed and returned into court, an order ex purte will be granted for open- ing the commission and publication of the evidence, notice to the opposite party be- ing required of the time when the commission is to be opened. (Neale v. Withrow, 4. U. C. L. J. 88.) The rules of practice which allow evidence to be taken under a commission are not to be extended where the object is to procure mere scientific testimony—that is to say, the testimony of experts. (Russell v. Great Western R. Co., 3 U. C. L. J. 116.) Witnesses examined under commission are usually examined by means of written interrogatories. Order XXI. of the Orders of June, 1853, which is the same as Order LIII. of the Orders of May, 1850, being held not to apply to foreign commis- sions. (Anon., 2 Grant 122.) Sxc. 4.—The following terms are fixed for the exami- nation of witnesses at the undermentioned places, viz.: (f) (f) The terms for the examination of witnesses fixed by this Order were subject to frequent alteration to suit the convenience of the court, and the judges have now ar- ranged to adopt the practice followed by the common law judges in arranging their. circuits in the spring and fall. And hereafter the court will promulgate an naey previous to the spring and fall circuits, appointing the places and the times where and when examinations and hearings are to be held. The several places being divided into ‘‘the Home,” ‘‘the Eastern,” and ‘¢the Western ” circuits. Src. 5.—No rules to produce witnesses or pass publi- 246 EXAMINATION OF WITNESSES. [orDER 11. 23RD DECEMBER, 1857, sEC. V.] 2 ! oe “No rules to pro: gation are to be taken out. When issue has been joined duce witnesses or pass public” in 9 cause three weeks before the commencement of the tion. Publica- vin aes, hext ensuing examination term, at the place where the venue has been laid, publication is to pass at the close of such term; and when issue has been joined less than three weeks before the commencement of the next ensu- ing examination term, at the place where the venue has been laid, publication is to pass at the close of the follow- ing term. (9) (g) If the replication be filed in time to allow a cause to be set down for examina- tion at the next term, but it is not set down, publication does not pass till the close of the term following the one for which it might have been set down. If, however, a cause has been set down for examination, publication passes at.the close of the ensuing term, though issue has been joined less than three weeks before it commences; (Wallace v. McKay, Grant's Cham. 67 ;) and see sec. 10 of this Order, which provides that ‘“‘the witnesses of all parties are to be examincd during the term for which the cause has been set down.” The court will, however, in a proper case, grant an order enlarging the time for publication ; (Moody v, Leeming, 1 Mad. 85; Barnes v. Abram, 8 Mad. 103; in the latter case publication was enlarged several times ;) or in special cases will open publication after it has passed. Applications to open publication are, however, not encouraged; (Mallock v. Pinhey, Grant’s Cham. 105; 8 U. C. L. J. 190;) and will not be granted if the proposed evidence could have been obtained in due course, with reasonable diligence ; (Waters v. Shade, 2 Grant 218;) and suits for alimony. are not excepted from this rule. (McKay vy. McKay, 6 Grant, 279.) : The court refused to open publication at the instance of a defendant to obtain evidence of an alleged conversation between a person named in the bill and a co-de- fendant, on the ground that the attention of the defendant having been called to the person by the bill, it was negligence not to have made enquiries of such person; and it also appearing that the evidence if let in would not be conclusive. (Mallock v. Pinhey, supra.) : If, however, there has been no negligence on the part of the applicant, and it would be conducive to justice, publication will be opened, and if necessary a commis- sion will be issued to examine witnesses out of the jurisdiction. (Blain v. Terry- berry, Grant’s Cham. 105.) ‘The terms on which the application was granted, were payment of the costs of the application, and of a counsel attending the examination of the proposed witnesses, and upon other terms insuring due diligence in the examination. (J bid.) Where publication had closed, and nothing had been done by either party for. six years, it was opened on the application of the plaintiff. (Chambers v. Chambers,-4 U. C. L. J, 282.) Where the defendant had examined his witnesses, but the plaintiff had not, and there was a short delay on his part on account of poverty, the court granted an application by the plaintiff to open publication. (Taylor v. Shoff, 3 Grant, 153.) EXAMINATION OF WITNESSES. 247 [ORDER 11. 23RD DECEMBER, 1857, sec. VI. AND vil. ] Where the defendant’s solicitor omitted to ask a witness what had become ofa deed mentioned in his evidence, whereby the defendants were precluded from giving secondary evidence of its contents, leave was -given to exhibit an interrogatory to prove where the deed was, after the cause had been set down for hearing. (Covert v. Bank U. C., 1 Grant, 566.) Where, however. any party to the suit obtains an order to open publication, the other parties may examine at large, unless the order opening publication be restric- tive, it being a rule that when publication is opened for one, it is opened for all. (Anon., 1 Vern. 253.) On an application to open publication by one defendant, the other defendants must be served with notice. (Brydges v. Branfill, 10 L. J. Ch. 14,) As to enlarging publication generally, see Whitelock v. Baker, 13 Ves. 512; Yate v. Bolland, 1 Dick, 495; Cook v. Broomhead, 16 Ves. 133 ; Conethard v. Hasted, 3 Mad. 429; Anon., 11. J. Ch. 119; Long v. Barne, (Zoid ;) Harrison vy. Corbould, 7 L.J. Ch. 162; Barraud v. Archer, 1 W. R..109. The application must be made in chambers. Sec. 6.—At any time after the issue joined, the case Any Patty hav- ing witnesses to may be set down for the examination of witnesses by any ana party to the cause who has witnesses to examine. ezunination, Sec. 7.—The party who desires to have a cause set ies down for the examination of witnesses is to enter it for pale nha aa that purpose with the registrar, or deputy-registrar, at Puy resistrar. the place where the venue has been laid at least fourteen days before the commencement of the next ensuing examination term. (2) (2) See the third Order of the Orders of Court, promulgated on the 10th day of January, 1863, as follows: “TIT. When the examination of witnesses before a judge is to be had in any town or place, other than that in which the pleadings in the cause are filed, it shall be the duty of the party setting down the cause for such examination, to deliver to the registrar or deputy-registrar with whom the pleadings are filed, a sufficient time be- fore the day fixed for such examination, a precipe requiring him to transmit to the registrar or deputy-registrar, at the place where such examination of witnesses is to be had, the pleadings in the cause; and at the same time to deposit with him a suf- ficient sum to cover the expense of transmitting and re-transmitting such pleadings, and thereupon it shall be the duty of such registrar or deputy-registrar forthwith to transmit the pleadings accordingly.” By the same Order it is provided as follows: «The fee payable to the deputy-registrars for setting down causes under the-fore- going order is to be two pounds,” Sec, 8.—The registrar or deputy-registrar is to pre- pare a list of all causes entered for examination, and Causes to be ,.each cause is to be set down in such list in the order in 248 EXAMINATION OF WITNESSES. [oRDER 11. 23RD DECEMBER, 1857, sEC. Ix, AND x.] ing to the rei which it has been entered with the registrar, and causes are to be called on according to the registrar’s list. Notice that the Sxc. 9.—Notice that the cause has been set down for has b : : . : setdown fr the examination of witnesses is to be served by the party examination to 3 ‘ he served upon setting the same down upon all parties at least fourteen all parties; bu . . no appointment days before the commencement of the examination term e taken ou ‘a . : i ie a or lists of wit during which such evidence is to be taken, which notice nesses to be fur- . . nished. may be in the form set forth in schedule A. to these orders annexed, but no appointment is to be taken out, and no list of witnesses furnished. whe witneseesof SEC. 10.—The witnesses of all parties are to be eae aee” examined during the term for which the cause has been the ti 1 appointed unless Set Gown, unless the court shall have seen fit, upon a the examination . . . . . has been post. previous application, to postpone such examination; or time allowed. unless the judge before whom the evidence is to be taken shall see fit to postpone such examination, or to allow time for the production of further evidence ; and when such examination is postponed in the manner aforesaid, or when time is allowed for the production of further evidence, the order is to be upon such terms, as to costs or otherwise, as the court, or a judge, may think it right to impose. (h) (4) See Orders promulgated on 28th April, 1862, which provide for the examina - tion of parties to suits without order :— ‘““EXAMINATION OF PARTIES TO SUITS. Any party defendant may be examined as a witness without order, on behalf either of the plaintiff or of a co-defendant. And any party plaintiff may be examined as a witness without order, by a co-plaintiff, or by a defendant, in cases where under the present practice such examination may be had upon the common order being ob- tained for that purpose.” _ The attendance of witnesses can be compelled by subpoena. If a witness is resident in Lower Canada, an application may be made ex parte to a judge in chambers for an order that a subpcena may issue commanding such person to attend, The applica- tion must be supported by an affidavit which must negative the fact that any action is pending for the same cause of action in Lower Canada. It must state the namo EXAMINATION OF WITNESSES. 249 (oRDER 1, 28RD DECEMBER, 1857, SEC. XI., XIJ., XIII, AND xIV.] of the witness, and that he is resident in Lower Canada, and where—and that he is a material and neccssary witness. On obtaining the order, the registrar issues the subpcepa. A copy of the order should be served on the witness as well as the sub- peena, and the originals produced to him. The power of issuing such a subpcena is given to the court by Con. Stats. of Canada, ch. LXXIX., secs. 4, 5, 6 & 7, pp. 890, 891. The witness may be punished for disobedience to the subpcena, see sec. 8. But his expenses must be paid or tendered, see sec. 9. The statute 14 & 16 Vie., ch 66, does not authorise parties being received as witnesses on their own behalf. (Fuller v. Richmond, 2 Grant, 509.) To admit the evidence of a particular witness as to a particular fact after the general evidence is closed, is always looked upon as very objectionable and open to abuse, on the ground that such witness has had an opportunity of seeing what evidence has been given by the others, and the opposite party no opportunity of having the previous evidence taken out of the presence of the proposed witness. (Peterborough v. Conger, Grant’s Cham. 37.) — i i The judge before Sec. 11.—Where differences arise as to the conduct of The judge bel the examination, the judge before whom the evidence is Src e'tten,t? being taken, is to prescribe the order in which the several Stinaton.” parties are to adduce their witnesses, or to give such directions as to the general conduct of the examination as the circumstances of the case may require; and the evidence of any person who declines to produce his wit- nesses when called upon is to be altogether excluded, unless the judge shall order otherwise. Sec. 12.—Any witness may be recalled for further eons gee wate . : oe . : nisi prius, with- examination, as in trials at nés¢ prius, without any order out an order of of the court having been obtained for that purpose. iced Src. 13.—Articles are not to be filed in future for the, , diane) purpose of discrediting a witness: but witnesses may be nen called for that purpose, without the leave of the court eae and they are to be examined at the time and place fixed for the examination of the other witnesses in the cause, unless the judge before whom the evidence is being taken shall otherwise order. Sec. 14.—Depositions are to be taken and expressed Dopositions to be in the first person of the deponent. 0) (i) Imp. Stat., 3 & 4 Wm. 4, ch. XCIV., sec. 27, and 107th Order of May, 1845, Eng, 32 250 EXAMINATION OF WITNESSES.—HEARINGS. [oRDER II., SEC. XV. AND XVI., AND ORDER Ill. OF 23RD DECEMBER, 1857, SEC. I-V.] Orders. The witness must sign the depositions, and it has been held that if the witness omits to sign, and afterwards dies, the depositions cannot be used. (Cope- land y. Stanton, 1 P. W. 414.) Each party tobe ~=Sec, 15.—Any person is to be at liberty to make use at liberty to use he) : the depositions of of the depositions of any witness adduced by any other any witiess ad- . 7 oer er’ party to the suit, subject, however, to such terms, if any, as to the costs of taking such evidence, as the court may think it right to impose. (z) (%) See Order promulgated on the 28:h April, 1862, as follows :— ‘READING DEPOSITIONS IN OTHER CAUSES.. Any party shall be entitled in future upon notice without order to use depositions taken in another suit in cases where under the present practice he is entitled to use such depositions upon obtaining the common order for that purpose.” Court may re- = Sec. 16.—The court, if it see fit, may require the pro. quire production ¢ : . ; si of witnesses, 4c. duction and oral examination before itself of any witness or party in any cause, matter, or proceeding, and is to direct the costs of and attending the production and exami- nation of such witness or party to be paid by such of the parties to the suit, or in such manner as it may think fit, SETTING DOWN THE CAUSE.—HEARING, &c. Causes to be III.—(/)—[Abrogated and discharged by order of heard during termonly. “ court dated the 28th day of April, 1862.] ae Sec. 2.—(1)—[Abrogated and discharged by order of "court dated the 28th day of April, 1862.] Causes to be Sec. 3.—(1)—[Abrogated and discharged by order of entered with the Registrar. court dated the 28th of April, 1862.] Regietrar to pree Suc. 4.—(1)—[ Abrogated and discharged by order of pare a list,accord- ing to which court dated the 28th, day of April, 1862.] causes to be wae ois __ Sec. 5.—(7)}—[Abrogated and discharged by order of tobssuved court dated the 28th day of April, 1862.] to be served. (1) Sections 1, 2, 8, 4, 5, of this Order are abrogated and discharged by the Orders of court promulgated on the 28th day of April, 1862, These Orders are as follow :— HEARINGS. 251 (ORDER 111., 28RD DECEMBER, 1857, sxc. I-v.] “MONDAY, 28TH APRIL, 1862.—SITTINGS OF COURT. Sections 1, 2, 3, 4, and 5, of Order number three of the General Orders of 28rd of December, 1857, are hereby abrogated and discharged. The judges of the court will sit separately and by alternate weeks, as follows: One judge will sit daily in each week for the despatch of all business other than re-hearings and chamber business. The business before such judge will be taken as follows: Monday.—Motions. Tuesday, —Hearings pro confesso; motions for decree; further direc- Wednesday. f tions; appeals from master’s reports. patie 2 —Hearings of causes; demurrers, (excepting during the re- Saturday. hearing term.) SETTING DOWN CAUSES. The party who desires to have a cause set down to be heard, is to enter it with the registrar for that purpose, at least fourteen days before the day for which the same is set down. LISTS TO BE PREPARED BY THE REGISTRAR. The Registrar is to prepare lists of all causes entered for hearing, making a sepa- rate list uf all the causes to be heard before each judge. Each cause is to be set down in the order in which it has been entered with the Registrar. Causes are to be called on and heard according to the Registrar’s list, unless the court order other- Wise. NOTICE OF HEARING. Notice of hearing must be served by the party setting down the cause, upon all proper parties, for a proper day falling within the week in which the judge in whose list the same is set down is to sit, and such notice is to be served not less than twelve days before the day for which such notice is given.” See also Orders promulgated on the 9th day of May, 1862, as to ‘« Hearings” : “The Registrar is to prepare a peremptory list of causes set down for hearing for each day on which they are to be heard, and for that purpose the party setting down a cause for hearing is to notify the Registrar of the day for which he has given notice of the hearing of such cause not less than seven days before the day for which such notice is given.” And the second order of the Orders of the 10th day of January, 1863, which regu- lates the present practice as to ‘‘ Hearings.” The cause is now heard immediately after the examination of witnesses. The Order is as follows: 252 HEARINGS. (onpER m1., 2832p DECEMBER, 1857, SEO. VI. VII. AND VIIL.] « HEARINGS. II. Causes are to be heard at the same time that the witnesses are examined upon the close of such examination. No evidence to be used on the hearing of a cause is to be taken before any examiner or officer of the court, unless by the order first had of the court or a judge thereof, upon special grounds adduced for that purpose.” Where a plaintiff, after replication, set the cause down for hearing, (without having set it down for examination,) and on the cause coming on, declined to treat it as having been set down on bill and answer, the court ordered_it to be struck out of the list. . (Killaly v. Graham, 2 Grant, 281.) Where an objection exists to the setting down a cause, the opposite party must take the objection before the cause comes on for hearing, or he will be deemed to have waived it, unless he could not with reasonable diligence have taken it earlier. (ibid. Where a cause is pro confesso against one defendant, and others have answered, it must be heard against all at the same time. (Fuller v. Richmond, 2 Grant, 24.) The court will not, since the Orders of 10th January, 1863, at the hearing of the cause, allow evidence by affidavit under sec. 4 of Order XX. of the Orders of June, 1853, unless by consent. epaintif’ nes Sec. 6.—If the plaintiff neglects to set down the cause cause defendant to be heard within one month after publication has passed, any defendant may cause the same to be set down, and may serve notice of hearing onthe parties to the cause. (m) (m) The defendant cannot set the cause down for hearing before publication has passed; (Ellis v. King, 4 Mad. 126; Langley v. Fisher, 5 Beav. 589 3) nor before the expiration of the month mentioned in this section, and accordingly where a defen- dant set a cause down to be heard one day before the expiration of the month, it was ordered to be struck out of the list with costs, notwithstanding that by the delay of the plaintiff in moving, the defendant was unable to set the case down for the ensuing hearing term; (Toronto v. McGill, Grant’s Cham. 16;) sed quere, since the Orders of January, 1863; see sec. 6 of Order II. of Orders of 23 December, 1857. pefendent mak- Sec. 7.—Where a defendant makes default at the cre ton abo. hearing of a. cause, the court is to make such decree as tance: it may think fit; this decree is to be absolute in the first instance, without giving the defendant a day to shew cause, and such decree is to have the same. force and effect as if the same had been a decree nis? in the first instance, and had been afterwards made absolute. in default of cause shewn by the defendant. Sec, 8.—If the plaintiff causes the bill to be dismissed, HEARINGS. 258 [orDER n11., 28nD DECEMBER, 1857, SEO. IX. X., AND XI.] on his own application, after it has been set down to be Ifplsintift dis. heard; or if the cause is called on to be heard, and the st down to be | plaintiff makes default, and by reason thereof the bill is dismissed ; in either case such dismissal is to be equiva- lent to a dismissal on the merits, unless the court order otherwise, and may be set up in bar to another suit for the same matter. (n)} @) After a cause has been set down for hearing, the plaintiff is not entitled to an order, as of course, to dismiss his bill with leave to file a newone. (Gardner v. Brennan, 4 Grant, 199; Smith v. Port Hope Harbour Co., 6 U. C. L. J. 189.) Sec. 9.—The practice of excepting to bills, answers, rceptions & or other proceedings for scandal or impertinence is *l#h* abolished. But if upon the hearing of any cause or matter the court is of opinion that any pleading, petition, or affidavit is scandalous, the court may either order such pleading, petition, or affidavit to be taken off the file, or may direct the scandalous matter to be expunged, and is to give such direction as to costs as it may think right. Szc. 10.—A motion to have any pleading, petition, Motion toex or affidavit taken off the file for scandal, or to have the dalous pleading, scandalous matter expunged, may be made at any time before the hearing of the cause or matter. 1 If court consider Sec. 11.—If, upon the hearing of any cause or matter, fF cpan Sone is the court is of opinion that any pleading, petition, or {fwtnesnoy affidavit, is of unnecessary length, the court may either award costs, des direct payment of a sum in gross or in lieu of taxed costs therefor, or it may direct the taxing-officer to look into such pleading, petition, or affidavit, and to distinguish what part or parts thereof is or are of unnecessary length, and to ascertain the costs occasioned to any party by any unnecessary matter; and the court is to make such 954 FORECLOSURE OR SALE.—PARTIES IN MASTER'S OFFCE. Tearing on fur- ther directions. In foreclosure suits, incum- [orDER 6TH FEBRUARY, 1858.] order as it thinks just, for the payment, set-off, or other allowance of such costs, by the party, his solicitor, or counsel. Sec, 12.—Causes may be set down to be heard on further directions for any court day, but notice thereof must be served at least seven days before the day for which the cause has been set down. SCHEDULE A. FORM OF A NOTICE OF EXAMINATION. In Chancery. As Piceoe as aces sak aersdsie panenntone shimmy and Oy Dinix: sisouuiageraeoe geruntsamnonseeacwoatuned epee To the above Take notice that this cause has been set down for the examination of witnesses at on the day of at which time and place the witnesses for all parties must be examined. E. F. Solicitor for the plaintiff. (Or as the case may be.) SATURDAY, 61H FEBRUARY, 1858. PROCEEDINGS IN SUITS FOR FORECLOSURE OR SALE. (0) In suits instituted by mortgagees or judgment creditors for sale or foreclosure, when all incumbrancers have not been made parties, or further enquiries are sought, the complainant is to bring into the master’s office together with the decree, a certificate from the registrar of the county wherein the lands lie, setting forth all the regis- brancers not par-tered incumbrances which affect the property in the FORECLOSURE OR SALE.—PARTIES IN MASTER’S OFFICE, 255 [oRDER 6TH FEBRUARY, 1858.] i i i ties to the bill. pleadings mentioned, and such other evidence as he may ties to the bill, be advised ; and upon his ex-parte application for that partes by the purpose the master is to direct all such persons as appear to him to have any lien, charge, or incumbrance upon the estate in question to be made parties to the cause. (0) See supra, pp. 129-145. . Query, has the master, notwithstanding the language of this order, any power to make parties where not directed by the decree. On a decree for sale, all incumbrancers, whether prior or subsequent to the plain- tiff, must be made parties in the master’s office, unless the plaintiff wishes to sell, subject to prior mortgages, which is the usual form in which decrees for sale are now drawn up. (White v. Beasley, 2 Grant, 660.) An incumbrancer in the Master’s office has no right to impugn a prior judgment, on the ground that it was irregularly obtained at law. (Hamilton v. Thornhill, _ 8U.C.L. J. 73.) When the bill is filed by a subsequent incumbrancer Pil ty subse seeking relief against a prior mortgagee, such mortgagee praven tinen, must be made a party previous to the hearing of the Win mo” cause. But when the plaintiff in any such cause prays a sale or foreclosure, subject to a prior mortgage, such mortgagee is not to be made a party either originally or in the master’s office. Upon the office copy of the decree to be served upon ne persons made parties in the master’s office, under the Hen iiee 28 ina provisions of this order, there must be endorsed a notice to the effect set forth in schedule A. to these orders annexed. When a reference has been directed as to incumbrances, 4n4 ‘9 pettons or to settle priorities, in any case provided for by this purports order, the master, before he proceeds to hear and deter- mine, is to require an appointment to the effect set forth in schedule B. to this order annexed, to be served upon 256 FORECLOSURE OR SALE.—PARTIES IN MASTER'S OFFICE. Effect of parties neglecting to attend before master. Report to state names of persons made parties in his office. and also to settle priorities, &c. Mortgagee pro- ceeding at law not have costs in equity. 4 Fees to deputy registrar. " [orpeR 6rH FEBRUARY, 1858.] all persons made parties before the hearing, whether the bill has been taken pro confesso against such persons or not. When any person who has been duly served with an office copy of the decree, or with an appointment under the provisions of this order, neglects to attend at the time appointed, the master is to treat such non-attend- ance as a disclaimer by the party so making default ; and the claim of such party is to be thereby foreclosed, unless the court order otherwise, upon application duly made for that purpose. The master’s report in the cases specified in this order, must state the names of all persons who have been made parties in his office, and of those who have been served with the appointment hereinbefore provided. The names of such as have made default, having been duly served, must then be stated; and then the report must go on to settle the priorities, &., of such as have attended, and these latter are to be certified as the only incumbrancers upon the estate, Where a mortgagee has proceeded at law upon his security, he shall not be entitled to his costs in equity, unless the court, under the circumstances, shall see fit to order otherwise. MASTER’S AND DEPUTY REGISTRARS. The masters and deputy-registrars appointed by this court, shall, in addition to the fees already payable to them, be entitled to receive upon the setting down of causes for the examination of witnesses, the sum of one pound ten shillings for each case to be set down. (p) (p) By Order of court, promulgated on the 10th day of January, 1868, it is pro- FORECLOSURE OR SALE.—NOTICE “A.” 257 [orpER 6TH FEBRUARY, 1858.] vided that the fee payable to deputy registrars, for setting down causes, is to be two pounds. SCHEDULE A. Whereas a suit has been instituted by the within named complainant for the foreclosure (or as the case may be) of certain lands, being the west half of lot No. 19, in the second concession of the township of Toronto, (or some other sufficient description of the property,) (a) and I have been directed to enquire whether any person other than the plaintiff, has any charge, lien, or incum- brance upon the said estate; and whereas it has been made to appear before me that you have some lien, charge or incumbrance upon the said estate, and I have therefore caused you to be made a party to this suit, and appointed the day of for you to appear before me, either in person or by your solicitor, to prove your claims. Now, You are hereby required to take notice: 1st. That if you wish to apply to discharge my order making you a party, or to add to or vary the within decree, you must do so within fourteen days from the service hereof; and if you fail to do so, you will be bound by the decree and the further proceedings in this cause as if you were originally made a party to the suit. 2nd. That if you fail to attend at my chambers at Osgoode Hall, in the city of Toronto, (or as the case may be,) at the time appointed, you will be treated as disclaiming all interest in the property in question, and it will be disposed of in the same way as if you had no claim thereon, and your claim will be in fact foreclosed by such non-attendance. A. B., Master. Nore (a}—When the decree is fer the sale of the debtor’s lands generally at the 33 258 FORECLOSURE OR SALE.—APPOINTMENT “8B.” - [orper 30rH song, 1858, AND ORDER 18rH aPRit, 1859.] suit of a judgment creditor, say for the sale of all the lands of (the debtor) within the county of York (or as the case may be.) ; SCHEDULE B. In Chancery. A. B., plaintiff, and C. D., defendant. Having been directed by the decree in this cause to enquire whether any person other than the plaintiff has any lien, charge or incumbrance upon the lands in the pleadings mentioned, being the west half of lot 10, in the 2nd concession of the township of York, (or some other plain description,) I do hereby appoint the day of at my Chambers at Osgoode Hall, in the city of Toronto, (or as the case may be,) to proceed with the said enquiries. And you are hereby. e required to take notice that if you fail to attend at the time and place appointed, you will be treated as dis- claiming all interest in the land in question, and it will be dealt with as if you had no claim thereon, and your claim will be in_ fact foreclosed. « EH. F., Master. WEDNESDAY, 30ru JUNE, 1858. It is ordered that the time of the long vacation is not to be reckoned in the computation of the time appointed or allowed for the purpose of answering either an original or amended bill. (qg) (q) See Order V. of the Orders of 1853, pp. 8, and 4, supra. WEDNESDAY, 13tH APRIL, 1859.. The judges of the Court of Chancery, under and in pursuance of the powers vested in them under the statute in that behalf, do hereby order and declare : HEARING.—SOLICITOR.—ENTRY OF EXHIBITS. 259 [ORDER L., IL, AND 111, 13TH APRIL, 1859.] I. That from and after the first day of July next, the feeof, 10" ' fee payable to, and to be received by the registrar of [fener cn st this court, on the setting down of each cause, other than (usveyer oan those ordered to be taken pro confesso, shall be the sum °° of ten shillings. II. The judges of this court, taking notice of the in- convenience and expense occasioned to the suitors in the court, by reason of the non-attendance of the solicitors of the parties or some of them at the times when such causes are called on to be heard, or during the hearing thereof, by reason of which non-attendance such causes are struck out of the paper, and cannot be restored with- out an expense which ought not to be sustained by the parties; or the hearing thereof is unnecessarily post- Sclicitor to ot tend at hearing- poned, not only to the inconvenience of the parties to {e*iroratten- such causes, but also to the inconvenience of parties in Sang? >” other causes; do think proper hereby to order, in con- formity with what the rules and practice of the court already require, that the solicitors for the several parties in all causes do attend in court when such causes are ap- pointed to be heard, and during the hearing thereof. And that whenever, upon the hearing of any cause, it shall appear that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally or by some person in his behalf, or having omitted to deliver any paper necessary for the use of the court, and which, according to its practice, ought to have been delivered, such solicitor shall per- sonally pay to all or any of the parties such costs as the court shall think fit to award. TII. In future the evidence read by each side must be Bridente ised at . 1D. stated distinctly by counsel, in order that the same may entered. be entered by the registrar before the case is closed, in accordance with the order to that effect. 260 SHERIFFS’ AND CORONERS’ FEES. [orpER 80TH APRIL, 1859.] Exhibits tobe = When judgment is reserved, the exhibits used upon left with regis- : ‘ : trar, who shall the hearing must be deposited with the registrar for the Wereme, use of the court. All exhibits deposited under this order must be described in a schedule, to be prepared. by the party depositing the same. The schedule shall be in duplicate, one copy of which, signed by the registrar, shall be handed to the party depositing the exhibits, and the other retained for the use of the court. . When this order has not been complied with, the case will not be considered as standing for judgment. IV. From and after the first day of July next, every Bill, answer, and, . : : afidavit, tobe bill and answer filed; and every affidavit to be used in ragraphs and amy cause or matter, shall be written in a plain legible cca hand, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. No costs shall be allowed for any bill, answer or affidavit, or part of any bill, answer or affidavit, sub- stantially violating this order; nor shall any affidavit violating this order be used in support of, or opposition to, any motion, without the express permission of the court. SATURDAY, 207TH APRIL, 1859. ance The judges, in pursuance of the authority vested in and coroners, them under and by virtue of the statute in that behalf, do hereby order and direct that the sheriffs and coro- ners, in their several counties, shall be entitled to re- ceive and take for the several services hereinafter men- tioned, the sums specified for the same, and no other or greater fees or allowance: RECEIVING, filing, entering, and endorsing CVETY PAPCK isesesscsevercvecescerssseeese O 1 8 t SHERIFFS’ AND CORONERS’ FEES. 261 [onpER 80TH apPRit, 1859.] RETURN of all Process and Writs except Dub PHA a ccacie ocdwnnw etecnetes deotigane 0 2 6 Warrant to Bailiff on Writ not executed by Sherat on Deputy. scoissasctsiaesaes 0 2 6 SERVING each Office Copy Bill, including affidavit Of SYViC€.....csssseeeesseceeeere 05 0 SERVING each Warrant, Notice, Certificate, Subpeena, or other paper.....ssseeesans 0 2 6 Ne Exeat—Arrest on, when amount en- dorsed under £50........4 sescsseeeeeees » 0 5 0 £50, and under £100..........cceseeaeee 010 0 £100 and OVEL......cc sesseeereseesenens 1 0 0 ATTACHMENT—not defined, arrest on....... 010 0 Arrest upon attachment in the nature of an execution, when the sum endorsed Is under LO0.....cccecesseccersesevees coe 0 5 0 Over £50, and under £100............. 010 0 £100 OF OVEF...ccececesecssnen eee teeceeees 1 0 0 Besides Poundage for sums endorsed when sum endorsed is under £100....5 per cent. Exceeds £100, but is less than £1000, 5 per cent. for the first £100, and 2 per cent for the residue. £1000 and over, 13 per cent. on whatever exceeds £1000, in addition to the poundage allowed up to £1000 SEQUESTRATION—upon seizure of estate and effects under Writ of Sequestra- TOT pun ieicamegusseneiuacn oi eoxnes Ce manennane 010 0 Schedule of goods taken in execution, in- cluding copy for defendant, if not ex- ceeding 5 foliog......ssssseessereseeeeeeee 0 5 0 Each folio above 5.....++++++ sauoweiechenacdies 00 5 - Removing or retaining property, rea- 262 RETURNS BY THE DEPUTY REGISTRARS. {orper 57H ocroBER, 1859.] sonable and necessary disbursements, and allowances to be made by the Master, or by order of the Court or Judge. Poundage upon sequestration, followed by sale. Where amount made ander £100, at...5 per cent. £100, but under. £1000, 5 per cent. for the first £100, 24 per cent. for the residue. £1000, and over, 14 per cent. on a whatever exceeds £1000, in addition to the poundage allowed up to £1000, in lieu of all fees and charges for ser-_ vices and disbursements, except mile- age in going to seize, and disburse- ments for advertising, and except dis- bursements necessarily incurred in the care and removal of property, to be allowed by the Master in his discre- tion. For Services not Sprcrrizp—The like charges as are allowed at common law for analogous services. | WEDNESDAY, 5ra OCTOBER, 1859. D’y. registrars to certify 0.0. Ordered, that all office copies of decrees to be served : on parties, added in the master’s office, may be certified by the deputy-registrar where the reference is made to. Ordered, that the deputy-registrars do transmit to the registrar of this court, at Toronto, on the first day ose of January, April, July, and October, in each year, a quarterly re- list of all bills filed with them respectively during the turns of bills filed to registrar. Preceding quarter of the year. PRO CONFESSO—SETTING DOWN.—MOTION FOR DECREE. 263 [orpERS 29TH JUNE, 1858.] 297rH JUNE, 1861. PRO CONFESSO—SETTING DOWN. (r) Where a bill has been ordered to be taken pro con- Hearing pro con- fesso: causes to fesso, the cause may thereupon be set down to be heard ; iy est Sows fen but the day for which the same is so set downistobe not less than ten days from the setting down thereof, unless the court think fit to appoint a special day for the hearing thereof. (r) See supra, pp. 75 et seg. MOTION FOR DECREE. (s) Where a party has given notice of motion for decree, Motion for he is to set the cause down to be heard on such motion not less than ten days before the day for which such notice is given, unless he shall have obtained an order allowing a less time for such purpose. . . In what cases to Motions for decrees are to be allowed only in three te allowed. classes of cases, namely :— First.—Where there is no evidence. Second.—Where the evidence consists only of docu- ments, and such affidavits as are necessary to prove their execution or identity, without the necessity of any cross- examination. Third. —Where infants are concerned, and evidence is necessary only so far as they are concerned for the pur- pose of proving facts which are not disputed: but this order is not to apply to cases in which, but for this order, the court would grant leave to serve short notice of mo- tion for decree in order to prevent irreparable injury. (s) See supra, pp- 89 et seq. 264 FORECLOSURE.—-POSSESSION.—=PARTIES. [orpERs 29TH gunz, 1861,] DELIVERY OF POSSESSION AFTER FINAL FORECLOSURE. (?) Porsession after Tn any suit for foreclosure or for redemption, the mort- final foreclosure. : \ gagor or other person entitled to the equity of redemp- tion, being in possession of the premises foreclosed, may be ordered to deliver up possession of the same upon or after final order of foreclosure, or for the dismissal of the bill, as the case may be. (t) See supra, pp. 129 ef seg. PARTIES INTERESTED IN THE EQUITY OF REDEMPTION MADE PARTIES IN THE MASTER’S OFFICE. (uw) ae In any case in which it shall appear conducive to the Parties inter- leg Ve fi . . ne ested in equity ends of justice that parties interested in the equity of of redemption — ss 2 e may be added inyedemption should be allowed to be made parties in the master’s office, master’s office, by reason of the parties so interested being numerous or otherwise, it shall be competent to the court, at the hearing, or afterwards, to direct that parties so interested may be made parties in the master’s office, upon such terms as to the court shall seem fit; such order to be only made where one or more parties interested in the equity of redemption are already before the court. s (uz) See supra, pp. 187 et seg. DEFENDANT ABSCONDING, OR BEING CONCEALED. (») In case it appears to the court by sufficient evidence, that any defendant against whom a bill has been filed, has been within the jurisdiction of the court at some time, not more than two years before the filing of the bill, and that such defendant, after due diligence, cannot Abscondingor be found to be served with an office copy of the bill, and concealed defen- dant’ may be pro- that there is good reason to believe that he has absconded ceeded agains ded against be ae ‘ fai under see 7 of from the jurisdiction, or that he is concealed within the Order, 1802. game, the court may make such order as is prescribed by MASTER'S OFFICE; APPOINTMENTS.—TAXATION OF COSTS, &C. 265 [orDER 29TH suNz, 1861.] section 7th of the 9th of the General Orders of June, 1853. (v) See supra, pp. 87, 88. APPOINTMENTS AND NOTICES IN THE MASTER’S OFFICE, (w) Where the master shall direct that parties not in attendance before him shall be notified to attend before muesseun ©” him at some future day, or for different purposes at ters otic different future days, it shall not be necessary to issue Separate warrants, but the parties shall be notified by one appointment, to be signed by the master, of the pro- ceedings to be taken, and of the times by him appointed for taking the same. In cases where parties are notified by appointment 414 no warrant from the master, of proceedings to be taken before him, mous glee oF no warrants shall be issued as to such parties in relation *™° Proceedings to the same proceedings. Parties making default upon such appointments, are partiesin default subject to same to be subject to the same consequence as if warrants had consequence as if . WalTant served. been served upon them. (w) See supra, pp. 187, 188. TAXATION OF COSTS. (x) Where costs are awarded to be paid, it shall be com- yraster in ordi s ; ° ta -petent to the master in ordinary to tax the same, with-?ifiout xpress 1 reference. out any express reference to him for that purpose. (z) See supra, pp. 218 et seg. PAYMENT OF MORTGAGE MONEY. (y) Where the master is directed to appoint mortgage Mortgage money money to be paid at some time and place, heis to appointee tear te 34 266 PAYMENT OF MORTGAGE MONEY.—CONDUCT OF SALE. [ornper 29TH gunz, 1861.] joint credit of the same to be paid into some bank at its head office, or party entitled at some branch or agency office of such bank, to the joint credit of the party to whom the same is made payable, and of the registrar of this court; the party to whom the same is made payable to name the bank into wh ch he desires the same to be paid, and the master to name the place for such payment. Where money is paid into some bank, in pursuance of OF epeepioomatit such appointment aforesaid, it shall be competent to the party paying in the same, to pay the same either to the credit of the party to whom the same is made payable, or to the joint credit of such party and the registrar. If the same be paid to the sole credit of the party, such party shall be entitled to receive the same without the order of this court. Where default is made in the payment of money Sueno appointed under this order to be paid into any bank, the certificate of the cashier, where the same is made paya- ble, or of other, the like bank officer, shall be sufficient evidence of such default. Where the affidavit of the party entitled to receive the same is by the present practice required, the like affidavit shall still be necessary. (y) See supra, pp. 188, 139. CONDUCT OF SALE. (z) pa tperec® Where, upon a bill for foreclosure, a sale is asked for duct thereof, by a defendant, it shall be competent to the court to require as a condition that the party asking the same shall conduct the sale at his own expense, dispensing in such case with a deposit, if the court shall think fit. (2) See supra, p. 181. NOTICES, &C.—AFFIDAVITS ON APPLICATIONS TO CoURT, 267 [orDER 297TH suNE, 1861.] NOTICES, APPOINTMENTS, &c., HOW TO BE SERVED. (a) The General Order of this court, number XLIIL, is altered and varied in the following particulars : Where the pleadings in any cause have been filed in the office of the registrar of the court, at Toronto, a : A a jervice of notices, in the office of any deputy-registrar, all notices, appoint- ae ments, warrants, and other documents and written com- agent. munications in relation to matters transacted in court or chambers, or in the office of the master or registrar, which do not require personal service upon the party to be affected thereby are to be served upon the solicitor, when residing in the city of Toronto; and when the solicitor to be served resides elsewhere than ir the city of Toronto, then such notices, appointments, warrants, and other documents, and written communications afore- said, may be served either upon such solicitor, or upon his Toronto agent, named in the ‘Solicitors’ and Agents’ Book ;” unless the court, or a judge thereof, or a mas- ter, before whom any such proceeding may be had shall give any direction as to the solicitor upon whom any such notice, appointment, warrant, or other document or written communication shall be served. And if any soli- citor neglect to cause such entry to be made in “the Solicitors’ and Agents’ Book,” as is required by the above general order, the leaving a copy of any such notice, appointment, warrant or other document, or written communication for the solicitor so neglecting as aforesaid, in the office of the registrar, is to be deemed sufficient service, unless the court direct otherwise. (a) See supra, pp. 207, 208. AFFIDAVITS ON APPLICATIONS TO COURT. (4) Section 8, of General Order-number XL., is hereby abolished, except as to affidavits in support of ex parte tyed on apples 268 CHANGE OF ACCOUNT AFTER DECREE OR REPORT. [orpER 29TH gunz, 1861.] tions, Nocosts applications ; but this order is not to be taken to warrant Of office copies. ‘ ne the taxation of the costs of obtaining office copies of affidavits, for use upon the hearing of any matter, by the party on whose behalf they are filed. When affidavits Affidavits, except upon ex parte applications, must be musthe filed. filed before they can be used; and affidavits in answer must be filed not later than the day before that appointed for the hearing of the motion. (4) See supra, p. 178. PROCEEDING WHERE STATE OF ACCOUNT CHANGED AFTER DECREE OR REPORT. (c) ' When state of In cases where after a decree or decretal order for the By rect of sale or foreclosure of mortgage property the state of the tobegiven, account ascertained by decree or decretal order, or by the report of the master, shall be changed by payment of money, by receipt of rents and profits, by occupation rent, or otherwise, before final order for foreclosure or sale obtained, it shall be competent to the plaintiff or other party to whom the mortgage money is payable, to give notice to the party by whom the same is payable, that he gives him credit for a sum certain to be named in such notice, and that he claims that there remains due to him in respect of such mortgage money a sum certain, to be also named in such notice; and in case, upon the final order for foreclosure or sale being applied for, the judge shall think the sums named in such notice proper to be allowed and paid under the circumstances, the order for final foreclosure is to go without further notice, unless the judge shall direct notice to be given: or it shall be competent to the party to whom the mortgage money is payable, to apply to a judge in chambers for a reference to a master, or for an appointment to fix Reference may ‘ Vs a be made tomas. SUCh sums respectively, and in the latter case either upon MASTER’S REPORT; APPEALS FROM. 269 [oRDER 29TH suNE, 1861.] notice, or ex parte, as the judge may think fit, and he order to be made thereupon is to be served, or service thereof dispensed with, as the judge may direct. It shall be competent to the party to whom such notice may be given to apply to a judge in chambers for an appointment to ascertain and fix the amounts proper to be allowed and paid instead of the amounts mentioned in such notice; or for a reference to a master for the like purpose; and in case the judge shall think a reference to a master proper, the same may be made ex parte unless the judge shall otherwise direct. (c) See supra, pp. 138, 189. APPEALS FROM MASTER’S REPORT. (d) Section 17 of General Order XLIL., is altered and varied in the following particular : Reports become absolute, without order, confirming master’s report the same at the expiration of fourteen days after the Ae aitiol filing thereof, unless previously appealed from. An Appeals from, appeal shall lie to the court upon motion, at any time coe from the signing of the report, to the expiration of four- teen days from the filing of the same in respect of the finding of the master upon any matter presented in his office for his decision, without objections or exceptions being previously taken. It shall be competent for any party affected by the [anymay Mle report to file the same, or a duplicate thereof, and the filing of such duplicate shall have the same effect for the purposes of this order as the filing of the report, by the party taking the same. (2) See supra, pp. 203, 204. 270 AFFIDAVITS, &C.—MASTER’S REPORT ON SALE. [orpers 10TH sory, 1861, anp 22ND FEBRUARY, 1862.] WEDNESDAY, 107 JULY, 1861. Affidavits to state means of know. wach statement in an affidavit, which is to be used ag nen," evidence at the hearing of a cause or matter, or of a motion for a decree or other motion, or on any proceed- ing before the court, (or before the judge in chambers,) shall shew the means of knowledge of the person making such statement. (e) (e) See supra, p. 178. SATURDAY, 22np FEBRUARY, 1862. areas ee It is ordered that sections 8 and 9, of the 36th of the natemdo of ee, General Orders of this court of the third of June, 1853, courte "°° be and the same are hereby repealed; and it is further ordered, that in future all sales are to be with the appro- bation of one of the masters of this court, who is to report the same to the court, such report to be in the ‘? form hereunder set forth, or as near thereto as circum- / Stances will permit, that is to say: “In CHANCERY.” (Title of Cause.) “Pursuant to the decree (or order) of this honourable court, bearing date the day of ; and made in this cause, I have, under the General Orders of this court, in the presence of (or after notice to) all parties concerned, settled an advertisement and particulars and conditions of sale for the sale of the lands mentioned or referred to in the said decree, (or order,) and such advertisement having, according to my directions, been published in the (naming the newspaper or newspapers) once in each week for the four weeks immediately preceding the said sale, (or as the case may be,) and bills of the said sale having been also as directed by me published in different parts of the township (town or city) of and the adjacent country and MASTER’S REPORT ON SALE. 271 [ORDER 22ND FEBRUARY, 1862.] villages, (or as the case may be,) the said lands were offered for sale by public auction according to my appoint. ment, on the day of by me, (or by Mr. of appointed by me for that purpose, auctioneer,) and such sale was con- ducted in a fair, open and proper manner, when of was declared the highest bidder for and became the purchaser of the same at the price or sum of £—— (or when sold in different lots, that A. B. became the purchaser of lot No. 1, at the price or sum of £ ; C.D., of lot No. 2, at the price or sum of £ , as the case may be;) all which having been proved to my satis- faction by proper and sufficient evidence, I humbly cer- tify to this honourable court.” Under the printed conditions of sale is to be printed * ‘ Form of contract a blank form of contract in these words, or to this effect: to be signed by ‘‘T agree to purchase the property (or lot No. jer mentioned in the annexed particulars, for the sum of £——,, and upon the terms mentioned in the above con- ditions of sale,” which is to be signed by the purchaser. (f) Witness, This order is to take effect on and after the eighth day of March next. (f) See supra, pp. 156, 157. MONDAY, 28ru APRIL, 1862. SITTINGS OF COURT. Sections 1, 2, 3, 4 and 5, of Order number three of the secs. 1, 2, 3, 4, and 5. of Order the General Orders of 23rd of December, 1857, are TE of aa ies hereby abrogated and discharged. : , The judges of the court will sit separately and by 2m tia" alternate weeks, as follows.:. - 272 SITTINGS OF COURT.—PROCEDURE. [ornpzr 28TH api, 1862.] One judge tosit One judge will sit daily in each week for the despatch daily in each week. of all business other than re-hearings and chamber business. Btetaten ~©6 The business before such judge will be taken as follows : Monday.—Motions. AP este —Hearings pro confesso ; motions for v decree; further directions; appeals from Wednesday. Master’s reports. —Hearings of causes ; demurrers, (ex- Friday, cepting during the rée-hearing term.) Thursday, Saturday. \ SETTING DOWN CAUSES. Causes to be set ' down 14 days. The party who desires to have a cause set down to be heard, is to enter it with the registrar for that purpose, at least fourteen days before the day for which the same is set down. istaito tages LISTS TO BE PREPARED BY THE REGISTRAR. pared, and caures . . . called’ on and The registrar is to prepare lists of all causes entered heard according 5 . a to lists. for hearing, making a separate list of all the causes to be heard before each judge. Each cause is to be set down in the order in which it has been entered with the registrar. Causes are to be called on and heard accord- ing to the registrar’s list, unless the court order otherwise. NOTICE OF HEARING. fice ofhensing : Notice of hearing must be served by the party setting aero: down the cause, upon all proper parties, for a proper day RE-HEARING OF CAUSES. 273 [orDER 289TH sprit, 1862.] falling within the week in which the judge in whose list - the same is set down is to sit, and such notice is to be served not less than twelve days before the day for which such notice is given. RE-HEARING OF CAUSES. (9) There are to be four re-hearing terms in each year, Terms for re- . . hearing causes. commencing respectively as follows : i.—The second Thursday in March. 2.—The first Thursday in June. 3.—The second Thursday in September. 4.—The first Thursday in December. All re-hearings of cases are to be in re-hearing term Rehearingsto te in term only. only. Applications in the nature of re-hearings to discharge $°,2!80 at¢,2PPli- or vary Orders made in court, are to be made in PEs Pewee wales hearing terms only, except with the leave of the judge “rou pronouncing the Order sought to be discharged or varied. (g) See supra pp. 80, 81, et seg. By the Orders of the 9th day of May, 1862, it is provided as follows: ‘* Causes are to be set down for re-hearing not less than ten days before the com- mencement of the re-hearing term, for which they are so set down, and notice there- of is to be served upon all proper parties not less than seven days before such re- hearing term.” And by the first Order of those promulgated on the 10th day of January, 1863, it is provided as follows : “ RE-HEARINGS. I. From and after the first day of April next, all re-hearings of causes are to be within six months after the decree or decretal order shall have been passed and entered; and applications in the nature of re-hearings to discharge or vary orders made in court, not being decretal orders, are to be within four months from the pas- sing and entering of the same; or within such further time as the court or any judge thereof may allow upon special grounds therefor, shewn to the satisfaction of the court or judge.” 35 274 APPEALS FROM CHAMBERS.—EXAMINATION OF PARTIES. Judge to sitin chambers. When such ap- plications to be heard. When orders to take effect. (onper 28TH aprin, 1862.] APPEALS FROM ORDERS MADE IN CHAMBERS. (4} One judge will sit daily in each week for the despatch of business in chambers. Matters adjourned from chambers under section third of Order thirty-four of the General Orders of the 3rd of June, 1858, and applications in the nature of re-hearings to discharge or vary orders made in chambers, are to be heard in full court on the last Wednesday of every month, except during examination terms. The foregoing Orders are to come into operation on the twelfth day of May next. But causes may be set down and notices may be given of proceedings to be taken under the said Orders, from the day of the date hereof. (4) See supra pp. 148, et segg. Depositions in other causes to be used without order, READING DEPOSITIONS IN OTHER CAUSES. (i) . Any party shall be entitled in future upon notice with- out order to use depositions taken in another suit in cases where, under the present practice, he is entitled to use such depositions upon obtaining the common order for that purpose. (i) See supra pp. 250, et segg. Parties to suits to be examined without order. EXAMINATION OF PARTIES TO SUITS. (%) Any party defendant may be examined as a witness without order, on behalf either of the plaintiff or of a co-defendant. And any party plaintiff may be examined as a witness without order, by a co-plaintiff, or by a defendant, in cases where under the present practice such examination may be had upon the common Order being obtained for that purpose. (k) See supra pp. 248, et seg. RE-TAXATION OF COSTS.—PETITIONS. 275 [onDERS 28TH APRIL, AND 9TH may, 1862.] RE-TAXATION OF COSTS. (J) Tt shall be competent for any party against whom costs have been taxed by a deputy-master of this court, tame” to obtain as of course an order for a re-taxation of the same before the taxing officer of this court at Toronto. It shall be the duty of the party obtaining such order Depodidsruajileed to deposit with the deputy-registrar and master with co whom the papers are filed, a sufficient sum to cover the expenses of transmitting the same to Toronto, and of the return thereof. In case less than one-twentieth be taxed off upon a i . Tf less than one- re-taxation, the costs of such re-taxation shall be added twentieth struck off, the party re- to the bill already taxed. taxing to pay costs. This Order is to apply to bills of costs already taxed, as well as to bills that may be hereafter taxed, but it is Appries to costs A already taxed but not to apply to cases where the costs have been paid, or not paid. final proceedings have been taken upon the taxation of costs already had; process for the levying of such costs is not to be deemed a final proceeding within the mean- ing of this order. (1) See supra pp. 218, et seqg. FRIDAY, 91H MAY, 1862. Petitions under A petition filed under the eighteenth section of Order geo. 18 of Order ¥X., of the General Orders of this court of the 8rd June, to be proceeded 1853, is to be set down to be heard in court in the paper“ of motions for decrees. And when it is ordered that any new party or any present party may answer the petition, and that the petitioner shall be at liberty to set down the petition again, it is to be set down in like manner, and upon the copy of such petition to serve is to be endorsed the following memorandum or notice, namely : “Tf you do not appear on the petition the court will 276 PETITIONS; HOW PROCEEDED WITH. [onper 97H may, 1862.] make such order on the petitioner’s own shewing as shall appear just,’ and upon the copy which is to be served of the order to answer such petition when the court shall deem it advisable to make such order is to be endorsed the following memorandum or notice, namely: “If you do not answer the petition the court will make such order on the petitioner’s own shewing as shall be just in your absence. And if this order is served personally you will not receive any notice of the future proceedings on such petition.” And when the party so served shall answer the petition the same is to be set down to be heard upon notice in the same paper. Petitions set down to be heard under the foregoing Order are to be set down not less than ten days before the day for which they are so set down, and notice thereof when notice is required is to be served upon all proper parties not less than seven days before such day. (m) (m) See supra pp. 51-53. The proper course in order to have a re-hearing or an alteration of a decree, or an ‘order which has been enrolled, is to file a petition under Order IX., sec. 18, supra, which is substituted for a bill of review. (Knierim v. Schmauss, 8 Jur. N. 8. 692 ; 10 W. R. 860; 7 L. T. N. 8. 189; and notes to Order IX. of the Orders of 18538, sec. 18, pp. 51, 52, 53, supra.) After decree or order enrolled, any attempt to shew that they are wrong is irregular, until the enrolment has been vacated by order of court. If any body could come to the court and obtain an order varying a decree after it has been enrolled, there would be no end to litigation. (Knierim v. Schmauss, Jdid.) Where it is sought to reverse the decree upon new matter, as upon a deed discov- ered by the plaintiff since the decree, there must be @ petition for leave to file a peti- tion in the nature of a bill of review. (Anon. 2 P. W. 283; Hodson v. Ball, 1 Ph. 177; 11 Sim. 456; Perry v. Phelips, 17 Ves. 177; Berrow v. Morris, 10 Bea. 437; 11 Jur. 790; Taylor v. Taylor, 1 M. & G. 397; Davis v. Bluck, 6 Bea. 393; Bain- ei oe 2 Phil. 705-708; Toulmin y. Copland, 4 Hare, 44, reversed, 2 . 711, There can be no error in a decree by consent; therefore such decree carmot be reversed or varied. (Webb v. Webb, 3 Sw. 658.) Query, can @ party in whose favour a decree has been made, ask it to be varied a8 being less beneficial than he thinks himself entitled to? See the conflicting cases, Glover v. Portington, Freeman, 182-2; Vandebende v. Levingston, 3 Sw. 625. See further as to petition under Order IX., sec, 18. (Loubier v. Cross, 1 Dick. 223; PETITIONS; HOW PROCEEDED WITH. 277 [oRDER 9TH May, 1862.] . Hyde v. Donne, 2 Anstr. 551; Moore v. Moore, 2 Ves. Sr. 598; Lewellen v. Mack- worth, 2 Atk. 40; Standish v. Radley, 2 Atk, 177.) And as to the parties who may or may not petition. (Slingsby v. Hale, 1 Ch. Ca, 123; Hartwell v. Townsend, 2 Bro. P. C. 107; Carlisle v. Globe, Free, 148; Bennet v. Lee, 2 Atk. 529.) As to petitions generally, see Daniell’s Ch. P., 3rd ed., 1203 ; Smith’s Ch. P., 7th ed., p. 254. As to petitions to enforce a compromise, see Dawson y. Newsom, 8 W. R. 725; Richardson y. Eyton, 2 DeG., M. & G. 79. The petition must be to the court, an order has been refused when made to chambers. And as to enforcing an undertaking made by a party to the suit, see Sirdefield vy. Thacker, 18 Bea. 588. As to carrying into effect decree or orders, see Lord Shipbrooke v. Lord Hinchinbrook, 13 Ves. 8393; Winter v. Innes, 4 M. & Cr. 101. A petition need not be signed by counsel, except in the cases of re-hearing or ap- peal, and it must be addressed, as in the case of a bill, ‘‘ To the honourable the Judges of the Court of Chancery.” It must state the name and address of the petitioner. So if presented in a cause by a person not w party. (Glazbrook v. Gillatt, 9 Bea. 492.) It must contain a true statement of facts, and is usually verified by an affida- vit, an echo of the petition. Petitions by infants (Howard v. Prince, 14 Bea. 28) or married woman (Jones v. Lewis, 1 DeG. & Sm. 245; but see Crouch v. Walter, 4 DeG. & J. 43) are presented by a next friend; a lunatic by his committee. A petition may, by consent, be amended at the hearing; (Matson v. Swift, 8 Bea. 368 ;) but not after the order is drawn up; (fe Marrow, Cr. & Ph. 141;) nor can a fact inconsistent with an existing order be introduced by amendment. (Jn re Keen, 7 W. R. 577.) Where an order has been obtained on petition, it cannot in general be discharged on motion; (West v. Smith, 3 Bea. 306;) unless clearly irregular ; (Jbid;) and see also In re Dovenby Hospital, 1 M. & Cr. 279; Jn re Marrow, Cr. & Ph. 142; In re Bonnett, 1 Jur. N. 8. 921. Petitions, other than those under the above order, must be served at least two clear days before the day appointed for hearing unless the court gives special leave to the contrary, which if given should be stated in the fiat which is endorsed on the petition. The evidence on a petition is generally affidavits; and these must be filed before, or on the day the petition is served, following the practice as to notices of mo- tion, and the names of the several deponents, &c., with date of the filing of the affi- davits should be endorsed on the copy petition served. In short all the evidence to be used in support of the petition should be stated thereon, that the respondent may know what he hasto answer. The deponents to the affidavits may be cross-examined. See pp. 176, et seg. supra, as to ‘ Notice of Motion,” and the practice thereon. s Causes for re- Causes are to be set down for re-hearing not less than Pca ten days before the commencement of the re-hearing down 10 days, term, for which they are so set down, and notice thereof is to be served upon all proper parties not less than seven days before such re-hearing term. (n) (n) See supra pp. 80, et segg. 278 REGISTRARS LIST OF CAUSES.—REVIVOR. [orDERS 9TH MAY, AND 67TH guNE, 1862.] Motion to set } } - 1 uy ade preveings & notice of motion to set aside any proceeding for io aeay ” irregularity must specify clearly the irregularity com- grounds. plained of. (0) (0) See supra pp. 176, et segg. Foremptory list ‘The registrar is to prepare a peremptory list of causes prepared: set down for hearing for each day on which they are to be heard, and for that purpose the party setting down a cause for hearing is to notify the registrar of the day for which he has given notice of the hearing of such cause not less than seven days before the day for which such notice is given. 6TH JUNE, 1862. Sections fifteen and sixteen of General Order number nine of the General Orders of this court of the 8rd June, 1853, are hereby abrogated and discharged. Bills of revivor.—Bills of revivor and supplement, te solsted,” Original bills in the nature of bills of revivor, and origi nal bills in the nature of supplemental bills are abolished. Proceedings to Upon any suit becoming abated by death, marriage, or rome’ otherwise, or defective by reason of some change or transmission of interest or liability, on the part of any plaintiff or defendant by devise, bequest, descent, or otherwise, it shall not be necessary to exhibit any bill of revivor or supplemental bill, or to proceed by any of the modes provided for by the sections of General Order by this Order rescinded in order to obtain an order to revive: such suit, or a decree or order to carry on the proceedings, but an order to the effect of the order to revive, or of the usual supplemental decree under the former practice of this court may be obtained as of course upon precipe, - upon an allegation contained in such precipe of the REVIVOR.—RE-HEARINGS. [orpERS 6TH JUNE, 1862, anv 10TH ganvaRy, 1863.] abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability. And an order so obtained when served upon the party or parties who would be defendant or defen- dants to a bill of .revivor or supplemental bill according to the former practice of this court shall, from the time of such service, be binding upon such party or parties in the same manner in every respect as if such order had been regularly obtained according to such former prac- tice of the court, and such party or parties shall there- upon become thenceforth a party or parties to the suit, provided that it shall be open to the party or parties so served within fourteen days after the service of such order to apply to the court by motion or petition to dis- charge such order on any ground which would have been open to him or them on a bill of revivor or supplemental bill, stating the previous proceedings in the suit, and the alleged change or transmission of interest or liability, and praying the usual relief consequent thereon; pro- vided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect as against such party, until a guardian or guardians ad litem shall have been duly appointed for such party, and the period of fourteen days shall have elapsed thereafter. (p) 279 (p) See supra pp. 45, et segg. 10te JANUARY, 1863. RE-HEARINGS. (g) J. From and after the first day of April next, all re- renearings, within what hearings of causes are to be within six months after the periods they are decree or decretal order shall have been passed and” entered; and applications in the nature of re-hearings to discharge or vary orders made in court, not being decretal orders, are to be within four months from the e place. 280 RE-HEARINGS.— HEARINGS. [orpErs 1. AND m., 10TH ganvany, 1863.] passing and entering of the same; or within such further time as the court or any judge thereof may allow upon special grounds therefor, shewn to the satisfaction of the court or judge. (g) See Order IX., sec. 17, p. 51, supra, and Order XIV., sec. 7 of the orders of Jnue, 1858, p. 80, et seg. supra. Semble, that a person brought before the court by service of notice of the decree under English act, 15 & 16 Vic., ch. 86, sec. 42, (Order VI. of June, 1853, sec. 2,) is entitled to present a petition of re-hearing. (Ellison v. Thomas, 32 L. J. Ch. 2.) The signature of counsel to a petition of re-hearing will not be dispensed with. (Buckeridge v. Whalley, 8 Jur. N. 8. 473; 31 L. J. Ch. 416; 10 W. B. 513; 6 L. T. N. 8. 812.) This case observes upon Knowles v. Greenhill, 30 L. J. Ch. 670. The rule is that a re-bearing is not a matter of right like an appeal, which can only be heard upon the evidence used in the court below, but is a privilege accorded only on certain conditions. Ina re-hearing fresh materials, and sometimes additional evi- dence may be used, and the court relies on the signature of counsel as a prima facie assurance that there has been some miscarriage at the hearing, which it is desirable to correct by a re-hearing. HEARINGS. (r) To take place at . time wirnesees. 11. Causes are to be heard at the same time that the are examines: witnesses are examined upon the close of such examina- tion. No evidence to be used on the hearing of a cause is to be taken before any examiner or officer of the court, unless by the order first had of the court or a judge thereof, upon special grounds adduced for that purpose. Examination of III. When the examination of witnesses before a judge witnesses when . in any town, éc.,18 to be had in any town or place, other than that in other than where papers fled which the pleadings in the cause are filed, it shall be the dont te egies duty of the party setting down the cause for such exami- nation, to deliver to the registrar or deputy-registrar with whom the pleadings are filed, a sufficient time before the day fixed for such examination, a preecipe requiring him to transmit to the registrar or deputy-registrar, at the place where such examination of witnesses is to be had, the pleadings in the cause; and at the same time to deposit with him a sufficient sum to cover the expense DECREES ON PRACIPE, REDEMPTION, FORECLOSURE OR SALE. 281 [orpER Iv., oF 10rH sanvaRy, 1863. ] of transmitting and re-transmitting such pleadings, and thereupon it shall be the duty of such registrar or deputy- registrar forthwith to transmit the pleadings accordingly. The fee payable to the deputy-registrars for setting A fee of £2 to be down causes under the foregoing order is to be two hud jo.deputy- registrar on pounds. setting down. (7) See supra pp. 252, et segg. Where at the hearing it appears that the questions at issue are not properly raised by the record, it is ir the discretion of the court either to give the plaintitf leave to amend, or to dismiss the bill without prejudice. And where the matters necessary to be introduced into the record are connected with the matters already in issue, the proper course is to give leave to amend. And where such matters are not so connected, the proper course is to dismiss the bill. (The Earl of Darnley v. The London, Chatham and Dover Railway Co., 11 W. R. 888.) The cases of Filkin v. Hill, 4 Bro. P. C. 641; Bierdermann v. Seymour, 1 Bea. 594; were relied upon in support of leave to amend being given; and the case of Watts v. Hyde, 2 Phil. 406, in support of the bill being dismissed. These cases are largely reviewed by the Lords Justices in their judgment on the first mentioned case, reported, 11 W. R. 391. DECREES FOR REDEMPTION OR FORECLOSURE OF MORT- GAGES, OR FOR SALE. (s) IV. When the time for answering in either of the above classes of cases has elapsed, on production to the Redemption, fore- registrar of the court, of the affidavit of the service of closure, or sale. Decree pro con- the bill, and upon precipe, the plaintiff is to be entitled fesso to be pre- to such a decree as would, under the present practice, trar on preesipe. be made by the court, upon a hearing of a cause pro confesso, under an order obtained for that purpose ; and on every such bill is to be endorsed the following notice: “‘ Your answer is to be filed at the office of the registrar, at Osgoode Hall, in the city of Toronto, (or when the bill is filed in an outer county, at the office of the deputy- registrar at .) You are to answer or demur within four weeks from the service hereof, (or when the defen- dant is served out of the jurisdiction, within the time limited by the order authorising the service.) If you fail to answer or demur within the time above limited, you are to be subject to have a decree or order made 36 282 DECREES ON PRECIPE, REDEMPTION, FORECLOSURE OR SALE. [orp=r iv., oF 10rm sanvary, 1863.] against you forthwith thereafter; and if this notice is served upon you personally, you will not be entitled to any further notice of the future proceedings in the cause. Note.—This bill is filed by Messrs. A. B. and C. D., of the city of Toronto, in the county of York, solicitors for the above named plaintiff, (and when the party who files the bill is agent, add agents of Messrs. E. F. and G. H., of ———-, solicitors for the above plaintiff.) And upon bills for foreclosure or sale is to be added to such notice the following: ‘ And take notice that the plaintiff claims that there is now due by you for principal money and interest the sum of , and that you are liable to be charged with this sum, with subsequent interest and costs, in and by the decree to be drawn up, and that in default of payment thereof within six calendar months from the time of drawing up the decree, your interest in the property may be foreclosed [or sold] unless before the time allowed you as by this notice for answering you file in the office above named a memorandum in writing signed by yourself or your solicitor, to the following effect : ‘I dispute the amount claimed by the plaintiff in the cause,’ in which case you will be notified of the: time fixed for settling the amount due by you at least four days before the time to be so fixed.” This Order is not to affect any suit now pending. . (s) See supra pp. 67, 76, 77, et segg. On a first examination of this order, it would seem that it is very limited in its ap- plication, the words ‘on production to the registrar of the court of the affidavit of the service of the bill and upon precipe’’ upon which ‘the plaintiff is to be entitled to such a decree as would, under the present practice, he made by the court upon a hearing of & cause pro confesso, under an order obtained for that purpose,” would seem to im- ply that such a decree could only be obtained in the cases where, under the present practice, the registrar has authority to grant an order pro confesso on precipe.. By Order XIII. of the Orders of 1853, the plaintiff is entitled to apply to the registrar for an order to take the bill pro confesso, against a defendant, not appearing to be ‘an infant, or person of weak or unsound mind, unable of himself to defend the suit, who has been personally served, within the jurisdiction cf the court, provided that he applies for such an order within two months from the date of service of the bill. If DECREES ON PRACIPE, REDEMPTION, FORECLOSURE OR SALE. 283 [orpER tv., or 10TH JANUARY, 1863.] this were the correct reading of the order, it would clearly not apply to cases where the plaintiff had to move for an order pro confesso. To sbtain ah odes pro confesso against corporations, he has to move in chambers therefor. (Order II. of the Orders of the 17th of March, 1857.) He must also move where the service has not been per- sonal. (See Order XIII, June, 1853, sec. 8.) He must also move where the ser- vice has been made out of the jurisdiction of the court, or in the case of publication against an absconding defendant. And also in case of substitutional service, and in cases where the service though personal and made within the jurisdiction, the appli- cation is not made before the expiration of two months from the date of service of the bill. (Order XIII., June, 1853, sec. 1.) He must also move in the case of a married woman, defendant. The order, however, contains internal evidence that it is intended to apply to most of these cases. Hence it is presumed that it will be held to apply to cases of parties served out of the jurisdiction under Order VII., of the Orders of January, 1863. The notice to be endorsed upon the office copy bill served, (which is made a part of the order, ) adopts the following language: ‘Or when the defendant is served out of the jurisdiction, within the time limited by the order authorising the service.” It is also presumed that it will be held to apply in cases where the service has not been personal, for the language of the continuation of the same notice which is a part of the order favours this construction, ‘‘if this notice is served upon you personally, you will not be entitled, &c.,” clearly implying that the office copy bill may be served, to come within the terms of this order, other than personally. Should the order be construed as liberally as it is possible, it would seem that it will apply in all cases, except in the case of a service by publication, which is clearly not within its scope. And it will also apply to married women. But in this case, the order that she may answer separately must be first obtained, and thereafter ag she would be treated as a feme sole, she would come within the terms of the order. In fine the order would take effect (assuming the foregoing construction) in this wise. In every case where there has been a service, and when the time therefor answering has expired, and the plaintiff is entitled to obtain an order pro confesso, he will in- stead thereof be entitled to such a decree, as would under the present practice be made by the court on a hearing pro confesso. The order will not apply to infants, or persons of weak or unsound mind. It would appear also that the order is not imperative. The words are, “The plaintiff is to be entitled.” He has the option of following the old practice, but it is presumed that his doing so would be at the peril of losing the costs if they are in- creased thereby. V. After the first day of February next, all bills of Bits ond peti- te tions, how to be complaint and petitions are to be addressed, “‘ To the addressed. Honourable the Judges of the Court of Chancery.” (¢) (t) See supra p. 16. ignature of VI. The signature of a judge shall not be necessary Sete weitindt i. necessary. to the authentication of any writ, 284 Service out juris- diction under stat. 20 Vic., ch. 66, sec, 15. SERVICE OUT OF JURISDICTION. [orpzr vir, of 10TH sanvaRy, 1863.] SERVICE OUT OF JURISDICTION. (wu) VII. The time within which any defendant served out of the jurisdiction of this court with an office copy of a bill of complaint shall be required to answer the same, or to demur thereto, to be as follows : 1. If the defendant be served in the United States of America, in any city, town, or village within ten miles from Lake Huron, the River St. Clair, Lake St. Clair, the River Detroit, Lake Erie, the River Niagara, Lake Ontario, or the River St. Lawrence, or in any part of Lower Canada not below Quebec, he is to answer or demur within six weeks after such service. 2. If served within any state of the United States not within the limits above described other than Florida, Texas, or California, he is to answer or demur within eight weeks after such service. 3. If served within any part of Lower Canada below Quebec, or in Nova Scotia, New Brunswick, or Prince Edward Island, he is to answer or demur within eight weeks after such service. 4. If served within any part of the United Kingdom, or of the Island of Newfoundland, he is to answer or demur within ten weeks from such service. 5. If served elsewhere than within the limits above designated, he is to answer or demur within six calendar months after such service. 6. The time within which any party served with any petition, notice, or other proceeding other than a bill of complaint, is to answer or appear to the same, is to be the same time as prescribed for answering or demurring to a bill of complaint, according to the locality of service, SERVICE OUT OF JURISDICTION. [oRDER vul., oF 10TH sanvaRy, 1863.] 7. Any party may apply to the court to prescribe a shorter time than is hereinbefore provided for any other party to answer or demur to a bill of complaint, or to answer or appear to any petition, notice, or other pro- ceeding. 8. Any party may apply for leave to serve any other party out of the jurisdiction under the General Orders of this court of June, 1853. 9. Affidavits of service under this Order and of the identity of the party served, may be sworn as follows: If such service be effected in any place not within the dominions of the Crown before the mayor or other chief magistrate of any city, town or borough, in or near which such service may be effected, or before any British consul or vice-consul, or the judge of any court of supe- rior jurisdiction. And if such service be effected in any place within the dominions of the Crown, not within the jurisdiction of this court, such affidavit may be sworn before any the like officer, or any notary public, and in Lower Canada, before any commissioner for taking affi- davits appointed under any statute of this province. And such affidavit shall be deemed sufficient proof of such service and identity without proof of the official character, or of the handwriting of the person administering the oath upon such affidavit. 285 (u) See supra pp. 33, 34, et segg. ORDERS OF THE COURT OF ERROR AND APPEAL. Orders of the Court of Error and Appeal, passed 3rd July, 1850. PASSED 3rp JULY, 1850. Whereas, by an act passed in the twelfth year of Her Majesty’s reign, intituled, ‘An Act to make further provision for the Administration of Justice, by the es- tablishment of an additional Superior Court of Common Law, and also a Court of Error and Appeal in Upper Canada, and for other purposes,’”’ it was enacted, that a Court of Judicature should be established in that part of this province called Upper Canada, to be styled “ The Court of Error and Appeal,” and to be composed of the judges of the Court of Queen’s Bench, the Court of Common Pleas, and the Court of Chancery; and that it should be lawful for the said judges of the Court of Ap- peal, at any time within two years, to make all such general rules and orders as to them might seem expedi- ent for the purpose of adapting the said Court of Appeal to the circumstances of this province, as well in regard to the writs of error or other process by which appeals should be commenced, and the form and mode of suing out such process as in respect of the practice and pro- ceedings of the said court, and also to regulate the allow- ance and amount of costs, and from time to time to make other rules and orders, amending, altering, or rescinding the same: Provided always, that no such rules or orders should have the effect of altering the principles or rules of decision of the said court or any of them, or of abridg- ing or affecting the right of any party to such remedy as » FORM OF WRIT OF APPEAL Q. B. OR OC. P. 287 [ORDER I., oF 38RD suLy, 1850.] before the passing of that act might have been obtained in the Court of Appeal thereby abolished; but might in all respects extend the manner of obtaining such remedy by regulating the practice of the said court in whatever way might to them seem expedient for better attaining the ends of justice; and that all such rules, orders or regulations should be laid before both houses of the Pro- vincial Parliament, if then in session, immediately upon the making of the same, or if the Parliament should not be then in session, then within five days after the meet- ing thereof; and that no such rule, order or regulation should have effect until within six weeks after the same should have been so laid before both houses of the legis- lature, and that any such order so made should, from and after such time aforesaid, be binding and obligatory on the said court and all other courts in the said pro- vince of Upper Canada to which the same should be made expressly to extend. It is therefore ordered— I. That the first process in appeal from judgments of the Court of Queen’s Bench or Common Pleas, shall be by a writ of appeal, which may be in the following form :— UPPER CANADA. [L. S.] Victoria, &c. To the Honourable , greeting : . ; Whereas, in the record and proceedings, and algo in the giving of judgment in a certain suit in our COUrt OF e. cp-mitor our Bench for Upper Canada (or in the Court of Com- appeal from mon Pleas) between A. B. and C. D., in a plea of tres- pass on the case (or as the case may be) as it is said manifest error hath intervened, as by the said (appel- lant) we are informed: we therefore, being willing that the error, if any there be, should, according to the laws Chief Justice of the Court of 288 In what cases writ to issue, and upon what security. Nature of security. FORM OF WRIT.—SECURITY, &C. ' [ORDERS II., IIL., AND Iv., 8RD JULY, 1850.] of Upper Canada, be duly corrected, do command you that without delay you send under the seal of the said court the record and proceedings aforesaid, with all things concerning the same, to our Court of Error and Appeal, that the said Court of Error and Appeal (the record and proceedings aforesaid being seen and exam- ined) may further cause to be done thereupon what of right and according to the laws aforesaid ought to be done. Witness the Honourable ——, Chief Justice, &c. II. That such writ may issue in all cases where by law an appeal lies to this court from the judgment of either of the courts of Queen’s Bench or Common Pleas, upon security being perfected as required by the statute in that behalf, and upon a certificate thereof signed by the chief clerk of the court appealed from, together with a preectpe for such writ being filed with the clerk of this court; such writ to be issued under the seal of this court and signed by the clerk thereof, and to be tested in the name of the Chief Justice or senior judge thereof for the time being on the day of the same issu- ing, and to be made returnable on the fifteenth day after the day on which the same shall issue. III. That, unless otherwise specially ordered, such security shall be personal and by bond, and may be in the form prescribed in rule number five, and shall be filed in the principal office of the court appealed from. IV. That the security for costs required by the statute 12 Vic., c. 63, sec. 40, shall be given by bond to the re- spondent or respondents in the sum of one hundred pounds, being the sum named in the statute, which bond shall be executed by the appellant or appellants, or one of them, and by two sufficient sureties, (or if the appel- lant or appellants be absent from or do not reside in FORM OF BOND FOR SECURITY. 289: [ORDERS V. AND vI., 8RD guy, 1850.] Upper Canada, then by three sufficient sureties,) and Security for costs under 12 the conditions thereof shall be to the effect that the ap- Vo pellant or appellants shall and will effectually prosecute his or their appeal, and pay such costs and damages as shall be awarded in case the judgment appealed from shall be affirmed or in part affirmed. The bond and conditions may be in the form given by rule number five. V. That the bond for securing costs shall be in the Formot tend following form : costs. Know all men by these presents that we, A. B. of , C. D. of , and E. F. of , are jointly and and severally held and firmly bound unto G. H. of 5 in the penal sum of lawful money of Canada, for which payment well and truly to be made we bind our- selves and each of us by himself, our, and each of our heirs, executors, and administrators respectively, firmly by these presents. Witness our hands and seals respectively, the day of , in the year of our Lord , Whereas the (appellant) alleges and complains that in the giving of judgment in a certain suit in her Majesty’s Court of Queen’s Bench, (or the Court of Common Pleas, as the case may be) in Upper Canada, between (the de- fendant) and (the appellant) in a plea of , manifest error hath intervened, wherefore the said (appellant) de- sires to appeal from the said judgment to the Court of Error and Appeal. ; Now the condition of this obligation is such, that if the said (appellant) do and shall effectually prosecute such appeal and pay such costs and damages as shall be awarded in case the judgment aforesaid to be appealed from shall be affirmed or in part affirmed, then this ob- ligation shall be void, otherwise shall remain in full force. VI. That when the judgment to be appealed from directs the payment of money, and the appellant. desires to stay the execution thereof, then the bond or security 37 290 Amount of security. In ejectment ; or question poste to rent, C. SECURITY, 40. [onDERS VI. AND VIL, 38RD JuLY, 1850.] aforesaid shall be double the amount of such judgment, unless the same shall be in debt or bond for a penal sum or upon a warrant of attorney or Cognovit Actionem or otherwise, exceeding in amount the sum really due, in which case the bond shall be in double the true or real debt and costs only; and the amount so recovered, and of such true and real debt and costs shall be stated in the condition or recital to the condition of the bond or security, immediately after the statement of the nature of the action, and the condition shall be to the effect that the said (appellant) shall effectually prosecute such ap- peal, and if the said judgment so to be appealed from or any part thereof shall be affirmed, shall pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment shall be affirmed (if it be affirmed only in part) and all damages which shall be awarded against the said appellant in the appeal: provided always, that in cases where the security to be given shall be in asum above five hundred pounds, it shall be in the discretion of the court appealed from, or of a judge thereof in vacation, to allow security to be given by a large numbe of obligors, apportioning the amount among them as shall appear reasonable. VII. That when the judgment appealed from shall be in an action of ejectment, the security required by the last preceding rule shall be taken in double the yearly value of the property in question; and in cases where the matter in question shall relate to the taking of any annuak or other rent, customary or other duty or fee, or any other such like demand of a general and public na- ture, affecting future rights, the amount in which security shall be taken in addition to the security required for costs shall be fixed by order of a judge of the court ap- pealed from. BOND AND AFFIDAVITS. 291 (ORDERS VIII, IX., AND X., 38RD JuLY, 1850.] VIII. That the security required by the two last pre- Tobe by bond, ceding rules shall be given by bond, and the recitals Me? and condition in such bond shall be such as shall conform to the provisions of the said two rules, with such further or other conditions, in cases where the judgment is not for the payment of a sum of money only, as the judge approving such security may think fit to order. IX. That the parties to such bond, as sureties, shall, by affidavit respectively, make oath that they are resi- Affidavit of justi dent householders or freeholders in Upper Canada, andtie. severally worth the sum mentioned in such bond, over and above what will pay and satisfy all their debts; which affidavit may be in the following form:— In the (style of court.) ,and G. H. of ‘; v. severally make oath and say: and C. D., defendant. first this deponent HK. F. for him- self saith, that he is a resident inhabitant of Upper Ca- nada, and is a householder in (or a freeholder in) , and that he is worth the sum of (the sum in which he stands bound by the penalty) over and above what will pay all his debts; and this deponent, G. H., for himself saith, that he is a resident inhabitant of Upper Canada, and is a householder in (or freeholder in) , and that he is worth the sum of (as the case may be) over and above what will pay all his debts. (Signed,) E. F. G. H. Sworn by the above named deponents, E. F. and G. H., at , in the county of , the day of——, 18—, before me, A. B., plaintiff, \e F, of X. Y., A Commissioner, fe. X. That fourteen days’ notice shall be given of the Roustesn ae time and place at which application will be made to the tion tr ee court from whose judgment it is intended to appeal, or to a judge thereof in vacation for the allowance of such 292 How allowance to be opposed. When-allowed. Security in cases under 12 Vic., ch, 63, 2 40. When judgment aippealed from is given on - point © law not ap- pearing on the fecord. ALLOWANCE OF BOND, &C. {onprRs XI, XI, XIII.,.AND XIV,, 38RD suzy, 1850.) security; which notice shall contain the names and ad- ditions of the obligors. XI. That the allowance of such security may be op- posed by affidavit ; but that in the absence of any such opposition, the affidavit above mentioned shall be suffi- cient, in the discretion of the Judge, to warrant the al- lowance thereof. XII. That, if allowed, the officer of the court shall endorse on such bond the word “ allowed,” prefixing the date and signing his name thereto; upon which, such security shall be deemed perfected. XIII. That cases coming within the twelfth Victoria, chapter sixty-three, section forty, numbers two and four, shall be disposed of by special order, as the occasion may require; except that the security thereunder shall be personal and by bond as aforesaid. XIV. Jt is ordered, That if in any case judgment shall be hereafter given in any of the said courts upon a question of law not appearing upon the record, but which judgment would be subject to be reviewed in error, if the question thereby determined were presented to the court on a special verdict, or by bill of exceptions or de- murrer to evidence, then in every such case the judg- ment so given may be appealed from, notwithstanding the question shall not appear upon the record. Provided, 1st.—That before the expiration of three calendar months from the day on which the decision shall be pronounced, the party intending to appeal shall, by his attorney, file in the office of the clerk of the court in which the cause shall be or shall have been depending, and shall serve upon the opposite party, his attorney -or agent, a notice to the following effect : JUDGMENT APPEALED FROM ON POINT OF LAW. [ORDER XIVv., 8RD JuLx, 1850.] “The plaintiff (or defendant as the case may be) in- tends to appeal from the judgment of the court upon the rule nisi for nonsuit or for new trial” (or as the case may be.) 2ndly.—That execution shall not be stayed unless security be given as in other cases of appeal. drdly.—That in case of any appeal under this rule, the party appealing shall prepare a written statement of the case, and of the question determined, and of the judgment or decision thereon from which he appeals ; which, being signed by both parties or their respective attorney or attorneys, and approved of by one of the judges of the court appealed from, shall be transmitted with the transcript of record certified by the clerk. 4th—That in case the parties or their attorneys shall not agree in such statement, then the appellant may, on summons to the opposite party apply to a judge of the court appealed from to approve of the statement to be submitted to him; which judge, on hearing the other party, or in case of his non-attendance, on hearing the appellant, may approve or modify the statement, as to him shall appear proper. 5th.—That the Court of Appeal may, in its discretion, remit such statement to be amended as may appear ne- cessary for more correctly exhibiting the point or points which have been determined in the court below. 6th.—That when the Court of Appeal shall have de- termined the matters brought before them under this rule, they shall certify their decision, and send the same to the court below, with such order as to entering judg- ment for either party or otherwise, as the case shall ap- pear to them to require. 293 294 WRIT OF APPEAL. [ORDERS XV., XVI., AND XVII., 38RD JULY, 1850. ] Writ ofepreal to XV, That the writ of appeal from either of the said clerk of thecourt common law courts, upon being presented to the chief clerk of the court appealed from, shall by endorsement thereon, be allowed by him if the appellant has given the requisite security, such allowance to be as follows : Allowed the day of , 185 (Signature of the Clerk.) And that when allowed, the said clerk, on payment of legal fees, shall proceed to comply with the order of the writ, and the Chief Justice or some other judge of the court appealed from, shall endorse a return thereon as follows : By virtue of the within writ, the record and proceed~ ings therein mentioned, are sent under the seal of the Court of , a8 within it is commanded; such record and proceedings being contained in the transcript there- of hereunto annexed and signed, by (officer’s name), clerk of the said court. (Signed) Chief Justice (or Judge.) XVI. That the clerk of the court shall, in order to such return, cause a fair and full transcript of the judg- ment appealed from, certified under the seal of the court franscriptof and signed by him, to be affixed to the writ of appeal; peoled rom to which transcript, so certified and transmitted, with such further certificate as may be required in cases under the fourteenth rule, shall be deemed a sufficient compliance with the writ. XVII. That if any writ of appeal be not duly returned, ee 8 rule to return the same may be obtained at any time F as of course, on filing a motion paper therefor, with an affidavit of the allowance of the writ and the delivery thereof to the chief clerk of the court appealed from, at least fourteen days previous to such application and of its non-return. WRIT OF APPEAL. 295 [ORDERS XVIII., XIX., XX., XXI., AND XXII, 8RD JuLy, 1850.] XVIII. That if not returned within four days after pach horace, service of such rule on the Chief Justice or some other thn to te mate. judge, and on the chief clerk of the court appealed from, special application for further proceedings must be made to the Court of Error and Appeal, upon a special affida- vit of the circumstances. XIX. That further time to return such writ may be Bec a had upon application to the said Court of Error and Ap- obtainea. peal, or to any judge thereof. XX. No rule to allege diminution, nor rule to assign No rule neces. sary to compel causes of appeal, nor scire facias quare executionem non, assignment of shall be necessary, in order to compel an assignment of errors. XXI. No rule to certify or transcribe the record shall appetiant to file : : : d be necessary; andif the appellant does not, in eight groundsof ap- days after the filing of the return of the writ of ap- sys. meee peal, file and serve a copy of his grounds of appeal, the respondent may, by notice in writing, demand the same; and if the grounds of appeal are not filed within eight days after service thereof on the appellant, his attorney or agent, the appeal, on proof thereof by affi- davit, shall be dismissed with costs. XXII. That within eight days after the grounds of wenaeuis appeal shall be filed and served, the respondent shall augments, Sight file and serve his answer or joinder thereto; which, un- less it shall be necessary to plead specially, shall be the common plea or joinder of ‘“‘in nullo est erratum ;” or if he neglects so to do, the appellant may in writing de-. mand the same; and unless the respondent file his answer or joinder in appeal within eight days after ser- vice of such demand, the respondent, his attorney or agent, shall be precluded from filing the same, without the leave of the court or a judge thereof first had and 296 WRIT OF APPEAL.—SETTING DOWN. [onpiRs xxuI. AND XxIv., 38RD suLy, 1850.] obtained, upon a rule nist or summons; and the court will proceed ex parte to hear the cause on the part of the appellant, and to give judgment therein without the intervention of the respondent. Provided always, that either party respectively may Further time. obtain further time to file the grounds of appeal, or the answer or joinder thereto, by the order of the court or of any judge thereof, upon the return of a rule nist or summons to be issued and served in that behalf. Noles Provided also, that if the respondent does not intend given ifappesl isto resist the appeal, he may give notice thereof to the ee appellant; and on proof of such notice, judgment of' re- versal shall be given for the appellant as of course. When grounés Provided also, that in case the grounds of appeal are _ Farpeat ser? not filed and served eight days next before the first day er tucy. of July in any year, then the respondent shall be allow- ed as many days after the twenty-first day of August next following as will be sufficient to complete such number of eight days within which to file his answer or joinder thereto. When appealto XXIII. That when the grounds of appeal and’ answer Yeunent " thereto are filed, the cause shall, on application of either party, be set down for argument by the clerk of this court, for a day to be fixed, of which notice shall be duly given to the opposite party, his attorney or agent, at least four days before the day appointed for the hearing of such appeal. Copies of plead- XXIV. Four clear days before the day appointed for ings to be deliv- ered fo oer | argument the appellant shall deliver to the clerk of the that appointed Court of Error and Appeal, for the use of the judges thereof, two copies of the judgment of the court below, and of the reasons of appeal, and of the pleadings or WRIT OF APPEAL. 297 [ORDERS XXV., XXVI., AND XXVIL, 3RD JULY, 1850.] answers thereto; and in default thereof the appeal may be dismissed with costs. XXV. That the result of the appeal in this court shall te tone we be certified to the court appealed from by the clerk“ under the seal of this court, which certificate shall briefly state that the judgment has been affirmed, reversed or modified (as the case may be,) with or without costs; and when with costs, to be paid by either party, adding the amount thereof when the same shall have been taxed, as taxed; and that upon such certificate being filed in the court below, any entry thereof may be suggested on the roll, and further proceedings in that court be had, according to the course and practice of such court; and in case of any new question arising, according to the course and practice of the Court of Queen’s Bench in England. Provided that the respondent, if the successful party, may proceed upon the judgment by execution, and upon the bond or security required to be given under the statute and the foregoing rule in that behalf; or he may adopt either course separately, without prejudice to his other remedy by waiver, delay or otherwise. XXVI. That all writs and all rules and orders of this writstobetested _ _ court in cases appealed shall be tested or bear date the Re day of their issuing, and be signed by the clerk of the court. XXVII. That no writ of appeal shall be a superse-Tfappesl five. deas of execution until service of the notice of the allow- order execution ance thereof, containing a statement of some particular ground of appeal intended to be argued. Provided, that if the error stated in such notice shall appear to be frivolous, the court or a judge, upon summons and proof 38 298 In appeals from Chancery, securi- ties to be by bond; to stand allowed after fourteen days, if not moved against. Petition of ap- peal, form of; and with whom filed. APPEALS FROM CHANCERY.—PETITION. (ORDERS XXVIII. AND XXIX., 38RD JuLY, 1850.] of the service thereof by affidavit, may order execution to issue. XXVIII. That in appeals from the Court of Chancery, all securities under the fortieth section of the said Act of the Provincial Parliament, passed in the twelfth year of the reign of Her present Majesty, chapter sixty-three, shall be in the form of a bond, which, together with the affidavit of justification, shall be filed with the registrar of the said court, and notice thereof served on the re- spondent, his solicitor or agent; and the same shall stand allowed, unless the respondent shall within four- teen days after service of such notice move the said court to disallow the same. A special application shall be necessary to stay proceedings under.any of the excep- tions in the said section of the said act. XXIX. That the petition of appeal shall be in the form set forth in the schedule to this order. The peti- tion of appeal shall be filed with the clerk of the court, and a copy thereof, together with a notice of the hear- ing of the appeal shall be served on the respondent, his solicitor or agent, at least two months before the time named in such notice for the hearing of the appeal. Such petition shall not be answered, but at the time named in such notice the parties must attend to argue the appeal; and upon the filing of the petition, and ser- vice of a copy thereof and of such notice, the appeal shall stand in the same plight as if the petition had been answered, and such time appointed by this court for the hearing thereof. The Schedule to the foregoing Order. IN THE COURT OF ERROR AND APPEAL. Between » appellant, and 5 respondent: Lo the Honourable the Judges of the said court. APPEALS TO THE PRIVY COUNCIL. 299 [ORDER XXX. AND Xxx1., 8RB JULY, 1850. ] The humble petition of the said (appellant) sheweth : That a (decree or an order) was lately and on pronounced by Her Majesty’s Court of Chancery for Upper Canada, in a certain cause depending in the said court wherein your petitioner was and the above named was ; which said (decree or order) has since been duly entered and enrolled. That your petitioner feels himself aggrieved by the said (decree or order), and he hereby appeals therefrom, and humbly prays that the same may be reversed or varied, or that your lordships will make such other order or decree in the premises as to your lordships shall seem meet. And your petitioner will ever pray, &c. (Certificate of Counsel.) XXX. That the printed cases shall be and are here- by abolished, but copies of the pleadings and evidence shall be printed, as is at present done in the appendix to the case, to which the reasons of appeal, and for printed cases supporting the decree or order, shall be appended, spolishedi Put and the same rule shall apply to such printed copies and ™™*"** reasons as now apply to the printed cases, and the same shall for all purposes be considered the printed cases of the appellant and respondent respectively. Provided always, that nothing herein contained shall prevent the parties from joining in printing such copies as they now do in printing the appendix, if they shall be so disposed. Such printed cases must be deposited with the clerk of the court for the use of the judges, at least four days before the hearing of the appeal. XXXI. That when it shall be intended to appeal to : : ‘ : se SL aie Her Majesty in the Privy Council, the securities required poy Counc; by the statute twelfth Victoria, chapter sixty-three, sec-pegien tion forty-six, shall be personal and by bond to the re- spondent or respondents—such bond to be executed by the appellant or appellants, or one of them, and two 800 BOND.—SECURITY. [oRDER xxx1L., 8RD suLy, 1850.] sufficient sureties (or if the appellant or appellants be absent from or do not reside in Upper Canada, then by three sufficient sureties) in the penal sum of five hundred pounds, in cases coming within the first part of the said séction forty six; the condition of which bond shall be to the effect that the appellant (or appellants) shall and will effectually prosecute his (or their) appeal, and pay such costs and damages as shall be awarded in case the judgment (or decree) appealed from shall be affirmed, or in part affirmed, and that execution shall not be stayed in the original cause until security shall further be given by bond, in conformity to the sixth, seventh, and eighth rules, when from the nature of the case such further secur- ity shall be requisite: and in cases from Chancery, appli- cation to the Court of Appeal to stay proceedings shall be by motion or notice; which motion, if granted, shall be upon such terms as to security under the statute or otherwise, as the circumstances and nature of the case require. XXXII. That the bond or security referred to in the last rule shall be in the following form: Know all men by these presents, that we, A. B., of , C. D., of , and H. F., of , are jointly and severally held and firmly bound unto G. H., of » in the penal sum of of lawful money of Canada, for which payment well and truly to be made, we bind our- selves, and each of us by himself, our and each of our heirs, executors, and administrators respectively, firmly by these presents. Witness our hands and seals respec- tively, the day of » In the year of our Lord _ Whereas (the appellant) alleges and complains, that in the giving of judgment in a certain suit in her Ma- jesty’s Court of Error and Appeal in Upper Canada between (the respondent) and (the appellant) mani- fest error hath intervened: wherefore the said (appel- lant) desires to appeal from the said judgment to her Majesty, in her Majesty’s Privy Council: APPEALS TO THE PRIVY COUNCIL. (ORDER XXXIIL., XXXIV, AND XXXvV., 3RD guty, 1850.] Now the condition of this obligation is such, that if the said (appellant) do and shall effectually prosecute such appeal and (or) pay such costs and damages as shall be awarded, in case the judgment aforesaid to be ap- pealed from shall be affirmed, or in part affirmed, then this obligation shall be void otherwise shall remain in full force. XXXII. That in every case of appeal to her Majesty in Council, the obligors, parties to any bond as sureties, shall justify their sufficiency by affidavit, in the manner and to the same effect as is required by rule number nine of this court. XXXIV. In cases appealed from either of the courts of common law, or from the Court of Chan- cery, the same fees and allowances shall be taxed in appeal by the clerk of the Court of Error and Ap. peal for attorneys and solicitors, or any officer of the said court, as are allowed for similar services in the court from which the appeal shall have been brought; and that counsel’s fees shall be taxed in the discretion of the clerk, provided that no fee to counsel exceeding ten pounds shall be taxed without an order of the judge who presided on the argument, or in his absence of the next senior judge. XXXV. That the regular and appointed days or times of sitting of this court shall be the second Thursday after the several terms of Hilary, Easter and Michael- mas, as appointed by the statute 12 Vic., ch. 63, sec. 13, at eleven o’clock in the forenoon: provided, however, that the said court may adjourn from time to time, and meet at such other periods as shall be appointed for the hearing and disposing of any business brought before it, 301 3802 APPEAL BOOKS. [ORDER 27TH JUNE, 1856, AND ORDER 21ST DECEMBER, 1858. ] 5 FRIDAY, 27TH JUNE, 1856. Ordered, that copies of the pleadings and evidence shall be printed, in all cases appealed, together with the reasons of appeal, and the reasons relied upon for sup- porting the judgment, decree, or order, and the opinions of the judges in the courts below, when not published in the reports, which copies shall for all purposes be con- sidered the printed cases of the appellant and respondent respectively, and a copy must be deposited with the clerk of the court for the use of each of the judges at least four days before the hearing of the appeal. TUESDAY, 2lst DECEMBER, 1858. It is ordered that, after the present sittings of this court, the clerk shall receive no appeal books unless they be printed, on one side only, on good paper, in demy quarto form, with small pica type. It is ordered that in ali cases in which the case for appeal is required to be settled by any judge of either of the courts, the appellant shall serve on the opposite party a copy of the case he intends to submit for the judge’s approval, at least four days before the applica- tion to have the case settled. [303] ORDERS, RULES AND REGULATIONS, OF THE PRIVY COUNCIL, IN THE MATTER OF APPEALS BROUGHT TO HER MAJESTY FROM THE COLONIES. PASSED 13TH "JUNE, 1863. Whereas there was this day read at the Board a Re- port from the Right Honourable the Lords of the Judi- cial Committee of the Privy Council, dated the 30th of May last past, humbly setting forth that the Lords of the Judicial Committee have taken into consideration: the practice of the Committee with a view to greater econo- my, despatch, and efficiency in the appellate jurisdiction of her Majesty in Council, and that their Lordships have agreed humbly to report to her Majesty that it is expe- dient that certain ehanges should be made in the exis t ing practice in appeals, and recommending that certain rules and regulations therein set forth should henceforth be observed, obeyed and carried into execution, provided her Majesty is pleased to approve the same: Her Majesty having taken the said Report into con- sideration, was pleased, by and with the advice of Her Privy Council, to approve thereof, and of the rules and regulations set forth therein, in the words following, yidelicet :— 1, That any former usage or practice of her Majesty’s 804 REGISTRAR $ TRANSCRIPTS TO BE SENT TO. [ORDERS II. AND 1r., 187m guNE, 1853.] Appellant, when Privy Council notwithstanding an appellant, who shall proove’ “5 OF succeed in obtaining a reversal or material alteration of any judgment, decree, or order appealed from, shall be entitled to recover the costs of the appeal from the re- spondent, except in cases in which the Lords of the Judi- cial Committee may think fit otherwise to direct. Transcripts tobe IL. That the registrar or other proper officer having of Privy Geunei, the custody of records in any court or special jurisdic- tion from which an appeal is brought to her Majesty in Council be directed to send by post, with all possible despatch, one certified copy of the transcript record in each cause to the registrar of her Majesty’s Privy Coun- cil, Whitehall; and that all such transcripts be registered in the Privy Council Office, with the date of their arri- yal, the names of the parties, and the date of the sen- tence appealed from; and that such transcript be ac- companied by a correct and complete index of all the papers, documents, and exhibits in the cause; and that the registrar of the court appealed from, or other proper officer of such court, be directed to omit from such transcript all merely formal documents, provided such omission be stated and certified in the said index of pa- pers; and that especial care be taken not to allow any document to be set forth more than once in such tran. script ;-and that no other certified copies of the record be transmitted to agents in England by or on behalf of the parties in the suit; and that the fees and expenses incurred and paid for the preparation of such transcript be stated and certified upon it by the registrar or other officer preparing the same. III. That when the record of proceedings or evidence in the cause appealed has been printed or partly printed abroad, the registrar or other proper officer of the court from which the appeal is brought, shall be bound to send home the same in a printed form, either wholly or so TRANSCRIPTS; PRINTED AND WRITTEN. 305 [ORDER Iv., 18rH guNE, 1853.] far as the same may have been printed, and that he do cer- frnceripts may tify the same to be correct, on two copies, by signing his #4 name on every printed sheet, and by affixing the seal, if any, of the court appealed from to these copies, with the sanction of the court. And that in all cases in which the parties in appeals shall think fit to have the proceedings printed abroad, they shall be at liberty to do so, provided they cause fifty copies of the same to be printed in folio, and transmit- ted at their expense, to the registrar of the Privy Coun- cil, two of which printed copies shall be certified as above by the officers of the court appealed from; and in this case no further expense for copying or printing the record will be incurred or allowed in England. TV. That on the arrival of a written transcript of ap- written trans. peal at the Privy Council Office, Whitehall, the appellant, printed by. < or the agent of the appellant prosecuting the same, shall primer, be at liberty to call on the registrar of the Privy Coun- cil to cause it, or such part thereof as may be necessary for the hearing of the case, and likewise all such parts thereof as the respondent or his agent may require, to be printed by her Majesty’s printer, or by any other printer on the same terms, the appellant or his agent engaging to pay the cost of preparing a copy for the printer at a rate not exceeding one shilling per brief sheet, and like- wise the cost of printing such record or appendix, and that one hundred copies of the same be struck off, where- of thirty copies are to be delivered to the agents on each side, and forty kept for the use of the Judicial Commit- tee: and that no other fees for solicitors’ copies of the transcript, or for drawing the joint appendix, be hence- forth allowed, the solicitors on both sides being allowed to have access to the original papers at the Council Office, and to extract or cause to be extracted and copied such 39 306 SPECIAL CASE. [oRDERS V. AND vI., 187m gunz, 1853.] parts thereof as are necessary for the preparation of the petition of appeal, at the stationer’s charge, not exceed- ing one shilling per brief sheet. ee That a certain time be fixed within which it shall certain time. be the duty of the appellant or his agent to make such application for the printing of the transcript, and that such time be within the space of six calendar months from the arrival of the transcript and the registration thereof in all matters brought by appeal from Her Ma- jesty’s colonies and plantations east of the Cape of Good Hope, or from the territories of the East India Company ; and within the space of three months in all matters brought by appeal from any other part of Her Majesty’s dominions abroad ; and that in default of the appellant or his agent taking effectual steps for the pro- secution of the appeal within such time or times respectively, the appeal shall stand dismissed without further order, and that a report of the same be made to the Judicial Committee by the registrar of the Privy Council at their Lordships’ next sitting. Appeals maybe V1. That whenever it shall be found that the decis- formofasrecial ion of a matter on appeal is likely to turn exclusively ie. on a question of law, the agents of the parties, with the sanction of the registrar of the Privy Council, may submit such question of law to the Lords of the Judi- cial committee in the form of a special case, and print such parts only of the transcript as may be necessary for the discussion of the same; provided that nothing herein contained shall in any way bar or prevent the Lords of the Judicial Committee from ordering the full discussion of the whole case, if they shall so think fit; and that in order to promote such arrangements and simplification of the matter in dispute, the registrar of the Privy Council may call the agents of the partieg SPECIAL CASE. (ORDER vI., 18rH suNE, 1853.] before him, and having heard them, and examined the transcript, may report to the committee as to the nature of the proceedings. And Her Majesty is further pleased to order, and it is hereby ordered, that the foregoing rules and regula- tions be punctually observed, obeyed, and carried into execution in all appeals or petitions and complaints in the nature of appeals brought to Her Majesty, or to her heirs and successors in council, from Her Majesty’s colonies and plantations abroad, and from the Channel Islands or the Isle of Man, and from the territories of the East India Company, whether the same be from courts of justice or from special jurisdictions, other than appeals from Her Majesty’s Courts of Vice-Admiralty, to which the said rules are not to be applied. Whereof the judges and officers of Her Majesty’s courts of justice abroad, and the judges and officers of the superior courts of the East India Company, and all other persons whom it may concern, are to take notice, and govern themselves accordingly. 307 [308] , MISCELLANEOUS POINTS ON THE ORDERS. INTEREST. As to allowing interest on the arrears of au annuity which the testator in the suit had covenanted to pay, see Jenkins v. Briant, 16 Sim. 272, and cases there cited; and Lainson v. Lainson, 18 Bea. 7. Interest will not in general be given from a period anterior to the decree. (Fowler v. Fowler, 4 DeG. & J. 250, 275.) A creditor is not entitled to interest ‘‘from the date of the decree,” on a debt which acgrues due subsequently thereto. (Laiuson v. Lainson, 18 Beav. 7.) As to the cases of allowing or disallowing interest upon interest, see Gladwyn v. Hitchman, 2 Ver. 135; Butler v. Duncomb, 1 P. W. 453; Brown v. Barkham, 1 P. W. 653; Whatton v. Cradock, 1 Keen, 267; Turner v. Turner, 1 J. & W. 39,47; Perkyns v. Baynton, 1 Bro. C. C. 574; Combe v, Acland, Dick. 486; Shepherd v, Titley, 2 Atk.350; Sackett vy Bassett, 4 Mad. 58; Fergusson v. Fyffe, 8 C. & F., H. L. 121; 2x parte Bevan, 9 Ves. 223; Chesterfield v. Janssen, 2 Ves. Sr. 151; Brewin v. Austin, 2 Keen, 211; Howard v. Harris, 2 Ver. 195; Knapp v. Burnaby, 9 W. R. 765. And it is now settled rule that no interest will be allowed on interest reported due, except in the ca:e of a subsequent incumbrancer paying off a prior one under a foreclosure or redemption decree. (Compare tbe preceding cases.) It would seem that in giving interest equity follows the law. (Parker v. Hutchin- son,.3 Ves. 185: Upton v. Ferrers, 5 Ves. 803; Boddam v. Ryley, 1 Bro. C. C. 289; Lowndes v. Collens, 17 Ves. 29.) The master’s report does not make a sum found due carry interest under Con. St. U.C., cap. XLII. (Mansfield v. Ogle, 4 DeG. & J. 38, 42.)? Interest may be directed to be computed by the decree on further directions though not directed before. (Flintoff v. Haynes, 4 Hare, 309.) A mortgagee is not entitled under 3 & 4 Will. 4, ch. 27, sec. 42, (Eng.) to recover as against wu second mortgagee and subsequent incumbrancers, the arrears of interest due on his mortgage for more than six years, by reason of an acknowledgment in writing by the mortgagor of the sum due in respect of interest. (Bolding v. Lane, 11 W. R. 886.) The words in the 42nd section, ‘*by whom the same is payable,” denote not merely those who are legally bound by contract tu pay the interest, but all against whom payment may be enfcrced by any action or suit. (Jbid.) This de- cision reverses same case, reported 38 Gif. 561; 10 W. R. 556. See also Roddam v. Morley, 1 DeG. & J. 1; 5 W. R 510. The cases of Hodges v. Croydon Canal Co., 8 Ben. 86; Hunter v. Nockolds, 1 M. & G. 641; Hughes v. Kelly, 8 D. & W. 482; Greenway v Bromfield, 9 Hare, 201; decide that no more than six years’ arrears of interest are recoverable under the 42nd section, But before the courts had arrived at this conclusion as the true construction of the statutes it had been held by Wigram, V.C., that under tbe before-mentioned statutes a mortgagee of land whose mortgage debts and interest were secured also by a bond or covenant was eutitled in a foreclosure suit to charge the mortgaged estate with the fuli arrears of interest accruing on the mortgage debt within twenty years before the in- stitution of the suit. (DuVigier v. Lee, 2 Hare, 326.) The price of redeeming the mortgaged premises is the same in a suit by the mortgagor to redeem. as it would be in the like circumstances in a suit by the mortgagee to foreclose, (Jbid.) If the debt and interest are secured ovly by the mortgage, the mortgagee is entitled to no more than six ye:rs’ arrears of interest,wemble. (Jbid.) See also Elvy v. Norwood, 5 DeG. & Sm. 240; 16 Jur. 498; and Sinclair v. Jackson, 17 Bea. 405. But DuVigier v. Lee was a foreclosure suit, A mortgage deed recited an agreement to secure the money with interest, but the proviso for redemption on a day certain, and the covenant to pay and the trusts of a MISCELLANEOUS POINTS ON THE ORDERS. 309 [zysunction.] produce of a sale were restricted to the principal only. Held, that interest was pay- able, (Astwell vy. Staunton, 30 Bea. 52.) INJUNCTIONS, Injunctions to stay proceedings at law, have already been considered pp. 119-128, supra. It remains to consider in what cases they will be granted to restrain wrongful acts of a special nature. These cases may be classified under the following heads :— 1. Breaches of contract, trust, or confidence, in which case the injunction will be granted irrespective of damage. (Tipping v. Eckersley, 2 K. & J. 264.) See Drewry on Injunctions, pp. 250-278; Sup. 60-68, and cases there cited. And see also Sevin v. Deslandes, 7 Jur. N. 8. 837; 80 L. J. Ch. 457; 9 W. R. 218; Spurgin v. White, 7 Jur. N.S.15; 9 W. R. 266; 3 L, T. N. S, 609; Giles v. Hart, 5 Jur. N. §. 1881; 1 L. T. N. 8. 154; Duigoan v, Walker, 1 Jo. 446; 5 Jur. N.S. 976; 28 L. J. Ch. 867; Piggott v. Stratton, 29 L. J. Ch. 1; 1L. T.N. 8. 111. Injunction to restrain a breach of a farming covenant granted; (Fleming v. Snook, 5 Bea. 250;) to restrain a breach of covenant secured by forfeiture of the lease and a penalty ; (Barret v. Blagrave, 5 Ves. 555;) and the court granted an injunction prohibitory in form, but mandatory in its effect, against a lessee of mines acting in contravention of the covenants, in permitting a communication to remain open with an adjoining mine and water to flow therefrom. (Earl of Mexborough vy. Bower, 7 Bea. 127.) Query, as to the power of the court to award damazes in certain cases. And on grauting an interim injunction, is it not insisted that the plaintiff must undertake to abide by such or any order which the court may make as to damages. (Tuck v. Silver, Johns. 218; Ingram v. Stiff, Jo, 220, 7.) As to the rule of decreeing specific performance and awarding damages, see Rogers vy. Challis, 27 Bea 175; 7 W. R. 710; Chinnock v. Sainsbury, 9 W. R. 7; in this latter cuse it was held that no damages would be granted where the agreement was one which the court had not the jurisdiction to enforce. See also Norris v. Jackson, 1J. & H. 319; 7 Jur. N. S. 540; Soames v. Edge, Johus, 669; Darbey v. Whitaker, 4 Drew. 134; Collins v. Stuteley, 7 W. R. 710. Courts of equity have an inherent jurisdiction to award damages for the non-performance of an agreement which they are empowered to enforce. (Nelson v. Bridges, 2 Bea. 289; Prothero v. Phelps, 25 L. J. Ch. 105; Lillie v. Legh, 3 DeG. & J. 204.) 2. Infringement of copy-right or patent-right. Such injunctions will now be granted on a prima facie title being shewn. (Drewry on Injunc. 192-226; Sup. 82-52 ) See as to evidence necessary to support such prima facie title, Daniel)’s Ch. Pr. 8rd Edit. 1237; Drewry, 226; Mayer v. Spence, 1 J. & H. 87; 8 W. R. 559, 3. Obstruction of ancient lights or lights derived from a common landlord ; (Davies y. Marshall, 9 W. R. 368;) or alteration of windows so as to enlarge easement already acquired. (Cooper v. Hubbuck, 9 W. R. 352; Renshaw v. Bean, 18 Q. B. 118; Wilson v. Townend, 9 W. R. 30.) An OES to restrain the obstruction of ancient lights, refused on the ground of delay, the bill being retained with liberty to proceed at law. (Cooper v. Hubbuck, 30 Bea, 160.) See also Gale v. Abbot, 8 Jur. N.. 8. 987; 10 W. RB. 748; 6L. T N.S. 852; Simper v. Foley, 2J.&H. 555; 5 L. T.N. 8. 669. 4, Waste and trespass, (Daniell’s Ch. P, 1223-1229.) See also Dewry on Injunc- tions, pp. 134-190; Sup. 21-31. The court will restrain a purchaser from doing 310 MISCELLANEOUS POINTS ON THE ORDERS. [rnguNcTION. } acts of waste and destruction, and will restrain a partner from doing an intentional’ serious injury to the partnership property. (Marsball v. Watson, 25 Bea. 601.) But the court cannot interfere in cases of mere permissive waste by a tenant for life. (Powys v. Blagrave, 1 Kay, 495; 4 DeG. M. & G. 448.) An injunction may be obtained against a tenant from year to year, after a notice to quit, to restrain him from removing the crops, &c., according to the usual course of husbandry. (Onslow v. , 16 Ves. 173; Pratt v. Brent, 2 Mad. 62.) The court will grant an injunction in cases where the aggrieved party has equita- ble rights only, and it has been said that the court will grant it more strongly where there is a trust estate. (Robinson v. Litton, 3 Atk. 209; Gaith v. Cotton, 1 Dick. 188; 1 Ves. Sr. 555; Stansfield v. Habergham, 10 Ves. 277.) Take for instance the cases of mortgages, and see Farrant v. Lovel, 3 Atk. 723; Humphreys v. Harrison, 1J, & W. 581; Eden on Injunctions, 165, 166; King v. Smith, 2 Hare, 239; Vin- cent v. Spicer, 22 Bea. 880; it must appear, however, that by the waste committed (such as the felling of timber by the mortgagor) that the security would be insuffi- cient or scanty without the timber. (Hippesley v. Spencer, 5 Mad. 422; King v. Smith, supra.) 5. Nuisance either of a public or a private nature. (Attorney-General v. Nichol, 16 Ves, 842; White v. Cohen, 1 Drew. 812.) See also Drewry on Injunctions, pp. 237-249; Sup. 58-59; Beardmore v. Tredwell, 7 L. T. N.S. 207; Bankhart v. Houghton, 5 Jur. N.S. 282; 28 L. J. Ch. 473; 7 W. RB. 197; 82 L. T. 382; Wicks v. Hunt, 1 Jo. 872. es 6. Alienation, or in some cases, removal out of the jurisdiction of property attended by gross or irremediable injustice. (Daniell’s Ch. P. 1241; Dyke v. Taylor, 9 W. R. 403.) 7. Interpleader suits. In such cases the injunction will only be granted on an affidavit of no collusion, annexed to or filed with the bill; (Jones v. Shepherd, 9 W. BR. 216;) and on payment of the rent (Townley v. Deare, 3 Bea. 213) or money Pauli v. Von Melle, 8 Sim. 326) into court. See also Drewry on Injunctions, pp. 821-827 ; Sup. 75-76. The rules by which the court will be guided in granting or withholding injunctions in all these cases, are the rules which guide it in the ordinary administration of jus- tice, except that any delay or laches in asking for the injunction will be regarded witli more than ordinary jealousy. (Wintle v. Bristol Railway Co., 10 W. R. 210.) Where the injunction is obtained ex parte, any material suppression of facts will be a ground for its dissolution; though it seems a plaintiff is not afterwards precluded from making another application on the real merits. (Fitch v. Rochfort, 18 L. J. Ch. 458.) Where a plaintiff has obtained an injunction on the merits, suppressing material facts, he cannot, on a motion to dissolve it, support it on the merits then disclosed. (Hilton v. Lord Granville, 4 Bea. 180; Fisken v. Rutherford, 7 U. C. L. J. 124.) But see Fitch v. Rochfort, (supra.) “Leave may be given to serve the notice of motion with the bill, but not before the bill is filed; (Simmons v. Heaviside, 22 Bea. 412;) the leave must be stated in the notice; (Hill v. Rimell, 2M. & Cr. 641 ;) and see Hart v. Tulk, 6 Hare, 611. A plaintiff cannot obtain an injunction pending a demurrer. (Uousins v. Smith, 18 Ves. 164; Anon v. Bridgewater Canal Company, 9 Sim. 878.) ? He may move in vacation by petition. (Temple v. Bank of England, 6 Ves. 771.) An injunction will not in general be granted unless prayed for, it may however be prayed for in any part of the prayer, even in the prayer for process under the old practice. (Clark v. Manners, 2 U. C. Jur. 1.) MISCELLANEOUS POINTS ON THE ORDERS. 811 [zysunction.] . Where, however, in a partnership suit, the funds are in danger of misapplication, an injunction and a receiver will be granted though not prayed for by the bill. (Thibodo v. Scobell, 5 U. C. L. J. 117.) So after a decree in a foreclosure suit, an injunction will be granted (on a proper case being made out) restraining the mortgagor in possession from cutting timber or committing waste, though the bill does not pray for an injunction. (Wright v. Atkyns, 1 V. & B. 313-4; Goodman v. Kine, 8 Beay. 379; Cawthra v. McGuire, 5 U. 0. L. J. 142.) But in this case a petition must be presented. His right to an injunction at the hearing is not necessarily prejudiced by his omitting to apply for it at an earlier stage of the cause. (Davies v. Marshall, 9 W. R. 368; 4.1L. T. N. 8S. 105; but see Betts v. Clifford, 1 J. & H. 77.) If the plaintiff, pending a notice of motion for an injunction, amends his bill, he waives his notice; (Martin v. Fust, 8 Sim. 199; Monypenny v. Dering, 1 W. R. 99;) and must pay the costs occasioned by such notice. (London & Blackwall Rail- way Co. v. Limehouse Board of Works. 3 K. & J. 123.) If after obtaining an injunc- tion, he wishes to amend his bill, he must obtain an order to amend without preju- dice to the injunction. (Fisher v. Wilson, 1 Grant, 222.) This order has been ob- tained as of course. It has been said that a special application was necessary; (Pratt v. Archer, 15S. & 8. 483; Pickering v. Hanson, 2 Sim.488;) but the practice in our court has been to obtain the order on precipe, if the plaintiff was entitled to an order to amend on precipe; and see Warburton v. London and Blackwall Railway Company, 2 Bea. 253; Davis v. Davis, 2Sim. 515; Brooks vy. Purton, 1 Y. & C. C. C. 271; Attorney-General v. Marsh, 16 Sim. 572; 13 Jur. 316. A successful demurrer to the whole bill puts an end to an injunction previously obtained, even though leave be given toamend. (Schneider v. Lizardi, 9 Bea. 461.) If a bill is dismissed, the injunction is in all cases dissolved. (Hannam v. South London Waterworks Company, 2 Mer. 61; Newby vy. Harrison, 9 W. R. 849; 5 L. T. N. S. 12; overruling, s. c., 1 J. & H. 678.) The evidence to obtain or dissolve an injunction is usually by affidavit, the court however, in a special case and at the request of the parties, examines witnesses before itself at the hearing of the motion. This practice has been followed in England; (Nichols v. Ibbetson, 7 W. R. 480;) and in our court in Fisken v. Rutherford, 8 Grant’s Ch. R. 9, and in several other cases. The answer of the defendant is to be treated as an affidavit both on motions for, and to dissolve injunctions. Where the plaintiff amends, pending a motion to dissolve an injunction which he has previously obtained, the defendant must either answer the amendments or be prepared to contend that, allowing them to be true, the injunction skould neverthe- less be dissolved ; (Fisher v. Wilson, 1 Grant, 218;) if however the defendant drops hig motion the plaintiff should pay the costs incurred before the amendment. (Jdzd.) A defendant who had not submitted to be cross-examined upon his answer was not allowed to read it in opposition to a motion for an irjunction. (Wightman v Wheel- ton, 23 Bea. 397; 3 Jur. N.S. 124; 5 W. R. 337; 28 L. T. 316.) The injunction operates from the date of the order. (Rattray v. Bishop, 3 Mad. 220.) The copy of injunction must be served personally. (Gooch v. Marshall, 8 W. BR. 410; Ellerton v. Thirsk, 1 J. & W. 376.) An injunction improperly obtained cannot be treated as a nullity; the defendant must move tu discharge it, (Woodward 812 MISCELLANEOUS POINTS ON THE ORDERS. : [soxicrroR.] y. Earl of Lincoln, 3 Sw. 627,) and prior to its being discharged should act in accord- ance with it. (Notter v. Smith, Grant’s Cham. 21.) It would seem that service of an injunction on the solicitor of the party affected py it is sufficient, and that a breach of it after such service and before personal ser- vice would be a contempt of the injunction. (Andrews vy. Maulson, 8 U.C. L. J. 74; sed query, see Gooch v. Marshall; Ellerton v. Thirk; cited supra.) See further as to injunctions till the hearing. (Mayhew v. Maxwell, 3 L. T.N, S. 847 Coleman v. West Hartlepool Co., 8 L. T. N. 8S. 847; Ooddeen y. Oakley, 2 De G. F. and J. 158.) Where, after committing a breach of an injunction, the defendant left the jurisdic- tion of the court, substitutional service of the notice of motion to commit the defend- ant for the contempt was ordered to be made on his solicitor. (Farwell v. Wallbridge, 3 Grant’s Chan. Rep. 628.) SOLICITOR. A party suing or defending by a solicitor is not at liberty to change his solicitor in the cause without an order of the court for that purpose. And the rule applies where there has been a change in the name of a firm of solicitors. (Mut- tlebury v. Haywood, 8 Jur. 1085.) But when a solicitor dies pending a suit, no or- der to change is necessary. (Whalley v. Whalley, 22 L. J. Ch. 632.) Where there has been a change of solicitors without order, service of notice, &c., upon the old solicitor is regular. (Wright v. King, 9 Bea. 161; Davidson v. Leslie, 9 Bea. 104.) As to how far the lien of a solicitor who is changed in the course of a suit will be affected by that circumstance see Cresswell v. Byron, 14 Ves, 271; Cane v. Martin, 2 Bea. 584; Commerell v. Poynton, 1 Sw. 1; Colegrave v. Manley, T. & R. 400; Bozon v, Bolland, 4 M. & Cr. 354; Heslop v. Metcalfe, 3 M.& Cr. 183. From these cases it would appear that the question depends on whether the solicitor voluntarily withdraws, or is changed by the desire of his client. As to lien see Rawlinson v. Moss, 9 W. R. 783; 8 U. C.L.J.194; ReSmith, 4L. T.N. 8.438; 9 W. R. 3896; Re Williams 28 Bea. 465; Webster v. Le Hunt, 9 W. R. 804; Griffiths v. Griffiths, 2 Hare, 587; Cane v. Martin, 2 Bea. 584. ‘ Where asolicitor discharges his client, the client is entitled to the convenient use of his papers, notwithstanding the lien of the solicitor; (Rawlinson v. Moss, supra ;) when the client receives his papers guery who should pay the costs of preparing a schedule of them. (Zbid.) A dissolution of co-partnership between solicitors oper- ates asa discharge of the clients of such co-partnership. (Jdid.) The court will change w solicitor without making any condition as to paying the solicitor his costs. (Meyers v. Robertson, 1 Grant, 439.) As to solicitor’s lien see Wakefield v. Newbon, 8 Jur, 735. A defendant has no right to call upon the plain- tiff’s solicitor to produce his authority for using the plaintiff’s name, particularly if no case of improper conduct on the part of such solicitor is positively alleged and verified. (Chisholm v. Sheldon, 1 Grant, 294.) It would seem that a compromise of a suit by the solicitor will be binding though made without the consent of the client, (Swinfen v. Swinfen, (Eng.) 6 U. C. L. J. 162; overruling s. c., 4 U. C. L. J. 288; Bray v. Voules, (Eng.) 6 U.C. L. J. 216; Lyd- don v. Moss, (Eng.) 5 U. C. L. J. 239.) All communications made by a client to his solicitor are privileged, not, however, if the solicitor receive the same information from another source, either before or 319) the communication by the client. (Lewis v. Pennington, (Eng.) 7 U. C. L. Je PART THE SECOND. THE BOOK OF FORMS OF PROCEEDINGS. FORMS OF TITLE, ADDRESS, AND COMMENCEMENT OF SUITS. Title. In CHANCERY. Between. John Smith, Plaintiff. AND John Styles, Defendant. Address. To the Honourable the Judges of the Court of Chancery. City of Toronto. (or wherever the venue may be laid, having regard, not to where the bill may be filed, but to where the examination of witnesses is to take place.) Commencement. Humbly complaining sheweth unto your Lordships, John Smith, of the City of Toronto, in the County of York and Province of Canada, Esquire, (a) the above named plaintiff as follows :— (If husband and wife.)\—Humbly complaining, &c., John Smith, (a) The proper place of abode and description of the plaintiff must be given, other- wise he will be ordered to give security for costs. See Order V., sec. 5, of the Orders of June, 1853, pp. 4-10 supra, on the subject of security for costs; and Orders XLIII., sec. 6, and XLIV., sec. 4, of the same Orders, as to filing of bond, &c. (Wilkinson v. Lewis, cited supra p. 7, is now re- ported in 8 Jur. N. 8. 908; and Jackson v. Davenport, cited supra p, 9, in 29 Bea, 218.) 40 314 FORMS OF PROCEEDINGS, [BILLS.—COMMENCEMENT. | of, ge., and Mary Ann, his wife, (b) the above named plaintiffs as follows :— (If wife by next friend.)\—Humbly complaining, &c., Mary Ann, Where a defendant has a right to security at any stage in the suit, and with a knowledge of such right nevertheless takes any step in the cause he will as a rule waive his right to security; (Craig v. Bolton, 2 Bro. C. C. 609; Dyott v. Dyott, 1 Mad. 187; Cooper v. Purton, 8 W. R. 702; Meliorruchy v. Meliorruchy, 2 Ves. Sen. 24;) filing affidavits in answer to a motion for an injunction is not a waiver however. (Murrow v. Wilson, 12 Beav. 497.) A defendant having destroyed the subject of the suit and absconded was ordered to give security for costs, or the plaintiff may dismiss his bill without costs. (Knox v. Brown, 1 Cox 359.) It must be remembered that the rule protecting an officer in actual service in the British army from giving security, is inapplicable to this country. Such a person is considered domiciled in England, out of the jurisdiction of the courts of this pro- vince. And it is doubtful whether such a person would not be required to give security even though stationed within Upper Canada, for he is liable to be ordered out of the jurisdiction at any moment, and therefore, though stationed, can scarcely be considered as resident, within the jurisdiction. Every defendant appearing by a separate solicitor may require a bond, though the plaintiff has given a general one to all. But though separate bonds be thus given, only one penalty of £100 can be recovered by the whole of the defendants together. (Lowndes v. Robertson, 4 Mad. 465.) If a plaintiff goes abroad to reside pending the suit, he will be ordered to give secu- rity, and the proceedings stayed in the meantime. (Busk y. Beetham, 2 Beay. 537; Weeks v. Cole, 14 Ves. 518.) . , Where a plaintiff changed his residence but did not go out of the jurisdiction with- out any intention to mislead, and no enquiry had been made of the plaintiff ’s solici- tor as to his residence, an application for security was refused. (Knight v. Cory, 7 L. T. N. 8. 618.) If a plaintiff, resident out of the jurisdiction, having on that account been ordered to give security, come ¢o reside within the jurisdiction, the order will be discharged. (O'Conner v. Sierra Nevada Company, 24 Beav. 485; Matthews v. Chichester, 30 Beay. 135.) - Where the plaintiffs amend by striking out the name of one or more plaintiffs, they will have to give security; (Fellowes v. Deere, 3 Beav. 353); so if one of several plaintiffs causes his name to be struck out of the record, he will have to give secu- rity. (Drake v. Symes, 9 W. RB. 427; 7 Jur. N. 8.899; 4L. T.N. 8.192; 80 L. J. Ch. 358.)« If the plaintiff neglects to comply with the order for security, the proper course is to move that he do give security within » limited time, or in default that the bill be dismissed. (Camac y. Grant, 1 Sim. 848; Veitch y. Irving, 11 Sim. 122; Ford v. Bank of England, 10 Sim. 616; Giddings v. Giddings, 11 Jur. 549; 10 Beay. 29: Wood v. Grey, Esten, V. C., 8th October and 38rd December, 1856.) ‘ e (3) The wife is joined as a co-plaintiff with her husband where he is entitled to FORMS OF PROCEEDINGS. 315 [BILLS.—cOMMENCEMENT. ] wife of John Smith, the above named defendant, by John Roe, of the city of Toronto, in the county of York and Province of Canada, Esquire, her next friend, (b) the above named plaintiffs, as follows :— (Infants.)—Humbly complaining, &c., John Smith and Mary Ann Smith, of, §c., infants under the age of twenty-one years, by John Roe, of, §c., their next friend, (c) the above named plaintiffs, as follows :— the subject matter of the suit in Aer right. Where she is entitled for her separate use, and sues in respect of her own separate rights, she sues by another person, who is called her next friend, making her husband a defendant. The next friend is answerable for the proper conduct of the suit, and for costs. He must also be a solvent person capable of paying costs. If a married woman does not sue when so entitled as aforesaid, by a next friend, the court will look upon the suit as exclusively that of the husband, and it would not conclude the wife or those claiming under her. (Houliding v. Poole, 1 Grant, 206.) See, however, Platel v. Craddock, 1. P. Coop. 469; where the husband having a life estate in remainder was allowed to be a co-plaintiff, the wife, however, being provided with a next friend. It would seem that, since the recent act, Con. Stats. U.C., ch. LXXIII., whatever property a married woman has in her own right is separate estate subject only to the curtesy of the hushand. So when in the course of a suit it becomes necessary for a married woman, party to the suit, to make an application on her own behalf, she can only do so by next friend. (Cooney v. Girvin, Grant’s Cham. 94; 8 U. C. L. J. 187.) So also where a married woman claims in opposition to her husband she should ~~ sue alone by next friend. (Mitford on Pleading, 28.) In other cases she must join her husband as co-plaintiff. See Order IX., sec. 1, page 18, and Order XII, sec. 1, pp. 61, 62, supra, for the practice as to married women. The consent of a married woman must be obtained by the next friend before filing a bill on her behalf, even though she be an infant; (Mitford, 28 ;) and if filed when she is an infant, she may disavow it on coming of age. (Cooke v. Fryer, 4 Beav. 13.) The next friend must be a person of substance. (See supra p. 18, and further Pen- nington v. Alvin, 1S. & 8. 264; Drinan v. Mannix, 3 Dr. & W. 154; Jones v. Faw- cett, 2 Ph. 278; overruling Dowden v. Hook, 8 Beay. 399.) (c) The bill must contain the address and description of the next, friend. See Order IX., sec. 1, pp. 18, 19, but the rule applicable to suits by married women, that the next friend must be a person of substance, does not hold in an infant’s suit. An infant must sue by next friend, and if a Dill be filed by an infant without a next friend it will be nigh ineed, but without costs; (Flight v. Bolland, 4 Russ. 298 ;) any body may be the next friend, even though not a person of substance; (Anon. 1 Ves. 409; Squirrel v. Squirrel, 2 Dick, 765; Davenport v. Davenport, 18. &S8. 101; Ogilvie v. Herne, 11 Ves. 600;) the consent of the infant is not necessary, and 316 FORMS OF PROCEEDINGS. [BILLS.—COMMENCEMENT. ] (Lunatie.)—Humbly complaining, &c., John Smith, of, ge., by. John Roe, of, §c., committee of the (person and) estate of the said John Smith, and the said John Roe, the above named plaintiffs. (d) (Railway Company.)—Humbly complaining, &¢., The Grand Trunk Railway Company of Canada, §e., (e) Information on behalf of lunatic. Informing sheweth unto your Lordships ——, Attorney-General of Upper Canada on behalf of C. D. of, &e., a lunatic, at and by the relation of E. F., of the same place, Esquire, as follows :— the bill may even be filed against his strongest remonstrances. (Andrews v. Cra- dock, Finch’s Prac. in Ch. 876 ; Cooke v. Fryer, 4 Beav. 16.) (d) Where a person is of unsound mind, though not found so by inquisition, a bill may be filed in his name by a next friend. A lunatic must be a party to a bill, or information filed on his behalf, but an idiot need not be, as the lunatic may recover, but it is extremely improbable that an idiot will. (Attorney-General vy. Woolrich, 1 Ch. Ca. 153; but sce, Ridler v. Ridler, 1 Eq. Ca, Ab. 279; and Smith’s case, 1 Ch. Ca. 112.) To a suit instituted on behalf of a lunatic or idiot, it is an invariable rule that the committee, if there be one, must be a party either plaintiff or defendant. (Fuller v. Lance, 1 Ch. Ca. 19.) The relator must be a person of substance. (Attorney-General v. Tiler, 1 Dick, 878; 2 Eden, 230; Attorney-General vy. Parkhurst, 1 Ch. Ca. 112.) It would seem that where the committee file a bill on behalf of a lunatic, they should first obtain the leave of the court. (Shelford on Lunatics, 179, 396, 417.) It will be observed that infants sue by their next friend; and lunatics by their committees. The suit, however, of a person, not sui juris is, both in substance and in form, by the party actually aggrieved; and accordingly the bill of a married Woman, or an infant must commence as above set forth. __ (¢) Corporations in this province are invariably authorised to sue, and be sued, in their corporate capacity, and in their name as a company, and they then sue in the name of the gompany as in this instance. The form in which each particular corpo- ration can properly sue should be ascertained from the act by which it is incorporated. If the plaintiffs assume to sue in a corporate character, to which they are rot entitled, the course:on the part of the defendant is to move to take the bill off the file. (The Burgesses of Ruthin v. Adams, 7 Sim. 845.) A large body of creditors may be represented by one or more of them, but the bill must disclose a sufficient reason for departing from the rule requiring all parties interested to be before the court. An allegation that the creditors are too numerous FORMS OF PROCEEDINGS. 317 [BILLS.—PRELIMINARY OBSERVATIONS. | Authority from relator. Between, &c., (style of cause.) s T hereby authorise you to file the above information, and to use my name as the relator therein. Dated day of . E. F. of ‘ To G. H., informant’s solicitor. Authority from next friend. Between, &c., (style of cause.) I hereby authorise you to institute the above suit and to use my name as the next friend of the infant plaintiff. (f) Dated day of ———-—. E. F. of : To G. H., plaintiff’s solicitor. to make it practicable to prosecute the suit if they were all made parties, is not sufficient; (Michie v. Charles, 1 Grant, 125); and query whether such allegation should not be proved. (Jdzd.) (f) The authority in these cases is compulsory in England, and is required to be filed with the bill under 15 & 16 Vic., c. 86, sec. 11. In this province it is optional with the solicitor to require one or not, but it is doubtless the safer course to obtain one. PRECEDENTS OF BILLS. Preliminary observations.—As to the form of bills see Order IX. of the Orders of June, 1853, sec. 1, pp. 16-29, supra. As to amendment, Order IX., sec. 9-14, pp. 89-44, supra. As to revivor and supplement Order IX., secs. 15 and 16, and Order of 6th June, 1862, pp. 45-50, and 278, supra. As to bills of review, Order IX., sec. 17 and 18, pp. 51-53, and 276, supra. Foreclosure suits. (See form of bill.)\—See Order XXXII. of the Orders of June, 1858, pp. 129-145 supra. As to filing a bill in this court for a sum within the jurisdiction of the county court equity side, and the plaintiff being thereby deprived of costs, see Cornell v. Curran, Grant’s Cham. 11. The court will not make a decree of foreclosure or one that amounts to it against persons not before the court, nor can the court make a decree for foreclosure piece- meal. The court will not interfere with the rights of the party having the legal estate to take possession of the property; but before foreclosure can be granted it is essential to have all the parties interested before the court. (Caddick v. Cook, 11 W. B.395; 7L. T.N. 9S. 844.) And see Mit. Pleading, 82; Browne v. Blount, 2R. & M. 83. English act, 15 & 16 Vic., ch. 86, sec. 42, Rule 9, (the same as Orders of Court of Chancery, U. C., VI., sec. 2, rule 7, June, 1853,) does not authorise the 318 FORMS OF PROCEEDINGS. [BILLS.—PRELIMINARY OBSERVATIONS. ] i ties out of the juris- decree a sale of mortgage property in the absence of par QUE Seen or partly interested in the equity of redemption. Rogers v- Linton, Bunb, 200, is no authority for such a practice. i Cook, supra, the plaintiff having brought on the cause for hearing ers oe oe eee in the equity of redemption before the court, was ordered to pay the costs of the day. See however Order 29th June, 1861. But a party to a suit in which a decree of foreclosure has been made in the abserice of another party interested in the estate, whose interest was not disclosed in the pleadings is, notwithstanding the imperfection of the suit, bound by the decree of foreclosure. Semble, w party to a foreclosure suit whose interest is theréby fore- closed, and who afterwards becomes entitled to an interest in the same estate by devise or otherwise from another person who was not a party to the foreclosure, may bring his bill for redemption. But relief will not be given in such a case ona claim for redemption, stating only that the plaintiff is entitled to the equity of redemption under certain instruments, but not stating any of the proceedings in the foreclosure suit, or the grounds on which the plaintiff seeks to set it aside. (Bromitt vy. Moor, 9 Hare, 374.) Bill for specific performance of an agreement.—In a bill by a vendor against a pur- chaser for the specific performance of an agreement, if the plaintiff relies upon an acceptance or waiver of title by the defendant, as a ground for dispensing with the usual enquiry as to title, there must be a specific charge to that effect, évén though facts and circumstances are stated in the bill, which warrant the conclusion that the title has been accepted or waived. (Clive v. Beaumont, 1 DeG. & S. 397; Gas- ton vy. Frankum, 2 DeG. & S. 561.) , This doctrine has also been recognised in sub- sequent cases. Taking possession is not of itself a waiver of title, though coupled with other cir- cumstances it will be so held. (Bown v. Stenson, 24 Beav. 631; Haywood v. Cope, 4 Jur. N.S. 227-8; Sibbald v. Lowrie, 18 Jur. 141; Simpson v. Sadd, 4 DeG: M. & G. 665.) It must be borne in mind, however, that acceptance or waiver of title merely pre- cludes the vendee from asking the usual enquiry; so that if a defect in the title transpires incidentally in the course of the suit, the court is bound to take notice of it, if it come under its observation, and will, in such case, refuse specific perform- ance, though the title had been accepted or waived. (Ward v. Trathen, 14 Sim. 82; Wilde v. Gibson, 1 H. L. Cases, 686; Warren v. Richardson, 1 Young, 1.) As to what isa sufficient signing by “the party to be charged” within the meaning of the Statute of Frauds, see Laythoarp v. Bryant, 2 Bing. N. C. 736 ; Boydell v. Drummond, 11 East 142; Wood v. Midgley, 5 DeG. M. & G. 41 3; 23 L. J. Ch. 853, As to part performance taking the case out of the Statute of Frauds, see Clinan v. Cook, 1 Sch. & Lef. Al; Gregory v. Mighell, 18 Ves. 328; Morphett v. Jones, 1 Sw. 172; Mundy v. Jolliffe, 5 M. & C. 167; Dale v. Hamilton, 5 Hare, 381. In proceeding against the heir at law of a deceased vendor for specific performance or rescission, the personal representative of such deceased vendor is a necessary party, and the suit will be defective without one, even though an executor “de son tort” be a defendant, and though no administration be taken out before the filing of the bill, (O’Neal v. McMahon, 2 Grant, 145.) . ’ Before filing his bill the vendor should take care to have all incu off, otherwise he will endanger his right to costs in the whole i i aie ee rule he is only entitled to costs from the time of completing, and shewing a 00d title (Wilkinson v. Hartley, 15 Bea. 183.) The fact that he has not a good title at the FORMS OF PROCEEDINGS. 319 [BILLS.—PRELIMINARY OBSERVATIONS. | time of filing his bill is not a ground for refusing specific performance, if the vendor can make good title before the hearing, (Wynn v. Morgan, 7 Ves. 202,) or before re- port as to title, (Langford v. Pitt, 2 P. W. 630; Jenkins v. Hiles, 6 Ves. 655; Seton vy. Slade, 7 Ves. 279; Mortlock v. Buller, 10 Ves. 315,) or even on further directions. (Paton v. Rogers, 6 Mad. 256.) It is improper to ask for a rescission of a contract and foreclosure without first ask- ing or offering specific performance. (McAvoy v. Simpson, 6 U.C. L. J. 94.) A vendee cannot file a bill for a rescission, he must wait till the vendor seeks to com- pel specific performance. (McDonald v. Garrett, 7 Grant, 606.) Bill for an account.—Although usual it seems not to be necessary for the plaintiff to submit to account. (Clarke v. Tipping, 4 Bea. 588; and see Inman vy. Wearing, 8 DeG. & S. 731; Knebell v. White, 2 Y. & C. Ex. 15.) Although the Court of Chancery has jurisdiction to entertain a bill for an account by a principal against an agent, it will not do so when the claim is a mere money demand which may be perfectly well ascertained at law. (Barry y. Stevens, 31 L. J. Ch. 785; 10 W. R. 822; 6 L. T. N.S. 568.) As to account by agent against prin- cipal, see Shepard v. Brown, 11 W. R. 162; 7 L. T. N.S. 499. In matters of account, courts of law and equity have, generally speaking, a con- current jurisdiction, and in deciding whether the account shall be taken by a plaintiff in equity or not, the court will be guided by a consideration of what is best, with a view to the convenience of the parties. (Shepard v. Brown, supra.) As to practice on accounts, see Kendall v. Marsters, 2 DeG. F. & J. 200; Newen vy. Wellen, 31 L. J. Ch. 792; 10 W. BR. 743. Writ of arrest, formerly called Ne exeat provincia.—The bill should contain a prayer for the writ of arrest if the intention of the defendant to leave the province was known to the plaintiff at the time of filing the bill. (Collinson v. , 18 Ves. 853; Moore v. Hudson, 6 Mad. 218; Sharp v. Taylor, 11 Sim. 50; Barned v. Laing, 18 Sim. 255.) If the plaintiff becomes aware of the intention of the defendant to leave the province after the bill is filed, the application for the writ may be made by mo- tion, without filing any amended bill. The affidavit of the threat or intention to go out of the jurisdiction must be positive, and not merely upon information and belief. (Jones v. Alephsin, 16 Ves. 470.) Bill of Interpleader.—Bills of this kind are not favourably viewed by the court. (Metcalf v. Hervey, 1 Ves. Sen. 249; Sieveking v. Behrens, 2 M. & C. 591-2.) A bill of interpleader must shew that each of the defendants claims a right, or they may both demur. (Metcalf vy. Hervey, supra; Dungey v. Angore, 2 Ves. 3807; Mitford’s Pl. 58, 164, 165, 166.) And the plaintiff must file with it an affidavit that he does not collude with either of them. (Stevenson v. Anderson, 2 V. & B. 410; Langston v. Boylston, 2 Ves. 101; Wood vy. Lyne, 4 DeG. & Sm. 16; Laraie v. Brown, 5 W. B. 538; and see Bignold v. Audland, 11 Sim. 24; Jones v. Shepherd, 29 Bea. 293; affirmed on appeal, 3 DeG. F. & J. 56.) The bill should show that the plaintiff has a right to compel the defendants to in- terplead; (Dungey v. Angove, 2 Ves. 304;) and that there are no rights or liabilities between the parties except such as relate to the matter in question. (Crawshay v. Thornton, 2 M. & C. 20.) Where money is the thing claimed it is proper, though not absolutely necessary, that he should offer to pay it into court. (Meux v. Bell, 6 Sim. 175; Bignold v. Audland, 11 Sim, 23.) 320 FORMS OF PROCEEDINGS. [BILLS.—PRELIMINARY OBSERVATIONS. | » An interpleader suit in equity will now be of rare occurrence, as the courts of law have jurisdiction in most cases under Con. Stat., U. C., cap. XXX.; and see Ford v. Dillon, 5 Barn. & Adol. 885. As to the principle upon which the court acts in interfering at the instance of a plaintiff in such a suit see Glyn v. Duesbury, 11 Sim. 189; Crawshay v. Thornton, 2M. & C.1; Suart v. Welch, 4M. & C. 305; Jew v. Wood, 1 Cr. & Ph. 185; East and West India Dock Co. v. Littledale, 7 Hare, 57; Bruce v Elwin, 9 Hare, 294; Farebrother v. Beale, 3 DeG. & Sm. 637; Diplock v. Hammond, 28m. & G. 141; 23 L. J. Ch. 550; Jones v. Thomas, 2 Sm. & G. 186; 18 Jur. 460; Vyvyan v. Vyvyan, 30 Bea. 65; 8 Jur. N. 8.38; 381 L. J. Ch. 158, As to the practice and procedure see Masterman y. Lewin, 2 Ph. 182; Angell v. Hadden, 16 Ves. 202; Townley v. Deare, 3 Bea. 213; Meux v. Bell, 1 Hare, 73. Administration suits— Where an executor or administrator files a bill as such, the bill must allege that probate or letters have been duly taken out of the proper court, though it need not and had better not state the name of the court. (Humphreys v. Ingledon, 1 P. W. 752.) The character in which the plaintiff sues need not be stated however in the style or commencement of the bill. (Jbid.) In an administration suit an enquiry as to wilful default will not be directed upon a mere allegation of neglect. Some particular instance must be alleged and proved, so as to raise at all events a case of suspicion in the mind of the court. (Massey v. Massey, 82 L, J. Ch. 13; 11 W. R. 19.) Two suits for the administration of one estate being instituted within five days of each other, and there being no evidence of unfitness on the part of either plaintiff, the court made a decree in both suits, leaving the question as to which should have the control of the proceedings to be decided on a reference. (Norvall v. Pascoe, Thompson v. Pascoe, 31 L. J. Ch. 456; 10 W. R. 338.) Partnership.—In a suit to wind up the affairs of a partnership and praying disso- lution, all the partners however numerous must be before the court. (Walburn v. Ingilby, 1 M. & K. 78; Evans v. Stokes, I Keen. 32; Harvey v. Bignold, 8 Beav. 343; Deeks v. Stanhope, 14 Sim. 57.) A few members of a company (not incorporated) may, however, sue on behalf of themselves and the other members. (Lloyd v. Loaring, 6 Ves. 773; Gray v. Chaplin, 28. & 8. 267.) Parties.— Representation. —Generally.—It is a general rule that all persons mater- ially interested in the subject matter, or any part of it, should be made parties, no matter how numerous they may be. (Mitford Pl. 164, and see Lidbetter v. Long, 4 M. & C. 286.) Where, however, the strict observance of the rule would occasion great delay, expense or inconvenience, the rule will be relaxed; (Mitford, 170 n. (¥);) and see Richardson vy. Hastings, 7 Beav. 327. : Thus one or more legatees (Morse v. Sadleir, 1 Cox 852; Harrison v. Stewardson, 2 Hare, 580,) or creditors (Bateman v. Margerison, 6 Hare, 496; Weld v. Bonham, 28. & 8. 91; Handford v. Storie, 28. & 8.196; Holland v. Baker, 3 Hare, 68, 70, 76) may sue on behalf of all where they are very numerous. In Harrison v. Stew- ardson, 2 Hare, 5380, it was considered that 18 or 20 were not a sufficient number to dispense with making them parties; see further Hichens y. Congreve, 4 Russ. 576, and Michie v. Charles, 1 Grant, 125. The parties represented should, however, clearly have a community of interest with the plaintiff, and the relief sought should be beneficial to them. (Evans v. Stokes, 1 Keen, 82; Bromley v. Smith, 1 Sim. 8; VanSandau v. Moore, 1 Russ, FORMS OF PROCEEDINGS. 821 [BILLS—PRELIMINARY OBSERVATIONS. } 465.) So also the executors and trustees under a will sufficiently represent the legatees and devisees. (See Order VI., Rule7; supra p. 12, and Wainwright v. Waterman, 1 Ves. 318; Brown v. Dowthwaite, 1 Mad. 448.) So where it is alleged in the bill and proved or admitted that a necessary party is out of the jurisdiction, the court will generally make a decree against the other par- ties, in the absence of such party. (Willat v. Bussby, 5 Bea. 193; Paterson v. Holland, 8 Grant, 238.) To a bill for redemption, all parties interested in the equity of redemption must be parties. (Henley v. Stone, 3 Beav. 355.) It is generally necessary that the owner of the legal estate should be before the court. (Rowsell vy. Hayden, 2 Grant, 557.) Query, whether when a party assigns his interest in the subject matter of a suit to trustees for the benefit of his creditors, such trustees should not be brought be- fore the court. (Barnhart v. Patterson, 1 Grant, 459; 1 U.C. Jur. 2, 820.) In a creditor’s suit against the devisees of a deceased debtor, the heir-at-law of the deceased is not an indispensable party. (Fenny v. Priestman. 1 Grant, 133.) An existing interest, whether present, vested, or contingent, however future or re- mote it may be, if it be a present interest, the party representing it has a right to file a bill to have the share secured; but the mere expectation of a future event hap- pening which may give an interest, confers no such right. (Davis v. Angell, 8 Jur. N. S. 1024; 10 W. R. 722.) Where a bill is amended, if the amendment in any one place amounts to more than two folios, the bill must be re-filed, and will bear date on the day of such re-filing. Where, however, the amendment is within the two folios, the amended bill bears the same date as the original bill. (Wray v. Hutchinson, 2M. & K. 235.) Secus if matter be introduced by way of supplement or revivor as occurring after the original bill. (Lbid.) If a bill contains general and specific allegations as to the same matter the general allegations must be referred to the specific and particular ones, on the principle that every pleading is taken most strongly against the pleader. (Ellis v. Colman, 25 Bea. 662.) Where the plaintiff erroneously claims title in one capacity, butit appears from his bill that he is entitled in another, the court will give him the relief he asks. (Fisher vy. Wilson, 1 Grant, 218.) . If the prayer of a bill ask relief which can be granted, the bill will not be demurrable merely because it goes on to ask more which cannot be granted. (Lewis vy. Cooper, (Eng.) 2 U. C. Jur. App. 1.) The court will not allow the interest of an infant plaintiff to be prejudiced through the prayer of the bill being badly framed, if all the parties are before the court, and the facts are sufficiently alleged in the bill. (Walker v. Taylor, 8 Jur. N. S. 681, in Dom. Proc.) A bill filed by a solicitor without the authority or consent of the plaintiff, will, on the anplfoation of the plaintiff, be taken off the files with costs to be paid by the soli- citor; (Jerdein v. Bright, 6 L. T. N. S. 279;) the defendants are not necessary par- ties to such application. (J6zd.) The court considers the motives of a next friend in instituting a suit on behalf of 41 322 FORMS OF PROCEEDINGS. [FORM OF BILL OF FORECLOSURE. ] an infant, and if it appear that he had other motives than the benelit of the infant, will deprive him of costs. (Clayton v. Clarke, (Eng.) 8 U. C. L. J. 111.) Short form of a bill in a foreclosure sutt. 1. Under and by virtue of an indenture bearing date the ——- day of , and made between the said defendant, C. D. of the first part, E. F. his wife (who was a party thereto for the purpose of barring dower only) of the second part, and your complainant of the third part; your complainant is a mortgagee of certain freehold lands therein comprised, being composed of (description) for securing the payment of the sum of £ and interest. “9. The time for payment of two instalments of interest (which two instalments amount together to the sum of £ ) has elapsed and the same still remain unpaid, by reason whereof the whole of the said principal sum of £ and interest hath become due and payable, and your complainant is entitled to call in the same. | 3. Neither your complainant nor any one on his behalf hath been in the occupation of the said mortgaged lands or in the receipt of the rents and profits thereof. 4, No part of the said sum of £ — hath been paid, but the whole thereof, together with a large arrear of interest thereon, is now, under the circumstances aforesaid, due and unpaid. 5. The defendant ’C. D. is entitled to the equity of redemption of the said mortgaged lands. 6. Your complainant therefore prays as follows, that is to say: That he may be paid the said sum of £— and interest, . and the costs of this suit, and in default thereof that the equity of redemption of the said mortgaged lands may be foreclosed, and for that purpose that all proper direc- tions may be given and accounts taken, and that your complainant may have such further and other relief as to your lordships may seem meet. And your complainant will ever pray, &c. Form of bill to enforce payment of an annuity. 1. By indenture, bearing date the 26th day of February, A. D., 1848, and made between your complainant of the first part and the FORMS OF PROCEEDINGS. 328 [FORM OF BILL TO ENFORCE PAYMENT OF AN ANNUITY.] : said defendant W. G. of the second part, your complainant, (being then seised in fee of the lands and hereditaments hereinafter described,) in consideration of the price or sum of £55, and of the annuity by the same indenture granted and hereinafter mentioned, conveyed unto the said defendant absolutely in fee the (description) and the said defendant, by the same indenture, and in part consid- eration for the sale and conveyance to him of the said lands, and of the further sum of 5s. by your complainant paid to the said defen- dant, granted unto your complainant an annuity or clear yearly rent- charge, or annual sum of £30, to be paid and payable for and during the natural life of your complainant, and to be charged and chargea- ble upon and yearly issuing out of the said lands hereinbefore men- tioned and described. To have and to hold the same from the 15th day of July, 1850, the said annuity or rent charge to be paid by four equal quarterly payments of £7 10s. each, on the 15th days of July, October, January and April, in each and every year during the continuance thereof. 2. The said annuity or yearly rent-charge was for some time after the making of the said indenture duly and regularly paid by the said defendant to your complainant, but the said defendant hath of late become very irregular in the payment of the same. 3. There is now due to your complainant the sum of £75 and upwards upon the foot of the said annuity or rent charge, being the amount of twelve quarterly payments thereof up to the 15th day of July, 1859, which the said defendant has permitted to remain due and in arrear, together with interest on such arrears, after deducting thereform the sum of £25 10s., which the said defendant has paid on account of such arrears and interest. 4, There is not now, and has not been at any time since the said annuity or rent charge fell into arrear as aforesaid, sufficient dis- tress upon the premises to satisfy the arrears due to your com- plainant, by means whereof your complainant’s remedy by distress has become inoperative. 5. Your complainant has no effectual remedy at law for recovery of the said arrears or for raising the same by a sale of the said lands. 324 FORMS OF PROCEEDINGS. [FORM OF BILL TO COMPEL CONVEYANCE OF LEGAL ESTATE BY PURCHASER. | 6. The said defendant is now subject to the said rent charge, the owner in fee of the said lands. 1. Your complainant therefore prays that the said annuity or yearly rent charge may be declared to be well charged on the said land, and that an account may be taken of ‘what is due to your complainant on the foot thereof, and that the said defendant may be decreed to pay unto your complainant the amount which shall be so found due by a short day, to be appointed for that pur- pose, together with interest thereon and the costs of this suit, and in default thereof that the said lands, tenements and hereditaments, or a competent part thereof, may be sold for the satisfaction thereof, and the proceeds of such sale applied accordingly. 2. And that a receiver may in the meantime be appointed to receive the rents, issues and profits of the said lands, tenements and hereditaments, and that the said defen- dant may be restrained from receiving any part of the said rents, issues and profits of the said lands, tene- ments and hereditaments, and from intermeddling in any way with the same, and that for the purposes afore- said all proper directions may be given and accounts taken, and that your complainant may have such further and other relief as may seem meet. And your complainant will ever pray, &c. Bill to compel conveyance of legal estate by the purchaser of the equitable estate. 1. In the year , the above named defendant, C. D., entered into a contract with the proper officers of the Crown for the purchase of. lot number twenty-nine in the eighth concession of East Gwil- limbury, in the county of York, the title to which was then vested in Her Majesty the Queen. 2. Upon entering into such contract of purchase the said defen- dant paid a small portion of the purchase money agreed to be paid for the said lands, and was let into possession of the said lands, and FORMS OF PROCEEDINGS. 825 [FORM OF BILL TO COMPEL CONVEYANCE OF LEGAL ESTATE BY PURCHASER. | remained in such possession until the sale and transfer by him to John Smith hereinafter mentioned. 3. By a deed poll of the said defendant bearing date in the month of December, 1853, he, the said defendant, for a valuable consideration, bargained, sold, and transferred all his right, title, and interest in and to the said lands, unto one John Smith, who was forthwith let into possession of the said lands and remained in possession thereof until the transfer by him to your complainant hereinafter mentioned, he, the said John Smith, having, whilst he was in possession of the said lands made valuable improvements thereon. 4, By a certain deed poll of the said John Smith, bearing date the thirtieth day of January, 1854, he, the said John Smith, for the valuable consideration therein named of one hundred pounds, bar- gained, sold, assigned, and transferred the said lands unto your complainant, who was thereupon let into possession of the said lands, and has ever since remained and still is in such possession. 5. Your complainant, after he so obtained the said transfer of the said lands, and on the 4th day of June, 1857, paid the proper officer of the Crown the sum of sixty-one pounds thirteen shillings and three pence, being the residue of the purchase money originally agreed to be paid for the said lands by the said defendant, and your complainant obtained the usual receipt therefor and requested that letters patent granting the said land to your complainant might issue. 6. On the eleventh day of December, 1858, letters patent grant- ing the said lands to the said defendant were issued, but by the direction of the Commissioner of Crown Lands the said patent was delivered to your complainant who still retains the same in his possession. . 7. The Commissioner of Crown Lands, although payment of the greater part of the purchase money had been made by your com- plainant, refused to grant the said lands to your complainant, because the transfers thereof, hereinbefore mentioned, had not in pursuance of the regulations of the Crown Lands Department been registered in the books of that department, but the said commis- ~ 826 FORMS OF PROCEEDINGS. [FORM OF BILL TO COMPEL CONVEYANOE OF LEGAL ESTATE BY PURCHASER. | sioner directed the said patent to be delivered to your complainant as the real purchaser of the said lands, and to facilitate your com- plainant’s proceedings in obtaining from the said defendant a proper conveyance thereof. 8. The said letters patent would not have been issued had not the said residue of purchase money been paid by your complainant. 9. Your complainant whilst he has been in the occupation of the said lands, has by a great expenditure of money made large and valuable improvements thereon, and such expenditure has been made with the acquiescence of the said defendant, who was well aware of the same, and never in any way objected thereto, or inter- fered with your complainant’s quiet enjoyment of the said lands. 10. Your complainant, since the issuing of the said letters patent, has applied to the said defendant to convey the said lands to your complainant, but the said defendant has refused to do so, insisting on having under the said patent a title to the said lands, paramount to that of your complainant; and your complainant i ig apprehensive that the said defendant having the legal title under the said letters patent, will, as he threatens to do, bring an action of ejectment against your complainant, to turn your complainant out of the possession of the said lands. 11. Your complainant charges that the said defendant is a trustee of the said lands for your complainant, and that your complainant is entitled to call for a conveyance of the legal estate therein. 1, Your complainant therefore prays that the said de- fendant may be declared to be such trustee for your complainant as aforesaid, and that he may be directed by the order and decree of this honorable court to con- vey the same to your complainant. 2. That the said defendant may be restrained from bringing any action of ejectment, or taking any other proceedings at law in respect of his legal title to the said lands, to the prejudice of your complainant. 3. And that the said defendant may be ordered to pay the costs of this suit; and that for the purposes aforesaid all proper directions may be given; and that your » FORMS OF PROCEEDINGS. 827 [FORM OP BILL TO REMOVE CLOUD, OR FORGED DEED FROM TITLE. ] complainant may have such further and other relief as May seem meet. And your complainant will ever pray, &c. Bill to remove cloud, or forged deed from title. ‘1. By letters patent, bearing date the twenty-ninth day of Octo- ber, 1844, Her Majesty granted unto your complainant in fee, lot number , in the concession west of Hurontario street, in the township of Toronto, in the county of Peel. 2. Your complainant has ever since the said grant continued to be and now is seised in fee of the said land, and your complainarit has never made any conveyance thereof, or executed any instrument in any way affecting his title thereto. 3. Sometime in or about the month of December, 1858, the above named defendant forged a certain paper writing, purporting to bear date the 8th day of December, 1858, and to be an indenture made between your complainant of the one part, and the said defendant of the other part, and which purported to be a conveyance by your complainant unto the said defendant in fee of the said land. 4. The said defendant caused the said forged instrument to be registered in the registry office of the county of Peel, and the same now appears in the books of registry of the said registry office, and is a cloud upon the said title of your complainant of the said land.. 5. The said defendant is now a prisoner in the provincial Peniten- tiary at Kingston, under sentence of imprisonment passed upon his conviction of another forgery. 1. Your complainant therefore prays that the said false instrument may be declared to be a forgery, and to be a cloud upon the title of your complainant. 2. And that the same may be ordered to be delivered up to be cancelled, and that the registration and the registered memorial thereof may in like manner be ordered to be cancelled, and that for the purposes aforesaid all propey directions may be given. 3, And that your complainant may have such further and other relief as to your lordships may seem meet. And your complainant will ever pray, &. 828 FORMS OF PROCEEDINGS. [FoRM OF BILL FOR SPECIFIO PERFORMANCE OF AN AGREEMENT OR FORECLOSURE. ] Bill for specific performance of an agreement for purchase of land, : or in default foreclosure. 1. That by an agreement in writing bearing date — and signed by — the above named defendant, the said ——— contracted to buy of your complainant for the sum of certain freehold property therein described or referred to, being (description). 2. The said defendant accepted the title of your. complainant to the said lands, and he was at the-said date of the said agreement let into possession of the said lands, and has ever since continued and now is in such possession and in the receipt of the rents and profits thereof. 3. Your complainant has received a portion only of the purchase money mentioned in the said agreement, and there is now justly due to your complainant in respect thereof the sum of together with interest since ; 4. Your complainant has made or caused to be made to the said defendant, an application specifically to perform the said agreement . on his part, but he has not done so. Your complainant therefore prays: 1. That it may be declared that your complainant’s title to the said lands was accepted by the said defendant. 2. That an account may be taken of the amount due to your complainant for principal and interest under and by virtue of the said agreement, and that the said defendant may be ordered to pay your complainant the amount so to be found due, together with the costs of this suit, your complainant being ready and hereby offering to perform the said agreement specifically on his part. 3. And in default of such payment that the said agreement may be rescinded, and the interest of the said defendant in the said lands foreclosed. ‘4, And for that purpose that all proper directions may be given and accounts taken, and that your com- plainant may have such further and other relief in the premises as to your lordships shall seem meet. And your complainant will ever pray, &c. FORMS OF PROCEEDINGS. 829 frorx OF BILL TO DECLARE ABSOLUTE DEED INTENDED BY WAY OF SECURITY ONLY. ] Bill to declare absolute deed to have been intended by way of security only, and for redemption. 1. For several years prior to and at the date of the indenture of bargain and sale next hereinafter mentioned, your complainant was seised in fee simple of or otherwise well entitled to lot number one, in the first concession of the township of , in the county of , and Province of Canada, containing by admeasurement two hundred acres of land, more or less. . 2. Shortly before the date of the said indenture your complainant being in want of money applied to the said defendant to advance to him the sum of £100 on the security of the said land, and it was agreed by and between your complainant and the said defendant that the said defendant should advance to your complainant the said sum of £100, and that your complainant should convey the said land to the said defendant as security for the re-payment of the same, with interest thereon at the rate of six per centum per annum. 3. Accordingly in pursuance of the said agreement, on the day of in the year, &c., the said defendant paid to your com- plainant the said sum of £100, and your complainant thereupon by indenture dated and executed on the said last mentioned date, and made between your complainant of the one part and the said defen- dant of the other part, conveyed the said land to the said defendant absolutely in fee simple. 4, The said indenture, though absolute in form, was intended by your complainant, and it was expressly understood between your complainant and the said defendant that it should stand only asa security for the re-payment of the said sum of £100 and interest thereon at the rate of six per centum per annum from the date of the said indenture, and that upon such re-payment the said defen- dant should re-convey the said land to your complainant free from all incumbrances. 5. Your complainant has, since the date of the said indenture, continuously been, and he now is, in possession and actual occupa tion of the said land, and he has dealt with and used the same in all respects as the absolute owner thereof. 6. Your complainant has paid divers sums of money to the said '42 3380 FORMS OF PROCEEDINGS. [rorm OF BILL TO DECLARE ABSOLUTE DEED INTENDED BY WAY OF SECURITY ONLY. ] defendant in account of the said sum of £100 and interest, and there is now due in respect thereof to the said defendant the sum of , or thereabouts. ; 7. The said defendant professes and pretends that the said indenture was not intended merely as security, and he claims, or pretends to claim, an absolute title to the said land thereunder, and he has lately, to wit, on the day of » commenced an action-of ejectment against your complainant in Her Majesty’s Court of Queen’s Bench for Upper Canada, for the purpose of obtaizting possession of the said land. 8. Shortly after your complainant was served with the writ in the said action of ejectment, he tendered to the said defendant the sum of £—, being the amount due at the date of the said tender to the said defendant in respect of the said sum of £100, and interest as aforesaid, and of the costs of the said action of ejectment, but the said defendant refused to accept the same, and he is still proceeding with his said action of .ejectment, and he intends to and will, unless restrained by this honourable court, turn your complainant out of the possession of the said land. 9. Your complainant, moreover, is apprehensive that the said defendant will, unless restrained by this honourable court, convey the said land to a purchaser for valuable consideration; without notice, or otherwise incumber the said lands, and that the rights and remedies of your complainant in the premises will be thereby endangered, if not altogether destroyed. 10. Your complainant therefore prays: 1. That it may be declared that the indenture here- inbefore mentioned, though absolute in form, was in- tended by way of security only for the re-payment of the sum of £100 and interest thereon at the rate of six per centum per annum from the date of the said inden- ture, and that your complainant is entitled to redeem the said land on payment of the amount due in respect of the said last mentioned sum and interest, and the costs of the said action of ejectment up to the date of the said tender. FORMS OF PROCEEDINGS, 331 [DEMURRERS.—TITLE.—COMMENCEMENT. ] 2. That an account may be taken of the amount due in respect of the said last mentioned sums, and that your complainant’s costs of this suit as taxed, and of the said action of ejectment after the date of the said tender may be set off against the amount so to be found due, and that on payment of the balance the said defendant may be ordered to re-convey the said land, free and clear of all incumbrances created by him, and deliver up all deeds and writings in his custody or power relating thereto, upon oath, to your complainant, or to whom he may appoint. 3. And that in the meantime, the said defendant, his attorneys, solicitors and agents, may be restrained by the order and injunction of this honorable court, (for which writ your complainant prays,) from further prose- cuting his said action of ejectment, and from instituting any other action or proceeding for the purpose of ejecting your complainant from the said land, and from conveying away or incumbering the said land in any way whatever. 4, Further relief, &c. DEMURRERS. Preliminary observations.—See Order XI. of the Orders of June, 1853, pp. 54, e¢ seq. supra. Where a defendant is not concerned in the whole of a suit, and the part in which he is concerned can properly be separated from the rest he can object to the bill as multifarious, not however where the parts of a suit follow one another, and the part in which the objecting defendant is interested must be disposed of before the other part can be entered on. (Gillespie v. Grover, 3 Grant, 558.) Full title of cause. Commencement. The demurrer of — defendant to the bill of complaint (g) of the above named plaintiff. (g) If the bill has been amended after a former demurrer say ‘‘to the amended bill of complaint, &c.” (Smith v. Bryon, 3 Mad. 428.) 332 FORMS OF PROCEEDINGS. [DEMURRERS.—CONCLUSION.—DEMURBER FOR WANT OF EQUITY, &0.] This defendant, by protestation, not confessing or acknowledging all or any of the matters or things in the plaintiff ’s bill of complaint contained to be true in such manner and form as the same are therein set forth and alleged, doth demur to the said bill, and for cause of demurrer sheweth, that, &c. Conclusion. Wherefore, and for divers other imperfections and good causes of demurrer appearing in the said bill, this defendant doth demur thereto, and prays the judgment of this honourable court whether he shall be compelled to make any answer to the said bill, and prays to be hence dismissed with his reasonable costs and charges in this behalf sustained. Demurrer for want of equity. That the plaintiff hath not, in and by his said bill, made or stated such a case as entitles him in a Court of Hquity to any relief as against this defendant, as to the matters contained in the said bill, or any of such matters. Wherefore, &c. Another form. That it appears by the plaintiff’s own showing by the said bill, that he is not entitled to the discovery or relief prayed by the bill against this defendant, (or these defendants or either of them.) Wherefore, &c. Another form. That the said bill doth not contain sufficient (or any) matter of equity whereon this court can ground any decree in favour of the said plaintiff, or give the plaintiff any relief against this defendant. Wherefore, &c. Demurrer for want of parties. And for (further) cause of demurrer shews that it appears by the said bill that there are divers other persons who are necessary par- ties to the said bill, but who are not made parties thereto. And in FORMS OF PROCEEDINGS. 833 [PEMURRER FOR MULTIFARIOUSNESS AND STATUTE OF FRAUDS.—ANSWERS. | particular it appears by the said bill that A. B., in the said bill named, ought to have been made, and is a necessary party to the said bill, but that he is not made a party thereto. Wherefore, &c. Demurrer for muiltifariousness. That it appears by the said bill that the same is exhibited against this defendant and the several other persons therein named as defen- dants thereto for distinct matters and causes, in several whereof, as appears by the said bill, this defendant is not in any manner inter- ested or concerned, and that the said bill is altogether multifarious. Wherefore, &c. Another form. That the said bill is exhibited against this defendant and against several other defendants to the said bill, for several and distinct and independent matters and causes which have no relation to each other, and in which, or in the greater part of which, this defendant is in no way interested or concerned, and ought not to be implicated. Wherefore, &c. Demurrer of the Statute of Frauds. That it appears by the said bill, that neither the promise or con- tract which is alleged by the said bill, and of which the plaintiff, by the said bill, seeks to have the benefit, nor any memorandum or note thereof, was ever reduced into writing or signed by this defen- dant, or any person lawfully authorised thereunto within the mean- ing of the Statute of Frauds. Wherefore, &c. ANSWERS. Preliminary observations.—In preparing the answer of an infant, it is material to bear in mind that the common answer will not be sufficient to enable him to make any affirmative case. If his case rests on grounds not disclosed by the plaintiff ’s bill, they must be stated in the answer. (Powys y. Mansfield, 6 Sim. 565; Holden vy. Hearn, 1 Bea. 445, 455; Lane v. Hardwicke, 9 Bea. 148.) Tf a defendant does not insist by his answer upon the benefit of the Statute of Frauds; he cannot avail himself of its provisions at the hearing, although he denies the agreement set up by the bill. (Clifford v. Turrell, 1 Y. & C. C. C. 188; Baskett y. Cafe, 4 DeG. & 8. 888.) 834 FORMS OF PROCEEDINGS. [FoRM OF ANSWERS. ] As to the Statute of Limitations as a defence, see Holding v. Barton, 1 Sm. & @. App. xxv. As to the general nature of answers and the practice thereon, see Order XII, sec. 1-5, pp. 57 et seg. The answer must be in the first person, and divided into paragraphs, numbered consecutively, each paragraph containing as nearly as may be a separate and dis- tinct allegation. See supra page 260. An answer is a full defence as to both law and fact; and therefore every objection which may be taken by demurrer, may also be taken by way of answer. The pleader, when an objection of this character is taken by answer, should crave that the de- fendant may have the same benefit as if he had demurred. This double mode of pleading is advisable only in those cases in which the question whether the bill is demurrable is a doubtful one, and where the defendant is advised that his substantial defence is on the merits. Form of answers. In CHANCERY, Between John Smith, Plaintiff, and . John Styles, and John Roe, Defendants. The answer (h) of John Styles, (¢) one of the above named defendants, (or the above named defendants, as the case may be,) to the bill of complaint, (or amended bill of complaint,) (£) of the above named plaintiff. (7) In answer to the said bill, I, the said John Styles, say as follows :— pe If the answer be a supplemental one commence, “‘ The supplemental answer 0: ———, (2) If the defendant is misnamed in the bill the answer should commence, ‘ The answer of C. D. in the bill by mistake called D. D. one of, &c.” (k) If the defendant has not personally answered the original bill, the term “amend~ ed” should not be used. (Rigby v. Rigby, 9 Beay. 311.) If the bill be amended a second time and the defendant puts in a third answer it should be to the ‘ secondly amended bill of complaint.” (1) Where the plaintiff is an infant, lunatic, or married woman suing by next friend or committee, &c., it should be so stated as ‘to the bill of complaint of the above named plaintiff, A. B., an infant by ——, his next friend,” or ‘A. B., the wife of ——, by ——, her next friend,” as the case may be. FORMS OF PROCEEDINGS. 835 [ANSWERS OF AN INFANT AND LUNATIC.—JURAT TO ANSWERS. ] Answer of an infant. (m) The answer of Ann Smith, one of the above named defendants, an infant under the age of twenty-one years, by John Roe, her guardian. In answer to the said bill, I, Ann Smith, by John Roe, my guardian, say as follows :— T am an infant under the age of twenty-one years, that is to say, of the age of years, and I submit my rights and interest in the matters in question in this cause to the care and protection of this honourable court. Answer of lunatie and his committee. The joint and several answer of John Smith, a lunatic, by John Roe, his (guardian and) committee, and the said John Roe, two of the above named defendants, to the bill of complaint of the above named plaintiff. Jurats to answers. The form of the usual jurat, and that for an illiterate person (n) will be found, supra pp. 58, 59. In the case of an illiterate person where the answer ts read over by the commissioner, the jurat may be in the following form: The defendant, C. D., on the ——— day of ———, appeared before me at my chambers in —--—— and not being able to read or write, the foregoing answer was read over by me to the said (m) An infant, answers by guardian, and a lunatic, so found by inquisition, by his committee. A married woman, answering in respect of an interest vested in her husband in her right, answers jointly with him, and it is in effect the answer of her husband, But if she answer in respect of her separate estate, or if for anyreason she answers separately, she answers in her own name. See Order XII, sec. 1, pp. 61, 62, supra. An order must be obtained for a married woman to answer separately from her hus- band. See Order XIL., sec. 1, page 61, supra. (n) If the commissioner does not read over the answer the mark should be attested by the witness, and the witness should be first sworn that he had truly and faithfully read the contents of the answer to the defendant, and that he saw him make his mark thereto. (Wilton v. Clifton, 2 Hare, 585.) It will not vitiate the jurat should it omit to state that the defendant appeared perfectly to understand the answer. (Jbid.) : 336 FORMS OF PROCEEDINGS. [SURAT TO ANSWERS OF MARRIED WOMEN, GUARDIAN OF INFANT, &0.] defendant, who appeared perfectly to understand the same, and made his mark thereto in my presence, and the said defendant was there- upon sworn before me that the same was true of his own know- ledge, except as to matters which are therein stated to be on his information, and as to those matters he believed it to be true. Surat to answer of married women. The defendant C. D., on the ——— day of ———, appeared before me at my chambers in , and signed the foregoing answer in my presence, and was thereupon sworn before me pursu- ant to an order dated the ——-——- day of —, whereby she is at liberty to answer separate from her husband, that she had read the said answer, &e. Jurat to answer of guardian of infant. (0) A. B., guardian of the infant defendant C. D., assigned pursuant to an order dated the ————. day of —_---—, appeared before me at my chambers in —— , and signed the foregoing answer in my presence, and was thereupon sworn before me that he had read the said answer and knew the contents thereof, and that he believed it to be true. Affirmation to Quaker’s answer. The defendant C. D., on the — day of ——-—, appeared before me at my chambers in —, and signed the foregoing answer in my presence, and thereupon affirmed before me that he had read the said answer, &c. Jurat to jomé answer. The defendants C. D. and E. F., on the ——— day of ———. ? (0) The following is the oath administered to the guardian where the infant answers jointly with others. ‘Youdo swear that so much of this answer of the aes defendant as concerns the said infant you believe to be true. So help you 0 ge If the guardian be a co-defendant he should sign twice, once for himself and a second time as ‘‘ guardian of the above named infant, C. D.,” and in such case two oaths should be administered, one as defendant, the other as guardian, and the ju- rat will bo altered accordingly. (1 Smith Ch. Pr., 7th ed. 485.) FORMS OF PROCEEDINGS. 337 [NOTICES OF MOTION. —COMMENCEMENT.—CONCLUSION. ] appeared, &c., and were thereupon severally sworn before me that they had read the said answer, &c. Corporations. The answer of a corporation is taken under their corporate seal» which is affixed at the bottom of the answer and near it is written ‘* Sealed with the common seal of, &c., this day of. &e.”” A. B., President, or other head officer of the company. NOTICES OF MOTIONS. (9) Full title of cause. Commencement of notice of motion to the court. Take notice that this honourable court will be moved on Monday the ——— day of A.D., 186-, at the hour of ten of the clock in the forenoon, or at such other hour as the court may sit or counsel can be heard for and on behalf of the above named plaintiff for an order that, &c. < Conclusion. And take notice that in support of such motion will be read the affidavits of (stating them) this day filed, and the exhibits (p) The practitioner will find full information as to motions in pages 89, et seg., and 176, et seg., supra. Care should be taken to express in the notice when leave of the court has been obtained authorising it to be given, thus: ‘‘ By special leave of the court for this purpose obtained this day.” For if notice be given by leave, the leave must be stated in the notice of motion. (Hill v. Remell, 2 M. & Cr. 641.) As to short notice of motion. (Hart v. Tulk, 6 Hare. 611.) Leave may be given to serve a notice of motion for an injunction with the bill, but not before the bill is filed. (Simmons v. Heaviside, 22 Bea. 412.) The notice of motion must state the names of the parties to it fully and correctly. (Davis v. Barrett, 7 Bea. 171; Rowlatt v. Cattell, 2 Hare, 186; Pollard v. Doyle, 2 W.R. 509.) And it must state distinctly what the party moving wishes to obtain by his motion. (Daniell’s Chan. P., 8rd ed., 1196) The misnomer of a party in the affidavit of service will be a ground for discharging the order made thereon (Salo- mon v. Stalman, 4 Bea. 243.) Notice of motion to discharge an order for irregularity must state the irregularity complained of. 43 838 FORMS OF PROCEEDINGS. [COMMENCEMENT OF MOTION IN CHAMBERS.—CONCLUSION.—FORMS OF MOTIONS. ] therein referred to (¢f so) and the pleadings and other proceedings in this cause. Dated this day of , A.D. 186-. Yours, &c., A.B., Plaintiff’s Solicitors. To the above named defendant, and to ——-— his solicitors. Commencement of motion in chambers. Take notice that this honourable court will be moved before the presiding judge in chambers on Tuesday the day of A.D., 186-, at the hour of ten of the clock in the forenoon, or at such other hour as chambers may be held for and on behalf of the above named for an order that, &c. Conclusion. And take notice that in support of such application will be read the affidavit of (stating) this day filed and the exhibits therein referred to (¢f so) and the pleadings and other proceedings in this cause. Dated, &c. Motion for leave to enlarge time for filing affidavit under four-day order for production. That the time within which the said defendant is to file an affida- vit, and produce and leave with the registrar under the plaintiff’s order for production obtained in this cause, and dated the day of , may be enlarged until the day of next, and that the costs of this application may be costs in the cause. (Mention affidavit to be used in support of application.) Motion for time to answer. That he may have further time to answer or demur, not demurring alone to the plaintiff’s bill. Motion to open biddings. That the premises being lot No. 1 in the 1st concession of the township of York, in the county of , being part of the pre- mises directed by the decree (or order) in this cause, bearing date FORMS OF PROCEEDINGS. 339 [FORMS OF NOTICES OF MOTION. | the day of ———, to be sold, may be re-sold, the said hereby proposing and submitting to give £—— for the same, being more than was bid for the said lot at the former sale. (Mention what is to be read in support of the application.) For an injunction to stay proceedings at law. (q) That the defendant may be restrained from commencing or prosecuting any action or other proceeding at law against the plaintiff for the recovery of the sum of £—, in the plaintiff’s bill mentioned, or for or in respect of the matters mentioned in the plaintiff ’s bill, or any of them, until the further order of this court. For the appointment of a receiver. That some proper person may be appointed a receiver of the rentg and profits of the estates in the pleadings in this cause mentioned with the usual directions. For an injunction to stay waste. That the defendant ——— and his agents, workmen and ser- vants, may be restrained from (following the prayer of the bill) until the hearing of this cause or further order of this court. To dismiss bill for want of prosecution. (r) That the bill filed in this cause may stand dismissed out of court, with costs to be taxed by the master of this court for want of prosecution. To amend bill. That the plaintiff may be at liberty to amend his bill of com- (g) In order to obtain an injunction for stay of proceedings at law, an application must be made to the court upon affidavit, verifying the facts alleged in the bill. The application may be made ez parte. Leave should also be obtained, if necessary, to serve the notice of motion and copy of the bill upon the attorney for the plaintiff at law. For practice hereon see Order XXVIL., sec. 1, page 119, and cases there cited. (r) For practice as to dismissal of bill for want of prosecution, see Order XXIV., sec. 1, page 114, and notes and cases thereon. i i i y by his next Where an infant sues by next friend, the notice should be by the infant by friend, and not by the next friend merely. (Pidduck v. Boulthee, 2 Sim. N. 8. 228.) 340 FORMS OF PROCEEDINGS. [FORMS OF NOTICES OF MOTION.] plaint herein, in the following particulars, to wit: (Here state the required amendment.) And take notice, &c. To take bill pro confesso. That the plaintiff may be at liberty forthwith to set this cause down to be heard, in order that his bill of complaint may be taken pro confesso against the said defendant. And take notice, &e. To enlarge time for payment of mortgage money. That upon the said defendant, A. B., paying unto the plaintiff, C. D., on or before the day of , (the day appointed for payment,) the sum of £——, found due to the said plaintiff for interest and costs on his mortgage security in question in this cause, the time appointed for the said defendant to redeem herein may be enlarged for a period of months, or for such other period as the court may direct. And take notice, &. That a purchaser may be ordered to pay his purchase money into court. ° That A. B., who has been declared the purchaser at the sum of £ , of the premises comprised in lot , of the premises in question in this cause, as mentioned in the report confirming the sale herein, may be ordered on or before the day of next, to pay into court, with the privity of the registrar of this court, to the credit of this cause, the said sum of £ , and interest thereon, at the rate of six per centum per annum from the day of to the day of payment, the amount thereof to be verified by affidavit, and that the said A. B. may be ordered to pay the costs of this application. And take notice, &c. To assign guardian. That , of the (city) of (Loronto,) in the county of (York,) Esquire, one of the solicitors of this honourable court, may be assigned guardian ad litem to the above named infant defendant, A.B., by whom he may answer the bill in this cause, and defend this suit. And take notice, &e. FORMS OF PROCEEDINGS. 341 [FORMS OF NOTICES OF MOTION. ] For security for costs. That the plaintiff do procure some sufficient person or persons, resident within the jurisdiction of this court, to give security on his behalf in the penal sum of not less than pounds, to answer the costs of the said defendant, in case this court shall think fit to award any before the said defendant shall be obliged to put in his answer to the bill in this cause, and that in the meantime all proceedings herein may be stayed. And take notice, &e. For an order nisi to dismiss bill on default in giving security. That the plaintiff do within fourteen days from the date of such order, procure some sufficient person or persons, resident within the jurisdiction of this court, to give security on his behalf, pursu- ant to an order made herein, bearing date the day of , and in default thereof, that the bill of complaint of the said plain- tiff do stand dismissed out of this honourable court as against the said defendant, with costs to be taxed to the said defendant, and paid by the said plaintiff forthwith thereafter. And take notice, that in support of such application will be read the said order, bearing date the day of , and an affidavit (or admis- sion) of service thereof, and also the certificate of the (deputy) registrar of this court (at ) Notice of motion for decree. That (recite the prayer of the bill or so much as may be necessary) or for such other decree as the nature of the case may require, and as this honorable court may think the plaintiff entitled to. And take notice, &c. For order for substitutional service on attorney-at-law. That service of an office copy of the bill in this cause with the endorsement required by the General Orders of this court upon A.B., the attorney-at-law of the above-named defendant C. D., may be deemed good service on the said defendant. And take notice, &c. To discharge receiver on payment of money into court. That A. B., the receiver appointed in this cause may be discharged, 342 FORMS OF PROCEEDINGS. [FORMS OF NOTICES OF MOTION.] and that he may pass his accounts before the master of this court at , and pay the balance thereof into court to the credit of this cause subject to the further order of this court, and that upon payment of the said balance into court as aforesaid, the recog- nizance (or bond) filed herein, dated the day of , entered into by the said A. B., together with C. D. and E. F., his sureties, may be vacated. And take notice, &c. For special injunction. That an injunction may be awarded against the defendant A. B., to restrain him, his agents, servants, and workmen, from (recite so much of the prayer of the bill as relates to the injunction) until the hearing of this cause or until the further order of this court. And take notice, &c. For injunction to stay cutting of timber. That an injunction may be awarded to restrain the above-named defendant A. B., his servants, workmen, and agents, from cutting down or removing any timber and other trees now standing, grow- ing, and being upon lot number ,in the concession of, &e. And take notice, &c. To dissolve injunction. That the injunction awarded in this cause against the said A. B., his servants, workmen, and agents, (or as the case may be,) to re- strain the said A. B., (here follow the injunction,) may be dissolved. e NOTICES GENERALLY. Of filing answer. Short title of cause. Take notice that the answer of the defendant A. B., (or the joint answer of the defendants A. B. & C. D.,) to the plaintiff’s (amended) bill in this cause has been this day filed. Dated this day of —, A.D. 1863. To E.F., G.. HL, Plaintiff’s Solicitor. Solicitor for the said defendants. FORMS OF PROCEEDINGS. 343 [FORMS OF NOTICES GENERALLY. ] Of filing replication. Take notice, that the plaintiff has this day filed his replication herein in the following form, to wit., (here copy replication.) Dated this day of —-__—_, A.D. 1863. To the defendant A.B., E. F., and to C. D. his Solicitor. Plaintiff’s Solicitor. To admit documents. Take notice that, that the plaintiffs propose to adduce in evidence in this cause the several documents hereinafter mentioned, which said documents have been inspected by you (s) and that you are required to admit that such of the said documents as are specified to be originals were respectively made and executed as they purport respectively to have been, that such as are specified as copies are true copies, and that such documents as are stated to have been served, sent, or delivered, were so served, sent, or delivered, respectively, saving all just exceptions as to the admissibility of all such documents as evidence in this cause; or to make such other admission as you can in respect of the said documents within four days from the date hereof. Dated this ——_-—— day of —_-_—_,, A.D. 1863. A. B., Solicitor for plaintiffs. (Here set out documents.) To produce documents at the examination of witnesses and hearing. Take notice, that you are hereby required to produce at the ex- amination of witnesses in this cause, at the of on Tuesday the day of 1863, or whenever the said examination shall take place, and also at the hearing of this cause, the following documents, viz., (set out documents which are specially required to be produced,) and all deeds, books, papers, writings and documents, whatever in your custody or power relating to the matters in question in this cause. (s) If the documents have not been inspected by the opposite party, say ‘which gaid documents may be inspected by the defendant, his solicitor or agent, at the office of in between the hours of on the — day of 1 , A.D. 1863.” 344 FORMS OF PROCEEDINGS. [FORMS OF NOTICES GENERALLY.—AFFIDAVITS. ] To settle minutes of (or to pass) decree or order. Take notice that the registrar will settle the minutes of (or will pass) the decree (or order) herein to-morrow, at —— of the clock in the noon, at his chambers at Osgoode Hall, in the city of Toronto. Dated this —— day of ——, A.D. 1863. A.B., Solicitor. AFFIDAVITS. Preliminary observations.—An affidavit must be entitled in the full style of the cause, and must contain the Christian and surname, (in full without any initials,) the place of residence, description and addition of the deponent. The place of residence of a party to the cause need not be particularly described, if it is stated that he is ‘« the above named plaintiff,” or ‘the above named defendant,” or ‘* one of the above named defendants” in the cause. It must be expressed in the first person, divided into paragraphs, numbered consecutively. An affidavit should not be argumentative. It must show the means of knowledge of the person making it, and when made upon information, what is the source of such information. See Order XL., sec. 5, supra, p. 179, and the Orders of the 13th of April, 1859, and the 10th day of July, 1861. An affidavit sould be written in words at length, and if any erasures or interline- ations should occur, the commissioner before whom it is sworn should set his initials in the margin over against such erasures or interlineations before administering the oath. If any document is referred to in the affidavit it should be impressed with some letter or other mark distinctly connecting it with and corresponding to the letter or mark mentioned in the affidavit, and thus be made an exhibit. ‘his exhibit should be endorsed as follows : “In Chancery. (Short title of cause.) This is the paper-writing, or exhibit marked with the letter , referred to in the affidavit of ——, which was produced and shewn to him at the time of swearing his affidavit in this cause. Sworn before me this —— day of ——. A Commissioner, &c.” Affidavits, except upon ex parte applications, must be filed before they can be used in evidence, and affidavits in answer must be filed not later than the day before that appointed for the hearing of the motion. Generally as to affidavits see Order XL., secs. 5 and 6, page 179, and notes. An affidavit of the service of a bill need not shew that the person served was an infant or otherwise under disability. Sherwood v. Rivers, (2 Y. &C. C. O. 166; 7 Jur. 78; Welch v. Welch, 1 Hare, 593; 6 Jur. 599;) but it must in all cases shew the mode in which the service was effected. (Haigh v. Dixon, 1 Y. & C. C. C. 180.) Affidavits of the service of orders and writs should shew that the original was pro- duced and that the copy served was duly endorsed with the notice required by sec. 6, of Order XLVI, in cases where the endorsement is necessary. (See Thomas v. Gwynn, 5 L. T. 827, which was the case of service of an order upon an infant.) An affidavit in a suit will not be received if sworn before a solicitor of any party to the su‘t, (Jn re Hogan, 8 Atk. 512; Wood v. Harpur, 8 Bea. 290,) or before a clerk of such solicitor. (Wood v. Harpur, 3 Beav. 290.) See further as to affidavits supra, pp. 179, 180, 181. FORMS OF PROCEEDINGS. 345 [AFFIDAVITS.— COMMENCEMENT.—JURATS.] A witness may be cross-examined on affidavits made by him on interlocutory ap- plications under sec. 7 of Order XL., supra, (Lloyd v. Whitty, 19 Beav. 57.) Where the object for which an affidavit was used has been attained (e. g. obtain- ing an order to amend) cross-examination thereon will not be allowed, as it could not afford any ground for rescinding the order and would consequent!y have no ob- ject or purpose. (The Catholic Publishing Co. v. Wyman, 7 L. T. N. 8. 849; 11 W. R. 399.) Commencement. In Cuzncery, Between A. B., Plaintiff. AND C. D., Defendant. I, John Smith, of, &c., (place of residence, and description or addition,) or I, John Smith, the above named plaintiff (or one of the above named defendants) make oath and say, as follows: (or if more than one deponent,) we A. B., of, &c., and ©. D., of, &e., severally make oath and say as follows: (t) 1. I, the deponent, A. B., say, &c. 2. I, the deponent, C. D., say, &e. The facts and circumstances deposed to by me in the para- graphs of this affidavit are true and within * own personal know- ledge. The facts and circumstances deposed to by me in the paragraphs of this affidavit are believed by me to be true from infor- mation which I have received from Jurats to affidavits. The ordinary jurat will be found at page 180 supra. To affidavit of illiterate person. Sworn before me at , in the county of , on the day of , 1863, the whole of the above affidavit having been first read over to the deponent A. B., who appeared perfectly to under- stand the same, and made his mark thereto in my presence, and An affidavit instead of being headed “ We A. B., C. D. and E. F. severally cae oat wail say,” was headed ‘The joint and several affidavit of A. B., C. D. and E. F. We the said A. B., C. D. and E. F. say as follows.” Leave to file it was refused. (In re Newton, 4 DeG. F. & J. 3.) 44 346 FORMS OF PROCEEDINGS. [aFFIpaviTs.—suRaTS. ] whom I informed that he was liable to cross-examination as to its contents, and that he was at liberty to add to or vary the same. (w) If the deponent is a Quaker, or other person having conscientious objections to taking an oath, the jurat should be as follows : Affirmed before me, at , in the county of , on the —— day of ——, 1863, having been first read over, &c., as at p. 180, supra. To joint affidavit. Sworn by the deponents A. B., C. D. and E. F. at , in the county of , on the day of , 1863, having been first read over to the said deponents A. B., C. D. and E. F., &e., as at p- 180 supra. Affidavit of service of an order (or decree) requiring an act to be done thereby. s I did on the day of , personally serve , the above named defendant, with the order (or decree) made in this cause and dated the day of , now produced and shewn to me at the time of swearing this my affidavit marked with the letter A, by delivering unto and leaving with the said defendant at a true copy of the said order, (or decree,) and at the same time producing and shewing unto the said defendant , the said original order (or decree) duly passed and entered, and on which copy, when so served, was endorsed the words following (that is tosay): “If you, the within named , neglect to obey this order (or decree) by the time therein limited, you will be liable to be arrested by the sheriff; and you will also be liable to have your estate sequestered for the purpose of compelling you to obey the same order (or decree) without further notice.’’ (v) (u) The affidavit should be read by the commissioner, or if it has been read b another person such other person should be sworn that he has truly, distinctly, a audibly read over the whole of the affidavit to the deponent. ; , (v) See Order XLVI, sec. 6, page 235, et seg. As to an order for substituted service see Roby v. Scholes, 20 L. T. 281. FORMS OF PROCEEDINGS. 847 [FORMS OF AFFIDAVITS OF SERVICE OF NOTICE OF MOTION.—TO AMEND BILL. ] Affidavit of service of a notice of motion. I, John Smith, of, &c., make oath and say as follows: That I did on the day of , serve (personally) the above named with a notice in writing purporting that this honourable court would be moved (here set forth the notice) by delivering to and leaving with the said , at, &e., a true copy of such notice, ({f served on solicitor then say Mr. » who is the solicitor of the above named (or Mr. and Mr. , who are solici- tors respectively for the above named and ) with a notice in writing purporting that this honorable court would be moved (here set forth the notice) by delivering to and leaving with a clerk of the said Mr. , at his office in the city of Toronto, a true copy of such notice. Affidavit in support of motion to amend Bill under sec. 14, of Order IX. 1. That counsel has advised that the bill filed in this cause on the on the day of last, should be amended. 2. That the draft of the proposed amendments has been settled and approved and signed by counsel. 3. That such amendment is not intended for the purpose of delay or vexation, but because the same is considered material for the case of the said plaintiff. 4. That the matter of the proposed amendment is material, and could not with reasonable diligence have been sooner introduced into the said bill, for we say (here state the special facts shewing the ma- teriality of the amendments and due diligence.) (w) Affidavit by creditor in support of motion for decree to administer the estate of a deceased person without bill filed. (See Order XV., supra p. 85 et seq. In Chancery. In the matter, &c., (following the notice of motion.) It is not necessary to issue a commission for the purpose of taking the affidavit of service of certain papers on a defendant in a foreign country. (Snyder y. O’Lone, 4 Grant’s Chancery Rep. 148.) (w) See notes supra p. 43 and seq. 848 FORMS OF PROCEEDINGS. [AFFIDAVIT BY CREDITOR IN SUPPORT OF ADMINISTRATION ORDER. | IA. B., of &c., the above named plaintiff (or in the case of part- mers one of the above named plaintiffs) make oath and say as follows : 1. That the above named C. D. was in his life-time, and his estate still is justly and truly indebted to me (and to HE. F., my partner in trade) in the sum of , (here state the occasion of the indedbted- ness as, for goods sold and delivered by me (and my said partner) as merchants, to the order and for the use of the said C. D., in his life-time and at his request.) 2. That the particulars of the charges or items composing the said sum of , are set forth in the paper writing now produced and shewn to me marked A., and that the charges therein contained are fair and reasonable and such as are customary in the trade of merchants. 8. That I have not (nor hath my said partner) nor any person or persons by my (or our or either of our) order, or for my (or our or either of our) use, to my knowledge or belief received any security for or on account of the said debt. 4, That the said C. D. died on or about the — — day of ——, in the year, &c., having by his will bearing date the day of ——, in the year, &c., devised the whole of his real estate unto the above named defendants, and thereby empowered them to sell such real estate, and authorised them to give receipts for the rents and pro- fits thereof and for the produce of the sale of such real estate, and he thereby appointed the said defendants executors of his said will, which was duly proved by them in the Surrogate court of the county of , on the day of , in the year, &c., as I know from the perusal and inspection of a certified copy of the probate of such will. Like affidavit by legatee, residuary, specific, or pecuniary. 1. That the above named C. D., by his last will and testament, bearing date the day of , in the year, &c., amongst other things (state the legacy to the plaintiff as nearly as possible in the words of the will, e. g., gave and bequeathed unto me the sum of FORMS OF PROCEEDINGS, 849 [AFFIDAVITS BY LEGATEE, AND NEXT OF KIN.] one hundred pounds) (z) and he thereby appointed the said defend- ants executors of his said will. 2. The said C. D. died on or about the —— day of ——, in the year, &c., without having revoked his said will, and the same was duly proved by the said defendants on the day of , in the year, &c., in the Surrogate court of the county of , ad I know from the inspection of a certified copy of the probate of such will. 3. That the said legacy or sum of one hundred pounds (or zn the case of a specific legacy name the articles specifically bequeathed) has not (or have not) nor has any part thereof been paid (or handed over) to me or to any person to my order or for my use, to my knowledge or belief. . Lrke affidavit by next of kin. 1. That the above named C. D. died on or about the —— day of ——, in the year, &c., intestate. 2. The letters of administration of the goods, chattels and effects, rights and credits (or as the case may be, following the letters) of the said C. D. were, on the day of ——, in the year, &c., granted by the Surrogate court of the county of , to the above named defendant E. F., as I know from an inspection of a certified copy of the said letters of administration. 3. That the sole next of kin of the said C. D., living at his death, were myself and 4, That no part of the personal estate of the said intestate has been paid to or received by me, or to or by any person by my order or for my use, to my knowledge or belief. Affidavit verifying abstract of title. 1. I say that I have carefully examined and compared the abstract written on sheets of paper now produced and shewn to me, marked A., with the several deeds and documents thereby e of residuary legatee say: ‘ Gave all his residuary, real, and per- Re ecite above named E. F. upon certain trusts for the benefit of myself and of —— (state trusts of will shortly to show who is entitled to residue.)” 350 FORMS OF PROCEEDINGS. [AFFIDAVITS TO PROVE JUDGMENT OR MORTGAGE DEBT.] purported to be abstracted, and that such abstract is a true and correct abstract of the said deeds and documents, so far as such deeds and documents relate to the premises referred to in an order (or decree) made in this cause, (or matter,) bearing date the —— day of , in the year, &e. Affidavit to prove judgment debt. 1. That the above named defendant, A. B., is now justly and truly indebted to me in the sum of ——, under and by virtue of a judg- ment recovered by me in the Court of Queen’s Bench, (or Common Pleas,) for Upper Canada, (or in the County court of the county of ») for the sum of —— damages, and —— costs, in an action (of debt), and signed on the day of ——, in the year, &c. 2. That I caused a writ of fier? facias against the lands and tene- ments of the said defendant, A.B., to be issued out of the said court on the said judgment, directed to the sheriff of the county of , and the said writ was on the day of » in the year, &c., placed in the hands of the said sheriff, and the same has eyer since been and now is in the hands of the said sheriff in full force and virtue. : 3. That I have not, nor hath any person or persons by my order or for my use, to my knowledge or belief, received any security whatsoever for or on account of the said debt, save and except the said judgment and the proceedings thereon. 4. That the said judgment was not signed for a nominal sum, but the said sum of represents the true debt. Affidavit by mortgagee to prove mortgage debt. 1. That by the indenture now produced and shewn to me, marked with the letter A, and bearing date the - day of ——, in the year, &c., and made between, &., the premises comprised in the said indenture were conveyed by the said —— to me, for securing the sum of £——, together with interest thereon at £—— per cent., subject to a proviso for redemption of the said premises on the re-payment of the said sum of £ and interest to me by the said ——, on the —— day of ——, in the year, &e. FORMS OF PROCEEDINGS. 851 [AFFIDAVITS.—SERVICE OF PETITION, &C.] 2. That I have not, nor hath any person or persons by my order, or to my knowledge or belief, for my use, received the said principal sum of £ , or any part thereof, or the interest which has accrued due thereon since the said —— day of, &c., or any part thereof, or any security or satisfaction whatever for the same, respectively, or any part thereof, save and except the said mortgage. That I have not, nor hath nor have any person or persons by my order, or to my knowledge or belief, for my use, been in the occupation of the premises comprised in the said indenture of mortgage, or any part thereof, nor in the receipt of the rents and profits derived therefrom or from any part thereof. But the whole of the said sum of £——, together with interest thereon at the rate aforesaid, from the said day of ——, in the year, &c., still remains justly due and owing to me under and by virtue of the said indenture. Affidavit of service of a petition. 1. I did, &., serve Mr. , of ——, who is the solicitor in this cause, for (state whether plaintiff or defendant or for whom else he ts solicitor,) with a petition in this cause (or matter) prefer- red to the honourable the judges of the Court of Chancery, by with his lordship’s the Chancellor’s fiat thereon, bearing date, &c., whereby it was ordered that all parties concerned should attend on the matter of the said petition the day of , of which notice was to be given forthwith by delivering to-and leaving with a clerk of the said Mr. , at his office in the city of Toronto, a true copy of the original petitition with his lordship’s fiat endorsed there- on, and at the same time producing and shewing him the said origi- nal petition with his lordship’s fiat endorsed thereon. Affidavit of the execution of a deed by an attesting witness. 1. I was present on the day of , and saw sign, seal and deliver the paper-writing or deed, dated, &c., marked with the letter produced and shewn to me at the time of swearing this my affidavit. 2 The name or signature “¢————”’ thereto set and subscribed as the party executing the said deed, is of the proper handwriting 852 FORMS OF PROCEEDINGS. [AFFIDAVITS.— EXECUTION OF DEED.—INTERPLEADER. ] of the said person witnessing the execution thereof by the said: proper handwriting of me, this deponent. , and the name “ ,” set and subscribed as the is of the Affidavit of execution by a person not a witness. 1. Lam well acquainted with the hand-writing of the defendant John Smith, having often seen him write. 2. The indenture dated, &c., and purporting to be made between the said John Smith, &c., produced to me at the time of making this my affidavit, ranked with the letter was, as I believe, duly executed by the said defendant John Smith, and the name «“ John Smith,” set and subscribed at the foot of the said indenture, is of the proper handwriting of the defendant John Smith. 3. I am also well acquainted with the handwriting of John Roe, of, &c., and I say that the name “Jno. Roe,” set and subscribed to the said indenture, as the attesting witness to the execution thereof by the said John Smith, is of the proper handwriting of the said John Roe. Common affidavit to be annexed to bill in an interpleader suit. I the above named plaintiff make oath and say as follows: 1. That the bill in this suit (or, the bill hereunto annexed) is not filed by one in collusion with any or either of the defendants in the said bill named, but such bill is filed by me of my own accord for relief in this honourable court. Affidavit of a witness being of the age of seventy yéars, to obtain order to examine him de bene esse. J, A. B., of &c., solicitor for the above named plaintiff in this cause, make oath and say as follows: ° 1. That OC. D., of &., is a very material witness for the said plaintiff in this cause, and that he cannot without the evidence of the said CO. D., as I am advised and verily believe, safely proceed to a hearing of this cause. 2. The said C. D. is now of the age of seventy years, as I have been informed by him, and verily believe. (y) (y) See M’Kenna v. Everitt, 2 Bea. 189, 191; Hope v. Hope, 3 Bea. 317. 7 FORMS OF PROCEEDINGS. 353 [AFFIDAVITS.—cOMMISSION, &C.] Affidavit for an order for a commission to examine witnesses out of the jurisdiction. 1. This cause is now at issue, and I, this deponent, am desirous of proceeding therein. 2. I have several witnesses to examine in support of the case made by my bill (ov answer) who now live and reside at and , (and particularly John Smith, John Roe, and John Doe,) who can, as I believe, prove the truth of the allegations made in the paragraphs of my bill (or answer.) 3. The several witnesses above named are, as I believe and am advised, material and necessary witnesses for me in this cause, and without their testimony I cannot safely proceed to a hearing; but that with the testimony of those witnesses I am advised and believe I can establish my right to relief in this cause (07 I shall be able to make a good defence to this cause.) (z) Affidavit of attendance to receive money directed to be paid by a decree and report at a certain time and place. 1. That I did on the day of , in the year, &c., under and by virtue of the power of attorney now shewn to me and marked with the letter A, and in pursuance of the master’s report made in this cause, bearing date the day of last, personally attend and wait at (¢nsert the place as described in the master’s report,) from before the hour of of the clock in the noon until after the hour of of the clock in the noon of the same day, being the place and time (or and a portion of the time) mentioned in the said report in order to receive from the above named defendants the sum of , by the said report found due and directed to be paid to the above named plaintiff for principal, interest and costs in respect of the agreement in question in this cause. 2. At the said time and place the said defendants did not, nor (z) See Crofts v. Middleton, 9 Hare, App. xviii; 22 L. J. Ch. 706; 17 Jur. 112; 1 W. R. 163. As to stating the names of the witnesses and the facts upon which it is proposed to examine en, Carbonell v. Bessell, 5 Sim. 636; Mendizabel v. Machado, 2 8. & 8S. 488; 2 Rus. 540. 45 e 354 FORMS OF PROCEEDINGS. [AYFIDAVIT UNDER ORDER XLI1., sxc. 11.] did either of them or any one on their or either of their account or behalf, attend to pay or tender to me the said sum of or any part thereof. (a) By the plaintiff as to non-payment of money reported due. 1. That I have not, nor, to the best of my knowledge, information and belief, has any person or persons on my account, or behalf; received the sum of found due and directed to be paid to me on the day of , by the master’s, report made in this cause bearing date the day of , or any part thereof, and I say that the said sum of is still wholly due and unsatisfied. (8) Affidavit verifying accounts and answering enquiries as to real and personal estate, (see schedule Q, to Order XLIIL, sec. 11 of the Orders of June, 1858, supra pp. 212, 213.) We A. B. and C. D., the above named defendants, severally make oath and say: 1. That we have according to the best of our knowledge, remem- brance, information and belief, set forth in the first schedule hereunder written, a full, true, and particular account and inventory of the personal estate of, or to which EH. F., deceased, the testator in the pleadings mentioned, was possessed or entitled at the time of his death, and not by him specifically bequeathed. 2. That save what is set forth in the said first schedule, and what is by the said testator specifically bequeathed, the said testator was not, to the best of our knowledge, information and belief, at the time of his death, possessed of or entitled to any debt or sum of money due to him from us or either of us, on any account whatso- ever, nor to any leasehold or other personal estate, goods, chattels or effects in possession or reversion, absolutely or contingently, or otherwise howsoever. (a) As the Order of the 29th June, 1861, only applies to foreclosure and redemp- tion suits, this form is still useful where money, other than mortgage money, is directed to be paid at a specified time and place. (5) If the plaintiff attends in person to receive the money, an affidavit similar to this and the foregoing may be used mutatis mutandis, FORMS OF PROCEEDINGS: 35 [AFFIDAVIT UNDER ORDER XLULI., sec. 11.] 3. That the said testator’s funeral expenses have been paid, and that the same consist of the item of disbursement numbered one in the account now shewn to us marked A, (or ¢f not paid it should be so stated, with the amount, and to whom due.) 4, That we have in the said account marked A, according to the best of our knowledge, information and belief, set forth a full, true and particular account of the personal estate of the said testator not by him specifically bequeathed, which has come to our hands, or to the hands of any or either of us, or to the hands of any person or persons by our or either of our order, or for our or either of our use, with the times when, the names of the persons from whom, and on what account the same has been received, and also a like account of the disbursements, allowances and payments made by us or either of us in respect of or on account of the said testator’s funeral expenses, debts and personal estate, together with the times when, the names of the persons to whom, and the purposes for which the same were disbursed, allowed or paid. 5. And we each, speaking positively for himself, and to the best of his knowledge and belief, as to other persons, further say that save and except as appears in the said account marked A, we have not, nor hath either of us, nor have nor hath any other persons or person, by our or either of our order, or for our or either of our use possessed, received, or got in any part of the said testator’s personal estate nor any money in respect thereof, and that the said account marked A, does not contain any item of disbursement, allowance or payment, other than such as has actually been disbursed, paid or allowed on the account aforesaid. 6. That to the best of our knowledge, information and belief, the personal estate of the said testator now outstanding or undisposed of, consists of the particulars set forth in the second schedule here- under written. 7. That save what is set forth in the said second schedule there is not to our knowledge, information or belief, any part of the said testator’s personal estate now outstanding or undisposed of. 8. That we have, according to the best of our knowledge, remem- brance, information and belief, set forth in the third schedule here- 856 FORMS OF PROCEEDINGS. [AFFIDAVIT UNDER ORDER XLIII., SEC. 11. under written, the particulars of all the real estate which the said testator was seised of or entitled to at the date of his will, and at the time of his death (if the testator acquired any estates after the date of his will, as follows: in the first part of the schedule here- under written, the particulars of all the real estate which the said testator was seised of or entitled to at the date of his will, and in the first and second parts of such schedule, the particulars of all the real estate which the said testator was seised of or entitled to at the time of his death.) 9. That save what is set forth in the said third schedule, the said testator was not, to the best of our knowledge, information or belief, at the date of his will or at the time of his death seised of or entitled to any real estate in possession, remainder or reversion, absolutely or contingently or otherwise howsoever. 10. That we have, according to the best of our knowledge, infor- mation and belief, set forth in the fourth schedule hereunder writ- ten, the particulars of all the incumbrances affecting the said testa- tor’s real estate, and what part thereof such incumbrances respec- tively affect. 11. That we have in the account marked B, now produced and shewn to us, according to the best of our knowledge, information and belief, set forth a full, true and particular account of all the rents and profits of the said testator’s real estate which has come to our hands, or to the hands of either of us or to the hands of any , person or persons by our or either of our order, or for our or either of our use, and the times when, the names of the persons from whom, on what account, and in respect of what part of such estate the same have been received, and the times when the same became due, and also a like account of the disbursements, allowances and payments made by us, or either of us, in respect of the said testator’s real estate or of the rents and profits thereof, and the times when, the names of the persons to whom, and the purposes for which the same were made. 12. And we each speaking positively for himself, and to the best of his knowledge and belief, as to other persons, further say that save and except as appears in the said account marked B, we have FORMS OF PROCEEDINGS. 357 [AFFIDAVIT UNDER ORDER XLII, sEC. 11.] not, nor hath either of us, nor have nor hath any other person or persons by our or either of our order, or for our or either of our use, possessed, received, or got in any rents or profits of the said testa- tor’s real estate, nor any money in respect thereof, and that the said account marked B, does not contain any item of disbursement, pay- ment or allowance other than such as has actually been disbursed or allowed qs above stated. The first schedule above referred to. 1. £50 cash in house. 2. £100 cash at the credit of the said testator at the Commercial Bank of Canada. 8. £1000 stock of the Commercial Bank of Canada standing in the testator’s name. 4, £10 due from John James for half year’s rent of house at to the day of , 1863. 5. £32 6s. 8d. balance remaining due from John Thomas on account of half year’s rent of lot No. , to the day of , 1863. 6. £300, a debt due from Samuel Jones on bond, with interest from the day of , 1863, at six per cent. 7. A leasehold house, situate at , held under a lease for a term of years, which will expire on the day of ; 1870, at a rent of £— a year, under-let to James Evans for a term which will expire on the day of , 1865, at a rent of £50 a year. 8. £25, half a year’s rent due from the said James Hvans to the day of , 1863. The second schedule above referred to. [The particulars to be set forth in the same manner as above. | The third schedule above referred to. [To contain a short particular of the real estate. ] The fourth schedule above referred to. [To contain a short particular of the incumbrances, and showing what part of the real estate is subject to each. ] FORMS OF PROCEEDINGS. [AFFIDAVIT UNDER ORDER XLUI., SEC. 11.] 358 0 0 O0g| ttt sno ployasve, esoge JO o[es JO sOnporg|*** "sue “MOT “3deg] 0 0 9g fort tt“ Z98T ‘—jyo ep —onp ‘asnoy ployesve, JO quod Ss ,rvof-Jpey|suBAg souree] ‘QT eunr) 9 0 0. Stet Z98T ‘qoreyy jo Ap 0 0 SOT "8718p 0} ‘Z9RgT WSL 2g} 03 O8T ‘—Jo sep — ay} ‘— jo ep — oq} WLOIy woasteqy TOI, ySaroyUr w» FS9T9ZUT IOZF OOSF 5° IGep puog)***souor TenMBS) “gy “IeA] ¢ StF pus ‘QOOTS 0 0 OL; “ 98T FO ¥49p puog/aomg soup) "gz eq] F ‘—jo fep — onp 0 0 OL ['*t'"*** souepae; quer s.dvek-jpep]somee uqog] ‘OL ‘qeq| =F “Ve [eorpam OF 0 0 08)" enp “yo048 WIY 0} onp yqap Y|'**‘es100xy) uyor]| ‘oT Amur] = =g umnjueo sad oF 0 0. OL [rere aqeq O00LF wo puap -ord §=Surarezqo -IAID Stvak- Jey) og ‘CL oo» g TOF TIA S.LOMOMOS| LF “VW “SISSW] “OS G9T| 8S || O O OOT|"**"*'10783827 Jo |--epeuBD Jo 0 O GBP |‘ TBaeuny tog YIpe1o ye souBreg|yaeg [o1euUIED| ‘OT 5, Zz PF F (Ul. Sdoxepopayseotg soumve; -g usr) = T 0 0 0g |***'esnoy ur punog a U8E ly TE “6981 Pp 8 F “G98T “pemorle ‘poMOT[G Io] -“paMoT[e 10 |*paMorye so pred} a0 pred | ‘mei || + “peateo *poateoar ‘paataoar wom! ‘peateo | ‘wo]T pred pred ULOYA 0} ueqM {Jo ‘on ||-04 JUNOMLY] yuUNODOR eq TO wort -0 Wot! Jo ‘ONT, qunomy jasodind yey r0,q}aosaed Jo somvn] 078q E aosied Jo souren] 938q “SINDMASATOASIA “SLdIGOTL (apa) “Vv “AUGONVHD NI 359 FORMS OF PROCEEDINGS. [AFFIDAVIT UNDER ORDER XLIII., sEC. 11.] 0 0. 0g [rere aae7 Gorse JO TGs anp ‘TON svomeg|somee ugor) ‘¢Atnel 7 0 0 ¢ |p s1q} 07 onp A 4B 93%}}00 0 0 TL [erties ung JO JUaT SHO XIG/slouBI souve| “cz avy] loo, pasvay o8v} 0 0 OTS TO8T f— - |-309 wo pred soxug|*stouergseuer| ‘eg ‘aeyy] = g yo Sep — onp 0 8 &L “Wey Samer ‘— 48 esnoy jo agor 48 saredaylzoquedieg ‘soug! ‘or ‘qeql = }ued §,1aj1enb euQ|"souorsemoyy! “g ‘qeql 0 0 g tee ““-ZOST Os 0 0 og seneee srteeeeee TOOT jo ep — onp ‘—— jo {up — aig ysulede 0008 jenp ‘— ‘on 40, ‘Pp ‘8 § |ransart s,rv0ef oug)'* "COBO ‘g*uer, 6 T |] SOF Moyquorsqves-yyeH|* souve uyor| “gavel = gouBINsSUyT UNS) “Z9ST ‘S98T *poMor[e “pamorls ‘onp Way pus ‘P2MOT ‘poMo][e 10 so pred woya | 20 pred | ‘wayy |} + “poatoo Peateoad 078389 |"poATooaT WOYA! ‘paated | ‘are9] -[8 40, pred pred 0} su0s Toga | JOON |Fer qunowmyjayy Jo yavd qeqa) wosysuos | ot uaqal jo ‘on yunoumy jasodind yeqa tog] -red jo SameN | 030 Jo joodser ut pus | -1ed yosomen | oyeq ‘gunoooR 4vqA uO “‘SINTNASUNASIA ‘SLA GOTa (2080) ‘a ‘AUMONVHD NT 360 FORMS OF PROCEEDINGS. [AFFIDAVITS AS TO RECEIVER. ] These accounts A. and B. must not be annexed to the affidavit, but must be made exhibits and endorsed in the usual manner, see Orders XXXV., sec. 2, and XLII., sec. 6, supra, pp. 152 and 190. Every sheet and everyalteration and erasure should be signed by the commissioner taking the affidavit. The items should be set out chronologically. Affidavit of receiver verifying account. I, A. B., of the (city) of (Zoronto,) in the county of (York) and province of Canada, (Hsqutre,) the receiver appointed in this cause, make oath and say :— 1. That the account contained from page one to page ——, both inclusive, in each of the two several books marked severally A. and B., now produced and shewn to me, and purporting to be my account of the rents and profits of the real estate, and of the out- standing personal estate of C. D., the testator in this cause, from the day of ——-, in the year, &c., to the day of——, in the year, &c., both inclusive, doth contain a true account of all and every sum and sums of money received by me,. or by any other person or persons by my order, or to my knowledge and belief, for my use, on account or in respect of the said rents and profits accrued due on or before the said day of , 1p the year, &e., (the day to which the account is made up,) or on account or in respect of the said personal estate, (other than and except what is included as received in my former accounts, sworn to by me.) 2. That the several sums of money mentioned in the said account hereby verified, to have been paid and allowed, have been actually and truly so paid and allowed for the several purposes in the said account mentioned. 3. That the said account is just and true in all and every the items and particulars therein contained, according to the best of my knowledge and belief. (c) Affidavit as to fitness of proposed receiver. 1. That I know, and have for — years last past been well ac- (c) If the receiver has been appointed for another purpose than to receive the rents and profits of the real and personal estate of a deceased, the affidavit can be altered accordingly, and should in all cases follow the words of the order appointing the receiver. FORMS OF PROCEEDINGS. 361 [AFFIDAVITS.—SALE UNDER AN ORDER OF COURT. ] quainted with A. B., of the of » in the county of ; Esquire, the person proposed to be appointed receiver in this cause- 2. That the said A. B. is a person of great respectability and integrity, and well versed in matters of business, and possesses an accurate knowledge of accounts and books of account. 3. That to the best of my judgment and belief, the said A. B. is a fit and proper person to collect and receive, and to be appointed receiver of (as in the order for receiver.) Joint affidavit of justification by receiver's sureties. 1. That I, the said deponent, A. B., am worth the sum of dollars (d) lawful money of Canada, over and above what is suffi- cient to pay all my just debts. 2. And I, the deponent C. D., for myself say that I am worth the sum of dollars (d) lawful money of Canada, over and above what is sufficient to pay all my just debts. Affidavit for fixing a reserved bidding. 1. That I have carefully inspected and valued lot number in the concession of the township of , in the county of , being the premises ordered to be sold in this cause, and pro- posed to be sold in lots, numbered one, &c., respectively in the draft advertisement of sale herein now shewn to me and marked A. 2. That lot numbered one in the said draft advertisement is, in my judgment, worth the sum of or thereabouts, (though so much may not be obtained, as it requires considerable expenditure in the repair of, &c., state defects,) and I say that in my opinion the reserved bidding on said lot number one should not be fixed at a higher sum than £—. (Go through all the lots in the same way.) Affidavit verifying advertisement of sale. 1. That I am well acquainted with lot No. in the —— con- cession of the township of ——, in the county of ——, being the premises ordered to be sold in this cause. (d) The amount inserted is usually twice the annual value of the estate. 46 862 FORMS OF PROCEEDINGS. [AFFIDAVITS.—SALE UNDER ORDER OF couRT.] 2. That the said lot consists of two hundred acres of land, of which one hundred acres are cleared, and the remainder well timbered with beech and maple, the land cleared is of a light loam in a good state of cultivation (give full particulars as to character of soil, fe.) 3. The said lot is situate about seventeen miles from the town of ——, readily accessible thereto by good roads, which said town of __— offers a good market for the sale of produce. ’ 4. The said lot in addition to being well timbered is also well watered, and has erected thereon farm buildings consisting of (fully describe them, saying whether in brick or wood, and how long erected.) 5. There is a good orchard consisting of stocked with excellent fruit trees. 6. The lot is well fenced. 7. There is a prior mortgage on the property (¢f so) for the sum of —— pounds, payable to (state particulars.) 8. The lot is now in the occupation of (state particulars of ten- ancy.) (¢) acres of land, well Affidavit as to fitness of proposed auctioneer. 1. That I am well acquainted with A. B. of the of —— in the county of , auctioneer. ; 2. That the said A. B. has resided in the said of ——, being the place where the lands and premises in question in this cause are directed to be sold, during the space of years last past, during which period he has carried on the business of an auctioneer and land agent generally. 3. That the said A. B. is of good repute for integrity and skill in his said business, and is willing to undertake the manage- ment and conduct of the sale of the said lands and premises, and is to the best of my judgment and belief in all respects a fit and proper person to be intrusted and employed in the sale thereof. (e) It is the duty of a vendor, in his particulars of sale, to describe th fa accuracy and not leave it to inference. (Swasland v. Danchlby. 29 Bes See Order XXXVI. of the Orders of June, 1853, . 152-166, ; of 22nd February, 1862, pp. 271, 272, supra. Ee een oars FORMS OF PROCEEDINGS. 363 [AFFIDAVITS.—SALE UNDER ORDER OF CoURT.] Affidavit of auctioneer as to result of sale. I A.B., of the of , in the county of ——, the auc- tioneer appointed by the master of this honourable court at 5 to sell the lands and premises comprised in the particulars herein- after referred to, make oath and say. 1. That I did, according to the appointment of the said master, at the time and place, in the lots, and subject to the conditions specified in the particulars and conditions of sale hereunto annexed, marked respectively A. and B., &c., offer for sale by public auction, the lands and premises described in the said particulars, and that the results of such sale are as appear from the several signed contracts appearing at the toot of the said conditions of sale marked respectively B. C., &e. 2. That the sums set forth in the said several contracts are the highest sums bid for the respective lots therein respectively men- tioned, and that of , and of , being the per- sons whose names are respectively subscribed to the said several contracts, were respectively declared by me to be the highest bidders for, and became the purchasers of, the lots respectively mentioned in the said several contracts, at the prices or sums of and respectively, being the prices or sums in the said several contracts respectively mentioned. 8. That the several lots numbered respectively one, two, &e., in the said particulars, were not sold, no person having bid a sum higher than or equal to the reserved biddings fixed for the same respectively by the said master. 4, That no person bid any sum whatever for either of the lots numbered respectively four and five, in the said particulars. 5. That the said sale was conducted by me in a fair, open and proper manner, and according to the best of my skill and judgment. Affidavit as to insertion of advertisements and publication of bills or posters. , 1. That in pursuance of the direction of the master in ordinary of this court (or of the master of this court at ) who settled the advertisement and particulars and conditions of sale for the sale of 364 FORMS OF PROCEEDINGS. [AFFIDAVITS—ON APPLICATION FOR GUARDIAN. ] the lands mentioned or referred in the decree (or order) made in this cause, I caused such advertisement to be published in the (nam- ing the newspaper or newspapers) once in each week for the four weeks immediately preceding the said sale (or as the case may be.) 2. That in pursuance of the said direction I caused bills of the the said sale to be published in different parts of the township (town or city) of and the adjacent country and villages (or as the case may be.) 3. That twenty-five of the said bills or posters were published and distributed for four weeks immediately preceding the said sale in taverns adjacent to the said land, and fifty others of the said bills and posters were published and posted in conspicuous public places in different parts of the said township (town or city) of , and the adjacent country and villages, (or as the case may be,) and that twenty-five others of the said bills or posters were distributed to the auctioneer and the solicitors of the various parties interested in this cause. Affidavit to support application for an order appointing a guardian to an infant and for maintenance. I, A.B., of, &., (the mother) of the above named infant (defen- dant) C. D., make oath and say: 1. That the above named infant was of the age of —— years on the day of last. 2. That D. D., the father of the said infant, died on or about the day of » in the year, &., having made his last will and testament bearing date the day of ——, in the year, &c., whereof he appointed E. F’. and G. H. executors, by whom the said will has been duly proved in the proper Surrogate Court, but which said will does not contain any appointment of guardian to the per- son of the said infant. 3. That the fortune of the said infant consists of (set out particu- lars of the infant’s fortune.) 4. That the nearest relations of the said infant, other than and except myself, are as follow: (state the uneles and aunts, if any, if the infant has any brothers and sisters, state them with their ages.) FORMS OF PROCEEDINGS. 365 [AFFIDAVITS.—ON PRODUCTION oF DOCUMENTS. ] 5. That I have for = years last past known and been inti- mately acquainted with J. K. of, &c., and that he is a gentleman possessed of considerable property, and is a person of great re- spectability, (if the infant be a female, state whether the proposed guardian is married and what family he has,) and in my opinion a fit and proper one to be appointed guardian of the person of the said infant; and I am desirous that he should be appointed such guardian during the minority of the said infant, jointly with myself. (f) Affidavit on production of documents. 1. Isay, 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. (g) 2. I further say, that I object to produce the said documents set forth in the second part of the said first schedule hereto. 8. I further say, (state upon what grounds the objection is made and verify the facts so far as may be.) 4. I further say, that I have had, but have not now in my pos- session or power the documents relating to the matters in question in this 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 when.) 6. I further say, (state what has become of the last mentioned documents, and in whose possession they now are.) 7. I further say, according to the best of my knowledge, remem- brance, information and belief, that I have not now, and never have had, in my own possession, custody or power, or in the possession, custody or power of my solicitors or agents, or solicitor or agent, or (f) The order usually made is one appointing the guardian and directing a refer- ence to a master to fix a proper sum to be allowed for the maintenance, education and advancement of the infant. The consent of the proposed guardian to act should be in writing, and his signature thereto verified by affidavit. (g) The two parts of the schedule are only necessary when the deponent objects to the producticn of some of the documents. If the party denies having any, he is to make an affidavit in form of the seventh paragraph, omitting the exception. 366 FORMS OF PROCEEDINGS. [AFFIDAVITS.--ON PRODUCTION OF DOCUMENTS. ] in the possession, custody or power gf any other person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of, or extract from any such document, or any other document whatsoever, relating to the matters in question in this 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 schedules hereto, and save and except the confidential correspond- ence in and in relation to this suit between myself and my solicitor; and save and except also the pleadings and other proceedings in this suit; which said confidential correspondence, and pleadings and proceedings, I am advised and believe, form no portion of the documents required by this honourable court to be produced by me. (h) The first schedule :—The first part thereof; shewing documents in my possession which I do not object to produce. The second part; shewing documents in my possession, which I object to produce. The second schedule:—Shewing documents which I have had, but have not now in my possession or power. (4) See notes to Order XX. of the Orders of 1853, sec. 1, pp. 98 et seq. supra. Where in the affidavit made by a defendant on an order for production of documents the ordinary’ words “or in the possession, custody, or power of my solicitor or agent” are omitted, the court will not hold such affidavit insufficient if a satisfactory reason is given for such omission. The words “I am informed,” where there is no R308.) knowledge, are the same as ‘I believe.” (Woodhatch y. Freeland, 11 W. The court will accept the oath of the defendant whether documents are relevant ; but the plaintiff has a right to judge for himself whether they will assist his case, and is entitled to the production of all relevant documents, except such as the court can clearly see have no bearing on the issue. (Mansell v. Feeney, 2 J. & H. 320.) As to documents in the possession of a third party claiming a lien upon them, see North v. Huber, 29 Bea. 487. : It is not sufficient in order to avoid production in London, to state that books are in constant use, without stating that they cannot be moved without inconvenience, (Hooper v. Gumm, 2 J. & H. 602; 10 W. R. 644; 6L. TNS, 891.) And see this case also as to letters written pending the suit by @ plaintiff to his agent, to be com- municated by the latter to the solicitor, and which were held to ke privileged. FORMS OF PROCEEDINGS. 367 (AFFIDAVITS.—OBSERVATIONS ON PRODUCTION OF DOCUMENTS. | A defendant is entitled after decree, to obtain an order for the production of docu- ments by a co-defendant. (Hart v. Montifiore, 80 Bea. 280; 8 Jur. N. S. 350; 31 L. J. Ch. 383.) It had previously been held, (see The Attorney-General v. Clapham, 10 Hare, App. \xviii.; Wynne v. Humberston, 27 Bea. 421, cited supra p. 104,) that a co-defendant could not compel production of documents from a co-defendant. In the Attorney- General v. Clapham, the application was made before decree. The practice as to production under the four-day order is the same with respect to the plaintiff as before set forth, p. 104, supra, with respect to a defendant. The de- fendant cannot obtain the order until he has answered the bill, the plaintiff cau, after the time for answering has expired. The plaintiff will have to make an affidavit similar in form to that made by a defendant. (Attorney-General v. Clapham, 10 Hare, App. lxviii.; Fiott v. Mullins, 16 Jur. 946; Rochdale Canal Company v. King, 15 Bea. 11.) After the affidavit is made the same objection to particular documents may be made. There will also be the same necessity on the part of the defendant to shew an admission by the plaintiff of possession of the required documents. (Lamb v. Orton, 1 Drew, 414; Wing v. Harvey, 10 Hare, App. Ixviii.; Reynell v. Sprye, 1 DeG. M. & G. 656.) The privilege possessed by a solicitor of protecting himself from disclosing infor- mation received by him in his character of solicitor, only extends to the information derived by him from his client, and not to that obtained by him from third persons, although such information may be obtained in the course of, or in connection with the transaction of the business of his client. (Ford v. Tennant, 11 W. R. 824.) See also, Greenough v. Gaskell, 1 M. & K. 98; Jones v. Pugh, 1 Ph. 96; Desborough v. Rawlins, 3 M. & C. 515; Herring v. Clobery, 1 Ph. 91; 11L. J. Ch. 149; referred to in support of the demurrer by the witness in the case of Ford v. Tennant. The following cases were cited against the demurrer, which was overruled: Griffith v. Davies, 5 B. & Ad. 502; Spenceley v. Schulenburgh, 7 East, 357; Sawyer v. Birch- more, 3 M. & K. 572; Bramwell v. Lucas, 2 B. & Cr. 745; Tippins v. Coates, 6 Hare, 16; Gore v. Bowser, 5 DeG. & Sm. 30. It was held by Stewart, V. C., that a creditor coming in after decree could not, without a bill, have an affidavit of documents. But held by the Lords Justices on appeal, that a creditor coming in to prove under an administration decree, has a right to compel the executors to produce on oath all documents relating to his claim or which may enable him to make out his case. (McVeagh vy. Croll or Croall, 11 W. R. 457; 9 Jur. N. S. 240.) The cases cited in support of the order to produce were, Hart v. Montifiore, 830 Beav. 280; Paxton v. Douglas, 8 Ves. 520; Whitaker v. Wright, 2 Hare, 310; Hyde v. Edwards, 12 Bea. 160; 1 M. & G. 410.) The right of a creditor coming in to prove his debt under an administration order or decree, to compel the executors to produce under oath all documents in their pos- session, relating to his claim, or which may enable him to make out his case, has never been questioned in our court, and has always been conceded. The order has always been made by the master on the general jurisdiction, (2 Dan. Ch. P., 8rd ed., 948.) The decree having been considered in the nature of a judgment for all the creditors. (Paxton v. Douglas, 8 Ves. 520.) After the decree for the administration, all creditors are entitled and are bound to come in and prove their debts—no creditor is permitted to sue atlaw. And when the creditor has offered before the master prima facie evi- dence of his debt, he is entitled to an affidavit from the executors as to the docu- ments in their possession or power relating to his claim, or any part of it. Of course he is not entitled to the production of documents relating to the suit generally, but to such as may throw light on Ais claim. Supplementary observations on affidavits generally.—Foxr authority that the name of 368 FORMS OF PROCEEDINGS. [AFFIDAVITS.—SUPPLEMENTARY OBSERVATIONS on. J the court should be correctly stated, see Lumbrozo v. White, 4 Dict. 150; and that the full style of the cause or matter must be set out, see Hawes v. Bamford, 9 Sim. 653; May v. Prinsep, 11 Jur. 1032; Davis v. Barrett, 7 Bea. 171. Where a party obtained an order on motion, the other side not appearing; and the service of the notice of motion was regular, but was supported by an imperfect affidavit as to style of cause, a new notice of motion had to be given. (Barton v. Chambers, 4 Bes. 547.) The words “‘make oath,” &c., should not be omitted in the commencement, the word ‘“‘sworn” in the jurat is not of itself sufficient. (Prentice v. Phillips, 2 Hare, 542; 12 L. J. Ch. 497; 7 Jur. 628.) Affidavits to be used in the master’s office, must be filed. (Stubbs v. Sargon, 2 Bea. 496; 3 Jur. 1118; ez parte Hartley, 4 Jur. 500.) The deponent must sign either by writing his name, or if he cannot write, by making his mark; (Anderson y. Stather, 9 Jur. 1085;) and where the deponent cannot write, it is improper for him to sign his name in full with the assistance of a person guiding his hand, without also making his mark, so that the fact of his illite- racy may appear. ( vy. Christopher, 11 Sim. 409; 10 L. J. Ch. 145.) Where an affidavit deposes to words ‘spoken, it is a proper caution in the affidavit to add ‘or to that effect.” (Ayliffe v. Murray, 2 Atk. 60.) Affidavits to support an application for a writ of arrest, should disclose a clear case of intention on the part of the defendant to leave the province, and that some preparations have been made by him with that view. (Sichel v. Raphael, 4 L. T. N. 8. 114.) In proving a mortgage debt, if the mortgage has not been proved in the cause, or the parties are not competent, or are unwilling to admit it, the due execution must be proved by affidavit. In affidavits of execution of bonds and other documents of a like nature, pro- duced for the approval of the Court of Chancery, it is sufficient to use the form of a jurat generally used. (Re Ausebrook, 4 Grant’s Chancery Rep. 109.) ORDERS. Prelimin@y observations.—An order of court, however certain it may be that it is erroneous, must not be disregarded or treated as a nullity. It must be discharged on a proper application for that purpose; Chuck v. Cremer, 2 Ph. 118; 16 L. J. Ch. 92; Hughes v. Williams, 6 Hare, 71; 16 L. J. Ch. 200; 11 Jur, 237 ;) the order operates, although irregularly obtained, until by such proper application it is dis- charged. (Blake v. Blake, 7 Bea. 514.) An order “to discharge an irregular order with costs,” carries the costs of the application to discharge it, (West v. Smith, 3 Bea. 492; 10 L. J. Ch. 218,) and where an irregular order has been obtained, no subsequent order to the same effect can be had, until the former has been discharged. {Beare v. Gray, 4 Bea. 127; 10 L. J. Ch. 853.) Applications to discharge orders or irregularity must be made without delay. (Joseph v. Simpson, 10 Price, 25.) An order for leave to amend operates from the time of service only. (Price v. Webb, 2 Hare, 515; 13 L. J. Ch. 50.) Eicarenae The four-day order for production in the master’s office, by a party to the cause, does not require personal service. (Hobson v. Sherwood, 6 Bea. 63; 4 447; 7 Jur. 687.) : Cone ee es FORMS OF PROCEEDINGS. 369 [ORDERS.—PRELIMINARY OBSERVATIONS. Service of an order, not producing the original, is not good, unless that production is waived. (Wallis v. Glynn, 19 Ves. 380.) An order obtained of course, or on an ex parte application ought to be served as soon as possible on the party intended to be affected by it, or his solicitor. (Church v, Marsh, 2 Hare, 652: Daniell’s Ch, Pr., 8rd edit. p. 1192.) As the order of course cannot be opposed (Eyles v. Ward, Mose- ly, 255) if irregular, motion should be made to discharge it. All orders must be entered, and any proceedings taken under ‘an order before it is entered, are voidable and irregular. (Tolson v. Jervis, 8 Bea. 364.). All orders are entitled as follows :— In CHANCERY, the day of in the (Lf in chambers, add) year of the reign of Her Majesty, Queen In Chambers, Victoria, and in the year of our Lord, The Chancellor, 186 . (or as the case may be.) Between A.B., Plaintiff, and C.D., Defendant. Order for security for costs, obtained on precipe. Upon the application of the defendant, ———, and it appearing by that the said plaintiff resides ———— out of the jurisdiction of this court: It is ordered, that the plaintiff do procure some suffi- cient person or persons, resident within the jurisdiction of this court, to give security on behalf, in the penal sum.of not less than pounds, to answer the costs of the said defendant , in case this court shall think fit to award any before the said defendant ———— shall be obliged to put in his answer to the — bill. Order for substituted service of bill of complaint. Upon the application of the plaintiffs, and upon hearing read the affidavit of filed in this cause: It is ordered that personal ser- vice of an office copy of the plaintiffs’ bill filed in this cause, with the notice and certificate thereon endorsed, as required by the General Orders of this court, together with a copy of this order, upon the said defendant as the agent of the said defendants, shall be deemed good service upon the said defendants. 4T 870 FORMS OF PROCEEDINGS. [ORDERS.—-SERVICES OF BILL OF COMPLAINT. ] Order for service of bill of complaint on defendant in Lower Canada. Upon the application of the plaintiff, ies it appearing by affi- davit that the said defendant resides at ——, in that part of this province formerly called Lower Canada, out of the jurisdiction of this court: It is therefore ordered, that personal service of an office copy of the plaintiff’s bill, together with the notice and certifi- cate endorsed thereon, required by the General Orders of this court, and a copy of this order, upon the said defendant in Lower Canada, shall be deemed good service: And the said defendant to answer the plaintiff’s bill within after such service : and at the time of effecting such service, this order i is to be produced and shewn to the said ° Order for service of bill of complaint on defendant out of the jurisdiction. Upon the application of the plaintiff, and it appearing by affi- davit that the said defendant resides at , out of the jurisdiction of this court: It is therefore ordered, that personal ser- vice of an office copy of the plaintiff’s bill, together with the notice and certificate endorsed thereon, required by the General Orders of this court, and a copy of this order, upon the said defendant aforesaid, shall be deemed good service: And the said defendant - is to answer the plaintiff’s bill within after such service : and itis ordered that an affidavit of such service, and of the identity of the said defendant , Sworn before the mayor or other chief magistrate ‘of any city, town, or borough, where, or near which, such service shall be effected, shall be deemed sufficient proof of such, service and identity. Order for service of bill of complaint on defendant by advertising, Upon the application of the said plaintiff, and it appearing to this court by affidavit that the said defendant ~ has left this province, and cannot be found to be served with an office copy of the plaintiff ’s bill in this cause: It is ordered that the said defendant do, on or before the —— day of » hext, answer or demur to the plaintiff’s bill; and it is ordered that a copy of this FORMS OF PROCEEDINGS. 871 [ORDERS.—MARRIED WOMAN.—DEMURRER. ] \ order, together with the notice required by the General Orders of this court, be published in the newspaper at , once in each week, for the —— weeks next preceding the said day of next. Another form. Upon the application of the plaintiff, and it appearing by affida- vit that after due diligence, the said defendant —— cannot be found to be served with an office copy of the plaintiff’s bill in this cause: It is ordered, that the said defendant - do, on or before the day of next, answer, or demur to the said bill: and It is ordered, that a copy of this order, together with the notice required by the General Orders of this court be published in the news- paper, published in the not less than weeks before the day of next, and to be continued once in each week until the said day. Order for a married woman.to answer separately from her husband. Upon the application of the plaintiff and upon hearing read an affidavit of the service of the plaintiff’s bill upon the said defendant the husband of the said defendant and no answer thereto being filed by her, although the time allowed for answering the said bill has expired, as by the certificate of the registrar of this court appears: It is ordered, that she the said last named defendant do, within four weeks after service of an office copy of the said bill, with the notice and certificate enforsed there- on, as required by the General Orders of this court, together with a copy of this order, put in her answer to the said bill, separate and apart from her said husband. Order allowing a demurrer. The matter of the demurrer of the above named defendant, John Styles, coming on to be heard before this court in the presence of counsel for the plaintiff, and the said last named defendant, this court doth think fit to allow the said demurrer with costs to be taxed by the master of this court, and paid by the plaintiff to the said 372 FORMS OF PROCEEDINGS, [ORDERS.—AMEND.—GUARDIAN.—PRO CONFESSO. } last named defendant; (but the said plaintiff is to be at liberty to amend his bill of complaint in this cause as he shall be advised, amending the same within .) Order to amend, obtained on preeipe. Upon the application of the plaintiff: It is ordered, that he be at liberty to amend his bill of complaint in this cause as he may be advised without costs, amending the defendant’s office copy thereof, and making such amendment within fourteen days from this date. Order appointing guardian ad litem to an infant defendant. Upon the application of the plaintiff and upon hearing read the affidavit of and an affidavit of the service of notice of this application, and it appearing that the said defendant is an infant under the age of twenty-one years: It is ordered that , one of the solicitors of this court, be, and he is hereby appointed guardian to the said infant defendant, by whom he may answer the plaintiff's bill and defend this suit. Order pro confesso obtained on precipe. Upon the application of the plaintiff, and it appearing by affida- vit that the said defendant has been personally served with an office copy of the plaintiff’s bill, together with the notice and certificate endorsed thereon required by the General Orders of this court, andgno answer having been put in by the said defen- dant , although the time limited in that behalf has elapsed, as by the certificate of the registrar appears: It is ordered that the said plaintiff be at liberty forthwith to set this cause down to be heard in order that the said bill may be taken pro confesso against the said defendant. Order pro confesso after service of bill on defendant by advertising. Upon the application of the plaintiff, and it appearing that by an order of this court bearing date the day of last, it was ordered, that the said defendant should on or before the FORMS OF PROCEEDINGS. 373 [ORDERS.—PRODUOTION.—FOUR-DAY AND ORDER NISI. ] day of answer, or demur to the plaintiff’s bill in this cause : and that a copy of the said order, together with the notice required by the General Orders of this court, should be published in the newspaper published at » once in each week, for the four weeks next preceding the said day of , Whereupon, and upon hearing read the affidavit of , and the exhibits therein.referred to, and it appearing to the satisfaction of this court that the said order and notice had been duly published as directed, and that no answer has been put in by the said defen- dant as by the certificate of the registrar of this court appears. It is ordered, that the said plaintiff be at liberty forthwith to set this cause down to be heard in order that bill of complaint may be taken pro confesso against the said defendant. Order to produce (the four day order obtained on precipe.) Upon the application of the said plaintiff or defendant (as the case may be): It is ordered, that the said plaintiff or defendant (as the case may be) do, within four days after service of this order upon him or his solicitor, produce before and leave with the registrar of this court, upon oath, all deeds, books, papers, writings and documents in his custody or power relating to the matters in question in this cause; and that the said plaintiff or defendant (as the case may be) be at liberty to inspect, and take copies of, or extract from the same; and that the registrar do cause the same tg be produced before any master or examiner of this court, and at the hearing of this cause. . Order nisi made on non-production under last Order. Upon the application of the and it appearing that, by an order bearing date the day of , it was ordered that the said should, within four days after the service of the said order, produce all books, deeds, papers, writings, ard documents, in — custody or power relating to the matters in question in this cause, under oath, and deposit the same with the regis- trar of this court And the said not having pro- duced before or left with the said registrar, the books, deeds, aT4 FORMS OF PROCEEDINGS. [ORDERS.—TAXATION OF" SOLICITOR'S BILL, ] papers, writings, and documents, aforesaid, or filed any affidavit relating thereto, although duly served with the said order, as by the certificate of the said —— registrar appears: It is therefore ordered that the said ——— do, within four days after the service upon of this order, produce before and leave with the —— registrar of this court upon oath, all the books, deeds, papers, writings, and documents aforesaid ; and in default thereof, that the sheriff of any county or united counties in which the said may be found, do take the said — into his custody, and commit to the gaol of his county or united counties, to answer said contempt. Whereupon such further order shall be made as shall be just. Order for the taxation of a solicitor’s bill of costs. In the matter of A. B., one of-the solicitors of this honourable court. Upon the humble petition of the above-named hearing read an affidavit of , and it appearing by the said affidavit that , in the said petition named, hath been fur- nished with a bill of fees, charges, and disbursements, incurred and disbursed by the said petitioner in carrying on certain business of the said in pursuance of section twenty-nine of chapter thirty-five of the Consolidated Statutes for Upper Canada: It is ordered that it be referred to the master of this court to tax the said bill, together with the costs of such taxation, and to settle by whom the same ought to be paid: and it is ordered that the said petitioner and the said do produce before the said master, upon oath, all deeds, books, papers, and writ- ings in his custody or power, respectively, relating to the said bill, or any of the items or charges therein; and may be examined upon oath touching the same, as the said master shall direct: and it is ordered that the said do pay to the said petitioner what the said master shall certify to be due to upon such taxation; and upon such payment, or in case the said bill shall appear to have been already paid, it is ordered that the said petitioner do deliver to the said , upon oath, all deeds, papers, and writings in ——— custody or power, belonging to the said and relating and upon FORMS OF PROCEEDINGS. 875 [ORDERS.—ACCOUNTS AND ENQUIRIES.—ADMINISTRATION. ] to the said business; and if it appears that the said bill is overpaid, it is ordered that the said petitioner do re-fund and re-pay what shall appear to have been overpaid. And all proceedings at law, touching the said bill, are hereby stayed until after the said master shall have made his report. Order to read pleadings and proceedings in another cause. Upon the application of the plaintiff, (or defendant,) It is ordered that he be at liberty at the hearing of this cause, and otherwise to read all the pleadings, orders, and proceedings in a certain other cause now or lately pending in this court, wherein the said is plaintiff, and are defendants, as evidence on his behalf, saving all just occupations. Order directing accounts and enquiries under administration order. This court doth order that the following accounts and enquiries be taken and made by the master of this court that is to say: 1st. An account of the personal estate not specifically bequeathed of deceased, the testator in the pleadings named, come to the hands of , or to the hands of any other person or persons by order or for use. 2nd. An account of the said testator’s debts. 8rd. An account of the said testator’s funeral expenses. 4th. An account of the said testator’s legacies. 5th. An enquiry, what parts, if any, of the said testator’s per- sonal estate are still outstanding or undisposed of. And it is ordered that the said testator’s personal estate not spe- cifically bequeathed be applied in payment of his debts and funeral expenses in a due course of administration, and then in payment of his legacies. And it is ordered that the following further accounts and enquiries be taken and made by the said master, that is to say: 6th. An enquiry what real estate the said testator was seized of or entitled to at the time of his death. 7th. An enquiry what incumbrances affect the said testator’s real estate. 3876 FORMS OF PROCEEDINGS. [ORDERS.—NEW DAY.—FINAL FORECLOSURE. ] 8th. An account of the rents and profits of the said testator’s real estate, received by the said or by any other person or persons by order or for use. And it is ordered that the further consideration of this case be adjourned, and any of the parties are to be at liberty to apply. Order appointing new day for the payment of money. Upon the application of the plaintiff, and upon hearing read the report of the master of this court bearing date the day of , one thousand eight hundred and sixty It is ordered that the said defendant do pay the sum of by the said report found due to the plaintiff into the to the joint credit of the said plaintiff and the registrar of this court, between the hours of ten o’clock in the forenoon, and three o’clock in the afternoon of the day of instead of the time and place mentioned in the said report. And it is ordered that a copy of this order be served upon the said defendant at least seven days before the said —— day of -——. Order final for foreclosure. Upon the application of the plaintiff, and it appearing that by a made in this cause bearing date the day of , in the year of our Lord one thousand eight hundred and , it was referred to the master of this court to take an account of what was due to the plaintiff on the mortgage security in the pleadings mentioned, and to tax to the plaintiff costs of this suit; pur- suant whereunto the said master made his report bearing date the day of ——, in the year of our Lord one thousand eight hundred and , and thereby certified the sum of to be due to the said plaintiff, which he appointed to be paid by the said defendant into the bank of to the joint credit of and the registrar of this court between the hours of -ten of the clock in the forenoon and three of the clock in the afternoon of the day of At which time and place the said defendant did not nor did any one on behalf attend to pay, or hath since paid or tendered the same, as by the certificate of and by the affidavit of FORMS OF PROCEEDINGS, 377 [ORDERS.—FINAL FORECLOSURE. ] — now produced and read appears. Whereupon and upon hearing read the said decree and the master’s said report, this court doth order that the said defendant do stand absolutely debarred and foreclosed of and from all right, title and equity of redemption of, in, and to the mortgaged premises in the pleadings mentioned. Another form, where parties made in the master’s office, but who did not come in and prove any claim. Upon the application of the , and it appearing that by a made in this cause bearing date the day of in the year of our Lord one thousand eight hundred and , It was referred to the master of this court to take an account of what was due to the plaintiff on the in the pleadings mentioned, and to tax to the costs of this suit; pursuant whereunto the said master made his report bearing date the day of in the year of our Lord one thousand eight hundred and , and thereby cer- tified the sum of to be due to the said plaintiff, which he appointed to be paid by the said defendant into the bank of to the joint credit of and the registrar of of this court, between the hours of ten of the clock in the forenoon and three of the clock in the afternoon of the At which time and place the said defendant did not nor did any one on behalf attend to pay, nor hath since paid or tendered the same, as by the certificate of — and by the affidavit of now produced and read appears. Where- upon and upon hearing read the said decree and the master’s said report, this court doth order that the said defendant do stand absolutely debarred and foreclosed of and from all right, title, and equity of redemption of, in, and to the mortgaged premises in the pleadings mentioned. And it also appearing by the said report, that the defendants -— made parties in the master’s office, although duly served with pro- cess under the General Orders of this court in that behalf, had failed to attend or prove before the said master any subsisting lien, charge, or incumbrance upon the said lands and premises : it is therefore ordered that they, the said defendants last named, do stand abso- 48 day of 378 FORMS OF PROCEEDINGS. [oRDERS.—FINAL ORDER OF SALE.—ORDER TO ELEOT.] lutely debarred and foreclosed of and from all right, title, and equity of redemption of, in, and to the premises aforesaid. Final order of sale. Upon the application of the plaintiff, and it appearing that by a decree made in this cause, bearing date the day of ; in the year of our Lord one thousand eight hundred and » it was referred to the master of this court to take an account of what was due to the plaintiff on the in the pleadings men- tioned and to tax to the plaintiff costs of this suit; pursuant whereunto the said master made his report bearing date the —— day of , and thereby certified the sum of to be due to the said plaintiff which he appointed to be paid by the said defendant —— into the bank of at to the joint credit of the said plaintiff and of the registrar of this court, between the hours of ten of the clock in the forenoon, and three of the clock in the afternoon of the day of ——. At which time and place neither the said defendant nor any one on —— behalf did then pay or hath since paid, or offered to pay the same into the said bank at the —— of —— or to the plaintiff, as by the certificate of —— the manager or cashier of the said bank, the affidavits of ——, and of the said plaintiff, now produced and read appears. Where- upon and upon reading the said decree, and the master’s said report this court doth order that the said lands and premises in the mentioned, or a competent part thereof, be sold in pursuance of and in manner directed by the said decree. Preeipe for order to elect. Whereas the plaintiff is prosecuting the defendant both at law and in this court for one and the same matter, whereby the defen- dant is doubly vexed, the said defendant hereby requires the usual order as of course that the plaintiff do elect in which court he will proceed. Order to elect. Upon the application of the defendant, and upon pracipe this day filed, and it appearing that the plaintiff doth prosecute the said FORMS OF PROCEEDINGS. 879 [ORDERS.—TO DISMISS.—EXAMINE DE BENE ESSE.] defendant both at law and in this court for one and the same matter, whereby the defendant is doubly vexed: it is ordered that the plaintiff do, within eight days after service hereof upon him or his solicitor, make his election in which court he will proceed, and if he shall elect to proceed in this court, then his proceedings at law are stayed by injunction, but if he shall elect to proceed at law, or in default of such election by the time aforesaid, then the said plain- tiff’s bill is from thenceforth to stand absolutely dismissed out of this court with costs to be paid by the said plaintiff to the said defen- dant forthwith after taxation thereof. Order to dismiss for want of prosecution. Upon the application of the defendant A. B., and upon hearing read the notice of motion herein, the notice of filing his answer herein, and an admission of service thereof, and the certificate of the (deputy) registrar of this court (at ) and upon hearing what was alleged on behalf of the said plaintiff: it is ordered that the plaintiff ’s bill of complaint in this cause be, and the same is hereby dismissed out of this court for want of prosecution, with costs to be paid by the said plaintiff to the said defendant forthwith after taxa- tion thereof. Order to examine de bene esse. Upon the application of the — A.B., and it appearing that one C. D. now residing at —— in the —— of and county of , &e., is a material and necessary witness in this cause on behalf of the said A. B., and that the said —— A. B. cannot safely proceed to a hearing of this cause without the evidence of the said C. D., and that the said C. D. is upwards of seventy years of age (or is in a very sickly and infirm state of health and, in all pro- bability not likely to live long) as by the affidavit of now pro- duced and read appears: it is ordered that the said A. B. be at liberty to examine the said C. D. as a witness for him in this cause. Preeipe for order to revive by real representatives of a deceased plaintiff. () The precipe (which is substituted for a bill of revivor) 380 FORMS OF PROCEEDINGS, [ORDERS.—REVIVOR. ] order, and all future proceedings, should be styled in the following manner, Viz: In Chancery, Between Vv. W., Plaintiff, and Y. Z., Defendant. By original bill, and Between A. B., C. D., E. F., G. H., and J. K., Plaintiffs, and Y. Z., Defendant. By revivor. Whereas the plaintiff in the above named suit did, on the —— day of , depart this life intestate, leaving him surviving A. B. his widow, and C. D., HE. F., G. H. and J. K., his children and co- heirs and co-heiresses at law, whereby the said suit became abated, and whereas the interest of the said plaintiff in the said suit has been transmitted by operation of law to the said A. B., C. D., E. F., G. H. and J. K., as his widow and co-heirs and co-heiresses respectively, the said A. B., &., hereby require the common order to revive the said suit in the names of them the said A. B., C. D., &e. Order to revive granted upon the above precipe. Upon the application of A. B., C. D., E. F., G. H., and J. K., and upon preecipe this day filed, and it appearing thereby that the plaintiff in the above mentioned suit did, on the — day of ’ depart this life intestate, leaving him surviving the said A. B., C. D., &e., his widow and children respectively, whereby the said suit became abated, and that the interest of the said plaintiff in the said suit had been transmitted by operation of law to the said A. B., &., as his widow and co-heirs and co-heiresses respectively. It is ordered that the said suit and all proceedings therein do stand revived in the name of the said A. B., &c., and be in the same plight and condition as the same were in at the abatement thereof. FORMS OF PROCEEDINGS. 881 [ORDERS.—REVIVOR. ] Order to revive in the name of the personal representative of de- ceased defendant. Upon the application of the plaintiff and upon pracipe this day filed, and it appearing thereby that the said plaintiff filed his bill of complaint in this cause on, &c., and that on, &c., the said defendant C. D. died, and that the said EH. F. has become and is the executor of the said C. D. That the said cause and proceedings having be- come abated in manner aforesaid, the plaintiff is desirous of reviv- ing the same. It is ordered that the said suit and all proceedings (i) The form of the preecipe and order will of course vary infinitely according to the mode of abatement and transmission of interest, in all cases the abatement and transmission of interest or liability should be stated with accuracy and precision; for if the order be obtained upon allegations which turn out to be untrue, it will be liable to be discharged at any moment. The party reviving should also take care to serve all parties interested with a true copy of the order according to the require- ments of the order of 6th of June, 1862, supra, p. 45. A person institutes proceedings in Chancery at his own peril, and no matter how numerous the parties are, assumes all risk of abatement by death or otherwise; see Hall v. Green, 2 U, C. Jur. 42, where the fact that the plaintiff was unable to pro- ceed on account of his inability to find the representatives of a defendant who had died, causing a partial abatement, was held to be no answer to a motion to dismiss for want of prosecution. The Order of the 6th of June, 1862, contemplates two distinct changes in the con- stitution of a suit under which it may be necessary to revive or to carry on the proceed- ings. The actual revivor would appear to be necessary where the suit has become abated by death, marriage or otherwise, and the order to carry on the proceedings to be necessary where the same has become defective by reason of some change or trans- mission of interest or liability. In either of these events, and upon proper allega- tions the suit may be revived or continued by an order obtained upon precipe. At first sight it would seem immaterial whether the precipe and order were styled as above set forth or whether styled simply in the original cause ; there is a distinction, however, and it is suggested that where a suit has become abated, the precipe and order and all future proceedings should be styled in the manner above set forth, but where the suit has become defective merely, and an order is necessary to carry on the proceedings it may be obtained in the original cause, and its operative part may be as follows. “It is ordered that the said suit and all further proceedings therein be in the same plight and condition as the same were in at the time of the same having become defective as hereinbefore mentioned, and be continued and carried on under the following style, namely: BetweetvA. Bencasucnen os Son enya nei aredeamenecteanns Plait and Cl. Dissccsecce ccceee socccsecs seonse aes csossss coeserees soetes ceeeereeeres Defendant, (According to the new style of the suit.) 882 FORMS OF PROCEEDINGS. [ORDERS.—ENLARGING TIME OF PAYMENT.—GUARDIAN. | therein do stand revived and be in the same plight and conditfon as the same were in at the time of the said abatement. (#) Order enlarging time for payment of mortgage money. Upon the application of the defendant, and upon hearing read the notice of motion herein and the decree in this cause bearing date —— day of last, and the report of the master of this court (at ) and the affidavit of , it is ordered that the said defend- ant do pay to the said plaintiff his costs of this application forthwith after taxation thereof; and it is ordered that upon the said defend- ant paying to the said plaintiff on or before the —— day of ~ (day appointed by the report) the sum of £——, found due to the plaintiff by the said report for interest in respect of his mortgage in question herein and costs, that the time for the said defendant re- deeming the lands and premises comprised in the said mortgage be enlarged for (six) calendar months; and it is ordered upon such payment being made that the said master is to compute subsequent interest upon the principal sum found due to the said plaintiff by his said report, and do tax to him his subsequent costs of this suit and do add the same to the said principal sum; and it is ordered that a new time and place be appointed for payment of what shall be found due to the plaintiff as aforesaid. But in default of the said defend- ant paying to the said plaintiff the said sum of £—— (the interest and costs above named) by the time aforesaid the said defendant is to stand absolutely debarred and foreclosed of and from all right, title, and equity of redemption of, in, and to the said mortgaged premises. Order appointing guardian, and directing maintenance, gc. Upon the humble petition of the above named infant by A. B., his mother and next friend, and upon hearing read the said petition and (k) If any party to a suit dies, his real or personal representatives, or both, (ac- cording to the nature of his interest,) must be made parties, The various changes in the constitution of a suit, as to parties, produce either abatement or simple defec- tiveness. The difference between abatement and simple defectiveness was never very clear, it is now unimportant, by Order of 6th June, 1862. See pp. 45, et seg., and 278, et seq., supra. FORMS OF PROCEEDINGS. 383 [ORDERS.—INJUNCTION.—OVERRULING DEMURRER. | an affidavit of C. D., and upon hearing what was alleged: it is ordered that E. F. of the of , in the county of , Esquire, be, and he is hereby appointed guardian to the said infant. And it is ordered that it be referred to the master of this court (at ) to enquire who has maintained the said infant since the death of G. H., the father of the said infant, and to fix a proper sum to be allowed for such maintenance, and for the maintenance and education of the said infant for the time to come during his minority, and out of what fund the same ought to paid. Order for injunction. Upon the application of the above named plaintiff, and upon hear. ing read the notice of motion herein and the plaintiff’s bill, and the affidavits of A. B., &c., filed herein, (and the exhibits therein refer- red to) and upon hearing what was alleged by counsel for both par- ties, it is ordered that an injunction do issue to restrain the defend- ant (his servants, workmen and agents, or his attorneys, solicitors, and agents from, &c., following the prayer of the bill and notice of motion) until the hearing of this cause (or until the further order of this court to the contrary.) Order to dissolve injunction. Upon the application of the above named defendant and upon hearing read the notice of motion herein, and the plaintiff’s bill, and the affidavits of A. B., &c., filed herein, (and the exhibits therein referred to,) and upon hearing what was alleged by counsel for both parties, it is ordered that the order made in this cause, bearing date the day of last, be discharged, and the injunction issued thereon do stand absolutely dissolved. Order overruling demurrer. The matter of the demurrer put in by the defendant A. B. to the plaintiff ’s bill coming on the day of , to be argued before this court in the presence of counsel learned on both sides, the said demurrer being opened upon debate of the matter, and upon hearing what was alleged by counsel aforesaid, this court did order that the 884 FORMS OF PROCEEDINGS. [ORDERS.— DISCHARGE FROM OUSTODY.—-ARREST. | same should stand over for judgment, and the same coming on this present day for judgment, in presence of counsel aforesaid, this court held the said demurrer to be insufficient, and doth therefore order that the same be overruled with costs to be paid by the defen- dant to the plaintiff forthwith after taxation thereof. Order to discharge from custody a party committed for contempt. Upon the application of the above named A. B., and upon hearing read the notice of motion herein, and the affidavits of OC. D. and E. F., &c., filed herein, (7) and upon hearing what was alleged on both sides, and it appearing that an attachment issued against the said A. B. under the order herein bearing date the — day of- last, directed to the sheriff of the county (07 united counties) of (and ) and that the said A. B. was arrested thereon; it is ordered that the said on paying or tendering the costs of his contempt herein be discharged out of the custody of the said sheriff of the county (or united counties) of ——— (and ——) as to his said contempt. Order for writ of arrest. Upon the application of the above named plaintiff, and upon hear- ing read the bill of complaint herein and the affidavit of A. B., and it appearing that the above named defendant is greatly indebted to the plaintiff and designs quickly to go into other parts beyond this province; it is ordered that a writ of arrest do issue against the said defendant until this court make other order to the contrary, and the said writ is to be marked in the sfm of £— in words at length and not in figures. Order to dismiss bill on preecipe by plaintiff before replication. Upon the application of the plaintiff and upon precipe this day filed, it is ordered that the bill of complaint of the said (1) If the party has been committed for non-production, and moves to obtain hig discharge on the ground of having siuce complied with the order, the proper evi- dence to be used is the certificate of the registrar or master, or deputy, as the case may be. : FORMS OF PROCEEDINGS. 885 [ORDERS.—VESTING.—DELIVERY OF POSSESSION, &c.] plaintiff be, and the same is hereby dismissed out of this court, with costs to be paid by the said plaintiff to the defendants A. B. and C. D., &c., forthwith after taxation thereof. (m) Vesting order. Upon the application of A. B. the purchaser of (parts of) the land sold in this cause, and upon hearing read the master’s report upon the sale herein, and the solicitor for the said plaintiff appear- ing and consenting thereto, and in pursuance of the sixty-third sec- tion of chapter twelve of the Consolidated Statutes of Upper Canada, it is ordered that the lands so purchased by the said A. B. being (give full deseription,) be, and the same are hereby vested in the said A. B., his heirs and assigns for ever, for all the estate and interest of the said plaintiff, and the above named defendants (or as the case may be) therein. Order to deliver possession of mortgaged premises after Jinal order of foreclosure. Upon the application of the plaintiff, and upon hearing read the final order of foreclosure in this cause and affidavits of the service of this notice of motion and of demand of possession, and no one appearing on behalf of the said defendant A. B., it is ordered that the said defendant A. B. do, within fourteen days after service upon him of this order, deliver up to the said plaintiff possession of the mortgaged premises in question in this cause, or so much thereof as he is in possession of. Order to prove exhibits vivd voce at hearing. Upon the application of the plaintiff, it is ordered that he be at liberty at the hearing of this cause, to prove by affidavit or affidavits of the witness or witnesses who would be competent to prove the same vivd voce the following exhibits, that is to say, (set out exhibits to be proved,) saving all just exceptions. m) If the defendants have not answered they will not be entitled to costs except Pe special circumstances, such as having filed affidavits on being served with notice of motion for injunction, or having obtained and served an order for security for costs. 49 886 FORMS OF PROCEEDINGS. [ORDERS.—SUBP@NA.—AMEND.—NON- PRODUCTION. ] Order to change solicitor. Upon the application of the said defendant A. B. and by consent, it is ordered that he be at liberty to change his solicitor in this cause by making C.D. his solicitor, in the place and stead of E. F. his present solicitor. Order for subpeena to issue to Lower Canada. Upon the application of the said defendant A. B., and upon hear- ing read an affidavit of the said A. B., and it appearing that C. D, is a material witness for the defence of the said A. B., it is there- fore, in pursuance of section four of the seventy-ninth chapter of the Consolidated Statutes of Canada, ordered that a writ of subpcena ad testificandum do issue directed to the said C. D. at , in that part of this province formerly called Lower Canada out of the jurisdiction of this court, to appear at the next ensuing examination term of this court, (or as the case may be.) Order to amend by adding a party defendant. Upon the application of the plaintiff, and upon hearing read the affidavit of A. B., and it appearing that one C. D. is a necessary party to the bill in this cause, it is ordered that the said plaintiff be at liberty to amend his bill of complaint herein by inserting therein the name of the said C. D. with apt words to change him as a defen- dant thereto. Order absolute for non-production. Upon the application of the plaintiff (or defendant) and it appear- ing that by an order made in this cause and bearing date the day of last, it was ordered that the said defendant (or plaintiff ) A. B. should, within four days after the service upon him of the said order, produce before and leave with the (deputy) registrar (master) of this court (at ) upon oath, aJl books, deeds, papers, writings and documents in his custody or power relating to the matters in question in this cause, and in default thereof that the sheriff of any county or united counties in which the said defendant A. B. might be found should take the said defendant into his cus- FORMS OF PROCEEDINGS. 387 [ORDERS.—RE-HEARING.—DECREES. ] tody and commit him to the gaol of his county or united counties to answer his said contempt. Whereupon, and upon hearing read an affidavit of the service of the said order and a certificate of the said (deputy) registrar (or master) and it appearing by such certificate that the said defendant hath not produced and left with the said (deputy) registrar the said books, deeds, papers, writings and docu- ments, or filed any affidavit relating thereto, (in the case of non-pro- duction pursuant to a master’s direction, the words in this part of the order should be a copy of the master’s certificate.) It is therefore ordered that the sheriff of any county or united counties, in which the said defendant A. B. may be found, do take lim into his custody and commit him to the gaol of his county or vnited counties to answer his said contempt, and it is ordered that an attachment or attachments do issue accordingly. Order on petition for re-hearing. Upon the application of the defendant and upon hearing read his petition for the re-hearing of this cause, and the judge’s fiat endorsed thereon, and the defendant having this day paid into court to the credit of this cause the sum of forty dollars by way of deposit to secure the costs of such re-hearing, and having signed an under- taking to pay such costs as may be awarded against him in respect of such re-hearing, it is ordered that this cause be set down to be re-heard before this court next after the causes and matters already set down. DECREES. Where a necessary provision is omitted in a decree the court will amend it on peti- tion though passed and entered. (Moffatt v. Hyde, 6U.C. L. J. 94.) Where a decree in a partition suit, omitted to direct the execution cf the necessary instruments and did not reserve the consideration of further directions, the court nevertheless on motion directed the execution of conveyances and the delivery of possession agreeably to the finding of the master. (O'’Lone v. O’Lone, 2 Grant, 642.) The words “liberty to apply” do not extend to an applicetion by the plaintiff to be allowed costs, as to which there was no express direction given by the decree. (Kendall v. Marsters, 2 DeG. F. & J. 200.) 888 FORMS OF PROCEEDINGS. [DECREES.—COMMENCEMENTS. ] The act Con. Stats. U. C., cap. XIIT., sec 16, relating to the Court of Error and Appeal, does not deprive the court of its inherent jurisdiction to suspend the opera- tion of its own decree pending au appeal. (Cotton v. Corby, 5 U. C. L. J. 67.) Commencements of decrees.— On hearing. This cause coming on (the day of , and) this present day to be heard before this court in the presence of counsel for all parties, (or for the plaintiff and the defendant A. B., no one appear- ing for the defendant C. D., although duly notified in that behalf, nor for the defendant EH. F. against whom the bill has been taken pro confesso,) upon opening of the matter and upon hearing read the pleadings and depositions herein, and upon hearing what was alleged by counsel aforesaid, this court doth, &c. If judgment reserved. This cause coming on the day of last, (and the —— day of last) to be heard, &c., (as in foregoing,) this court did order that this cause should stand for judgment, and the same com- ing on this present day for judgment in the presence of counsel aforesaid, this court doth declare, &. On motion for decree. This cause coming on this present day to be heard by way of motion for a decree against the defendant in the presence of counsel for both parties, upon opening of the matter and upon hearing read the pleadings and notice of motion herein and the affidavits of A. B. and C. D., and the exhibits therein referred to, and upon hearing what was alleged by counsel aforesaid, this court doth declare, &c. On further directions. This cause coming on this present day to be heard before this court on further directions, and as to the matter of (subsequent) cests in the presence of counsel for all parties (or for the plaintiff and the defendant A. B., no one appearing for the defendant C. D. although duly notified in that behalf, nor for the defendant E. F., against whom the bill has been taken pro confesso) upon opening of the FORMS OF PROCEEDINGS. 389 [DECREES.—REDEMPTION.—SPECIFIO PERFORMANCE. ] matter, and upon hearing read the decree in this cause bearing date the day of last, and the report of the master of this court (at ) made in pursuance thereof bearing date the day of last, and upon hearing what was alleged by counsel aforesaid, this court doth, &e. On bill and answer. This cause coming on this present day to be heard before this court on bill and answer, in the presence of counsel for both parties, upon opening of the matter and upon hearing read the pleadings in this cause, and upon hearing what was alleged by counsel aforesaid, this court doth, &c. Decree for redemption. This court doth declare that the plaintiff is entitled to redeem the lands and premises comprised in the mortgage in the pleadings mentioned ; and it is ordered that it be referred to the master of this court (at ) to take an account of what is due to the said defendant for principal money and interest upon the said mortgage, and to tax to him his costs of this suit, and upon the said plaintiff paying to the said defendant what shall be found due to him for principal money, interest and costs as aforesaid, within six calen- dar 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 the said defendent do re-convey the said premises free and clear of all incumbrances done by him, and deliver up all deeds and writings. in his custody or power relating thereto upon oath to the said plain- tiff, or to whom he may appoint; but in default of the said plaintiff making such payment by the time aforesaid, it is ordered that the bill of complaint of the said plaintiff be dismissed out of this court, with costs to be paid by the said plaintiff to the said defendant forthwith after taxation thereof. Decree for specific performance of contract Sor sale of land, on bill by vendor. This court doth declare that the agreement in the pleadings men- 390 FORMS OF PROCEEDINGS, [PETITIONS.—RE-HEARING. ] tioned ought to be specifically performed and carried into execution in case the plaintiff can make a good title to the premises in the said agreement mentioned, and doth order and decree the same accordingly; and it is ordered that it be referred to the master of this court to enquire and state whether a good title can be made by the said plaintiff to the said premises, and if so when a good title could have been first shewn by the said plaintiff; and the said mas- ter is to take an account of what is due to the said plaintiff under and by virtue of the said agreement for principal and interest in respect of the purchase money of the said premises; and this court doth reserve the consideration of further directions and costs until after the said master shall have made his report. PETITIONS, Preliminary observations. —See Order 5th of May, 1862, and notes pp. 275, et seg., supra. A petition, if in a suit, is entitled in the suit, it is addressed like the bill of com- plaint, ‘to the honourable the judges of the Court of Chancery,” and headed ‘ The petition of A. B., &c., one of the plaintiffs (or defendants as the case may be.)” It states succinctly the facts, and the substance, if possible, of the documents on which the prayer is founded; occasionally the documents must be set out; but the general rule is only to set out the material parts. The prayer of a petition is like the prayer of a bill; it prays specifically the relief desired or such other relief as the court may think just and fit. The petitioner must allege what he intends to prove. Petition for re-hearing. 1, That a decree was made in this cause in favour of and upon the application of the above-named plaintiff, on the day of , A.D., 186-. 2. Your petitioner submits and is advised and believes that the said decree is erroneous in substance, and the same should be vacated and set aside, or should at least be materially varied. (Jf the decree is to be varied, set out particulars of each objection.) Your petioner therefore prays that the said decree may be vacated or varied as to this honourable court may secm just, and for that purpose that this cause may be re-ucard before this honourable court. FORMS OF PROCEEDINGS. 391 [PETITIONS.—RE-HEARING.— TAXATION. ] Judge's fiat endorsed upon petition. Upon the petitioner depositing ten pounds with the registrar and consenting to pay such costs as this court may award in respect of any proceedings had upon the decree in this cause since the date thereof, let the registrar set this cause down for re-hearing next after the causes already appointed. Undertaking and certificate to be endorsed on petition. I agree, for the purpose of obtaining a re-hearing of this cause, to deposit ten pounds, and to pay such costs, if any, as this court may award, in respect of any proceedings ha:! upon said decree made herein. Signed in the presence of A. B., C. D. Solicitor for We hereby certify and submit that this is a proper cause for re-hearing. A. B. C. D. Petition to tax solicttor’s bill of costs. In the matter of A. B., one of the solicitors of this honourable court. (Address and commencement.) 1. That your petitioner was employed by C. D., of the village of , in the county of , a solicitor of this honourable court, as his agent in divers suits, causes, and matters in this hon- ourable court. 2. That your petitioner sent his bills of fees, charges, and dis- bursements by post to the said C. D., at the said village of , on the day of last, which said bills were subscribed with the proper hand of your petitioner, and were also accompanied by a letter subscribed in like manner referring to such bills. 8. That the said C. D. has made no application to refer such bills of costs for taxation, nor has he paid the amount of such bills or any part thereof to your petitioner. 4, That your petitioner has not commenced any action for the re- covery of such fees, charges, and disbursements. Your petitioner therefore prays that it may be referred to the 392 FORMS OF PROCEEDINGS. [PETITIONS.—UNDER 12TH vic., cH. 72.] master of this court to tax the said bills of fees, charges, and disburse- ments, and that the said C. D. and also your petitioner may produce before the said master upon oath as he shall direct all books, papers, and writings in their custody or power respectively relating to such bills or to any of the items or charges therein, and may be examin- ed upon interrogatories touching the same as the said master shall direct, and that the said C. D. may be ordered to pay to your peti- tioner what shall appear to be due to him upon such taxation to- gether with the costs of such reference and taxation. And your petitioner will ever pray, &c. Affidavits in support of above. In the matter of A. B., one of the solicitors of this honourable court. I, EH. F., of the City of Toronto, clerk of the said A. B., make oath and say, that on the day of last, I trans- mitted to C. D., at in the county of , the bills of fees, charges and disbursements mentioned and referred to in the peti- tion in this matter, by depositing the same in Her Majesty’s post- office, at the City of Toronto, aforesaid, which said bills were enclosed in an envelope addressed to the said C. D., written thereon. I further say, that the said bills were when so sent accompanied by a letter subscribed with the proper hand of the said A. B., and referring to the said bills. I further say, that at the time of mailing the said letter I requested that the same should be registered, and I paid the sum required for such purpose to the party to whott I delivered the said letter in the said post-office. (Add affidavit by solicitor verifying petition in every particular.) Petition for sale of infant’s estate under 12 Vic. ch. 12, and for appointment of guardian. In Cuancery. In the matter of A. 3., an infant, and in the matter of the 12th Victoria, chapter 72. To, &e. The humble petition of A. B., of , in the county of ; by C. D., her mother and next friend, and who applies by this petition to be appointed guardian for the said A. B. FORMS OF PROCEEDINGS. 393 [PETITIONS.—UNDER 127TH vic., cH. 72.] Sheweth, that your petitioner is the daughter and only child of one B. B., in his life-time, of the of , deceased, and C. B., his wife, now C.D. That the said B. B. departed this life in or about the year ——, intestate, leaving your petitioner and your petitioner’s said mother him surviving. That on or about the day of » your petitioner’s said mother intermarried with and became the wife of D. D., of the of ; That the said B. B., at his decease, left but a trifling amount of personal property and no real estate, but the said B. B., at his de- cease, was entitled to the patent from the Crown for the following lands, on payment of certain moneys therefor, that is to say, (de- seribing them fully). That the said B. B. had, before his death, paid to the govern- ment the sum of £——, or thereabouts, on the said lots. That the said D. D. did, in or about the month of , on behalf of your petitioner, but out of his own money, pay to the government the full balance of money and interest due for said lots, amounting altogether to the sum of £ or thereabouts, and thereupon a pa~ tent for the said lots issued to and in the name of your petitioner as the heir-at-law of the said B. B. deceased, which patent bears date day of That your petitioner is now over years of age. That your petitioner has ever since the death of your petitioner’s father lived with your petitioner's mother, and with the said D. D. since his marriage with your petitioner’s said mother. That your petitioner was supported by her said mother until your petitioner’s said mother intermarried with the said D. D., and since that time your petitioner has been supported by the said D. D., your petitioner having had no other means of support. That the said D. D. has a family of other children, and he has been and is obliged to spend all his earnings in supporting his said family. That the said D. D., for the last years, caused your petitioner to be educated, and to be kept at a respectable school in , aforesaid; and has paid the necessary expenses in that behalf. That your petitioner is possessed of no other property than the said lands and premises aforesaid. That each of the said lots is 50 894 FORMS OF PROCEEDINGS. [PETiTions.—UNDER 12rH vio., cH. 72.) about one-fourth of an acre in size. That there are no buildings on any of said lots except on lot No. — on street aforesaid, and your petitioner and said D. D. and C. D. have not nor has any or either of them derived any rents or profits therefrom. That on the said lot, No. —, on street, there is a two-storied frame dwelling house, but it is badly built, and has been, until recently, in a bad state of repair. That the said D. D. received no rents from the said lot last mentioned until after the issuing of the patent as hereinbefore set forth. That since that time the said D. D. has received rents from the said last mentioned lot at the rate of £ pounds per annum. That the said D. D. did, in or about month of . last, expend the sum of £ or thereabouts in repairing and improving the said house, and since that time the said D. D. has received rent.at the rate of £——. That your peti- tioner’s said father was, at the time of his death, indebted to one in a large sum of money. That the said had from the time of the death of your petitioner’s said father until about the date of the issuing of the letters patent as hereinbefore mentioned, continuously received the rents and profits of said lot, No. on street, whereby the said debt became satisfied. That the said , in or about the year ——, pretending that the said debt had not been paid, endeavoured to obtain a patent for the said lots, to be issued to him, and for that purpose made appli- cation to the government of this province. That the said D. D. opposed such claim of the said , and succeeded in so doing, and procured a patent to issue to your peti- tioner as aforesaid. That in resisting such claim on the part of said , and.in employing legal assistance therein, the said D. D. was put to expense and loss of time, which cost the au D. D. the sum of £ or thereabuuts, and in procuring such patent to issue to your petitioner the said D. D. was put to an expense of £ or thereabouts. That each of said lots, Nos. , is worth the sum of £—— or thereabouts, and the said lot, No. , on street, the sum of £ or thereabouts. Your petitioner shews that the said lots of land would have been FORMS OF PROCEEDINGS. 395 [PETITIONS.—vUNDER 127TH vic., cH. 72.] lost to your petitioner, had not the said D. D. paid the said money therefor to the government, as aforesaid, and resisted the claim thereto set up by the said , as aforesaid. Your petitioner sub- mits, that under the circumstances aforesaid, the said D. D. is enti- tled to be indemnified for his expenses in supporting your petitioner from the said month of. , until the present time; and also for the moneys he has so expended as aforesaid, in paying for the said lots of land, and in repairing the said house, and in defraying the expenses in opposing the claim of the said as aforesaid. And your petitioner is willing that one or more of said lots, as may be necessary, and such of them as it may seem desira- ble to sell, may be sold by and under the direction of this honourable court, and the proceeds applied towards paying the expenses afore- said, and in providing for the future support of your petitioner. And your petitioner submits that lots Nos. aforesaid, and lot No. , on street, if necessary, would be the most proper to be disposed of for the purposes aforesaid. That the sum of £——, or thereabouts, together with the rent of the said lot No. — on _street, will be required for the future support of your petitioner. That your petitioner has not and never had a legal guardian appointed for her, and your petitioner submits that your petitioner’s said mother is a fit and proper person to be appointed her guardian. Your petitioner therefore prays that your petitioner’s said mother may be appointed her guardian, and that it may be enquired accord- ing to the practice of this honourable court, what would be a proper allowance to be made to the said D. D., for the support and educa- tion of your petitioner, as aforesaid, from the time of the death of your said petitioner’s father; and also, that it may be enquired what will be a proper allowance to be made for the future support and education of your petitioner ; and also, that it may be enquired what expense the said D. D. has been put to in paying for the said lots to the government, as aforesaid, and in resisting the claim of the said , as aforesaid, and in procuring the patent to be issued to your petitioner, as aforesaid, and in repairing said house on lot No. , on street, as aforesaid; and also, that it may be enquired what moneys the said D. D. has received as rents and 396 FORMS OF PROCEEDINGS. [PETITIONS.—MASTER’S OFFIOE.]} profits of the said lot No. ——, on street, for and on. behalf of your petitioner; and that the said lots Nos. —, and lot No. ——, on —— street, if necessary, may be sold under the direction of this honourable court; and the proceeds arising therefrom ap- plied first in paying the costs of this application, and the moneys the said D. D. may be entitled to for such past maintenance and expenses, as aforesaid; and secondly, in providing for such future maintenance of your petitioner; and for that purpose that such money so to be applied for such future maintenance may be paid to your petitioner’s guardian, or to whom she may appoint ; and that your lordships will be pleased to make such further or other order in the premises, as to your lordships may seem meet. And your petitioner will ever pray, &c. (n) \ FORMS USED IN PROCEEDINGS IN THE MASTER'S OFFICE. Surcharge. (Full style of cause.) The —+— seeks to charge the , A. B., with the several sums of money of which the amounts and particulars are hereunder set forth beyond what the said , A. B., has admitted to have received by his account marked (A) filed in the office of the master of this court (at ) on the day of , 186 , under the decree (or order) in this cause bearing date the day of 186 , that is to say: (set forth particulars of surcharge.) ? Notice of surcharge. (Full style of cause.) Take notice that the seeks to charge the ~~, A. B., with the several sums of money of which the amounts and particu- lars are set forth in the schedule hereunder written, beyond what the said , A. B., has admitted to have received by his account marked (A) filed in the office of the master of this court (at ) on the —— day of ——, 186 , under the decree (or order) in this (nm) The practitioner must be careful to divide » petition similar to this, into paragraphs and number the same consecutively, following the practice thereon. FORMS OF PROCEEDINGS. 897 [{tasTER’s OFFICE.—DEPOSITIONS. ] cause, bearing date the day of » 186 , (ef an affidavit has been filed in support of the surcharge, add,) and that I have this day filed an affidavit of (the plaintiff, &c.,) in support of such sur- charge. Dated this day of ——, 186. c. D., , Solicitor. To the ——, A. B., and to E. F., his solicitor. The schedule above referred to. (Here state the amounts and particulars.) Examination paper on an examination before a master or special examiner. In CHANCERY. ‘ (Full style of cause.) Deposition of a witness sworn and examined in the above cause (or matter) before me. A. B. Master (at , 186 . ) Sworn the day of C. D., of the (township) of ,in the county of ; Esquire, (or C. D., the above named plaintiff, or defendant) examined on behalf of , saith as follows, &c.: IT, &e. Cross-examined on behalf of I, &e. Re-examined. The like for eross-examination of witness on an affidavit. In CHANCERY. (Full style of cause.) Deposition of a witness cross-examined in the above cause (or matter) before me. A. B., Master at , Sworn the day of , 186. C. D., of the (township) of , in the county of ———, 898 FORMS OF PROCEEDINGS. [wastEr’s OFFICE.—ADVERTISEMENTS. | (Esquire,) (or A. B., the above named plaintiff, or defendant,) cross- examined on behalf of on the affidavit of the said C. D., sworn in the above cause (or matter) on the -—— day of , 186 , and filed on the —— day of , 186 , saith as follows : I, &e., (0) Re-examined. Conclusion in both the above cases. I certify that the depositions contained in this (and the six pre- ceding) sheets of paper were taken by me, and were afterwards read over to the witness and signed by him in the presence of the arties attending. A. B., Master (at ——) Advertisement for creditors to come in under a decree. In CHANCERY. (Full style of cause or matter.) Pursuant to a decree (or order) made in this cause (or matter) dated the day of , 186 , the creditors of E. F., late of the (township) of , in the county of , squire, deceased, who died on or about the’-—— day of , 1860 , are _in person or by their solicitors, on or before the —— day of ’ 186 , to come in and prove their debts before me at my chambers (in Osgoode Hall, in the city of Toronto,) otherwise they will be peremptorily excluded from all benefit under the said decree (or order.) (Monday) the day of , 186 , at of the clock in the noon at my said chambers is appointed for hearing and adjudicating upon the claims. Dated at , this day of ——, 186 . G. H., Master (at ) (0) Depositions must be taken in the first person of the d t of Order LI. of 28rd December, 1857, supra, p. 249, ere eae FORMS OF PROCEEDINGS. 899 [MASTER’s OFFICE.—ADVERIISEMENTS, ] Advertisement of sale. In CHANCERY. (Full style of cause.) To be (peremptorily) sold by public auction in pursuance of a decree and final order for sale made by the Court of Chancery of Upper Canada in this cause, bearing date respectively the day of ———,, 186 , and the ——— day of 186 , and with the approbation of A. B., Esquire, the master (in ordinary) of this honourable court (at ———) on (Monday) the day of —_—-, at of the clock in the noon, at the chambers of the said master, at No. 1, street , (or at the auction room of Messrs. B. & C., No. 1, street , as the case may be) certain (freehold) premises being lot number one in the first concession of the township of , in the county of , containing by admeasurement 200 acres of land, more or less, (or some other sufficient description of the property) in one lot (or in — lots, consisting of, &c., set out lots, numbering them consecutively,) (p) (state also any particulars respecting the property which may be necessary, as to buildings, soil, condition of property, ce.) The purchaser shall, at the time of sale, pay down a deposit in the proportion of £10 for every £100 of his purchase money to the vendor or his solicitors, and shall pay the remainder of his purchase money (with interest thereon from the day of sale) on the day of next. (Here insert any particulars in which the proposed conditions of sale differ from the standing conditions, as where the premises are to be sold subject to a mortgage, or at an upset price, or a reserved bidding is to be allowed.) In other respects, and except as above mentioned, the conditions of sale are the standing conditions of sale of the said Court of Chancery. (7) If the lots are numerous and specified in a plan which is to be used at the sale, they may be described iu the following manner: ‘‘in — lots, numbering from street (northward) according to a plan to be produced at the sale, ench lot having a frontage on street of —— feet — inches, more or less, and a depth (westerly) to the (westerly) boundary of the said lot of —— feet — inches. 400 FORMS OF PROCEEDINGS. [MASTER'S OFFICH.—ABSTRACT OF TITLE.] The conditions of sale and further particulars may be obtained at the chambers of the said master (at ) and at the offices of Messrs. C. & D. at , and Messrs. HE. & F. at ——. Dated at ——, this day of ——, 186 . ; G. H., Master (at ) Messrs. C. & D., solicitors for the (plaintiff or defendant, as the case may be.) Abstract of title. 1. (1st January, 18—.) Patent from the Crown to A. A., where- by the Crown in consideration of £100 granted to said A. A., his heirs and assigns, (the lands in question in this cause being,) all that certain parcel or tract of land (deseription.) 2. (Date). Indenture of bargain and sale between said A. A. of the first part, Mary, his wife, of the second part, and B. B. of the third part. It was witnessed, in consideration of £150 to said A. A., paid by the said B. B., said A. A. did grant, bargain and sell, &c., unto said B. B., his heirs and assigns, the said land and all the estate of said A. A. therein, (or shortly as the granting part is worded in the indenture.) To have ang to hold the same unto said B. B., his heirs and: as- signs, to and for his and their sole and only use for ever (following the habendum shortly.) And Mary, wife of the said A. A., thereby barred her dower in said land. (Set out covenants shortly.) Executed by said A. A. and Mary, his wife, and attested, and receipt for consideration endorsed (as the case may be.) Registered in the registry office of the county of day of 18—. 3. (Date). Indenture of grant between said B. B. of the first part, and C. C. (a feme sole) of the second part. It was witnessed in consideration of £200 to said B. B. paid by said C. C., said B. B. did grant unto said C. C., her heirs and as- signs, said land and all the estate of said B. B. therein. on the FORMS OF PROCEEDINGS. 401 [MASTER’s OFFICE.—ABSTRACT OF TITLE. ] wo covenants, execution, §e., and registration as in 0. Said B. B. (the grantor) was unmarried on the —— day of —— 18—, the date of present indenture. 4. (Date.) Indenture of grant between C. D., (formerly said C. C.,) wife of D. D. of first part, said D. D. of second part, and H. E. of third part. It was witnessed in consideration of £250 to said C. D. paid by said E. E., said CO. D. did, with the consent of said D. D., grant unto said E. E., &c. And said D. D., in consideration of 5s., &c., granted unto said H. E., his estate in the said land. (Habendum and covenants as in No. 2.) Executed by said C. D. and D. D. at ——, and attested, &c., (as in No. 2.) Acknowledged by said C. D. in pursuance of the statute in that behalf before two of Her Majesty’s justices of the peace at —— (the place of execution) as appears by endorsement on present indenture. Registered, &c., (as in No. 2.) 5. (Date.) Indenture of mortgage between said H. H. of the first part, Ann, his wife, of the second part, and F. F. of the third part. (Granting part and habendum as in No. 2, following mortgage shortly.) Proviso making void the present indenture on payment of £ with interest for the same at the rate of — per centum per annum, on the day of , 18—. (Covenants, execution, fc., and registration as in No. 2.) 6. (Date.) Indenture of assignment between said F. F., of the first part, and G. G., of the second part. Reciting the hereinbefore abstracted indenture of mortgage No. 5, and that the sum of £ remained due by virtue thereof to the said F. F. for principal and £—— for interest, to the day of the date of present indenture. (Granting part, habendum, execution, registration, fc., as in No. 2, following assignment shortly.) 61 402 FORMS OF PROCEEDINGS. [MASTBR’S OFFICE.—ABSTBACT OF TITLE, £0.) 7. (Date.) Discharge of mortgage between. G. G. of one part, and H. E. of other part. Reciting payment of hereinbefore abstracted indenture No. 5. Executed by said G. G., and attested by two witnesses, registered, &e., (as in No. 2.) 8. (Date.) Last will and testament of E. H., whereby’ the said E. E. devised the said land to H. H. Executed by said E. E. in presence of two witnesses, who sub- scribed their names as such at the request of said EH. E., in his presence. Said E. E. died on the day of ——, 18—, without having altered or revoked the will hereby abstracted, and leaving said H. H. him surviving. Said will proved in the Surrogate Court of the county of ——, on the day of , 18—. Registered, &c., (as in No. 2.) . 9. (Date.) Indenture of grant between A. H., the widow, and B. H., C. H. and D. H., the children of said H. H., of the one patt, and I. I. of the other part. Reciting death and intestacy of said H. H., leaving: him surviving said A. H., his widow, and B. H., C. H. and D. H., his only child- ren and co-heirs and heiress at law. (Set out shortly the granting part, habendum, and covenants, and state execution, attestation, §c., and registration, as in No. 2.) Notice to object to be attached to the abstract when served. (Order XXXVI, sec. 12, p. 160, supra.) - . In CHANCERY. (Short style of cause.) Take notice that if you do not object to the title of the (plaintiff) to the land mentioned in the annexed abstract, being the land in question in this cause, and obtain and serve a warrant (or an ap- pointment) from the master of this honourable court (at ——) (or from a judge of this honourable court) to consider the same within FORMS OF PROCEEDINGS. 403 [MASTER’S OFFICE.—REPORT FORECLOSURE suIT.] fourteen days from the service hereof, and of the delivery of the said abstract, you will be deemed to have accepted such title. Dated this —— day of , 18—. A. B., Solicitor. To C. D., the , and to E. F., his solicitor. Report in foreclosure suit where no parties added by the master. (Title as in decree.) In pursuance of the decree-made in this cause, bearing date the — day of , one thousand eight hundred and , I was attended ‘by the plaintiff’s solicitor, and it appearing to me by the certificate of the sheriff and (deputy) registrar of the county of that no person or persons not before parties to this suit had.any lien, charge, or incumbrance upon the lands and premises embraced in the plaintiff’s mortgage in the bill in this cause men- tioned subsequent thereto, I proceeded to hear and determine the matters referred to me by the said decree, and thereupon was attended.by the solicitor for the said plaintiff, no one appearing for ‘the said defendant against whom the said bill has been taken pro confesso. And I find, that. at the date of this my report there is due to'the said plaintiff upon his mortgage aforesaid, for principal money, the sum of ,and for principal and interest the sum of —, .And'I have computed subsequent interest upon the said principal money, from the date of this my report, for the period of six months thereafter, and find the same amounts to the sum of And I have taxed to the said plaintiff his costs of this -suit, at the sum of , which said principal money, interest, and -gubsequent interest, together with the said costs, amount in all to -the sum of And I appoint the same to be paid by the said defendant to the joint credit of the said plaintiff and the registrar of this honourable court, into (insert the name of whatever bank the plaintiff desires) between the hours of ten of the clock in the fore- ‘noon, and one of the clock in the afternoon of the day of next, being six months next after the making of this my report, as by the said decree is directed. All which I humbly certify and submit to this honourable court. 404 FORMS OF PROCEEDINGS. [MASTER'S OFFICE.—REPORT FORECLOSURE suIT. ] Report in foreclosure suit where subsequent incumbrancers are found, some of whom i and some do not. In CHANCERY. (Full title of cause, as follows.) Between A. B., Plaintiff, and: ; ; C. D., and E. F. and G. H., an infant under the age of irante-ote years, by J. K, his guardian (as in the decree; if parties are made by We master, add) by bill, and 'L.M. and N. O., made pasa in the master’s office, a Defendants. In pursuance of the decree made in this cause, as originally enti- tled, bearing date the —— day of one thousand eight hundred and , I was attended by the plaintiff’s solicitor, and it appear- ing to me by the certificates of the sheriff and (deputy) registrar of the county of ——, that L. M. and N. O., not Before parties to this suit, had some lien; charge, or figumranea upon the lands and premises embraced in the plaintiff’s mortgage in the bill in this cause mentioned, subsequent thereto, and ought to be made parties, I did order that they shoujd be made parties to this suit, according to the General Orders of this court, of February, one thousand eight hundred and fifty-eight. And it subsequently appearing to me that office copies of the said decree, on which were endorsed notices in accordance with schedule A. to the said General Orders, had been served upon each of the said parties so made, pursuant to my order as aforesaid, I proceeded to hear and determine the matters referred to me by the said decree, and thereupon was attended by the solicitors for the said plaintiff and the said infant defendant G. H., and the said defendant L. M:, no one attending for the defen- dant 'N.0., though duly notified as aforesaid, nor for the defendants C. D. and E. F., against whom the said bill has: been taken pro confesso. And I find, that at the date of this my report there is due to the said plaintiff upon ‘his mortgage aforesaid, for principal money, the sum of ———, and for principal money and interest the sum of . (Here state any special sums allowed to the plaintiff for tans, or premiums of insurance, gc.) ae FORMS OF PROCEEDINGS. 405 [MASTER’S OFFICE.—REPORT FORECLOSURE SUIT. ] And I have taxed to the said plaintiff his costs of this suit at the sum of , Which said principal money and interest, (and sums paid for taxes, &c.,) together with the said costs, amount in all to the sum of And I further find that at the date of this my report, there is due to the said defendant L. M., under and by virtue of a writ of fiert facias lodged in the hands of the sheriff for the said county of ——, founded on a judgment at law recovered by the said L. M. against the said defendant on the day of ——, in the year, &c., for principal money and taxed costs at law, bearing interest, the sum of —-—, and for such principal money and taxed costs at law bearing interest, and interest, the sum of And Ihave allowed for costs at law incidental to the lastly mentioned judgment, not bearing interest, the sum of i (insert the amount allowed for fi. fas. and sheriff's fees, which should be the amount usually allowed at common law,) and I have taxed the costs of the said defendant L. M. of this suit, at the sum of , which said last mentioned principal money, taxed costs at law bearing interest, and interest, incidental costs at law not bear- ing interest, and costs of this suit amount in all to the sum of ‘ And I certify, that, although notified as aforesaid, the said defen- dant, N. O., hath not attended before me, nor proved before me any subsisting lien, charge, or incumbrance upon the lands and pre- mises aforesaid, whereby he hath under the said general orders of this court disclaimed and is foreclosed of all interest in the said lands and premises; and I hereby declare him foreclosed accord- ingly. And I have settled the priorities between all the said par- ties to this suit who have proved claims before me as aforesaid, and find that such priorities are in accordance with the order in which the said claims are hereinbefore mentioned and set forth, And I further certify, that of the said plaintiff and the said defendants, L. M., &c., the said plaintiff and the said defendant, L. M., only having attended before me, in respect of the matters aforesaid, appear to me to be of them the only incumbrancers upon the said lands and premises embraced in the plaintiff’s mortgage. All which I humbly certify and submit to this honourable court. 406 FORMS OF PROCEEDINGS. . [MASTER'S OFFICE.—SUBSEQUENT REPORT FORECLOSURE. ] Subsequent report in foreclosure suit after a decree on further direc- tions has-been obtained on the foregoing report. (Title as in decree on further directions.) Pursuant ‘to the decree on further directions made in this cause, bearing date the day of , one thousand eight hundred and sixty: , L proceeded to hear and determine the matters thereby referred to me, and thereupon was attended by the solicitors for the said ; and I find that by my report made in this cause, bearing date the day of last, I reported the total sum of to be due to the said plaintiff, of which tlie sum of is principal money; and I have computed subsequent interest upon the said principal money to the day hereinafter appointed for pay- ment, and find the same amounts to the sum of (insert also any sums allowed for taxes, premiums of insurance, gc., paid since the former report,) and I have taxed to the said plaintiff his subse- quent costs of this suit at the sum of -, which said subsequent interest and subsequent costs (and sums allowed for taxes, &c.,) being added to the total sum so as aforesaid reported due, they together make the sum of And I appoint the-said last men- tioned-sum of money to be paid by the said defendant L. M. (follow- ‘ing the decree on further directions) to the joint credit of the said plaintiff and the registrar of this honourable court into the Commer- cial bank of Canada at its branch agency office in the - of (or wherever the plaintiff desires the money to be paid) between the ‘hours of ten of the clock in the forenoon and one of the clock in the afternoon of the day of next, being months. next after the making of this my subsequent report, as by the said decree on further directions is directed. All which I humbly certify and submit to this honourable. court. Report as to title, ¢e., in a suit for specific performance by. vendor against widow and heirs of vendee. . _ Pursuant to the decree made in this cause, bearing date the —— day of —— last, I was attended by the solicitors for the said plain- tiff and the guardian of the said infant defendants, no one attending FORMS OF PROCEEDINGS. 407 [atasTER’s OFFICE.—REPORT SPECIFIC PERFORMANCE. before me on the part of the said defendant against whom the plaintiff’s bill was taken pro confesso, and> an abstract of the title of the plaintiff to the lands and premises specified in the agree- ment in the bill in this cause mentioned, and a notice to object thereto within fourteen days from the day of such service having been served on the guardian of the said infant defendants, and notice of an objection to such title on the part of the said infant defendants having been given to the solicitors for the said plaintiff; and having proceeded thereon and considered the same, I find that the said plaintiff can make a good title to the said lands and premises, (¢) and that such good title could have been first shewn by the said plaintiff on the day of » in the year, &c. And I have taken an account of what is due to the said plaintiff under and by virtue of the said agreement for principal and interest in respect of the purchase money of the said lands and premises, and find that there is so due to the said plaintiff for principal money the sum of & , and for principal money and interest the sum of £ , and for taxes paid by the said plaintiff upon the said lands and premises subsequent to the date of the said agreement, the sum of £ : and for interest thereon the sum of £ , and for postages, incur- red in transmitting such taxes the sum of , Which said sums of £—, £ , &c., in the whole amount to the sum of £ , of which the sum of £. is principal money. And I have taxed to the said infant defendants their costs of this suit up to and inclusive of the hearing of this cause at the sum of £——,, and it appearing before me that such costs have been paid by the said plaintiff to the guardian of the said infant defendants, I have added the same to the said sum of £—— found due for purchase money, W&c., as afore- said, and the same amount together to the sum of £ : _ All which I humbly certify and submit to this honourable court. Report in administration suit. (See schedule Q., p. 212, supra.) (Full style of cause.) (Date.) Pursuance to the decree (or order) made in this cause (as (gq) If the master report against the title, he must state the point or points in which the title is defective. 408 FORMS OF PROCEEDINGS. MASTER'S OFFICE.—REPORT ADMINISTRATION. ] _ originally entitled) bearing date the day of last, I was attended by the solicitors for , (except the defendant A. B., against whom the plaintiff’s bill was taken pro confesso,) and by the solicitor for the guardian of the said infant defendants. And I have taken the accounts and made the enquiries in the said decree directed. And upon the first enquiry in the said decree (or order) mentioned, I find that the personal estate not specifically bequeathed of the said C. D., deceased, the testator in the said decree (or order) men- tioned, come to the hand of the said E. F., (the executor) or to the hands of any other person or persons by his order or for his use (or which without his wilful default or neglect might have been re- ceived by him) is as follows, that is to say : Tit PO0dSesisicas as vate weaves vay sondasine te aieesen veins Sons der Beano -£0 0 0 Tis POW bs Eo snes za ocaeaanvcse sconces nabs sudan yeas case's 0 0 0 In other debts.......0. cesseeeeseeerenere cath We getlinancnge seme abis 0 0 0 Interest on mortgages and other debts accrued or col- lected in Cash.....ssssssrsessseeusensserseeseren sveasoeees 000 Amounting to the sum of......... a Saweeneees estloiaqaind £0 0 0 To which I have added for rents and profits of real estate as in reference to the eighth enquiry is hereinafter MENON Disssisveviawsde verre deed vcasaces seetuasgeeshteeas 0 0 0 Making from personal estate, and rents and profits of real estate, the sum Of...........esseceeseeeeedesensecens £0 0 0 (Lf a receiver has been appointed, and the mortgages, fc., have been handed over to him, say) of which I find that a portion has since passed into the hands of the receiver in this cause as shown by the account filed on the day of last, that is to say : MORE SNERS; io ssnccyjrapermanieapethenas dusveaddonewnos siesta cae -£0 0 0 Notes, debts, costs, and interest............ sie ndaudeca worsens 00 0 Cash in (Commercial Bank)........ guns er 000 Cash in receiver’s hands........ aieciaens ered ge vaiaaiasiaarsen cadence 0 0 0 Cash in bailiff’s hands for receivers....ccsses scsessvececcaee 00 0 Amounting to the sum Of....ccscccocsssssccersssesensreee £0 0 0 FORMS OF PROCEEDINGS. 409 [MASTER’S OFFICE.—REPORT ADMINISTRATION. ] which being deducted from the said sum of (the total amount of per- sonalty, and rents and profits as above) the balance is the sum of ; for which the said E. F. was accountable to the estate of the said testator, and in respect of the application thereof by the said E. F., I find that the same has been as follows, that is to say: In payment of the debts of the testator........cccsceeseee £0 0 0 In disbursements and expenses necessarily incurred in and about the administration, preservation and col- lection of the personal estate and other payments... 0 0 0 For funeral and testamentary expenses of the said tes- tator, of which the sum of £— was for testamentary and funeral expenses (and the sum of £— was for the cost of a monument and expenses attending the erecting and enclosing the same, which I find, con- sidering the station in life of the testator and the amount of his property, was not, according to the evidence before me, an unreasonable expenditure)... 0 0 0 In payments to the legatees of the said testator the fol- lowing sums, that is to say—(set out sums paid to legates) ...-.++ de egies “Sara aan arte ve; venstvtelustssbadeweatas “Q50) 0 In payments to A. A., the widow of the said testator, for the maintenance and education of the infant child- ren of the testator as follows :—(set out sums paid to the mother.) (If any of the children have died since the death of the testator say) ssc 09 0 0 In payments to the said A. A. for the maintenance and support, medical expenses and funeral expenses of G. H., deceased, an (infant) son of the testator...... 0 0 0 Improvements to, and taxes on, the real estate of the said testator (of which the sum of £— was for taxes)... 0 0 0 (Set out here any further allowances made to the execu tor, such as debts converted into judgments and still uncollected, and personal estate converted into real 0 0 0 estate, GCereceesearceerers se cee eeeeesaecneeens eoneueeueseeees Amounting in all to the sum Of asus wore LO YO 52 . 410 FORMS OF PROCEEDINGS. [MASTER’S OFFICE.—REPORT ADMINISTRATION. ] Which being deducted from the said sum of (the amount for which EL. F., the executor, was accountable) leaves the sum of undis- posed of in the hands of the said H. F. And upon the second enquiry in the said decree (or order) men- tioned, I caused an advertisement to be published in certain news- papers called for the creditors of the testator to come in and prove their debts before me by a certain day now past, or they would be peremptorily excluded from the benefit of the said decree, and in pursuance of the said advertisement (three) creditors of the said testator and his estate came in and proved their debts before me and the amounts allowed to them for principal money, interest and costs appear in schedule A. to this my report, which I find are the debts of the said testator remaining unpaid (or ¢f no creditors come in state the fact accordingly.) And in respect of the third reference in the said decree, I find that the funeral (and testamentary) expenses of the said testator (including the costs of and incidental to a monument) amount to the sum of as hereinbefore mentioned. And upon the fourth enquiry I find that the said testator’s lega- cies are as set forth in schedule B. to this my report. And upon the fifth enquiry mentioned in the said decree, I find that the parts of the personal estate of the said testator outstanding or undisposed of are as follows, that is to say: Mortgages, notes, debts, cash, &c., in the hands of the receiver, amounting, as hereinbefore mentioned, to the sum Of.....ccccsessseecrssscscsencssrecssstscssscesseeess LO 0 The said balance in the hands of the said E. F ........... 0 0 0 (The hereinbefore mentioned personal estate converted Oo into real estate valued at).....0.0: sessse cesseeerseeeee O 0 0 (The hereinbefore mentioned sum of the judamens seainat Ax ¥. atimated, tte cuswnscenacion wormwanae WO 0 0 Amounting to the sum of...... etettenn Tn 0 0 Together with certain rents of real estate referred to in the receiver's account and not yet collected, and also the real estate purchased with personal estate as hereinbefore mentioned; and the reasons FORMS OF PROCEEDINGS. 411 [MASTER’s OFFICE.—REPORT ADMINISTRATION. ] why and the circumstances under which the same are undisposed of are as hereinbefore stated under the first enquiry. And upon the sixth and seventh enquiries mentioned in the said decree, I find that the real estate the said testator was seised of or entitled to at the time of his death, and the incumbrances which affect the same, are set forth in schedule C. to this my report. And upon the eighth enquiry I find that the rents and profits of the said testator’s real estate received by the said E. F. or by any other person or persons by his order or for his use amount to the sum of hereinbefore mentioned, (and that it has not appeared before me that any part of the rents and profits of the testator’s real estate has been lost by the default or neglect of the said E. F., or by any person or persons acting for him, and (or but) I find that there are rents and profits of the said testator’s real estate remaining upcollected by the receiver as hereinbefore mentioned. All which I humbly certify and submit to this honourable court. 412 FORMS OF PROCEEDINGS. [MASTER’S OFFICE—REPORT ADMINISTRATION. ] SCHEDULE A. REFERRED TO IN THE FOREGOING REPORT. List of debts. (r) No. of Amounts allowed|Total amounts entry of Names of Creditors. Addresses. principal, due. claim. interest, & costs. . 2 |James Allen....|\—,in thecounty)y £ s. ad] £8. d of —,surgeon.| 100 0 0 Interest.......- 4 0 0 Costs ...... veel 2 2 0 ——-——| 106 2 0 1 ‘Charles Cohen.|No. —, — street, in the town of —, gentleman, executor of J. Thomas......... 67 0 0 Interest from 5th October, 186 , at — per cent. COstiiscessivevenses ; 5 John Dennis & ——_-_-——__| 78 4 0 Owen Thomas.|No. —, — street, city of —, gro- cers, and co- partners........ 100 0 0 Interest from 16 October, 186 , at — percent.) 5 Another debt...... 62 Interest from 1st January, 186 , at— percent.| 2 10 COStS ...eeeseen ere 2 4 be bo bo oo oo oO aD 171 14 6 Total...J£351 0 6 ; (7) If debts bear interest, interest is calculated accordingly; if they do not bear interest, interest is only calculated from the date of the decree. Interest on legacies is calculated from one year from the death of the testator, or from the time of pay- ment, as directed by the will. (ee Order XLII, sec. 14, supra, p. 200.) The above forms are framed accordingly. In all cases the interest is calculated to the date of the report. FORMS OF PROCEEDINGS. 413 [MASTER’s OFFICE.—REPORT ADMINISTRATION. | SCHEDULE B. REFERRED TO IN THE FOREGOING REPORT. List of legacies. (r) Amount of No. Name of legatees. Descriptions. principal and | Total amounts interest. due. | Sey Mel ee a. James Oliver....|Son of testator, an infant....... ; 100 0 0 Interest .........0 7 5 6 —-_|107 5 6 Mary Russell...Of 20-——street,| city of | 50 0 0 Interest from 1 January, 186 . The death of tes- tator, (7f so)... 4 8 0 54.8 4 Jane, the wife\Of the — of —, of John Wil-| in the county ; liams...... we) Of —, Esquire.| 250 0 0 Paid on account.) 50 0 0 200 0 0 Interest... ........ 14 11 0 214 11 0 Total...|\£376 + 10 SCHEDULE C. REFERRED TO IN THE FOREGUING REPORT. An account of what real estate the said testator was seised of or entitled to at the date of his death, and whether any incumbrances affect the same. Lot 20 on the east side of —— street, in the —— of -— and county of , containing 50 acres more or less. (Give full particulars as to buildings, soil, condition of lot, and incumbrances, if any.) (Go through all the real estate in the same way.) (If there are no incumbrances on any of the lots, say after going through the lots, ‘there were no incumbrances existing on any of the real estate at the time of the death of the said testator, except the dower of his widow, the said A. A., neither have any been incurred since, except for taxes,” or as the facts may be.) 414 FORMS OF PROCEEDINGS. [cCERTIFICATES.—LIS PENDENS.—STATE OF CAUSE.—FORECLOSURE. ] MISCELLANEOUS FORMS. Form of a certificate of lis pendens. I certify that in a suit or proceeding in Chancery, between John Smith, plaintiff, and John Styles, defendant, some title or interest is called in question in the following lands, that is to say, (describing them.) And at the request of the said plaintiff, this certificate is given for the purpose of registration, pursuant to the statute in such case made and provided. Given under my hand, and the seal of the said court, (or seal of office,) this day of A.D, 18—. Registrar. Form of a certificate of the state of cause. In CHANCERY. Tuesday the day of January, A.D. 186 . (Full style of cause.) This is to certify that the plaintiff filed bill in this cause, on the day of , 186-, (as the entries are in the registrar's book of causes.) Since which no further proceeding has been taken in this cause, as by my books appear. Registrar. Form of a certificate of a final order of foreclosure. In Cuancery.—This is to certify, that by a final order of fore- closure, bearing date the day of , one thousand eight hundred and , and made by the said court in a certain cause pending therein, wherein John Smith is plaintiff, and John Styles is defendant, it was ordered that the said defendant, John Styles, should stand absolutely debarred and foreclosed of and from all right, title, and equity of redemption of, in, and to the mortgaged premises, in the pleadings in the said cause mentioned, being (describing them as in bill.) And at the request of the said plain- tiff this certificate is given, for the purpose of registration, pursuant to the statute in such case made and provided. Given under my hand and the seal of the said court, this —— day of » AD. 136 . Registrar. FORMS OF PROCEEDINGS. 415 [SUBP@NA.—FI. Fa. costs. ] Form of a subpena. CANADA. f In CHANCERY. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To (A. B., C. D. and E.F.,) greeting: We command you, (and each of you,) that, laying all other matters aside, and notwithstand- ing any excuse, you personally be and appear before (one of the judges of our court, at the court house, at , in the county of —, on the day of » AD. 186 , at the hour of ten o'clock in the forenoon, and so on from day to day until the suit hereinafter mentioned is disposed of) to testify the truth according to your knowledge in a certain suit now pending in our Court of Chancery, wherein G. H. is plaintiff, and J. K. is defendant, on the part of the (plaintiff or defendant, as the case may be ;) (in the case of subpena duces tecum, add, “and that you then and there bring with you and produce.’’} And herein fail not at your peril. Witness, the Honourable Partie MicHaEL MattHEew Scott Vanxkougunet, our Chancellor, this day of 186 , in the year of our reign. L. M., Solicitor, Toronto, C. W. Registrar. Form of fi. fa. for costs. CANADA. In CHANCERY. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the sheriff of the , greeting: We command you, that of the goods and chattels of John Styles in your bailiwick, you cause to be made the sum of twenty pounds for certain costs which were lately before us in our Court of Chancery, in a certain cause wherein John Smith is plaintiff, and John Styles is defendant, by an order (or decree) of our said court, bearing date the ——- day of , ordered to be paid by the said John Styles to the said John Smith, and which costs have been 416 FORMS OF PROCEEDINGS. [FI. FA. COSTS.—FI. FA, DEBT AND CoSsTS.] taxed and allowed by the master of our said court, at the sum of twenty pounds, as appears by the certificate of the said master, dated the —— day of , together with interest on the said sum of twenty pounds, at the rate of six per centum per annum, from the day of And that you have that money and interest before us, in our said court, immediately after the execution hereof, to be paid to the said John Smith, in pursuance of the said order, (or decree,) and in what manner you shall have executed this our writ make appear to us in our said court immediately after the execution thereof. And have there then this writ. Witness the Honourable Pattie Micuart MattHew Scott Van- KOUGHNET, our Chancellor, this day of ——, A.D. 18—, in the twenty —— year of our reign. Registrar. (Endorsement on back of foregoing.) By THE CouURT. Levy £—— and interest at £6 per centum per annum, from the day of , until payment, together with £ for this writ, warrant thereon, &c., besides officers’ fees, sheriff’s poundage, and all other legal incidental expenses. This writ is issued by of , Solicitor for the said ‘ The within named is a merchant, and resides at in your bailiwick. Form of a fi. fa. for debt and costs. CANADA. In Cuancery. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith. To the sheriff of the , greeting: We command you that of the goods and chattels of in your bailiwick, you cause to be made the sum of , which said sum of money was lately before us in our Court of Chancery in a certain by a of our said court, bearing date the day of ——— ordered to be paid by the said to , together with certain costs in the said mentioned, and which . FORMS OF PROCEEDINGS. A41T [MISCELLANEOUS.—FI. FA. DEBT AND COSTS.—WRIT OF ARREST. ] costs have been taxed and allowed by the master of our said court, at the sum of as appears by the certificate of the said master dated the day of , and that of the said goods and chattels you further cause to be made the said sum of together with interest at the rate of six per centum per annum, on the said sum of from the day of , and on the said sum of from the day of . And that you have that money and interest before us, in our said court immediately after the execution hereof, to be paid to the said in pursuance of the said , and in what manner you shall have executed this our writ make appear to us in our said court immediately after the execution thereof. And have there then this writ. Witness the Honourable Pattie MicuaEL Mattnew Scott VANKOUGHNET, our Chancellor, this day of _ A. D. 18—, in the twenty year of our reign. ————,, Registrar. (Endorsement on the foregoing.) BY THE COURT. Levy £ and interest at £6 per centum per annum from the day of until payment, together with £ for this writ, warrant thereon, &c., besides officers’ fees, sheriff’s poundage, and all other legal incidental expenses. This writ is issued by of , solicitor for the said The within named is a merchant, and resides at in your baliwick. Form of writ of arrest. CANADA. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith. To the sheriff of . greeting: Whereas it is represented to us, in our Court of Chancery, on the part of , complainant, against — , defendant, that he the said defendant is greatly indebted to the said complainant, and designs quickly to go into other parts beyond this province, (as by 53 —, 418 FORMS OF PROCEEDINGS. [MISCELLANEOUS.—WRITS.—ARREST,—INJUNCTION. ] oath made in that behalf appears,) which tends to the great prejudice and damage of the said complainant: therefore, in order to prevent this injustice, we do hereby command you that you do, without, de- lay, cause the said personally to come before you, and give sufficient bail or security, in the sum of ——, that the said — will not go, or attempt to go into parts beyond this province, with- out leave of our said court. And in case the said shall refuse to give such bail or security, then you are to commit him the said —— to 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 hand together with this writ. Witness, the Honourable our Chancellor, at Toronto, this day of , 18—, and in the —— year of our reign. , —, Registrar. ———, Plaintiff’s Solicitor. Form of. writ of injunction. CANADA. In CHANCERY. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To (A. B., his servants, workmen, and agents, or as the case may be) greeting: Whereas it has been represented to us, in our Court of Chancery, on the part of — complainant, that he hath lately filed bill of complaint in our said Court of Chancery, against you the said , to be relieved touching the matters therein complained of, in which billit is stated, among other things, that your actings and doings in the premises are contrary to equity and good conscience. We therefore, in consideration thereof, and of the particular mat. ters in the said bill set forth, do strictly command you the said and the persons before mentioned, and each and every of you, under the penalty of five thousand pounds, to be levied upon your lands, goods, and chattels, to our use, that you do absolutely desist and refrain from (follow order for injunction.) FORMS OF PROCEEDINGS. 419 [MISCELLANEOUS.—WRITS.— ATTACHMENT —SEQUESTRATION. ] Witness, the Honourable Partrp MrcuaeL Mattruew Scorr VANKOUGHNET, our Chancellor, this day of —~—-, 18—, in the year of your reign. ———, Registrar. , Plaintiff’s Solicitor. Form of writ of attachment. CANADA. In CHANCERY. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the sheriff of the — » greeting: We command you, that you attach so as to have body before our Chancellor, in our Court of Chancery of Upper Canada, at Toronto, at the expiration of fifteen days after the execution hereof, there to answer unto us as well touching the con- tempt which as is alleged, hath committed against us, as also such other matters as shall then and there be laid to charge, and further to perform and abide such order as our said court shall make in this behalf. And have you then there this writ; and make and return a certificate under your hand, of the manner in which you shall have executed the same. Witness, the Honourable PaiLip MicwaEL MattHew Scott VanKoucuyet, our Chancellor, this 18—, in the year of our reign. , Registrar. day of —, Solicitors. Form of writ of sequestration. CANADA. In CHANCERY. Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the sheriff of the , greeting: Whereas (recite Order.) Know ye therefore, that we, in confidence of your prudence and fidelity, have given and by these presents do give unto you, full power and authority to enter upon all the mes- suages, lands, tenements and real estate whatsoever of the said 420 FORMS OF PROCEEDINGS. 4 [MISCELLANEOUS.—WRITS.—ASSISTANCE. ] , and to collect, receive and sequester into your hands not only all the rents and profits of said messuages, lands, tene- ments, and real estate, but also all goods, chattels and per- sonal estate whatsoever. And therefore we command you that you do at certain proper and convenient days and hours, go to and enter upon all the messuages, lands, tenements and real estate of the said , and that you do collect, take and get into your hands, not only all the rents and profits of said real estate, but also all goods, chattels, and personal estate, and detain and keep the same under sequestration in your hands until the said shall clear contempt, and our said court make other order to the contrary. Witness the Honourable Painrp Micaarn MattHew Scorr VankouGunset, our Chancellor, this day of ——, 18—, in the twenty year of our reign. Writ of assistance. Victoria, &c., a To the sheriff of the county (or united counties) of , as well present as for the future, greeting: Whereas according to the tenor and true meaning of an order made in a certain cause depending in our court of Chancery for Upper Canada, between A. B., complain- ant, and C. D., defendant, the said C. D. was ordered and enjoined to deliver up possession to , in the said order named, of all (description of property as in the order,) yet nevertheless he, the said C. D., and other ill disposed persons his accomplices, have re- fused to pay obedience thereto, and detain and keep possession of the said premises in manifest contempt of us and of our said court, Know ye therefore, that we being willing and desirous that justice should be done to the said A. B. in this behalf do give you full . power and authority to place and put the said A. B., or his assigns; without delay into the full, peaceable, and quiet possession of all and singular the said premises with their appurtenances, and from time to time as often as there shall be or may be occasion to maintain and keep him and his assigns in such peaceable and quiet possession, according to the intent and true meaning of the said order of our said court; and therefore we do hereby command and enjoin you FORMS OF PROCEEDINGS. 421 [MISCELLANEOUS.—BOND SECURITY FOR COSTS. ] that immediately after your receipt of this writ you do go and repair to and enter into and upon the said premises, and that you do remove, eject, and expel the said C. D., his tenants, ser- vants, and accomplices, each and every of them out of and from the said premises, and every part and parcel thereof, and that you do place and put the said A. B., and his assigns, into the full, peaceable and quiet possession thereof, and defend and keep them and their assigns in such peaceable and quiet possession, when and as often as any interruption may or shall from time to time be given or offered to them or any of them, according to the true intent and meaning of the said order, and herein you are not in anywise to fail. Witness the Honourable Painip MicnaeL Matruew Scort Van- KOUGHNET, our Chancellor, this day of 18—, in the year of our reign. Bond for security for costs. (s) Know all men by these presents that we A. B., of the-— of in the county of , Esquire, and C. D., of the of in the county of , Esquire, are jointly and severally held and firmly bound unto E. F., Esquire, the (deputy) registrar of the Court of Chancery of Upper Canada (at the place where the bill zs filed) in the penal sum of one hundred pounds, (or whatever sum is fixed by the order,) of lawful money of Canada, to be paid to the said E. F., his certain attorney, executors, administrators or assigns, for which payment well and truly to be made, we bind cur- selves, and each of us, our, and each of our heirs, executors and administrators, firmly by these presents, sealed with our seals, dated this —*~ day of , in the year, &c. Whereas X. Y., plaintiff, filed his bill of complaint in the said Court of Chancery for Upper Canada, against G. H. and J. K., (s) Sec. 6 of Order XLIII. supra, p. 211, requires all the defendants to be included in the same bond. The execution should be verified by affidavit and the sureties must justify, if required, in double the amount of the penalty. 422 FORMS OF PROCEEDINGS. [MISCELLANEOUS.—RECKIVER’S RECOGNIZANCE. ] defendants, touching certain matters therein contained; now the condition of the hereinbefore written obligation is such that if the above bounden A. B. and C. D. or either of them, their or either of their heirs, executors or administrators, do, and shall well and truly pay or cause to be paid all such costs as the said court shall think fit to award to the said defendants, or either of them in the said cause, then the above written obligation is to be void, otherwise to remain in full force and effect. ‘ A. B. [1.s.] C. D. [1.8] Signed, sealed and delivered, in presence of, Receiver’s recognizance. A. B., of the of , in the county of , Esquire, (the receiver) C. D., of, &c., and E. F., of, &., do acknowledge them- selves, and each of them doth acknowledge himself to owe to X. Y., the master of the Court of Chancery of Upper Canada (at ) the sum of pounds lawful money of Canada, to be paid to the said X. Y., his executors or administrators, and unless they do pay the same they, the said A. B., C. D., and E. F., are willing and do grant, and each of them is willing and doth grant for himself, his heirs, executors and administrators, that the said sum of pounds shall be levied, recovered and received of and from them, and each of them, and of and from all and singular the lands, tene- ments and hereditaments, goods and chattels of them and each of them wherever the same shall or may be found. Witness, &c. Whereas by an order of the Court of Chancery for Upper Canada, made in a cause wherein G. H. is plaintiff,,and J. K. is defendant, and bearing date the day of , in the year, &c., it was ordered that it be referred to the said master (at « ,) to appoint a proper person to receive (the rents and profits of the real estate, and collect and get in the out- standing personal estate of L. M. in the said order named, and to allow him a salary for his care and trouble therein; such person so to be appointed, first giving security to be approved of by FORMS OF PROCEEDINGS. 423 [MISCELLANEOUS.—RECEIVER'S RECOGNIZANCE. | the said master, or as the case may be, following the order.) And whereas the said master (at ) hath approved of and appointed the said A. B. as a proper person to be such receiver, and hath approved of the above bounden C. D. and E. F., as sureties for the said. A. B., and hath also settled and approved of the hereinbefore written recognizance with the hereinafter written condition as a proper security to be entered into by the said C. D. and E. F., pur- suant to the said order and general orders of the said court in that behalf; and in testimony thereof hath signed an allowance in the margin hereof. Now the condition of the hereinbefore written recognizance is such, that if the said A. B. do and shall duly account for all and every the sum and sums of money which he shall so receive (on account of the rents and profits of the said real estate, and in respect of the personal estate of the sard L. M., or as the case may be,) at such periods as the said master shall appoint, and do and shall duly pay the balances which shall from time to time be found to be due from him as the said court or master hath or shall here- after direct, then the hereinbefore written recognizance shall be void and of none effect, otherwise to be and remain in full force and virtue. Taken and acknowledged by the above named, &c. Bop How oon # . . rairqers mo iii In the margin, the following should be. written : Gy Ey Vad Bs I have settled, approved of, and allowed this recognizance. Dated the day of , 1863.” N. O., master (at The above form is adapted from the English regulations of 8th August, 1857. The recognizance should be taken and acknow- ledged before a commissioner for taking affidavits. The sureties should justify in double the amount of the annual value of the estate. For form of affidavit of justification, see supra, p. 361. 424 FORMS OF PROCEEDINGS. [MISCELLANEOUS.—POWER OF ATTORNEY TO RECEIVE MONEY, &C. Power of attorney to receive money directed to be paid at a specified . time and place. In CaAncery. (Full style of cause.) Know all men by these presents that I, the above named A. B., do hereby nominate, constitute, and appoint E. F. of the of —, in the county of , gentleman, my true and lawful attor- ney, for me and in my name to demand and receive from the above named defendant C. D., and all and every other person and persons whom it may concern, the sum of £——, being the sum reported due to me for principal interest and cost (07 as the case may be) and directed to be paid to me by the master’s report made in this cause and dated the --— day of ——, in the year, &c., and upon pay- ment thereof to make and give receipts, acquittances and other dis- charges for the same, and to do all acts necessary tothe premises as fully and effectually as I myself could do the same if personally present, and for the purposes aforesaid to appoint any substitute or substitutes, and such substitution at pleasure to revoke. In witness whereof I have hereunto set my hand and seal this day of , in the year, &. (t) A. B. [L. 8.] Signed, sealed, and delivered in presence of G. H. Certificate of bank manager as to non-payment of mortgage money. (u) In CHANCERY. (Short style of cause.) I, A. B., of the of , in the county of , manager (or cashier) of the (Commercial Bank of Canada) at its branch or agency office in the of , do hereby certify that the above named defendant C. D. hath not, nor hath nor have any person or persons (t) The usual affidavit of execution should be annexed. (uw) The signature by the manager on the day of the date of the certificate should be verified by affidavit, which should also show that the person signing is the manager or the cashier, as the fact may be, of the bank or agency on behalf of which he signs the certificate. The certificate should bear as late a date as practicable. FORMS OF PROCEEDINGS, 425 [MISCELLANEOUS.—CONVEYANCE UNDER DECR3E FOR SALE. ] on his behalf at any time before and up to the date of this certifi- cate paid into or tendered at the said bank at its said branch or agency to the credit of the above named plaintiff, E. F., or to the joint credit of the said plaintiff and the registrar of this honourable court, the sum of £ , or any part thereof. Dated at , this day of , in the year, &c. A. B., Manager, (or Cashier.) Witness, C. D. Conveyance under a decree for sale of mortgaged premises. This Indenture, made the day of » in the year, &., between A. B. (the mortgagee) of the of , in the county of and province of Canada,. (Esquire,) of the first part, and C. D, of, &c., (the purchaser,) of the second part. WHEREAS one E. F. (the mortgagor) being seised in fee simple of the lands and pre- mises hereinafter described and conveyed, or intended so to be, did by a certain indenture of bargain and sale, by way of mortgage, bearing date the day of , in the year, &., convey the said ijands and premises to the said A. B. for the purpose of secur- ing the re-payment by the said E. F. of the several sums of money and interest thereon on such days and times as in the said inden- ture are particularly mentioned and set forth, AND WHEREAS the said principal sum, so secured by the said indenture as aforesaid, and the interest thereon, were respectively not paid at the time appointed by the said indenture for payment thereof. AND WHEREZS the said A. B. filed his bill of complaint in the Court of Chancery for Upper Canada on the day of in the year, &c., against the said E. F., (and naming the other parties, if any,) to obtain payment of the amount of principal money and interest due to him upon the security of the said indenture of mort- gage as aforesaid. AND WHEREAS by a decree of the said Court of Chancery, bearing date the day of , in the year, &c., it was, amongst other things, ordered that it be referred to the master of the said court (at ) to enquire and state whether any person or persons, and who, other than the said A. B., had any lien, charge or incumbrance upon the said lands, and in case the said master 54 426 FORMS OF PROCEEDINGS. ‘ ‘[BHSCELLANEOUS.—CONVEYANCE UNDER DECREE FOR BALE.] should find that any person or persons, other than the said A. B., had any lien, charge or incumbrance, then he was to cause such person or persons to be served with process under the general orders of the said court in that behalf, and proceed to take an account of what was due to the said A. B., and to such other incumbrancer or incumbrancers, if any, for principal money and interest, and to tax to them their costs, and also to settle their priorities; and upon the said EK. F. paying to the said A. B. and such other incumbrancer or incumbrancers (if any) what should be found due to them respec- tively for principal money and interest, and costs, within six months after the said master should make his report, at such time and place as the said master should appoint, it was ordered that the said A. B., and such other incumbrancer. or incumbrantvers should assign and convey the said premises free and clear of all incumbrances ‘done by him or them, and should deliver up all deeds and writings in his or their or either of their custody or power relating thereto upon oath, or enter up satisfaction on the roll in respect of their respective judgments, as the case might be, and in default of the said EH. F. making such payments by the time aforesaid, it was ordered that the said lands should be sold with the approbation of the said master, who was to settle the conveyance or conveyances to the purchaser or purchasers thereof, and it was further ordered that the purchaser or purchasers should pay his, her or their purchase money into the Commercial Bank of Canada, at its branch or agency office in the city of Toronto, in the name and with the privity of the registrar of the said court, and that the same, when so paid in, should be applied in payment of what should be found due to the said A. B., and such other incumbrancer or incumbrancers accord- ing to their respective priorities. AND WHEREAS the said master, in pursuance of the said decree, duly made his report in writing, bearing date the —— day of : in the year, &., and thereby reported, amongst other things, that the said A. B. was an incumbrancer on the said lands in the sum of money in the said report mentioned, and he thereby appointed the —— day of —, in the year, &c., for payment by the said E, F. to the said A. B. of the said sum so reported due to him as afore- FORMS OF PROCEEDINGS. 427 [MISCELLANEOUS.—CONVEYANCE UNDER DECREE FOR SALE.] ee and that there were no other incumbrances proved before im. AND WHEREAS default was made in payment by the said E. F. of the said sum so reported due by him as aforesaid, on the day and time in the said report appointed for payment thereof. AND WHEREAS, by an order of the said Court of Chancery, bear- ing date the - day of , inthe year, &c., made in the said cause, it was ordered that the said premises should be sold in pur- suance of and in manner directed by the said decree of the said day of , in the year, &&. AND WHEREAS, in pursuance of the said order and decree, the said premises were under and sub- ject to certain conditions of sale, with the approbation of the said master, offered for sale by public auction at the (town) of , in the said county of , on the day of , in the year, &c., at which sale the said C. D., being the highest bidder for the same, became and was duly declared the purchaser thereof, at and for the sum or price of , lawful money of Canada. And the said master by his report, bearing date the day of year, &c., certified that the said E. F. had been so declared to be the highest bidder for and had become the purchaser of the said lands, at and for the said sum or price. AND WHEREAS, the said last mentioned report has been duly filed in the said court, and the said sale stands duly confirmed according to the general orders and practice of the said court. AND wueErzas the said C. D. hath paid the said sum of £: , being the amount of his said purchase money, into the Commercial Bank of Canada, in accordance with the terms of the said decree and the said conditions of sale. AND WHEREAS the said master hath settled and approved of the draft of these presents, as testified by his signature on each page of the engrossment thereof. Now THIS INDENTURE WITNESSSTH, that in pursuance of and in obedience to the said decree, and in consideration of the premises, and of the said sum of -, 80 paid into the said Com- mercial Bank, as aforesaid ; and also, in consideration of the sum of one dollar, paid to the said A. B. by the said C. D., the receipt whereof is hereby acknowledged, he the said party hereto, of the first part, hath according to his estate and interest in the said , in the ~ 428 FORMS OF PROCEEDINGS. [MISCELLANEOUS.—BILLS OF costs, | lands, granted, bargained, sold, aliened, released, transferred, conveyed, and assured, and by these presents doth grant, bargain alien, sell, release, transfer, convey and assure unto the said C. D., his heirs and assigns, all, &c., (deseription,) and all the estate, right, title, and interest, both at law and in equity, of him the said party hereto of the first part, of, in, to, and out of the said lands, or any part thereof. To HAVE AND TO HOLD the said lands, with the rights, members, and appurtenances thereof, unto the said ©. D., his heirs and assigns, to, and for his and their sole use, benefit, and behoof for ever. AND the said party hereto of the first part, hereby covenants, for himself, his heirs, executors and admin- istrators, with the said C. D., his heirs and assigns, that he hath not done or been party or privy to any act whereby the said lands now, or can, shall, or may be in any wise incumbered, or prejudi- cially affected in title, estate, or otherwise, howsoever. In witness whereof, &c. BILLS OF COSTS. (Title of cause.) The bill of costs of the above named plaintiff (or defendant as the case may be) taxed under decree (or order) bearing date the —— day of ——. In CHANCERY. Costs of a demurrer allowed. Instructions for demurrer...... veorionnt Lanpwannamsavasatan saissidauiain 10 0 Drawing same, (per folio) .cccccccecceccceeesseeee ences o Sale sonia we 1 0 Paid counsel to settle... treseveeas sosesereseorerscrese 10 0 Attending him with and for ....... hale ia piddniaka nanos . 2 6 Engrossing demurrer, ( per POE sesiseihin savannas Aad slacipaise 0 6 Attending to file........ oa ediehipadieekanna nea ipervaues Sewiabwenacaes 1 3 Paid. fling sacisssesaexne snicaivns Wiceie Pr cya enlaaatinateens eneager venewns 38 0 Notice thereof, copy and SET VICE cane xn swnceng Cae citer 2 9 Office copy being Ce i ie same, and paid (per FRO necsnsns Ges sik a atneease tteeersseeteserevense 0 6 Attending to examine... oo Coe eee renece vee 1 ie . Poem meee aoe rete eee ee seeera ste FORMS OF PROCEEDINGS. 429 [costs OF DEMURRER ALLOWED. ] Attending: to deliver ssiasss cosas secoastcnes sheen minha nh ckeeaes 1 3 Inetrietions far Griehs iccepescssewnnes eileen bathe aeuunatie ue nanan 5 0 Drawing same, bill and demurrer, (per folio),....+ssseceseees . 0 6 Observations, (90) FOU) cw: sarcsins ch savin cases ecenee ase ieee neat 1 0 Preecipe to set down for argument and attending......... ave 1 8 Paid Setine CeWH iss nvnsessvcerne ecnecne ss dvelsees Pagid eseees 2 6 Notice of setting down, copy and Service... cso. sesessersseeee 2 9 Copy to annex to brief......cceseeceneeee eset veeeeeen a baiseitaseatdinwels 1 0 Paid counsel with brief to argue...... eee si nent dwewn ee Attending Hint with and fOr, .no (1 8 as ee warrant MC leettetsarivters ovens oly 9S “affidavits of service, and atiendanaes ‘es swear (COCK) secosssasncesoecsecseoes Wades Seeiieraese Sou aseesesaees: oc 0) ‘o> Gathe (deh) -ssiasomucnennccmiateceavanaveanmiweeien A. O) (2) 6d. per folio including the 1d. per folio paid to the registrar for examining and making office copies. 440 FORMS OF PROCEEDINGS. [costs.—PLAINTIFF’S.—CAUSE PRO CONFESSO. ] (Or af served by sheriff, fees as properly paid, and if sent to sheriff by post, then) Letter to sheriff c.ssscsccccecseveccscccsssccesscscsvesssesses 2 6 Postage on and on eturn.....sesceeeeeeeveee basses ses (a8 paid.) Paid fees and postage remitting .....ssseceeseeeseees és Drawing affidavit of plaintiff’s claim (per folio)... 1 0 Engrossing (per folio). sscsessevsescecarvessenecessneescereneeseses 0 6 Attending ‘to SWCAL.....ecseseee seeeeeeeee eee neeneeans deniisney vaviens 1 3 Oath 1d. per folio and. reccerseccrverrssveseessersssseseeeees 1 0 Marking exhibit (cach)... cscssscseseeereescescen eee venes gates 1 0 Drawing account and fair COpy.ss.rcseeersseesserereeesssereseeree 5 0 Bill cak west and Gary atarievs-ceine seeeceetecdeesnasctimasinunicn 5 0 Attending to file papers in master’s Office .....seseeeee 1 8 ee to hear and determine ( per hour) (I).sssccccesseees 5 0 Attending on each claim ()......ssccsevenees eusawes 5 0 “ tO Settle PEPOLt..s.seccrceeccsnccecencecseeeeeeneneasens 5 0 cs for LOPOLtrcrcsscccvcececccesscccscsscscatcsctsesserssesee L 8 Paid master’s fees throughout ...s.ssscssccccseecesrescerecees (AS pard.) Cf the decree be for foreclosure and no elaim be proved other than the plaintiffs, add) Attending to file report and paid .......sscsssceseceesseesesesseee 1 7 «© to bespeak and for office COpPy...r.cccccccsssssereeeee 2 6 Office copy, ( per folio, 6d.)ssrssseereeersrseersseenseeceteseees (8 patd.) (Lf a claim be proved, then subsequent costs are as follows :) Attending to file report and paid.....cseccccsceccscsseseccesrenee 1 7 Ks to bespeak and for COpy ccccesceressesesctesseeeeeeess 2 6 Copy (per folio, 6d.)..ssccsccesesessessesrectsrecsesteaneceeees (8 paid.) Drawing notice of hearing on further directions.............. 3 0 Hach copy and service. ..cccsssssstsscccesscsescessscstecssssesssee 2 9 Instructions for brief thereon. .....csccssscsscsssesccesesceseeees » 5 0 (4) The master will allow the plaintiff five shillings per hour attending on the hearing and determining of his own, and all other claims, or he will allow a sepa- rate attendance of five shillings on each claim as well as his own. The plaintiff has the election in which way he will charge. FORMS OF PROCEEDINGS. 444 [CosTs.—PLAINTIFF’s.—CAUSE PRO CONFESSO. ] Drawing same decree and report ae sreereetssesrerens OO 6 Copy notice of hearing to anneX....scccccsssseescsrreseese 1 6 Paid counsel fee (2) .. dns ieeess ahdeniGaase sinaanes crsesseensee 2D 0 Attending with and ee ee Merieneree 2 OG Attending registrar with papers......s.csscccssssssessecseseeee 18 Attending to bespeak and for minutes............ acids aaa 2 6 Paid fax same (er FOL). sevncrmiseucsmsewivWorvisiaareveaces 0 Notice to settle, copy and service (m)...csscsscssccesesseressese 3 0 Extra copies and services (each)........ seb See Suess usees vases 1. 9 Attending to settle........cesesescesees dint dhs nanaunnenieaiers sevens 5 0 Notice to pass, copy and service.....ccccccsssssssssssstsessecenee 3 0 Extra copies and services (cach). ....sscsseccsssscscsosescenses ces 1 9 Attending to pass... Ways kondmnneahene nen el iswIas. muaee we 5 0 Attending for decree entered Gaile sovscecscessecceesserseesee 1 8 :) Paid fr. steeeeeneeeeeecae eas eereescessesanseesssseesessssesesens (AS paid. Be ee ene ca, er cee sseeceeeceee OF O Copy for Master (Pe? (Olt0 \scsnsacssuercaresdocusiveviaidccs cociy 0. 6 Attending to file.......cc0000 teetesencccsnrevessscescesseccserssenee L 8 Attending to consider.......-scsesrssese coctesseccesssscsesssenes 5 0 Attending for Warraitiasmwvcsasessvvenscisuyeststevsenvecdsixesie LB Copy atid, Service: (GGFR ci civssnens sidservawiice ssssvereee LQ Drawing subsequent affidavit of claim ( per Foto) tes 1 0° Engrossing (per folio)... se dasilecavuceCeaen eee oaue 0 6 Attending to swear.... tau sheesvelvensieaiweceedoerawea | oo Oath (1d per folio, anit 1). seas i wate orotate ae Wakes ora Ses Drawing subsequent account and COPY..ccrcrerssescescrseveres 5 O Bill of costs and copy... eS WeRae PINs eMNU TEN SeVeswaseiaee> D>’ UO Attending to file paper ea vietieaenetsaie meenmcmsainntcie. LE Attending to hear and determine (7 per how ddim wimvers, O° 0 Attending to settle report... .eccecccesrerrsresssssseseerscess 5 0 Attending for report......e00 sree a ubaeareiuteahedes Meee ties sear 8 (1) No more than £1 5s. is allowed on further directions in a pro confesso suit, Z except under special circumstances. (m) To be served on all parties who were served with notice of hearing on further directions. (n) Ifa sale be prayed for by defendant add: Attending to search deposit paid in, and paid, 2s. 3d. 56 , 442 FORMS OF PROCEEDINGS. [cosTs.—PLAINTIFF’S.—DEFENDED SUIT. | Paid master’s fees throughout......... Pianorsinien ened unwwexie .(as paid.) Attending to file report and paid....ccsscesscessseeeeseeeneeenees , Attending to bespeak and for copy......... pegeatsseaguaaedes sexe BO Paid. for (yer folie 6.) ov nssa cause act sness ermaess viewse va -(as paid.) Bill of costs in suit where answer filed. (Costs of bill, ge., same as in previous form down to the item « Attending to search answer and paid.’’) Having received notice of answer being filed, attending to search answer and paid (1)..sscccoeseecceecesseesevenees Demand of office copy answer, copy and Service....ce.seseeee Having received office copy answer, perusing SAMC.....sceeee Preecipe for order to produce and attending to file.....eceee Paid . Sdslsindia sve seals sfageisaies’ oeensecdeesd wena sagenetiasdecs Atening o- oilers Fee on, kee Copy ain 5 service seca: bs duaednled a beinve seas Attending to search affidavit on production filed aiid peidice Notice to inspect copy and Service. ...cssssceceseeceens pisewrr ees Attending to inspect papers produced ( per howr)erceresseere (Lf bill amended, say,) Precipe for order to amend and attending to file..........0008 Paid for order..s.ccsssseessscensoseresssscssrsssscsecssonvvcssssces(AS Aid.) awpnewm ae oe ao bp bp cop wWwWwowowodnd oe = oo Peas ie TOE peanseauscssateni ten cel vaay hp rence gaa: Ln oe Fee on.. ae Sonne seuvsew seen setesesemsees, 0 0 Copy andl 5 service biteai hee BaSeed Seeeaneeluen’ saaaueae ite ee Draft amendments (per Folio)... Scagsnn@bentidedesetesmesanewesa! 2 2-10 Attending counsel with and ie pec sesccereessescssessesee 2 6 Paid his fee.. did saudabratesncseedasensss cousadesiasen ys tsvees y Attending pote on eae tee of aioiaee and hearing, (where solicitor zs not also COUNSEL) serererssereeversreeee DO 0 (If judgment reserved,) attending renistior with pa- pers and exhibits......++0+ ames 1 3D Dre schedule of axhabiis (ner Fold) i 1 0 (p) No attendance on counsel is allowed where he and the solicitor are the same, or partners. 444 FORMS OF PROCEEDINGS. [cosTs.—PLAINTIFF’S.—SALE. ] Two copies of same, (per folio) (pp)... secs O 6 Attending to hear judgment .crcsccccssessessersvereeeene OF 0 Attending registrar for exhibits........sssscssseeseeoes 1 3 Attending registrar to draw decree ..ssessssesssseceeeveeeveees 1 3 Attending to bespeak and for numbers..... eee aeees sosee 2 6 Minutes of decree (per folio). coscsrrerssecsscerssscsesessserseee LO Notice of settling, copy and service....ssss.sscssssssessescenee 3 0 Every extra Copy and Service..s.scsscssusereseecscssceseeersseens 19 Attending to settle....cscscccoscsscccseccesstsctetsccecscecssseesans 5 0 Notice to pass decree, copy and SCrvice.s.scscecsssssesverene 8 0 Hvery extra copy and Service.scscccccsssssccsscrsecvectenseovsnes o£ 9 Attending to pass decree..s.cccscseccssvcevesecerssves gcehetbasens 5 0 Attending for decree, entered.....cssscsessoveesees ae Salven reooee 1G Paid.ssccsrsccssccsccscesscenesscovecsesessecencescsoss soveeesssrene(Q8 Dd.) HGS ce csaves ceva siesta sevoseeeuaduapaueaserusseenecunsseecsas see vacnes 5 0 (The costs of taking the deeree into the master’s office, and of the proceedings therein, and of the hearing on further directions will be similar in principle to those charged on pp: 439, 440, 441, supra.) Costs of sale by the court and conveyance thereon. Attending moving final order of sale... ...see sce ceeeees 5 0 Attending registrar to draws «ivsesasee bates die poe vince 1 3 Attending for order entered . .....eece ceeatvesecesces 1 3 Poll S00 ics e sug oeeaiaeesaa wae eae uawen mae meas (as paid.) HOG Ullieas sora gaen weigh es eewerawen is Keiear ete ava 5 0 Copy order to keep (if made) (per folio)....ccccssseeecsseceneee 0 6 Attending to file original order (or decree) with master...... 1 3 ae for warrant ........ elicuataeie ave deuisvae sews dc aeehenct 1 8 Copy and service (¢ach).....sccssessesssssectsccceccessesesceecccece 1 9 Drawing advertisement for sale, and COPIEG Haina dpnccmes 5 0 Drawing affidavit as to property (BOF F010). ssewee dixceey LD Engrossing (per folio)..... Rewase oes ee ee ine 0-6 oe to get Same SWOrN....... cece Nae ere ais » 1 8 HIG ORIN, sa'wis (eae ebses Ove von + ea keke desis see eeeees Marking exhibit (each)...... ne aN bes aaeiacae . an (yp) Page 443. See Order IIL., of 80th April, 1859, p. 260, supra. FORMS OF PROCEEDINGS. 445 [cosrs.—PLarntirY’s.—satu.] (Jf affidavits prepared to apply for a reserved bidding, or as to Jitness of proposed auctioneer, or more than one affidavit be necessary to verify advertisement, charge for each as above.) Attending to file affidavits............... coseeeseeees. 1 8 Attending to settle advertisement (each ROU) nage iebeednwiews 5 0 Copy advertisement for newspaper (2) (Per Jolie \ovnce acca ces 0 6 APOnMING: Withiesa sdeke kee cee aes ee ee -- 1 3 Paid insertion........ or eee ‘Hee ee cess (as paid.) ATtOMMIG 16 DAYa + civsariarsiscsssnisarsateabvenndurececiene, 12 Drawing contract of sale for purchaser to sign (per folio)... 1 0 Copy particulars, conditions and contract for printer (per Jollo) saitnasvccels LOMatievsanersusamen WERE Diaaaiee Dabise aa es 0 6 Aether With Wyriiesnsc csedes eepepekevselcnsustd dansumeamescca, to Attending examining proof............ cccessseccccsssesesececeses 1 38 Paid charges for ‘primtiig...-+--+005 errr rr ee Notice of motion for leave (usual charges for notice of MOtLON ANG SETVICES.) ewer ceceves covers etree seeeeerees Attending chambers, order granted.......sesssssesesreeeeeseeees 5 0 Attending registrar to Uraw....sscsecesereeeeeete cease nee eee teens 1 3 (Usual charges for order.) (Any further similar applications, the like charges.) Having been served with warrant to bring in, drawing ac- BUG (ee Yinlid | ucdee xaSviaein Gals opteatquesieuevcu vandey 1 0 HEngrossing’ ( per folio) ssssorsseues sonssaevesesses seeeurewn se eases 0 6 Drawing affidavit of verification (per folt0)...ssseeseeeee Seeees 1 0 Engrossing (per folio).ccccscsesssverveessevcsssercetgesasesceenscees 0 6 Attending to SWEAT wisisscereriocsascreaesdevs csvesrseassed ys ves 1 8 Oath (1d. per folio Is.)... cists SUAS su ioeer veedeeidenssaes ive Marking exhibits (each)... rey wsecsny £ 0 Attending to file account, sitiduit and youahers, ‘Be Neseweuese 1 38 Paid. anne skeen (as paid.). Mien reese ane on z xeoonate each hour) seugeesidusssensas 5 0 (If further affidavits o* other evidence required to verify the ac- count, charge for accordingly.) Bill of costs wai sins oraa aia Bi linus el aie -tvbierg alana. auersarneeaenee 5.0 Attending to settle report (cach hour). ....cecceeceneees 5 0 Attending fer Pevorb sw ew ansaus ve ba 02s pe pS .en een Ss 1 3 Attending to file and paid.......... tigi Balk gee 6 ee nee ws 1 7 Attending to bespeak and for office copy..ssseeseeevcees 2 6 Paid (per JOO Wile) i nedew ake tessa ww eG 6 eek aves (as paid.) (Add receiver's charges for travelling expenses necessarily incurred in collecting debts or otherwise administering the estate, including payments made by him for advice and assistance, and such other charges properly incurred and actually paid by him.) Add receiver’s per centage...cescescssrcscsesecs FORMS OF PROCEEDINGS. 451 [cosTs.—DEFENDANT’s.—suIT. ] Paid postages..sscssccsccesecscssscecsscsssessces (48 paid.) Paid master’s fees (other than above)...ssseesseeceees (as paid.) (Similar charges on each passing of accounts.) Drawing notice of motion to discharge receiver and vacate his recognizance (¢f direction not given by decree or order on further directions, usual charge for notice of motion.) Drawing affidavit of payment of balances (usual charges for Affidavits.)eveee devercveees ioreusiacsiiacauare ates Attending chambers, &c., (wswal charges for orders) Defendant's costs of sutt. Instructions for answer........ jijaie HeaRe RS fbdeeedmuantiateters 10 0 Drawing same (per folio)......+4 seetawaie # Variscenniey veinrdneauna ane 1 0 Pal comusel to wattle: sikneraieas adys absceo Gaeemcercrmesee ee LO D Attending him with and for,...cssesseeees tele aeseugtnc aes 2 6 Engrossing answer (per folio)....1+.00+ sda ved cmreaverte ann ORO 0 6 Attending to SWeAT.....cssesseese seeeeeeeneereeneeeenes dieneoo: Attending to read OVeY......seseseeentereenees oeearataaly piageieae SOO Paid commissioner, oath, and folding......s.ssssecessee reese 2. 8 Attending to file...... jace sdamatennn a aad us cide vihiia Saawenig = tte iesoxe 1 @ Paid filing.........+ + sindabte dae. eee poaeesaeaus sav dines delaisealeere 3 0 Notice of filing copy and Service..... ssssssseeesesrreeecerteees 2 9 Office copy having been demanded, making same and paid Ce eee i napa vinenaaenowes eese ts sateneibenays oo MG Attending to exaMine,.....s.+-+ phates aukgeeagene i eaves es 1 3 Attending to SCrVe.-.ssesssseeeeerereeesceneeseneees se Ge eeaeee ts . 1 3 Preecipe for order to produce.......+ «+ dda vnoadidsaweawesaewenes i 3 Attending registrar for order....-ssssereererseees seettes sete 1 3 Paid for order s.sscessessesersceesnneeerens jevatacpenexonts siughiboaioss 3 0 ST ibe Ghiageusa neni san uiceiwmeecee Bnseasavabanelons malaise tr OFte heaebi 5 0 Copy and service s..ssece csssecseesseerseeccnensesrsersneesee sete 2 8 ‘Attending searching affidavit filed. ...++1.-+++-+ asic eens 1 3 aids apicanp anaseavaponn een eanpy nenabes Send ene igs ape aneeente 1 9 Attending to bespeak na for Office COPY. .+ssererereereeeeeneree 2 6 Paidss sescceccncceceesenee qeeereeuscueens sucerewaies pannereits ..(as paid.) Notice to Tnspeoe ebpy and salves se ceee cere cree eee ee : Attending inspection (each WOUr)accersernevennnasecerrareneneneese 452 FORMS OF PROCEEDINGS. _[costTs.—DEFENDANT’s.—sUIT. ] (If no affidavit filed costs of contempt are as follows. ) Attending bespeaking certificate...........+ je aa ranaTe 1 38 Paid registrar for.....cscscsseerergeeeeeeeeoes qyaseeenenins 2 6 Attending for.....csccsecscetees sees ceeveeee beaeeees aahese 1a Attending moving order 27287.....+sersseeee vere tees esashes 5 0 Attending registrar to draw ...s.cesessseeseseceseeneees 1 3 BiG) £0 CENCE sian lemadsnciiagat wecmicne nenieatnee seee(48 paid.) Attending for entered........ssesceeeeeneees cue aves sbsie 1 3 Pee: ONisst.te canes seovaseaas rear ier eveveavecaveee iineien reowe OD Copy (BeF FON costedawpnciaa sass ciara vestiaaniess 0 6 Drawing endorsement and COpy....s.sscssserseerseeeeee » 1 6 Attending sheriff with and for..........6. devousascueesde 2 6 Paid his fees for S€rvice.....cscsscrceseseveaveeesseee os (as paid.) Affidavit of service......sscsse seeeeevees ianabenvadeavere ‘ 0 Attending to search affidavit filed, iin Ciosanssecus tabu 1 38 Paid secccssossnnaur sacs ow wiemieeriaciwes twouetauwasnues asaae 1 0 Attending to bespeak certificate........csse cressseeseeee 13 PaO acsnaounsiuiakanneee ee Jatits e Saaoearen joeoniacuieia ata 2 6 ‘Attending for........ dudes sive snaanaeeaiue seniatone) Sone taverns 1 8 Attending moving order absolute...........+ ag alaae vat 5 0 Attending registrar to draw.......0 cosscsesssceseceeors 1 3 Fai LOM. ws vasies cased doseiuiee dsnaubana or vauareiaamaenais (as paid.) Attending for entered............. Eevee wasesecvegens a . 1 3 Fee on.....eeee ca eaCUT PSe aca vdgnecomesedeas sievnpance esses! OF U0) Preecipe for attachment........se00e0 guewsne da geen sadedaas 1 3 PB Te su sacionnewons eure sama ook mementos seeet haw Spades: OD Attending for......... f saiscada opiates etbats Wee's senses ven sues 1 48 HES Oise aus s beds Wl siee Bal sdwee eae iaiveveexs oO Endorsement... ...... sepuesees tieevewan 28 Attending sheriff with sid for bine sadeeeane use 2 6 BP atdl SHORES Tews ina vies tnsasnaeeiie de vnjuusing saeediins ...(as patd:) Having received notice of motion to vacate attach- ment, attending searching affidavits filed.. 13 NUCL oveiba sncetars guns aan encovodvaGyideddesninopaanaces ca ceteeacs 1 0 Demand of office copy, copy and service........... 2 9 Attending motion affidavits insufficient, aud. fitcther affidavits to be filed, motion stands. FORMS OF PROCEEDINGS. 453 [CosTs.—DEFENDANT’S.—suIT. ] Having received notice of further affidavits filed, siblerdinig BEATEN Ing mencaceiieks vacdecassnudenduus 1 3 PBI bodies Wie SOE SH RAH S a dioie ns ou plelgSiule abaya pac ghana nents 1 0 Attending motion, attachment discharged on pay- SREMD WE: OSES ccanncss peeeeanedenrbgonbvinss LSytdia au efea's 5.0 Attending to settle and pass order......ce seseseseeees 5 0 PUL OF GOSS wsesuexedynes sense ud jeludid pinsiasd aiseaaaeaets 5 0 sECalietied Tite Dich Ia saccades enneve saan navencnene maine 1 3 Attending for certifiedtion. ci csayusacieeescansiatan avers 1 8 a aiid nme ber 8 PEGS hss a sgepaniyaien peur eowieaseatobaee (as paid.) Attending receiving costs, and giving receipt tosheriff. 1 3 Plaintiff having served order to produce, drawing affidavit (ORE FONG lie ics uavues ilnins soengreecemaienmae hemea meaeee ask ond 1 0 Hnptessing: {pur Jala). cies Cuasteia tesa nccvaaes O06 Peiienging Fo OCt EWU oie Gian ar ceaecaiey yee oeea awne 1 8 UEliwiw saan caddcs cx oo Sie ted ong ei daees ead eewas (as before.) divans 10 Bles 055s evgiewke Laue sesenoxwes wenaeeaets 1 3 Di tare Srp Gacamy cane ca sevnaan ates suesed aeauece 0 4 Attending giving inspection (each hour).......seee.sseee 5 0 Attending searching replication «4, < 0100 xv sede vers vo 1 8 Pal cs Opn RWens ec gees ba PSAP GS Hae Sisk ebaCRR ENE ess 4 1-0 (If not filed costs of motion to dismiss as follows.) Drawing notice of motion to dismiss (per folto)..... 1 0 Copy (Per Jol cesweswnmwnesens ce vente eyes se 0 6 BOVVCEs cas ke Heep ee av nee aus sb RES 1 38 Attending bespeaking and for certificate........... 2 6 Paid. ccc cceccseecscecsccerccaerececteeserees 2 6 Drawing affidavit in support, (per folio,) ({fnecessary) 1 0 Engrossing (per foli0).scecsceerscee cece ertoees 0 6 Attending to Swear........ sees cree eee ee ene tens 1 8 Paid oath... ce. cece cece nese rere eerees (as before.) Attending to file and paid....+....ee.ssseeeeeee 17 Marking exhibits (each). ..sseseeeeeeeereseeees 1 0 Attending on motion, plaintiff undertook to speed... 5 0 Attending registrar to draw order...+ seo eeeees , : : Notice to settle and pasSerseresserreseeceesesseees 454 FORMS OF PROCEEDINGS. [costs.—DEFENDANT’s.—sUIT. ] Attending. thereon. ....cccsccecccecceseccses 5 0 Paid for order.....essee0 ialarWiiaudeaws soncaccaesen nits (as paid.) Attending for entered o..:seecsccecerteccnceeesenerseeeees 1 3 Fee ON. ceccecececsecee tonneesceneceenensestneoeeaaeeeor eee 5 0 Copy (per folio) .rcrcccsscroeccceense sastsscaesaeseseses 0 6 Service. esssencencwne vessvavcsveess cecsewesssversesstunsevenede 1 3 Copy for master (per folio) ...cresseeceverscceserssesenees 0 6 Pctbendins to dB acs unvavnednaenisnies inte wene eeiadass tam 1 3 Warrant, copy, and service s...sccsecceccerensesseeaeeens 38° 0 Bill Of Costs ...ccoceccsocseasceseneesseseneeececeeasenenees 5 0 Attending for certificate ....csccessccecsceserseeseeneeeee 1 38 Paid aasten’s. £608: 0004 seni csnsacewcsnnne sucesanns asnans (as paid) Attending searching replication, same filed.........sssseeserere 1 3 PSI saincsas reas naseissversnwnausnis aecerisnesmenencemmaanniene® 10 (Lf plaintiff served order to amend.) Attending on office copy being amended..........+0-« 1 3 (Zf on motion.) Attending POL COM 6. cise a cnves canes caniad vee vies aoailewense’ 5 0 Drawing answer to amendments (per folio).......++ 1 0 Paid counsel, 10° settles. v1.0 ivaseavvsesaarvenedoness 10 0 (And other charges as for answer to original bill.) Counsel fee to advise on evidence....... HiRes 25 0 Attending: with and for............ 000008 ene leeigneve ole 0 Anstructions for briefs. ..sseeed enews see sens senna ves 5 0 Drawing same, of pleadings (per folio)...+....eeeee eevee 0 6 Prescipe for Gaput. nv < «rae xe kowien aves eexess peas he Paid for ssessed conn se ee eee wa caew ec asbas tives ae 5 0 Cloparl Cath ash ste rieide tenga s wevaetatieneae tesa and . 0 6 Dervicd (C004) oavwim van ntene Wiaw's Fa aia nwa ane Wiles pire tate 1 3 Paid witnesses oaccasaiedesuwes bie sawea eed e eee (as paid.) Affidavit of service and Suna ey shea de'grauee: ol \S Engrossing (per folio). . i sutteacciveene 0 6 Attending to SWear.... ccc cece eee ee ee ewes iis alee’ gies GL ve Oaths cs xews sn ess eee ee soe x «O50 ene e nanan aaa sae « 9 FORMS OF PROCEEDINGS. 455 [Costs.—DEFENDANT’s.—SUIT. ] (If served by sheriff.) Attending with and on return. .........00.0000 00. 2 6 PAO BHO sis 55 saawucu aan Sy eeu Maa ae eons (as paid.) (Affidavit and copy as before.) A witness residing in Lower Canada drawing affidavit to support application for order for sulted (per folio) 1 0 CODY | DEF TOO xu exe ines eG wren neni wpm tues: 0 6 PCBRGN AI LO SEAT Sika eens voor eae cease Goaacudeuc L 3 OG ois datbaa a Geet EW Nee eal eiaGho Kok Seueyeeaaw eas (as before.) AGlending ty mows erdes ced og ean wee wed ein Gavens Xa 5 0 Attending registrar (0 dPW 66 cae cede oie oa vasa davaycds 1 3 Pad ter enletiauithed daadapheeacekoueia-pelaeeawats (as paid.) Attending for entered .....0-6 200 cuean Hiinsb ea area ces 1 3 CS OR aio y pie eam ciarscednmp wera Macs GIR ER Meade a RE eGo ek od “5 0 Copy (per folta)na s+ svecenes Se brane) aval She 4 gia: sale Shawano eT ates 0 6 Precipe for subpOnae. iisisos sowie enkuieiwarded vei. LB Paid LOR eras 6 io.se5 seated: We Gd ina wha see Rene op ealevoeesdeoan 5 0 Letter to agents with order and subpoena............0.. 2 6 Copy sulipeena, fo. encloses scx asses sis secusavensrvecesiane 0 6 APTA Vb) vo ccsacoresls alee siaid aren SR aoe bears HORE Oe alone Saws (as before.) Paid agent’s a ced eA WW Mae ROR Sw EMER CaE hE p6¥ YO Letter with.. eis ee . ishighisuehamecreemvane, 2006 Preecipe for oeibe ie a ssrtpeedie in suites cause. 1 3 Paid fOr OFM 6B sisi c ease oo oe See sep bela a wie ete ORte ie patd.) Attending: for entered ecsccvian coed sateen cin vavaesienie 1 38 GOOD sssccerg aie ed Aah eRe Wen Oule sae ole bias ae na wlan Mates 5 0 Copy (per Joue).0 saa eens eras awe estes take oe Geren ws 0 6 GS erV 1G Os ai Gok g bus 3k akece oc we Wa WETS Nee eee es as 1 3 - Observations, or other original matter on brief (per folio)... 1 0 Copy nétices to annex (per folio) scseveeserservveververesesseees 0 6 Paid counsel fee on examination of witnesses and sua. Attending him with and for . Sikes sesvevcesseee 2 6 Precipe for ‘order to prove exhibit by alidaviti. s(gaseaih a eleaeale 1 3 Attending for, entered........ jacieuseitanner’s judieivaansesavens teeaien 1 3 Paid foreccccsesvcccssccsccscavsceceressaasesssesssesssssscseecesoos( QS Paid.) 456 FORMS OF PROCEEDINGS. [costs,—DEFENDANT's.—sUIT. | Tie. Chis aavern enya BAG ameene. OD Copy (per folio)..ssscecescersseeserscersecssssscssrtesereressses 0 6 Service ...csseeee ise ieee ove ee LB Drawing afiduyit (nes folidhes Meisticesnebwaceccrsecssees (CO Engrossing (per folio).....eeerere Panu na saNiadetsamaan AOR ww O 6 Attending to get SWOrT....sseeseeseeteststereestessesssssersesteee LS (And like charges as for affidavit, supra.) (Zf cause not set down by plaintiff.) Attending to search cause set down and paid........ 2 38 Praecipe to set down for examination of witnesses and, Tearing ..sccecececncens seceeseeeeceenten ees weveeeees 1 3 Paid seis oees siete ees aoe swlewies taeea ne cious s (AS.paeds) Drawing notice thereof (per fai) mace ae (1 0 “Copy (per folto).. cian ae ewe tee a wees: OolG Service Cea eee ates cismee LS (Lf two counsel fees and briefs allowed by order of judge, the fees therefor will be as at page 433, supra.) Attending court on examination of witnesses and hearing, (f solicitor not counsel,) judgment reserved..... Attending registrar with papers and exhibits.....+....++ Drawing schedule thereof (per folio).....++0+06 acRatie hs Two copies (per folto)......+6. eieia ieee Wises sence eees Attending to hear judgment, bill dismissed with costs..... Attending registrar for exhibits..... tesveai sient eielades Attending registrar to draw decree........ hem pieeiars ane BRON ORR GS wwonowse (Same charges as at page 444, supra.) Copy decree for master ( per folio). ...ccscrceannesccace Attending to file..... Se eee eC oe ae ae Attending for warrant to tax...eecceceseee cee . Sy se tt Service (cach) .ssscesecese ee ee ee DL GP GUslds ok esy ein norton de ioe Suen Rawk Guns Attending to filésiesss0 wadeed anvecsevanwsee vew ewes’ Attending for certificate..seccecossesecsccesseeecsces ; BRO wwmow nr ww a 3 Be oH OS FORMS OF PROCEEDINGS. 457 [CosTs.—Rz-HEARING.] Pand TAStOR n daise wuswata a0 Ulan aden aleboiecsaucnk (as paid.) Paid postagetisns vss ssawavs NWS Saal ae ys Waa Kam eee (as paid.) (Conditional costs.) Attending to file certificate. ......ce0ceeceecsece coves 1 3 Preecipe for fi. fa. and bespeakings e Pe the clerk of the Court of Error and Appeal, and shall serve a copy thereof, together with a notice of the hear- ing of the appeal, on the respondent, his solicitor or agent, at least two months before the time named in such notice for the hearing of the appeal. 20 Vic., ch. 5, sec. 34, 58. Such petition shall not be answered, but proceed. Petition not to ings shall go on as if the petition had been answered, When to be and as if the time named in the notice had been appointed by the court for hearing the appeal. - 54. The petition shall be in the following form: “IN THE COURT OF ERROR AND APPEAL. ‘“‘ Between A. B., appellant, and C. D., respondent. ‘“* To the honourable the judges of the said court. “The petition of the said A. B. sheweth: “That a decree (or order) was on pronounced Form of petition “by Her Majesty’s Court of Chancery for Upper “‘ Canada, in a certain cause depending in the said court, ‘“‘wherein your petitioner was plaintiff (or defendant), “and the above named C. D. was defendant (or plain- “< tiff), which said decree (or order) has been duly entered “and enrolled. 534 Within what time appeals must be brought to a hearing. Time to be . reckoned from the decree or order becoming absolute. Appeal final in matters not ex- eceding $4000, When appeal may be to the Queen in Privy Council. CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. x11, secs. 55,56, 57, 58.] ‘“‘That your petitioner hereby appeals from the said “decree (or order), and prays that the same may be “reversed or varied, or that such other decree (or order) “in the premises may be made as to your honourable “court seems meet. ‘¢ And your petitioner will ever pray, &c.” (Certificate of counsel to be added.) 20 Viec., ch. 5, sch. A. 3. 50. In case of an appeal from the Court of Chancery, the appellant shall bring the same to a hearing, if the appeal is from a decree or decretal order, within one year from the pronouncing thereof; and if the appeal is from an interlocutory order, not being a decretal order, then within siz months from the pronouncing of the same, or within such further time in either case as may be allowed for the purpose by the Court of Error and Appeal, or by the Court of Chancery, or a judge thereof, upon special grounds shewn to the satisfaction of the court or judge granting the same. 20 Vic., ch. 5, sec. 35. 56. As to a decree or order which, under any genera] - orders of the Court of Chancery, does not become absolute upon the same being pronounced, the time limited for appealing therefrom shall be computed from the time when the same does become absolute. 20 Vic., ch. 5, sec. 35. APPEALS TO HER MAJESTY IN HER PRIVY COUNCIL. 57. The judgment of the Court of Error and Ayppeal shall be final where the matter in controversy does not exceed the sum or value of four thousand dollars. 12 Vic., ch. 63, sec. 46. 58. In a case exceeding that amount, as well as in a case where the matter in question relates to the taking of any annual or other rent, customary or other duty, or fee, or any like demand of a general and public 4 CONSOLIDATED STATUTES OF UPPER CANADA. 585 [22 vic., cu. xm, secs. 59, 60, 61, 62. 63, 64.] nature affecting future rights, of what value or amount soever the same may be, an appeal shall lie to Her Majesty in her Privy Council. 12 Vic., ch. 63, sec. 46. 59. But no such appeal shall be allowed until the Security to bo appellant has given security in two thousand dollars, to oe the satisfaction of the court appealed from, that he will effectually prosecute the appeal, and pay such costs and damages as may be awarded in case the judgment or decree appealed from be affirmed. 12 Vic., ch. 63, sec. 46. 60. Upon the perfecting of such security, execution The execution to shall be stayed in the original cause. 12 Vic., ch. 63, : sec. 46, and see ante secs. 16, 17, 35. 61. But the provisions of the sixteenth section of this se ial act shall apply to such appeal, and the completion of the security hereby required shall not have the effect of staying execution in the cause, in the different cases to which the said section relates, unless the provisions in the said section be complied with. 12 Vic., ch. 68, sec. 46. 62. Every judge of the Court of Error and Appeal fhe jndzes may shall have authority to approve of and allow the security seuss to be given by a party who intends to appeal to her Majesty in her Privy Council, whether the application for such allowance be made during the sitting of the said court, or at any other time. 20 Vic., ch. 5, sec. 36. 63. Costs awarded by her Majesty in her Privy Cestsin final Council, upon an appeal, shall be recoverable by the same process as costs awarded by the Court of Error and Appeal. 20 Vic., ch. 5, sec. 37. GENERAL RULES. 64, The judges of the Court of Error and Appeal, or any five or more of them, of whom the Chief Justice of Upper Canada and the Chancellor shall be two, may from time to time make such general rules and orders x 5386 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. x11, secs. 65, 66.] Greet Appeal for the effectual execution of this act, and of the inten- may make rule’y tion and object hereof, and for fixing the costs to be- allowed in respect of proceedings in the court, and for regulating the different proceedings in appeal, as to them may seem expedient; and may also from time to time alter and amend any of the existing rules, or any rules made under the authority of this act, and make other rules instead thereof; and until such rules be made, the present rules and existing practice and mode of proceeding in the court shall continue in force. 20 Vic., ch. 5, sec. 38. THE CLERK’S FEES AND ACCOUNTS. The clerk notto 65. The clerk of the Court of Appeal shall not take forthe fefunt. for his own use or benefit, directly or indirectly, any fee or emolument whatever except the salary to which he is entitled as registrar of the Court of Chancery, and all fees received by or on account of the registrar, as clerk of the Court of Appeal, shall form part of the consoli- dated revenue fund of the province. 12 Vic., ch. 63, sec, 43. He is to account to Ministor of 66. The clerk of the Court of Error and Appeal shall, fecly for a Ses on the first day of January, April, July, and October received: Gc in every year, render to the Minister of Finance a true account in writing, of all the fees received by or on account of the office of clerk, in such form and with such particulars as the Minister of Finance from time to time requires; and such accounts shall be signed by the clerk, and the correctness thereof shall be by him declared before one of the judges of the court’; and the clerk shall, within ten days after the rendering of the account, pay over the amount of the fees to the Receiver-General, and in case of default, the amount due by the clerk shall be deemed a specialty debt to her Majesty. 12 Vic., ch. 63, sec. 44. CONSOLIDATED STATUTES OF UPPER CANADA. 587 [22 vic., cH. xv., sEcs. 57, 58.] ACT RESPECTING COUNTY COURTS. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CHAPTER XV. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: REMOVAL OF SUITS. 57. Any claim entered on the equity side of a county In certain cases claims may be court may be removed by either party into the court of conaiet ae Chancery, by order of that court, to be obtained on a summary application, by motion or petition, supported by affidavit, of which reasonable notice shall be given to the opposite party, and the order shall be made on such terms as to payment of costs, giving security in respect to the relief claimed and costs, or upon such other terms as to the Court of Chancery may seem just; but no claim shall be removed, unless the Court of Chancery be of opinion that the nature of the claim renders it a proper one to be withdrawn from the jurisdiction of the county court, and disposed of in the Court of Chancery, and the said Court of Chancery shall make the necessary regulations for the practice to be observed in proceed- ings under this section. 16 Vic., ch. 119, sec. 17. 58. In order that the mode of proceeding under this Chancery to act may be fully traced out, and from time to time im- rules and orders; proved and rendered as simple, speedy, and cheap as may be, it shall be the duty of the judges of the Court of Chancery to frame such general rules and orders and all such forms as to them may seem expedient, con- cerning the process, practice, orders and proceedings on the equity side of the county courts under this act, and in relation to any of the provisions thereof as to which there may arise doubts; and from time to time to alter y,, amend the and amend such rules, orders and forms, and also thes forms and mode of procedure prescribed by this act; and such rules, orders and forms as may be made and 68 538 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., CH. xv., SECS. 63, 65, 69.] framed by the judges, or any two of them (of whom the Their effect. Chancellor of Upper Canada shall be one) shall, from and after a day to be named therein, be in force in every county court, and shall be of the same force and effect as if the same had been embodied in an act of parlia- ment. 16 Vic., ch. 119, sec. 19. Costs restrainea, 90- If any suit or proceeding be commenced in the Court of Chancery for any cause or claim which might have been entered in a county court, no costs shall be taxed against the defendant in such suit or proceeding, and the defendant, if he succeeds in the suit, shall be entitled to a decree against the plaintiff for his costs, as between attorney and client, unless the Court of Chan- cery be of opinion that it was a fit cause or claim to be withdrawn from a county court, and entered in the Court of Chancery. 16 Vic., ch. 119, sec. 22. auido The rules and orders made by the Court of Chan- continued. cery, and now in force for the regulation of the practice of the county courts in suits in equity, shall continue until altered under the authority of this act. APPEALS FROM THE COUNTY COURTS TO CHANCERY. An appeal given 69. Hither party may appeal to the Court of Chan- ‘o cheney. cery against any order or decree made by the judge of a county court under the equity jurisdiction conferred by this act; and the Court of Chancery shall make such order thereupon in respect to costs or otherwise, or for referring back the matter to the judge before whom the same was first heard, as may be just and proper; -but before the county court judge is called on to certify to the Court of Chancery, the order or other matter appealed A recognizance against, the party appealing shall enter into a recogni- into. zance, with sufficient sureties to the satisfaction of the judge, to.pay the sum decreed in case relief be not had on the appeal, or to obey the order ; (or as the case may be;) and when the party appealing appears by attorney, CONSOLIDATED STATUTES OF UPPER CANADA. 5389 22 VIC., OM. XVI, SECS. 26, 27.) an affidavit shall be made by the attorney, that the The Court of Chancery may appeal is not intended for delay as he believes, and that roar ous there is, in his opinion, probable cause for reversing the order or decree against which the appeal is made; and the Court of chancery shall specially make the neces- sary regulations for the practice to be observed in pro- ceedings under this section. 16 Vic., ch. 119, sec. 18. AN ACT RESPECTING THE SURROGATE COURTS. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CHAPTER XVI. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: APPEALS TO CHANCERY. 26. Any person considering himself aggrieved by ALY Porsons consider- order, sentence, judgment, or decree of any surrogate aggrieved by say court, or being dissatisfied with the determination of the 'mey appea to judge thereof in point of law in any matter or cause - under this act may, within fifteen days next after such order, sentence, judgment, decree or determination, appeal therefrom to the Court of Chancery, in such manner and subject to such regulations as may be pro- vided for by the rules and orders made under the Surro- gate Courts Act, 1858, or under this act, and the said Court of Chancery shall hear and determine such appeals; but no such appeal shall be had or lie unless | hee the value of the goods, chattels, rights, or credits to be ie In artes affected by such order, sentence, judgment, decree or ~~ determination, exceeds two hundred dollars. 22 Vic., ch. 98, sec. 20. REFERENCE TO A SUPERIOR COURT. 27. In every case in which there is contention as to the grant of probate or administration, and the parties 1, cases of con- = tention, the in such case thereto agree, such contention shall be matter’moy, by 540 Consent, be re- cation to one of the superior courts. In certain cases of contention, matter to be referred to Chancery. Terms as to costs. Certain cases not to be so removed. Powers of the Court of Chan- cery and trans- mission of final order to surro- gate court, CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic,, cH. xvi, sECS. 28, 29, 30.] sonsent be ze: referred to and determined by either of her Majesty’s superior courts of law, or by the Court of Chancery, on a case to be prepared, and the surrogate court having. jurisdiction in such matter shall not grant probate or administration until such contention be terminated and disposed of by judgment, decree, or otherwise. 22 Vic., ch. 98, sec. 21. REMOVAL TO THE COURT OF CHANCERY. 28. Any cause or proceeding in the said surrogate courts in which-any contention arises as to the grant of probate or administration, or in which any disputed question may be raised (as to law or facts) relating to matters and causes testamentary, shall be removable by any party to such cause or proceeding into the Court of Chancery by order of a judge of the said court to be obtained on a summary application supported by affida- vit, of which reasonable notice shall be given to the other parties concerned. 22 Vic., ch. 93, sec. 22. 29. The judge making such order may impose such terms as to payment or security for costs or otherwise, as to him may seem fit; but no cause or proceeding shall be so removed unless it be of such a nature and of such importance as to render it proper that the same should be withdrawn from the jurisdiction of the surrogate court, and disposed of by the Court of Chancery, nor unless the personal estate of the deceased exceeds two thousand dollars in value. 22 Vic., ch. 98, sec. 22. 30. Upon any cause or proceeding being so removed as aforesaid, the Court of Chancery shall have full power to determine the same, and may cause any ques- tion of fact arising therein to be tried by a jury, and otherwise deal with the same as with any cause or claim originally entered in the said Court of Chancery; and the final order or decree made by the said Court of Chancery in any cause or proceeding removed as afore- CONSOLIDATED STATUTES OF UPPER CANADA. 541 [22 Vic., CH. XvI., sEcs. 81, 42.] said, shall, for the guidance of the said surrogate court, be transmitted by the surrogate clerk to the registrar of the surrogate court from which such cause or proceeding was removed. 22 Vic., ch. 93, sec. 22. (p) SURROGATE CLERK. 31. There shall be a clerk appointed, to be called the Surzate clerk to be appointed; surrogate clerk, who shall perform the duties required of ™s duties. the surrogate clerk by this act, as well as the duties that by the rules and orders made as hereinbefore mentioned may be required of such surrogate clerk, and also such other duties as may be required of him by the Court of nis satay. Chancery, and such surrogate clerk shall be deemed an officer of the said Court of Chancery, and be paid a fixed salary, not exceeding one thousand six hundred dollars yearly, and the governor shall from time to time appoint and at his pleasure remove such clerk. 22 Vic., ch. 98, sec. 23, 42. In case it appears by the certificate of the surro- Proaseding if gate clerk that application for probate or administration je aagn i has been made to two or more surrogate courts, the Miromts coust. judges of such courts respectively shall stay proceedings therein, leaving the parties to apply to one of the judges of the said Court of Chancery to give such direction in To be decided in Chancery. (p) Where a motion was made under this act to remove a cause on the ground of a contest as to whom administration should be granted, and that it was necessary, therefore, that the cause should stand over till term, which would cause delay, the court refused the motion, as the surrogate court has power by sec. 36 of the act to appoint an administrator pendente lite, and that, therefore, no ground of delay could be urged. (Jn re Beckwith, 5 U. C. L. J. 256.) It would seem that to justify the removal of a suit from a surrogate court, there should be a disputed question of law or fact proper to be adjudicated on by the Court of Chancery. (Jdid.) In cases which by this act are proper to be removed to the Court of Chancery, the court will not restrict the parties to surrogate court costs on the proceedings in Chancery. (Jn re Lee and Waterhouse, 5 U.C. L. J. 256.) A personal representative cannot be appointed by the Court of Chancery ona motion to remove a cause from the surrogate court; » petition for that purpose is necessary. (Jbid.) 542 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. xvi., sucs. 48, 44, 45, 51.] the matter as to him may seem necessary. 22 Vic., ch. 98, sec. 28. Decree ofChan- 43. On application made to any one of such judges, Ry aa he shall enquire into the matter in a summary way, and adjudge and determine what surrogate court has juris- diction, and shall proceed in the matter. 22 Vic., ch. 93, sec. 28. hoe ee een 44, The judge of the Court of Chancery may order determine asto gosts to be paid by any of the applicants, and the order shall be enforced by the Court of Chancery. 22 Vic., ch. 98, sec. 28. 45. The determination of such judge shall be fina] Bis decision to ond conclusive, and so soon as may be after such deter- mination made, the surrogate clerk shall transmit a cer- tified copy thereof to the registrars of the several surro- gate courts wherein such applications as aforesaid have been made. 22 Vic., ch. 93, sec. 28. PROBATE PRIMA FACIE PROOF OF WILL. In actions con- cerning reales. O1. In any action at law or suit in equity where ac- tate, probate, . wae . &c, toprinad cording to the existing law it would be necessary to pro- facie evidence of a's. . : fe will, &c., after Cuce and prove an original will in order to establish a certain notice, save where it devise or other testamentary disposition of or affecting in issue. real estate, the party intending to establish in proof such devise or other testamentary disposition, may give to the opposite party ten days at least before the trial or other proceeding in which the said proof may be intended to be adduced, notice that he intends at the said trial or other proceeding to give in evidence as proof of the devise or other testamentary disposition, the probate of the will or letters of administration with the will annexed, or a copy thereof, stamped with the seal of the surrogate court granting the same; and in every case such probate or letters of administration or copy thereof, respectively, stamped as aforesaid, shall be sufficient evidence of such will, and of its validity and contents notwithstanding the CONSOLIDATED STATUTES OF UPPER CANADA. 543 [22 vic., cH. xvr., secs. 54, 79.] same may not have been proved in solemn form, or have been otherwise declared valid, in a contentious cause or matter as herein provided, unless the party receiving such notice do, within four days after such receipt, give notice that he disputes the validity of such devise or other testamentary disposition. 22 Vic., ch. 98, sec. 33. ADMINISTRATION PENDENTE LITE. ot. Pending any suit touching the validity of the will Aaministration of any deceased person, or for obtaining, recalling Oi maybe grant. revoking any probate or any grant of administration, the court, in which such suit is pending, may appoint an administrator of the personal estate of such deceased person; and the administrator so appointed shall have all the rights and powers of a general administrator pits ana other than the right of distributing the residue of such Powers erie personal estate; and every such administrator shall be subject to the immediate control of the court and act under its direction ; and the court may direct that such administrator shall receive out of the personal estate of the deceased such reasonable remuneration as the court thinks fit. 22 Vic., ch. 93, sec. 36. PAPERS TO BE PLACED IN COURT OF CHANCERY. 79, All books, records, wills, grants, probates, letters Judge of former probate court of administration, administration bonds, notes of admin- and others to hand over wills, istration, court books, deeds, processes, acts, proceed- papers, fo, to ings, writs, documents and every other instrument, ov. relating exclusively or principally to matters and causes testamentary, deposited in the Court of Chancery, by the judge of the court of probate, the registrar thereof, and every other person who had the custody of books, documents and papers, of or belonging to that court, pursuant to the fifty-fifth section of the Surrogate Courts Act, 1858, shall remain so deposited, so as to be easy of reference under the control and direction of the court. 22 Vic., ch. 93, sec. 55. 544 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. xvi, sEcs. 81, 82, anp cH. xxi. sEc. 176.] APPEALS TO FORMER PROBATE COURT TRANSFERRED TO CHANCERY. Suits bywayof 81, All suits by way of appeal from the surrogate appeal in court : of probate court, which, on the first September, one thousand eight Chancery. hundred and fifty-eight, were pending in the court of probate, and were, by the Surrogate Courts Act, 1858, transferred with all proceedings therein to the Court of Chancery, shall there be dealt with and decided accord- ing to the practice of the said court, as shall also all cases then in process of appeal to the said court of pro- bate. 22 Vic., ch. 93, sec. 57. BONDS TAKEN IN PROBATE COURT ASSIGNABLE. : 82. The Court of Chancery may order all bonds taken Bonds takenin | ae a court of probate in the court of probate on the grant of administration may be assigned 7 Geraerof and in force on the first of September, one thousand eight hundred and fifty-eight, to be assigned, and the same may be enforced in the name of the assignee under the authority of the said Court of Chancery, in the same way as provided for in case of assignment of bonds in the surrogate court. 22 Vic., ch. 93, sec. 58. AN ACT TO REGULATE THE PROCEDURE OF THE SUPERIOR COURTS OF COMMON LAW AND OF THE COUNTY COURTS. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., OHAP. XXII. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : AS TO ARBITRATIONS. Bvery submis 1/6. Every agreement or submissson to arbitration by fon ‘oarmitr’ consent, whether by deed, or in writing not under seal, matt unis may, on the application of any party thereto, be made oo men* a rule of either of the superior courts of law, or of the Court of Chancery, or of a county court in actions pend- ing in such county court, unless such agreement or sub- mission contains words purporting that the parties in- CONSOLIDATED STATUTES OF UPPER CANADA. 545 [22 vic., cH. xxit., secs. 177, 178, 179.] tended that it should not be made arule of court. 19 Vic., ch. 43, sec. 97. 177. If in any such agreement or submission it be Qiwhat court it provided that the same may be made arule of one in tuo he deta in particular of the superior courts aforesaid, it shall be {ho omen cr made a rule of that court only; and if when there is no*°™* such provision, a case has been stated for the opinion of one of the superior courts, and such court is specified in the award, and the document authorising the reference has not before the publication of the award to the parties been made a rule of court, such document shall be made a rule only of the court specified in the award. 19 Vic., ch. 43, sec. 97. 178. When in any case the document authorising the 0ther courts not reference is or has been made a rule or order of any one of such superior courts, no other of such courts shall have any jurisdiction to entertain any motion respecting the arbitration or award. 19 Vic., ch. 43, sec. 97. 179. In case of the appointment of any arbitrator or . scion toar umpire by, or in pursuance of, any rule of either of the bitration it agreed to be made superior courts of common law or of the Court of Chan-s ze ofcourts not revocable cery, or of any county court, or judge’s order, or order yypent leave of of nisi prius in any action, or by or in pursuance of any submission or reference, not containing words purporting that the parties intended that such agreement should not __ be made a rule of any of such superior courts, the power seed wit cote and authority of such arbitrator shall not be revocable oo by any party to the reference, without the leave of the court by which such rule or order was made, or which is mentioned in the submission, or by leave of a judge of such court; or in case no such court be mentioned in the Pourt may em submission and there be no restriction of jurisdiction as makivs an aforesaid, then not without the leave of one of such supe- rior courts, or of a judge thereof, and the arbitrator and umpire shall proceed with the reference notwithstanding any such revocation, and make an award, although the 69 546 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. xxi, secs. 180, 181, 182.J person making such revocation do not afterwards attend the reference; and the court, or any judge thereof (as the case may be) may, from time to time, enlarge the term for any such arbitrators making their award. 7 Wm. IV., ch. 3, sec. 29. Witnesses may, 180, In case of a reference by any such rule or order, by order of the eek ‘s = court, be compel-or hy any such submission as aforesaid, and in case of Jed to attend ar- bitrators, an application to the court by which such rule or order was made, or to the court mentioned in such agreement, or to any judge thereof, or if no such court be mentioned in the submission and there be no restriction of the juris- diction as aforesaid, then to one of the superior courts or a judge thereof, setting forth the place of residence of any witness whose presence is desired, such court or judge may by a rule or order for that purpose command the attendance and examination of any witness named in such rule or order, and also the production of any documents mentioned therein. 7 Wm. IV., ch. 3, sec. 80. ee 181. If, in addition to the service of such rule or order, court. an appointment of the time and place of attendance in obedience thereto, signed by one at least of the arbitra- tors, or by the umpire, before whom the attendance is required, be served, either together with or after the ser- vice of such rule or order, the disobedience of any such rule or order shall be deemed a contempt of court, but the person whose attendance is required shall be entitled to the like conduct money, and payment of expenses, and for loss of time, as for and upon attendance at any trial ; and no person shall be compelled to produce, under any such rule or order, any writing or other document that he would not be compelled to produce at a trial, or to attend for more than two consecutive days, to be named in such order. 7 Wm. IV., ch. 3, sec. 80. 182. In case in any rule or order of reference, or in any such submission to arbitration as aforesaid, it is ordered or agreed that the witnesses upon such reference CONSOLIDATED STATUTES OF UPPER CANADA. . 547 [22 vic., CH. xxtv., sEcs. 8, 9, 10, 11.] shall be examined upon oath, the arbitrator or umpire, Se or any one arbitrator, shall administer an oath to such bY arbitrators. witnesses, or take their affirmations in cases where an affirmation is allowed by law instead of an oath. 7 Wm. IV., ch. 8, sec. 31. AN ACT RESPECTING ARREST AND IMPRISONMENT FOR DEBT. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CHAP. XXIV. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: \ IN CHANCERY. 8. The writ of ne exeat provineta shall be called a1n what cases writ of arrest, and no order shall be granted for a writ smacanatpe of arrest unless the party applying for the writ has a°“"** cause of suit to at least such an amount, and shows by affidavit such facts and circumstances as this act requires in the case of a special order for holding a party to bail under the fifth section of this act. 22 Vic., ch. 33, sec. 1. (1859.) 9. In suits for alimony, instituted after this act takes In sults for alt effect, the court or a judge thereof may, in a proper case, street may be order a writ of arrest to issue at any time after the bill has been filed, and shall, in the order, fix the amount of bail to be given by the defendant, in order to procure his discharge. 20 Vic., ch. 56, sec. 3. 10. In case an order is made for a writ of arrest, in ae suit for alimony, the amount of the bail required shall not exceed what may be considered sufficient to cover the amount of future alimony for two years, besides arrears and costs, but may be for less at the discretion of the court. 22 Vie., ch. 33, sec. 2. (1859.) 11. The bail or security required to be taken under a “‘ writ of arrest”’ shall not be that the person arrested will not go or attempt to go out of Upper Canada, but 548 Conditions of bail-bonds under writ of arrest. Process of con- tempt for non- payment of mo- ney, costs, &c., abolished. Same affidavit required for an arrest in such cases as for a ca. sa. But not when a writ of arrest has issued. Decrees, &c., in equity for pay- CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. xxrv., secs. 13, 14, 15.] shall merely be to the effect that the person arrested will perform and abide by the orders and decrees made or to be made in the suit, or will personally appear for the purposes of the suit at such times and places as the court may from time to time order, and will, in case he be- comes liable by law to be committed to close custody, render himself (if so ordexed) into the custody of any sheriff the court may from time to time direct. 22 Vic., ch. 33, sec. 8. (1859.) 13. Process of contempt for non-payment of any sum of money, or for non-payment of any costs, charges or expenses, payable by any decree or order of the Court of Chancery, or of a judge thereof, or by any rule or order of the Court of Queen’s Bench or Common Pleas, or of a judge thereof, or by any decree, order or rule of a county court, or of a judge thereof, is abolished; and no person shall be detained, arrested or held to bail for non-payment of money, unless a special order for the purpose be made on an affidavit or affidavits establishing the same facts and circumstances as are necessary for an order for a writ of capias ad satisfactendum, under this act; and in such case the arrest when allowed shall be made by means of a writ of attachment corresponding as nearly as may be to a writ of capias ad satisfaciendum. 22 Vic., ch. 38, sec. 4. (1859.) 14. But in case a party be arrested under a writ of arrest, it shall not be necessary before suing out a writ under the preceding section of this act to obtain a judge’s order therefor, or to file any further affidavit than the affidavits on which the order for the writ of arrest was obtained. 22 Vic., ch. 83, sec. 5. (1859.) 15. Every decree or order of the Court of Chancery, and every rule or order of the Court of Queen’s Bench or Common Pleas, and every decree, order or rule of a county court, directing payment of money or of costs, charges or expenses, shall, so far as it relates to such CONSOLIDATED STATUTES OF UPPER CANADA. 549 [25 vic., cH, xxtv., szc. 19.] money, costs, charges or expenses, be deemed a judgment, ment of money i to be deemed and the person to receive payment a creditor, and thes¥ements person to make payment a debtor, within the meaning of this act; and the said persons shall respectively have. the same remedies, and the courts and judges and the officers of justice shall in such cases have the same powers and duties, as in corresponding cases under this act. 22 Vic., ch. 33, sec. 14. (1859.) WRITS OF FIERI FACIAS AND VENDITIONI EXPONAS. 19. For the purpose of enforcing payment of SOY yagi pet money or of any costs, charges or expenses payable by eaully fo been: any decree or order of the Court of Chancery, or any-f.fa. &, asat rule or order of the Court of Queen’s Bench or Common Pleas, or any decree, order or rule of a county court, the person to receive payment shall be entitled to writs of fiert facias and venditioni exponas respectively, against the property of the person to pay, and shall also be en- titled to attach and enforce payment of the debts of or accruing to the person to pay, in the same manner respectively and subject to the same rules, as nearly as may be, as in the case of a judgment at law in a civil samo rules, &e., action; and such writs shall have the like effect as nearly othe cscs. as may be, and the courts and judges shall have the same powers and duties in respect to the same and in respect to the proceedings under the same, and the parties and sheriff respectively shall have the same rights and reme- dies in respect thereof, and the writs shall be executed in the same manner and subject to the same conditions, as nearly as may be, as in the case of like writs in other cases; but subject to such general orders and rules vary- ing or otherwise affecting the practice in regard to the said matters, as the courts respectively may from time to time make under their authority in that behalf. 22 Vic., ch. 33, sec. 12. (1859.) 550 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., CH. XxXIV., secs. 20, 21, 22.] PERSON HAVING CARRIAGE OF DECREE. Person haying 20. In case a decree or order in Chancery, or of a Geerve fe, to be COUNtY court in the exercise of the equitable jurisdiction i" of such county court, directs the payment of money into court or to the credit of any cause, or otherwise than to any person, the person having the carriage of the decree or order, so far as relates to such payment, shall be deemed the plaintiff within the meaning of this act. 22 Vic., ch. 33, sec. 15. (1859.) SEQUESTRATIONS. 21. The Court of Chancery may also issue writs of pore ot ken Sequestration as hitherto, or in such cases as by general Gnmesy te or other orders the court may think expedient; and nothing in this act shall be construed to take away the jurisdiction of the court under or by means of such writs. 22 Vic., ch. 33, sec. 18. [The remainder of this section relating to decrees in eases of sequestration, and providing that when regis- tered, to create a charge on real estate, repealed by 24 Vie., ch. XUI., see. 4.] COMMON LAW PROCEDURE ACT APPLIED. ; 22. For the purpose of carrying out the provisions of GfikeCommon this-act, so far as relates to the Courts of Queen’s Bench Law Procedure Act incorporated and Common Pleas, and to the county courts as courts of law, the several provisions of the Common Law Pro- cedure Act shall, so far as applicable and not inconsistent with this act, apply to this act, and sections three hundred and thirty-three to three hundred and forty, and section three hundred and forty-four of. the said Common Law Procedure Act, shall be deemed incor- porated herewith, as if the provisions therein contained had been repeated in this act and expressly made to apply hereto, and it shall not be necessary to lay before parliament any rules, orders or regulations made for the purpose of this act. 22 Vic., ch. 83, sec. 18, (1859.) CONSOLIDATED STATUTES OF UPPER CANADA. 551 [22 vic., cH. XxxuI., sec. 6.] 23. The Court of Chancery shall, with reference to Certain powers the proceedings in the Court of Chancery under thig of Chancery. act, and to proceedings under this act in the county courts in the exercise of their equitable jurisdiction, have all the powers which the next preceding section of this act gives to the common law courts, in respect to the cases to which the sections of the Common Law Procedure Act therein specially mentioned refer. 22 Vic., ch. 33, sec. 19. (1859.) AN ACT RESPECTING THE LAW SOCIETY OF UPPER CANADA. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CHAPTER XXXIII. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: SCHEDULE OF FEES. ON PROCEEDINGS IN THE COURT OF CHANCERY. On filing every bill or amended Dill..............-4+ 2 40 On passing and entering every decree or decretal Sides xsaavcaus Geeks ot ceed laws 200 On every certificate of bill filed, on every certifi- cate of decree or decretal order made, on every subpcena, and on every other writ or certificate issued under the seal of the court.. 0 50 ON PROCEEDINGS IN THE COURT OF ERROR AND APPEAL. On every appeal entered. ...eececeeee sree sees 4 00 On every judgment, decree or order of the court passed and entered..sesseseesererereres 2 00 ON PROCEEDINGS IN THE OFFICE OF THE SURROGATE CLERK IN CHANCERY. On every certificate issued by the surrogate clerk in Chancery...essesssececereeerseseess 0 50 On every order made on application to a judge in Chancery .eseeseeecevecvecscerecencecs 0 25 552 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., CH. LXIX., SECS. 8, 9, 10, 11.] On entering every appeale.ssecsecerseeree oe coe 0 50 On every decree or order on appeal......eeeeeee 1 00 AN ACT RESPECTING THE PROPERTY OF RELIGIOUS INSTITUTIONS IN UPPER CANADA. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CHAPTER LXIX. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: ela 8. When land held by trustees for the use of a con- ioocer requirea gregation or religious body, becomes unnecessary to be Bion" retained for such use, and it is deemed advantageous to sell the land, the Trustees for the time being may give public notice of an intended sale, specifying the premi- ses to be sold and the time and terms of sale; and after publication of the notice for four successive weeks, in a weekly paper, published in or near the place where the lands are situated, they may sell the land at public auc- tion according to the notice, but the trustees shall not be obliged to complete or carry a sale into effect if in their judgment an adequate price is not offered for the land. Moret 9. The trustees may thereafter sell the land either an by public or private sale; but a less sum shall not be accepted at private sale than was offered at public sale. Privatesalesto 10. Before a deed is executed in pursuance of a public be approved of by . . ise, a the Coart of or private sale, the congregation or religious body for whose use the lands are held, shall be duly notified thereof, and the sanction of the Court of Chancery obtained for the execution of the deed. 18 Vic., ch. 119, sec. 5; 12 Vic., ch. 91, see. 2. pare ana stn 11. Trustees selling or leasing land under the author- coat ity of this act shall, on the first Monday in July in every year, have ready and open for the inspection of the congregation or religious body which they represent, or of any member thereof, a detailed statement shewing all rents which accrued during the preceding year, and all CONSOLIDATED STATUTES OF UPPER CANADA. 553 oe 22 vic., CH. LXIX., secs. 12, 18, AND CH. LXXIV., SEC. 1.] sums of money whatever in their hands for the use and benefit of the congregation or religious body, which were in any manner derived from the lands under their control or subject to their management, and also shew- ing the application of any portion of the money, which has been expended on behalf of the congregation or body. 18 Vic., ch. 119, sec. 6. 12. The Court of Chancery may in a summary man- ner, on complaint upon oath by three members of avelled upon to congregation or religious body, of any misfeasance or of Chunesty. misconduct on the part of trustees in the performance of duties authorised by this act, call upon the trustees to give in an account; and may enforce the rendering of such account, the discharge of any duties, and the payment of any money, so that the congregation or religious body may have the benefit thereof; and the court may compel the trustees, in case of any miscon- duct, to pay the expense of the application, or may award costs to the trustees in case the application be made on grounds which the court considers insufficient or frivolous or vexatious. 18 Vic., ch. 119, sec. 7. 13. All the rights and privileges conferred upon any oy, provisions of religious society or congregation of Christians in thes qe on™" first section of this act mentioned, shall extend in every @™™ respect to the Roman Catholic Church to be exercised according to the government of the said church. 8 Vic., ch. 73, sec. 3. AN ACT RESPECTING THE APPOINTMENT OF GUARDIANS AND THE CUSTODY OF INFANTS. CONSOLIDATED STATUTES OF UPPER CANADA, 22 vIC., CH. LXXIVv. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: APPOINTMENT AND DUTIES OF THE GUARDIANS. 1. The right of appointing guardians of infants (such 70 x 554 CONSOLIDATED STATUTES OF UPPER GANADA. [22 vic., cH. LXXIV., SEC. 2, 3.] To what court 1 iv1 1 the igutcran, infants not having a father living or any legal guardian vorshalifeece, authorised by law to take the care of their persons and the charge of their estates) shall belong exclusively to the surrogate court for the county within which any such infants reside, and letters of guardianship granted by a surrogate court shall have force and effect in all parts of Upper Canada, and an official certificate of the grant may be obtained as in the case of letters of administra- tion, and a return of every appointment and removal of a guardian shall be made by registrars respectively to the surrogate clerk in like manner as in case of grants of probate or administration. 22 Vic., ch. 98, sec. 63; 8 Geo. IV., ch. 6, sec. 4. Ti Guctionatae 2. In all matters and applications touching or relating guaniianstie’ to the appointment, control or removal of guardians of courts to have Summaicecr any such infants and the security to be given by such oe guardians and otherwise, the several surrogate -courts mentary matters, Shall have the like powers, jurisdiction and authority for the examination of witnesses, the production of deeds and writings, and generally for the enforcing of all or- ders, decrees and judgments made or given by such sur- rogate courts in respect to the appointment, control and removal of guardians as aforesaid, as are given to them by the Surrogate Courts Act in matters testamentary, and such orders, decrees and judgments may be appealed from to the Court of Chancery in the manner provided for appeals to such court in matters testamentary. 22 Vic., ch. 98, sec. 62. When judgesof 8+ Upon the written application of any such infant, ol aioe dma or the friend or friends of such infant, residing within gurdans the jurisdiction of the surrogate court to which applica- tion may be made, and after proof of twenty days’ pub- lic notice of the application and of notice thereof to the mother of such infant, or that such infant has no mother living in Upper Canada, the judge of such court may appoint some suitable and discreet person or persons to CONSOLIDATED STATUTES OF UPPER CANADA. 555 [22 vic., cH. LxxIv., sEcs. 4, 5.] to be guardian or guardians of such infant, 8 Geo. IV., ch. 6, s. 1. 4. The judge shall take from the guardian or guar- such guardians dians so appointed a bond in the name of the infant, intybnae such penal sum and with such securities as the judge di- rects and approves, having regard to the circumstances Contition of of the case, and such bond shall be conditioned that the said guardian or guardians will faithfully perform the said trust, and that he or they, the said guardian or guardians, or his or their respective executors or admin- istrators, will, when the said ward becomes of the full age of twenty-one years, or whenever the said guardian- ship shall be determined, or sooner if thereto required by the said surrogate court, render to his or their said ward, or to his or her executors or administrators, a true and just account of all goods, moneys, interest, rents, profits or property of such ward, which come into the hands of such guardian or guardians, and will thereupon without delay deliver and pay over to the said ward, or to his or her executors or administrators, the property, or the sum or balance of money which may be in the hands of the said guardian or guardians belonging to such ward, deducting therefrom and retaining a reason- able sum for the expenses and charges of the said guardian or guardians, and such bond shall be recorded Bond to be re by the registrar of the court in the books of his office. 8 Geo. IV., ch. 6, sec. 1. AUTHORITY OF GUARDIANS. 5. The guardian or guardians of any infants 80 BP- Guardian pointed, shall, during the continuance of his or their a guardianship, have authority to act for and in behalf of the said ward: . 1, And may appear in any court and prosecute or de- 70 appear in ae fend any action in his or her name ; : 2. And shall have the charge and management of his 556 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. LXXIV., sucs. 3, 6, 7.] To man: 1 i To manage real or her estate, real and personal, and the care of his or cea her person and education ; sia’ srarl an 3. And in case the infant be under the age of fourteen apprentice. -_ years, may, with the approbation of two of her Majesty's justices of the peace, and the consent of such ward, or in case the infant be not under the age of fourteen years, Limitation of ap then with the consent of the ward only, place and Prentieeship» bind him or her an apprentice to any lawful trade, pro- fession or employment; such apprenticeship, in case of males, not extending beyond the age of twenty-one years, and in case of females, not beyond the age of eighteen years, or the marriage of the ward within that age. 8 Geo. IV., ch. 6, sec. 2; see 14, 15 Vic., ch. 11, sec. 1. REMOVAL OF GUARDIANS. Howguardians 64 The judge by whom any guardian or guardians may beremoved ve been appointed may, upon reasonable complaint made and sustained, or cause shewn to his satisfaction, remove such guardian or guardians from his or their said guardianship, and if it be judged necessary, may appoint another guardian or guardians of the said infant. 8 Geo. IV., ch. 6, sec. 3. ; 7. The practice and procedure under this act, shall, Procedure mar except where otherwise provided for by rules or orders mentary matters under the Surrogate Courts Act, conform, as nearly as the circumstances of the case will admit, to the practice and procedure prescribed by the said Surrogate Courts Act, and all the powers given by the several sections of that act, to the judges appointed or to be appointed as contained in the eighteenth and nineteenth sections, may from time to time be exercised by them, for the purpose of simplifying and expediting the proceedings, and for fixing and regulating the fees to be taken by officers and by attorneys and counsel respectively for business and proceedings done and taken under this act in the several surrogate courts. 22 Vic., ch. 98, sec. 64. CONSOLIDATED STATUTES OF UPPER CANADA. 557 [22 vic., cH. ExxIv., sEcs. 8, 9.] CUSTODY OF INFANTS. (g) 8. Any of the superior courts of law or equity in Upper court or juage : . may make order Canada, or any judge of any of such courts, upon hearing for allowing the Se % 5 . mother access to the petition of the mother of any infant, (7) being in suy infant in the sule custody o the sole custody or control of the father thereof, (s) or of the father or : 2 ‘i other person, or any person by his authority, or of any guardian after the for its delivery it under twelve death of the father, may, if such court or judge sees fit, youn oud eG make order for the access of the petitioner to such in- maintenance. fant, at such times and subject to such regulations as such court or judge thinks convenient and just, and if such infant be within the age of twelve years, may make order for the delivery of such infant to the petitioner, to remain in the care and custody of the petitioner until such infant attains the age of twelve years, subject to such regulations as such court or judge may direct, and such court or judge may also make order for the main- tenance of such infant by payment by the father thereof, or by payment out of any estate to which such infant may be entitled, of such sum or sums of money from time to time, as, according to the pecuniary circumstances of such father or the value of such estate, such court or judge thinks just and reasonable. 18 Vic., ch. 126, sec. 1. 9. The court or judge as aforesaid may enforce the attendance of any person before such court or judge, to testify on oath respecting the matter of such petition by Court or judge in order or rule made for that purpose, and on the service any sucti case (qg) As to the general objects of this enactment see Wellesley v. The Duke of Beau- fort, 2 Russ. 1, and Warde v. Warde, 2 Ph. 787. (r) A married woman may petition under this statute without a next friend. (Re Groom, 7 Hare, 38.) It seems also that the order may be made ex parte, if the exi- gencies of the case require it. (Re Taylor, 11 Sim. 178.) (s) The act does not apply where the children are not in the custody of the father. (Re Fynn, 2 DeG. and Sm. 457, 475.) See, however, Re Tomlinson, 3 DeG. & Sm. 371, 872; Re Taylor, 11 Sim. 178 ; Corsellis v. Corsellis, 1 Drew. & War. 235, in which cases the rule laid down in Re Fynn has been somewhat relaxed. 558 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. uxxIv., secs. 10, 11, AND CH. LXXXIII., sEC. 23.] may compel the of a copy thereof and the payment of expenses as a acd witness, in the same manner as in a suit or action in the said courts respectively, or may receive affidavits respect, ing the matters in such petition. 18 Vic., ch. 126, sec. 2. Orders enforce. +0. All orders made by the court or a judge by virtue mtenne of this act, shall be enforceable by process of contempt by the court or judge by which or by whom such order has been made. 18 Vic., ch. 126, sec. 3. 11. No order directing that the mother shall have the madcin favour custody of or access to an infant shall be made by virtue Cae of this act, in favour of a mother against whom adultery has been established by judgment in an action for crim- inal conversation, at the suit of her husband against any person. 18 Vic., ch. 126, sec. 4. (¢) AN ACT RESPECTING THE ASSURANCE OF ESTATES TAIL. CONSOLIDATED STATUTES OF UPPER CANADA, 22 ViIC., CHAPTER LXXXILI. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: 23. If any person, protector of a settlement, be Greserriore lunatic, idiot, or of unsound mind, and whether he has ee * been found such by inquisition or not, then the Court of Chancery shall be the protector of such settlement, in lieu of the person who is such lunatic or idiot, or of un- sound mind, as aforesaid; or if any person, protector of a settlement, be convicted of treason or felony ; or, (#) As to removing children from the custody of the father generally, see Forsyth on Infants, ch. 1 and VIII.; Macpherson on Infants, 142-150; McQueen on Divorce, ch. XVIII.; and see the following cases bearing generally upon this section; Wel- lesley v. Duke of Beaufort, 2 Rus. 1; Thomas v. Roberts, 3 DeG. & Sm. 758; Ball vy. Ball, 2 Sim. 35; Shelley v. Westbrooke, Jac. 266; Anon. 2 Sim. N. 8. 64; Re Curtis, 7 W. R. 474; 5 Jur. N. 8. 1147; 28 L. J. Ch. 458; DeManneville v. De Manneville, 10 Ves. 52; Creuze v. Hunter, 2 Cox 242; 2 Brown, C.C. 600; “Lyons v. Blenkin, Jac. 250; Ae Spence, 2 Phil. 247; Courtois v. Vincent, Jac. 268; Van- sittart v. Vansittart, 2 DeG. & J. 249; Walrond v. Walrond, John. 18; Hope v. Hope, 4 DeG. M. & G. 828; Crouch v. Waller, 4 DeG. & J. 312. CONSOLIDATED STATUTES OF UPPER CANADA. 559 [22 vic., CH. EXXXIIL, SEC. &7.] if any person, not being the owner of a prior estate under a settlement, be protector of such settlement, and be an infant; or if it be uncertain whether such last mentioned person be living or dead; then the Court of Chancery shall be the protector of such settlement, in lieu of the person convicted as aforesaid, or of the person who is an infant, or whose existence cannot be ascer- tained as aforesaid; or if any settlor entailing lands declares, in the settlement by which the lands are en- tailed, that the person who, as owner of a prior estate under such settlement would be entitled to be protector of the settlement, shall not be such protector, and shall not appoint any person to be protector in his stead, then the said Court of Chancery shall, as to the lands in which such prior estate is subsisting, be the protector of the settlement during the continuance of such estate ; or if in any other case there be subsisting under a set- tlement an estate prior to an estate tail under the same settlement, and such prior estate be sufficient to qualify the owner thereof to be protector of the settlement, and there happens at any time to be no protector of the settlement as to the lands in which the prior estate is subsisting, the said Court of Chancery shall, while there is no such protector, and the prior estate is subsisting, be the protector of the settlement as to such lands. 9 Vic., ch. 11, sec. 21; 9 Vic., ch. 10, sec. 1. 87. In cases of dispositions of lands under this act by courts of equity . . . excluded from tenants in tail thereof, and also in cases of consents by giving any effect protectors of settlements to dispositions of lands under ae this act by tenants in tail thereof, the jurisdiction of courts of equity shall be altogether excluded, either on the behalf of a person claiming for a valuable or meri- torious consideration, or not, in regard to the specific performance of contracts and the supplying of defects in the execution either of the powers of disposition given by this act to tenants in tail, or of the powers of consent 560 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. LXxx1II., sucs. 38, 39.] given by this act to protectors of settlements, and the supplying under any circumstances of the want of exe- cution of such powers of disposition and consent respec- tively, and in regard to giving effect in any other man- ner to any act or deed by a tenant in tail or protector of a settlement, which, in a court of law, would not be an effectual disposition or consent under this act; and no disposition of lands under this act by a tenant in tail thereof, in equity, and no consent by a protector of a settlement to a disposition of lands under this act, by a tenant in tail thereof, in equity, shall be of any force, unless such disposition or consent would, in case of an estate tail at law, be an effectual disposition or consent under this act in a court of law. 9 Vie,, ch. 11, sec. 85. When the Court 988. In every case in which the Court of Chancery is f Ch . consent toa ais the protector of a settlement, such court, while protector ition b . “): . Tenant in tail, Of such settlement, shall, on the motion or petition in a and to make . . such ordersas SUMMary way, by a tenant in tail under such settlement, Secessary. = have full power to consent to a disposition, under this act, by such tenant in tail; and the disposition to be made by such tenant in tail upon such motion or peti- tion as aforesaid, shall be such as may be approved of by the said court, and the said court may make such orders in the matter as may be thought necessary ; and if such court, in lieu of any such person as aforesaid, be the protector of a settlement, and there be any other person protector of the same settlement jointly with such person as aforesaid, then and in every such case the disposition by the tenant in tail, though approved of as aforesaid, shall not be valid, unless such other per- son, being protector as aforesaid, consents thereto in the mauner in which the consent of the protector is by this act required to be given. 9 Vic., ch. 11, sec. 36. Order of tho 39. In every case in which the said Court of Chancery eery to be evir 18 the protector of a settlement, no document or instru- dence of congent. . ment, as evidence of the consent of such protector to the CONSOLIDATED STATUTES OF UPPER CANADA. 561 [22 vic., CH. LXXxvI., sEcs. 5, 87, 38.] disposition of a tenant in tail under such settlement, shall be requisite beyond the order in obedience to which the disposition has been made. 9 Vie., ch. 11, sec. 37. AN ACT RESPECTING THE PARTITION AND SALE OF REAL ESTATE. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CHAPTER LXXXVI. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: 5. When such lands are situated in two or more When lands s't- counties the proceedings shall be carried on in the more countica Court of Queen’s Bench, or Common Pleas, or in the Court of Chancery; and when the lands are situate in oe one county only, the proceeedings may be carried on in the county court of such county, or in any of the superior courts of law or equity. 2 Wm. IV., c. 35, s. 1. 37. The proceedings upon petition, if commenced in i At a county court, may, at any time before judgment, be re- Proceedings by moved into either of the superior courts of law or equity by certiorari, to be allowed by any judge of such court, on security being given by the party applying for the certiorari for the costs of the proceedings on petition, to the satisfaction of such judge; and upon any final judg- ment, decree or order, an appeal may be had by any of the parties interested in the same manner and with the same consequences as in other cases of appeal, from the decision of any court rendering such judgment, decree or order. 20 Vic., ch. 65, sec. 81. 38. Where the interests in such estate are equitable Powers of the fees simple, the Court of Chancery alone shall have the Rieu same powers, upon petition or bill filed in that court, to oe feos act thereupon, as are hereby given to the courts of law and equity in other cases, and the same notices shall be given, served, published and verified, guardians of minors appointed, and the same rules apply as to par- 71 562 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. Lxxxvi., sucs. 40, 41, AND CH. LXXXVIII., SEO. 27.] ties and the like proceedings be had, as hereinbefore directed. 20 Vic., ch. 65, sec. 32. pee 40. In all cases of partition and sale of estates of joint poseeeeaeine ‘tenants, tenants in common and coparceners, the Court toy in Engiaca. Of Chancery shall also possess the same jurisdiction as by the laws of England, on the tenth of August, one thousand eight hundred and fifty, were possessed by the Court of Chancery in England. 18 & 14 Vic., ch. 50, sec. 4. id, 41. Any partition or sale made by the Court of Partition or sale ie es by fi Does Chancery shall be as effectual for the apportioning or asvalidasif by conveying away of the estate or interest of any married woman, infant or lunatic, party to the proceedings by which the sale or partition has been made or declared, as of any person competent to act for himself, and an office copy of any decree, order or report, for a partition or sale shall be sufficient evidence in all courts of the partition declared thereby, and of the several holdings by the parties of the shares allotted to them. 13 & 14 Vic., ch. 50, sec. 4. The Court of AN ACT RESPECTING THE LIMITATION OF ACTIONS AND SUITS RELATING TO REAL PROPERTY, AND THE TIME OF PRESCRIPTION IN CERTAIN CASES. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CH. LXXXVIII. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : oe eo Whereas the law of England was at an early gages priorto period introduced into Upper Canada, and continued to the establish- os . mentoftheCourt be the rule of decision in all matters of controversy: of Chancery pro- ‘ vided for. relative to property and civil rights, while at the same time, from the want of an equitable jurisdiction, until the fourth day of March, one thousand eight hundred and thirty-seven, it was not in the power of mortgagees to foreclose, and mortgagors out of possession were CONSOLIDATED STATUTES OF UPPER CANADA 568 [22 vic., CH. LXXXvIIL, sEcs. 81, 32.] unable to avail themselves of their equity of redemption, and in consequence of the want of these remedies the rights of the respective parties, or of their heirs, execu- tors, administrators or assigns, may be attended with peculiar equitable considerations, as well in regard to compensation for improvements, as in respect to the right to redeem, depending on the circumstances of each case, and a strict application of the rules established in England might be attended with injustice; the court shall have authority in every case of mortgage, where, before the said fourth day of March, one thousand eight hundred and thirty-seven, the estate had become abso- lute in law, by failure in performing the condition, to make such decree in respect to foreclosure or redemp- tion, and with regard to compensation for improvements, and generally with respect to the rights and claims of the mortgagor and mortgagee, and their respective heirs, executors, administrators or assigns, as may appear to the court just and reasonable under all the circum- stances of the case, subject, however, to appeal by either party. 7 Wm. IV., ch. 2, sec. 11. LIMITATION OF SUITS IN EQUITY. imi i rent in equity No suit in equi 31. No person claiming aay land or re quity No suit in equity : = ithi he after the time shall bring any suit to recover the same but within t ee . : . is] in- tiff, if entitled at period during which, by virtue of the provisions herein ee een before contained, he might have made an entry or dis- brought an tress, or brought an action to recover the same, respec- tively, if he had been entitled at law to such estate, interest or right in or to the same as he shall claim therein in equity. 4+ Wm. IV., ch. 1, sec. 32. 32. When any land or rent shall be vested in a trus. tee upon any express trust, the right of the cestut que trust, or any person claiming through him, to bring = ee suit against the trustee, or any person claiming through press trust, the right shall not him, to recover such land or rent, shall be deemed to jedeemed to 564 CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., CH. LXxXXVIII., sEcS. 33, 34, 35.] hevescerued have first accrued, according to the meaning of this act, ance toapur at, and not before, the time at which such land or rent shall have been conveyed to a purchaser for a valuable consideration, and shall then be deemed to have accrued only as against such purchaser.and any person claiming through him. 4 Wm. IV., ¢. 1. s. 33. Incasesof fraud 33. In every case of a concealed fraud, the right of no time shall * i : run whilst the any person to bring a suit in equity for the recovery of concealed, any land or rent of which he, or any person through whom he claims, may have been deprived by such fraud, shall be deemed to have first accrued at, and not before, the time at which such fraud shall, or with reasonable diligence might, have been first known or discovered. 4 Wm. IV., c. 1, s. 34. ‘Gisiesetn the 34. Nothing in the last preceding clause contained ac tla al shall enable any owner of lands or rents to have a suit ERE: an equity for the recovery of such lands or rents, or for setting aside any conveyance of such lands or rents, on account of fraud against any bona fide purchaser for val- uable consideration, who has not assisted in the commis- sion of such fraud, and who, at the time that he made the purchase, did not know and had no reason to believe that - any such fraud had been committed. 4Wm. IV., c. 1, s. 34. Saving the juris 90. Nothing in this act contained shall be deemed to diction of savaorinterfere with any rule or jurisdiction of courts of equity cium in refusing relief on the ground of acquiescence, or . otherwise, to any person whose right to bring a suit may not be barred by virtue of this act. 4 Wm. IV., c. 1, 8. 85. AN ACT RESPECTING THE REGISTRATION OF DEEDS, WILLS, JUDGMENTS, DECREES IN CHANCERY AND OTHER INSTRU- MENTS. CONSOLIDATED STATUTES OF UPPER CANADA, 22 VIC., CH. LYXXIX. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: CONSOLIDATED STATUTES OF UPPER CANADA. 565 [22 vic., CH. LEXXIX., sEcs, 40, 48.] 40. Every decree of foreclosure, and every other de- Pcelonuter Key cree in the Court of Chancery, or in any county court shallbe resis affecting any title or interest in land, may, at the in- stance of any person, be registered in the registry office of the county where the land is situate, on a certificate given by the registrar or clerk of the court, stating the substance and effect of such decree, and the lands af- fected thereby. 18 Vic., c. 127, s. 4. 43. The filing of any bill, or the taking of any pro- as 7 7 What only shall ceeding in the Court of Chancery in Upper Canada, or be deemed notice of proceedings in : Buse, las __ af Proceeds county court on its equity side, in which bill or proceed- Chancery by ing any title or interest in lands is brought in question, interest in lands shall not be deemed notice of such bill or proceeding to @ auestion. any person not being a party to such bill or proceeding, unless and until a certificate given by the registrar, deputy-registrar or clerk of the court to some person de- manding the same, in the form mentioned in this section, has been registered in the registry office of the county in which are situate the lands of which the title or inter- est is questioned in such bill or proceeding : FORM. “TJ certify that in a suit or proceeding in Chancery, or in the county court of , on its equity side (as the case may be,) between A. B. and C. D., some title or in- terest is called in question in the following lands, (stat- ing them.)” But no such certificate shall be required to be regis- 4s to suit for tered in any suit or proceeding for foreclosure of a regis- Ee tered mortgage. 18 Vic., c. 127, s. 3. AN ACT RESPECTING AFFIDAVITS, DECLARATIONS, AND AFFIRMATIONS, MADE OUT OF THIS PROVINCE FOR USE THEREIN. 26 VICTORIA, CH. Her Majesty, by and with the advice and consent of 566 STATUTES OF UPPER CANADA. [26 vic., cx. ———., szcs. 1, 2, 3.] the Legislative Council and Assembly of Canada, enacts as follows: Governor in 1. The Governor in coancil may, by one or more corwatcoumie CoOMMiIssion or commissions under his hand and seal, stuevieinthe from time to time empower such and as many persons as bbeuedia he may think fit and necessary, to administer oaths and oo take and receive affidavits, declarations and affirmations in the United Kingdom of Great Britain and Ireland, or any colony or dependency thereof, in or concerning any cause, matter, or thing depending or in anywise con- cerning any of the proceedings to be had in the Courts of Queen’s Bench and Common Pleas, the Superior Court, and the Court of Chancery, or any other court of law or equity of record in this province, whether now existing or hereafter to be constituted ; and every oath, affidavit, declaration, cr affirmation taken or made as aforesaid shall be as valid and effectual, and shall be of the like force and effect to all intents and purposes, as if such oath, affidavit, declaration or affirmation had been administered, taken, sworn, made or affirmed before a commissioner for taking affidavits therein, or other com- petent authority of the like nature. Style ofcommis 2. The Commissioners so to be appointed shall be poe styled ‘“‘ Commissioners for taking affidavits in and for the Canadian courts.” Affidavits tobe 3. Oaths, affidavits, affirmations, or declarations ad- used in Canada ae may bemade ministered, sworn, affirmed or made out of Canada, be- Sineicotties fore any commissioner authorised by the Lord Chancel- in foreign parts. oa . : . lor to administer oaths in Chancery in England, or be- fore any notary public, certified under his hand and official seal, or before the mayor or chief magistrate of any city, borough, or town corporate in Great Britain or Ireland, or in any colony of Her Majesty, or in any foreign country, and certified under the common seal of such city, borough, or town corporate, or before a judge of any court of supreme jurisdiction in any colony belong- Their powers. STATUTES OF UPPER CANADA. [26 vic., cH. ——-., sxos. 4, 5, 6.] ing to the Crown of Great Britain, or any dependency thereof, or before any consul, vice-consul, acting-consul, pro-consul, or consular-agent of her Majesty exercising his functions in any foreign place, for the purposes of and in or concerning any cause, matter or thing depending, or in any wise concerning any of the pro- ceedings to be had in the said courts, shall be as good, valid and effectual, and shall be of like force and effect to all intents and purposes as if such oath, affidavit, affir- mation, or declaration had been administered, sworn, af- firmed, or made in this province before a commissioner for taking affidavits therein, or other competent authority of the like nature. 567 4. Any document purporting to have affixed, TiN PEM a. i ued act sed, or subscribed thereon or thereto the signature of % PeProved. any such commissioner, or the signature and official seal of any such notary public, or the seal of the corporation and the signature of any such mayor or chief magistrate as aforesaid, or the seal and signature of any such judge, consul, vice-consul, acting-consul, pro-consul, or consular agent, in testimony of any such oath, affidavit, affirmation or declaration having been administered, sworn, affirmed or made, by or before him, shall be admitted in evidence without proof of any such signature, or seal and signature, being the signature or the seal and signature of the person whose signature or seal and signature the same purport to be, or of the official character of such person. 5. Any affidavit, declaration or affirmation proving probate, or memorial thereof, for the purpose of regis- tration in this province, may be made before a commis- sioner appointed under this act, or other person au- thorised hereby to administer or take oaths, affidavits, declarations and affirmations. 6. No informality in the heading or other formal re- quisites to any affidavit, declaration or affirmation made They may be 5 : used for regis- the execution of any deed, power of attorney, will, or tration. 568 Informal head- ings, &c., not to invalidate. Tendering docu- ment with false seal, &c., to be felony. Courts may issue subpoenas to any part of Canada. When not to be issued. Writs to be specially noted. CONSOLIDATED STATUTES OF UPPER CANADA. [22 vic., cH. Lxxrx., sEcs. 4, 6, 7.] or taken before any commissioner or other person under this act, shall be any objection to its reception in evi- dence, if the court or judge before whom it is tendered think proper to receive it 7. If any person shall tender in evidence any such document as aforesaid with a false or counterfeit seal or signature thereto, knowing the same to be false or coun- terfeit, he shall be guilty of felony, and shall be subject to the punishment by law provided for felony. AN ACT RESPECTING THE ATTENDANCE OF WITNESSES IN THE COURTS OF UPPER AND LOWER CANADA, RECIPRO- CALLY. CONSOLIDATED STATUTES OF CANADA, 22 VIC., CH. LXXIX. 4. If in any action or suit depending in any of her Majesty’s superior courts of law or equity in Canada, it appears to the court, or when not sitting it appears to any judge of the court that itis proper, to compel the personal attendance at any trial or enquéte or examina- tion of witnesses, of any person who may not be within the jurisdiction of the court in which the action or suit is pending, the court or judge, in their or his discretion, may order that a writ called a writ of subpena ad testi- ficandum, or of subpena duces tecum, shall issue in spe- cial form, commanding such person to attend as a witness at such trial or enquéte, or examinination of witnesses, wherever he may be in Canada. 18 Vic., ch. 9, sec. 1. 6. No such writ shall be issued in any case in which an action is pending for the same cause of action in that section of the province, whether Upper or Lower Canada respectively, within which such witness or witnesses may reside. 18 Vic., ch. 9, sec. 1. 7. Every such writ shall have at the foot, or in the margin thereof, a statement or notice that the same is issued by the special order of the court or judge making such order, and no such writ shall issue without such Special order. 18 Vic., ch. 9, sec. 2. GENERAL INDEX. A. ABATEMENT OF SUIT, Amendment on, 45 e/ seg. 278, 279 No abatement in Court of Error and Appeal, 582 Practice in cases of, generally, 278, 279; before decree, 45, 50; between hearing and decree, 49, 50 Suit revived after, by order of course, 45, 278, 279 Where obtained on motion, 50. See REVIVOR. ABANDONED MOTION. See MOTION. ABSCONDING DEFENDANT. See DEFENDANT. ABSENT DEFENDANT. See DEFENDANT. ABSENCE, Judge may dispense with service on account of, 149, 150 ABSTRACT, ‘Of documents to be furnished to Judge, 149; or Master, 189: delivery of abstract of title, 160; proceedings upon, 160; insufficiency of, 161; pro- ceedings upon 161, 162. ACCEPTANCE OF SERVICE. See SERVICE. ACCESS of mother to children. See CUSTODY OF INFANTS. ACCIDENT, Jurisdiction of Court in cases of, 479. See CHANCERY, COURT OF. ACCOUNT, Bill for, observations on, 314) Books of, taken by special direction as prima fucie evidence, 185 Changed, proceedings where, after decree or report in suit on mortgage for foreclosure or sale, 268 Deceased person, 88; of debts of, directed without suit on the application of the Executors, 88; of estate of, directed on Administration Order, 86. See DECEASED PERSON. Forms of. See FORMS. Hearing pro confesso, when taken at, in foreclosure suits, 184; when not, 136 Order for, form of, 212 Taking, in Chambers, 152; form of, 152; how taken, 152; to be numbered, 212; proceedings on, 151, 152; how verified, 151; notice of surcharge to be served, 152; in Master’s office, 194; form of, 190; how verified, 190; notice of surcharge, 190; when directed by decree to be numbered, 212; proceedings where state of account changed, 268; notice on, 268; special directions given as to, 151; time for bringing in decree or order directing, 184. See MASTER. MASTER’S OFFICE. ACCOUNTANTS, assistance of, may be obtained by the Court, 146. ACCOUNTING PARTY, Examination of, 194, ' : ACQUIESENCE, Court of Chancery to have jurisdiction as to, notwithstanding Statute of Limitations, 564. ACT. See eed 8 ACTIONS, Limitation of, , et Seq. At law when stayed, 120 et seg., 809, 501, 502. See LIMITATION OF ACTIONS. “INJUNCTIONS. 72 570 GENERAL INDEX. ADDRESS FOR SERVICE, to be endorsed on pleadings and writs by solicitors, 28, 208; or party appearing in person, 28, 209; when necessary, 28, 209; of solicitor’s agent to be entered in Registrar's book, 207; and in Deputy Registrar’s, 216, See FORMS. ADMINISTRATION, Order as to, 85, et seg. Bill for, observaticns on, 320 * Creditors may move for, without bill filed, 85; order only applies in simple cases, 85 Notice of motion, 85; form of, 86; on whom to be served, 85, 86; time for, 86; the order on motion the same as a decree, 86; carriage thereof, 88; who may obtain such order, 85; practice on, 86—88; suits for, rules as to parties in, 10, 11; the court will not proceed without a personal representative, 127 ; special directions in decree, 88; in cases of separate applications, 88; evi- dence on, 88, 89; when bill must be filed, 89; how far executors charge- able, 88, 820; action at law stayed on, 87; appointment of receiver and injunction ordered on, 87; executors may obtain, in what cases granted, 88; costs, how borne, 89; by estate and to what extent, 89; pendente lite, may be granted, 548; cases asto, 171. See FORMS. INJUNCTION. ADMINISTRATORS. See EXECUTORS, PERSONAL REPRESENTATIVES, TRUSTEES. . ADMISSIONS, Production of documents, ordered on what, 98, 366 Of service on solicitor need not be verified, 177. ADVANCEMENT OF INFANTS, / Application for, made in Chambers, 146. ADVERTISEMENTS, For absconding defendant. See DEFENDANT. for creditors 192, 199; for next of kin, 199; on sale, 153; contents of, 153 ; proceedings on settlement of, 154; how verified, 153. See FORMS. AFFIDAVITS, Interpretation of word in Orders of June, 1858, 2 Orders as to, 177, et seg., observations on, 178, et seg, 844, 845, 367, 368 Accounts ordered to be taken, to be verified by, 151 Affirmation, defined to include, 2 . Answer treated as, on motion for decree, 62, 90, 91; on motion for injunc- tion, 311 Assistance, writ of, necessary on application for, 236 Bill, necessary on application for special order to amend, 42, 347; to take bill pro confesso against absconding defendant, 37, 38 Copies of, how made, 178; rule as to, 178; rule as to delivering, 178; orig- inals may be used, only on ex parte applications, 178 Costs of, when not in proper form, 179, 260; of improper length, 253 Cross-examination of party making 182, 183, 845; to be used at hearing, 107; attendance of party enforced by subpceena, 107; on motion for decree, 91; notice of cross-examination, 108, 183; re-examination, 108; costs of, to be costs in cause 107; practice on 107-8. See EVIDENCE. Custody of infants act, under, 557, 558 Defendant, on application to serve, when out of jurisdiction, 32 Documents in the possession of defendant as to, 100, 101, 104, 365; cross- one on, guere as to, 99, 181; referred to in, should be made exhi- its, Erasure or interlineation in, effect of, 344 Evidence by, oo coe at hearing, 106 ; modern practice as to, 252; on motion for decree, 90, 91, 268 ; rules as to reading, 90,91. SeeE Exhibits, how marked, 344 ae SeUARE: Filing of, 177, 268; must be filed before they can be used, 177, 268: except on ex parte applications, 268; in answer, must be filed not later than the day before the hearing, 178, 268 GENERAL INDEX. 571 AFFIDAVITS—( Continued.) Form of, general directions as to, 17 9; to be expressed in first person, 179 ; read over to deponent, 179; of service of bill, 29, 31; to state means of knowledge, 178, 270; signature, 368; title, 344; must contain address and addition of deponent, 179, 844; except parties to cause, 344; how written, 179, 260; must be divided into paragraphs, 179, 260; each para- graph to be numbered, 179, 260; or not to be used, 179, 260; or no costs allowed for, 179, 260; memorandum to be endorsed stating by whom filed, 208; to be taken off the file when scandalous, 253; costs of when disal- lowed, 179, 260: taxation of, when too long, 285. See FORMS. Guardian, on application for. See FORMS. Guardian ad litem, necessary on application by party for a, 238 Hearing, of particular witnesses or as to particular facts or circumstances may be read by consent or leave of court at, 106 Identity, of, how sworn, 34 Informal, not to be used, 260 : Injunction to stay proceedings at law, 120, See INJUNCTION. Tnterpleader suits, necessary in, 310, 319 Jurat to. See JURAT. Knowledge, every statement in, must show means of, 270 Length, practice where of unnecessary, 253 Notice of intention to use necessary, 178; on notice of motion must be filed, 177; and mentioned in notice, 177 Original not to be used except on ex parte applications, 178, 268 Production of documents, on, 101, 104, 365 Scandalous, may be ordered off the files if, 253 Service, of, to state particulars, 344; of bill, 29, 30, 31, 844; out of jurisdic- tion, 34, 285; how sworn, 34, 285. See FORMS. Swearing of, 179; out of jurisdiction, 34, 180, 285; act respecting, 565, e¢ seg. See EVIDENCE, OATHS, FORMS, JURATS. AFFIRMATIONS, Word ‘ Affidavit,” includes, 2; taking of, out of jurisdiction, act respecting, 565, et seg. See AFFIDAVIT. AGENT, Documents, when entitled to inspect, 104 Substituted service on, when allowed, 51, 35 AGREEMENT, On sale to be signed by purchaser, form of, 157, 271 IMONY, ere te Jurisdiction of court in cases of, 505; grounds for, 505; injuries, 505; pre- sumption of cruelty, 505; desertion, 505; interim, granted pendente lite, 505; writ of arrest may issue for, 506; interim order not set aside by wife’s temporary return, 505; may be increased, 505; on what principles, 505; husband’s income the guide, 505, 506; costs taxed de die in diem, between solicitor and client, and always allowed to wife, 505 See CHANCERY, COURT OF. : : ; EIAs ALLOWANCES, just, to be made in taking accounts, without special directions, 195,-198 Receivers. See RECEIVER. MENT OF BILLS, : oT as to, 39—51; before answer, 39; after answer, 40; where suit de- fective, 42—45 2 Application for, ee ae ae ri nt, cannot be procured by, é Spa after, etunel or overruled, 39, 41; before demurrer is argued, 41 Hearing, at, 44, 45 j ion, how affected by, 311 ulny Mogjeindes of plaintiffs, directed in case of, 128; where plaintiff struck out, security for costs required, 44 572 GENERAL INDEX. AMENDMENT OF BILLS—( Continued.) Motion for decree, after notice of, 44 New facts or circumstances may be introduced by, 42, et seg. Order of course for, before answer, obtained on preecipe, 39; any number of, 39; service may be dispensed with, 89; amendment of clerical errors, 40; time for order of course for leave to amend after answer, 40; not after replication, 41; only one order of course after answer, 40; affidavits neces- sary for special order for, 42, 347; notice of motion for, 42; practice thereon, 42-44; order for, only operates from day of service, 39, 41; where order not acted upon, 41, 42 Original bill, case made by, not to be contradicted on, 43 ; in place of supple- mental bill, 42; order for, must be promptly applied for, 43, 44; order of course for, after order pro confesso obtained, renders latter inoperative, 38, 40, 75; without prejudice to order pro confesso, 38,75; deputy master way issue before replication, 39 Service of amended bill, 41 3 Supplemental bill abolished, amendment substituted for, 42, 43 Time allowed for, 40; may be enlarged, 41 Long vacation not reckoned in time for, 4, 39 ANNUITY, Word ‘ legacy” includes, in orders of, June, 1853, 3 ANSWER, Order as to, 57; observations on, 59, et seg.; 3338 et seg. Admitted on hearing on bill and answer, 109 Affidavit, treated as an, on motion for decree, 62, 91; and for an injunction, 811 Amended bill, to, 42; amendment of bills before and after. See AMEND- MENT OF BILLS. Amendment of, not allowed, 66 Application for time to, made in Chambers, 147 Cross-examination of defendant on, 110, 111 Demurrer, and, 334 Endorsement on, 58 Filing, 60; notice of, to be given, 61, 97,98; without oath or signature, 65; long vacation not reckoned in time for filing, 4 Form of 58; directions as to, 59, 60; how to be written, 60, 260; divided into paragraphs and numbered consecutively, 60, 260; taken off the file when scandalous, 253 ; taxed off, when too long, 253; facts may be tra- versed directly by, 59; statements may be inserted in, 59; signature by guardian, 886; endorsement of solicitor’s name, 58, 208; or party de- fending in person, 58, 209 Irregularities in taking, 60. Jurats to, 58, 59. See FORMS, Last, meaning of, 40, 116, 117 Length, practice, where of unnecessary, 253 Meaning of term, ‘last answer,” 40, 116, 117 Motion to dismiss for want of prosecution after, 116, e¢ seg. Office copies, how made, 209 Petition, to, to vary or reverse decree, 276 Pro confesso, effect of order, obtained before answer, 60 eae against defendant, co-defendants, or plaintiff, notice when necessary, Relief may be prayed for by defendant in, 65 Scandalous, may be ordered off the files if, 258 Silence of, not implied admission of truth of bill, 62; practice on, 63 Supplemental, practice as to, 65, e¢ seg.; leave to file must be applied for by motion, 66 Swearing and taking of, 60; by guardian of infant, 61, 8386; by married woman, 61, 62. See OATHS. GENERAL INDEX. 573 AN; SWER—( Continued.) APPEAL” for putting in, 63; when served out of jurisdiction, 284. See FORMS. Court of Error and Appeal, act, 526-536; orders as to, 286-302. See FORMS. Privy Council orders, 303-307 From order of deputy master or examiner as to production, 112, 113 From master’s report, 203-4, 269; how to be set down and called on, 239; days for hearing of, 251, 272; lies until the expiration of fourteen days from filing, 269 From master’s report on title, 161, 162. See MASTER’S REPORT. From chamber order, 148, 274; when heard, 274 From county courts, 519 From Commissioner of Crown Lands, 519 From Surrogate Court, in what cases allowed, 589; how removed, 540, 541. See ERROR AND APPEAL, COURT OF. PRIVY COUNCIL. APPEAR AND ANSWER, subpeena to, abolished, 15. APPEARANCE, abolished, 16. APPLICATIONS TO BE MADE IN CHAMBERS. See CHAMBERS. APPOINTMENTS, how served, 207-8, 267; by registrar. See REGISTRAR. ARBITRATION. See AWARDS. ARREST, WRIT OF. See WRITS. ARTICLES TO DISCREDIT, abolished, 249. ASSETS. See ADMINISTRATION. ASSIGNEE, of bankrupt, of debt, judgment &c., as to bill filed by, 18; of plaintiff in foreclosure suit may revive, 47. See MORTGAGEE, SOLICITOR. ASSISTANCE, writ of, practice as to, 286; order for, to enforce decree, 236. ATTACHMENT, writ of, 234, e¢ seg.; when cannot be executed, 234; with pro- clamations abolished, 285; on decree or order for delivery of possession, not necessary, 236. ATTORNEY. See SOLICITOR. ATTORNEY-GENERAL. Order pro. con. against how obtained, 68; information by, 316. AWARDS, jurisdiction of court in cases of 488; how enforced, 236; provisions for making submission of arbitration a rule of court, 544, et seq.; proceedings before crbitrators, 545; attendance of witnesses, how enforced, 546, See CHANCERY, COURT OF. B. BANK MANAGER’S CERTIFICATE, on non-payment of money, 266. See FORMS. BENEFICIALLY INTERESTED PERSONS. See CESTUI QUE TRUST. BIDDINGS, need not be in writing, 155; judge or master may fix reserved, 154; rule as to opening, on sales by court, 164, 165; motion for, in chambers, 164, 165. BILL OF COSTS. See COSTS, TAXATION, FORMS. BILL OF FEES. See SOLICITOR. cst, f word “bill,” 2 Interpretation of word “bill,” ; Gass as to, 16; precedents of, and preliminary observations on, 19-26; 317, et seg. See FORMS se ea Ste Addressed to judges of court, 16, ‘ ; ; Amendment of, 39-51 ; applications for, on prascipe, 89, 40; in chambers, time for, 41; new facts or circumstances may be introduced on, 42; prac- tice as to making, 39-51; time allowed for, 40-42; costs, 44. See AMENDMENT OF BILLS, : Wa Assignee of bankrupt, by, 18; of debt, 18; of judgment, Answer, and, hearing of cause on, 96 Copies of, 28, 29 574 GENERAL INDEX. BILLS—( Continued.) Discovery, in what cases, 58; prayer for general relief not to be inserted in, 18, 20 Dismissal of, where order to amend not acted on, 41; on application or default of plaintiff after setting down for hearing, equivalent to dismissal on merits, 252, 258; motion for decree, on, 92; prosecution, for want of, after answer, 116, et seg. See DISMISSAL OF BILL. Endorsement on office copy, 28; of solicitor’s name, 28, 208; where plaintiff sues in person, 28, 209; in mortgage suits, 29, 281 Filing of, 26, 215; of amended bill, 442; effect of, 27; with registrar, 26; with deputy-registrar, 26 Form of, 16; to whom to be addressed, 16, 283; what it must contain, 16; what it should shew, 16, 17; how written, 260; to be divided into para- graphs, and numbered, 16, 26, 260; where allegations are ambiguous, how construed, 17; where facts not alleged in, 18; endorsement of notice to defendant, 28; forms of, in schedule A, 19-26; interrogatories and formal parts to be omitted, 26; what necessary to state in bill for fore- closure, 19. See FORMS. : ee in, practice to remedy by amerdment, 42, 45. See AMEND- NT. Length, practice where of unnecessary, 253 Parties to. See PARTIES. Pro confesso taking, 67; order as to, 67; against corporations, 30, 68, 241, 242. See PRO CONFESSO. Review, of, abolished, 51. See REVIEW. Revivor, of, abolished, 45, 278. See REVIVOR. Service of, 28; effect of, 27; on defendant, 30, 31; personal, 30, 31; hus- band and wife, 81; defendant in gaol, 81; partners, 31; substitutional, 81, 86; on solicitor, 31; on absconding defendant, 36-38; by advertise- ment, 36-38; on absent defendant out of jurisdiction, 32-84, 284, 285; on corporations, order as to, 30, 81, 241, 242; affidavit of, what to state, 30; form of, 81; how sworn out of jurisdiction, 34, 180, 285; of amended bills, 41, 42. See SERVICE. , Scandalous, may be ordered off the files if, 253 Signature of counsel unnecessary, 26 Supplemental, abolished, 42, 278; amendment substituted for, 42; practice on, 43 et seg.. See SUPPLEMENTAL BILL. Venue to be laid in margin of, 243. See FORMS. BILL AND ANSWER, when cause may, be heard on, 96, 97; setting down, 96, 97, 272; fee paid on, 259; exhibit to be proved by affidavit on hear- ing on, 105, 110; when heard, 272; notice of hearing on, 272, 273. nas POLITIC, OR CORPORATE. See CORPORATION. NDS, ee for costs, &c., 5, 6, 10; how enforced, 10; to registrar or deputy, 1 ? For costs in error and appeal, 529; on appeal from common law, 288, et seg.; from Chancery, 299-301; form of, 289; filing, 288, 298; allowance of, 292; sureties, 291; affidavit to be made by, 291; execution when stayed in original cause, 298, 530, et seq. For Privy Council, 585 ; form of, 300, 301 County Court, on appeal from, to Chancery, 538 Surrogate Court, on appeal from, to Chancery, 540 From receiver, 169, 173, 174; to master, 169. BREACH OF TRUST. See TRUST, TRUSTEE. C. CASE in appeal, how settled, 527-529. CAUSE, Decree absolute may he made at hearing of, on default of defendant, 252 GENERAL INDEX. 575 CAUSE—( Continued.) Depositions, taken in another, may be read on notice without order, 274. Hearing of, 280; days for, 251, 272; how called on for, 251, 272; on bill and answer, practice as to, 96; on affidavit evidence, by consent, 106; hearing to be at same time and at the close of the examination of witnesses; 106. 252, 280; on order pro confesso, 76; in foreclosure suits, 184; evi- dence for,134; notice of, 251, 272-3; evidence taken before examiner not to be used at, without order, 252, 280; fee on, 281; must be against all parties at same time, 252; solicitor to attend at, 259 List of, to be prepared by registrar or deputy, 247, 251, 272 Parties, not to be set down on objection for want of, 10 Proceedings in, are ex parte after order pro confesso, 75, 242 Pro confesso hearing of, setting down, 77, 268 Reading depositions in other, 105, 250 Registrar to prepare lists, 247, 251 Setting down, 272; for examination, 247; and hearing, when, 251, 252, 272; objection to, must be taken before hearing, 252; for re-hearing, 277; when, 81, 273, 277 ; in Court of Error and Appeal, when, 296; fee paid on, 106, 247, 259; by defendant, 252. See SETTING DOWN. Struck out for defect on plaintiff’s part, costs of, 244. CERTIFICATE of proceedings, master may issue, 191; registrar may issue, 208 ; of taxation, how enforced, 236; how objected to, 205. . CESTUI QUE TRUST, rules as to parties to suits by and against, 11. See TRUST, TRUSTEE. CHAMBERS, order as, 146 Accounts taken in, 151; directions as to, 151; vouching, 151; books of ac- count prima facie evidence of, 151; form of, 152; surcharge, 152. Administration order granted in, 146; of personal estate, 146; of real estate, 146. See EXECUTORS AND ADMINISTRATORS. Advertisement settled in, 153, 166. See ADVERTISEMENT. Allowance of property or income pendente lite directed in, 146 Appeal from order of judge in, 148; when to be heard, 274 Business to be taken at, 146; to be held daily, 146; judges to have power of court at, 147; may adjourn to or from Chambers and Court, 148; ap- peals from, how heard, 148; proceedings upon, 148 Decree how prosecuted in, 150; parties may be added, 150; notice to, 150; service of decree and notice, 150; effect of, 151 Infants, applications on behalf of, under 12 Vic., c. 72, in, 146, 166; when to be made, 166 Judge sitting in, powers of, 147; orders made in, how drawn up, 212; appeal from, when to be heard, 274 ; Motion in, proceedings on, 148; service of notice of, may be dispensed with, 150. See FORMS. Proceedings in, mode of, 149; appointment for, form of, 149; state of facts not to be brought in, 149 Receiver’s account, passing, in, 175. CHANCERY, COURT OF, Act relating to, 466—526 7 . Conduct of business, 473; Court to sit at Toronto, 473; judges may sit to- gether, 473; or separately, 473 ; to make circuits, 474; witnesses to be ex- amined viva voce, 474 Constitution of, 466 Fee fund, 525 Fees to be paid hy, to Law Society, 501 General orders of, continued, 525 7 ; ; Judges of, 467; appointment of, and tenure of office, 467; salaries, 467; re- tiring annuities, 468 ; oath of, 469; sittings of, 271, 272 Jurisdiction of, 475, et seg.; general, 504 Absentees, service on, 624 576 GENERAL INDEX. CHANCERY, COURT OF—( Continued.) Jurisdiction of—( Continued.) Accident, 479 Account, 319, 484 Administration, 320 Alimony, 505, 506 Appeals, 519; from County Courts, 519; from Commissioner of Crown Lands, 519 Awards, 488, 489 Chattel mortgages, 488 Co-partnership and account, 320, 484; limited partnerships, 485 Corporations, 485 Decrees, registration of, 521 Discovery, 501 Dormant equities, 517, et seg. Dower, 489 Executors and administrators, 482, et seg.; creditors suit against, 484 Fraud generally, 476; misrepresentation and concealment, 476, et seg.; on creditors, 477; on persons peculiarly liable to imposition, 478; volun- tary deeds, 479. General orders continued, 525; court may make, 526 Idiots, lunatics, and their estates, 490 Infants, 489, 490, 5183—515 Interpleader, 319 Injunction to, stay waste, 490, 491, 504; stay proceedings at law, 119, 501 Issues, trial of, 521, et seg. Letters patent, issue of, 501; repeal of, &c., 502, 5038 Lis pendens, certificate of registration of, 521 Lunatics, &c., 490, 506, e¢ seg. Mistake, 479, 480 Money in court, how disposed of, 524 Mortgages, 317, 818, 485; by absolute deed, 485; sale of equity of redemp- tion, 487; mortgage to secure future advances and floating balance, 487 ; miscellaneous cases, as to, 487, 488; special provisions as to, 515, 516; of chattels, 488. \ Multiplicity of suits, 501 Parties, 523 Partition, 511, et seg. 561, 562 Partnership, 320, 484; limited, 485 Registration, 520, 521 Sale of real estate, 561, 562 Specific performance of agreements, 318, 492; effect of Statute of Frauds, 493, 494; when time of the essence of the contract, 494; laches, 494, 495 ; option to purchase, 495; speculative purchase, 495 ; title, 496; un- certainty in contract, 497; mistake and misunderstanding as to, 497; fraud in, 497; abandonment of, 498; rescission of, 498; sale subject to incumbrances, 498 ; subject to acondition precedent, 499; vendor’s lien, 499; generally, 500; chattels, 500 Stay proceedings at law, 119, 501 Stay waste, 490, 491, 504 a Trusts, 481; breach of, and liability of trustee, 481 ; constructive, 481; ap- pointment of new trustees, 482; trusts for the benefit of creditors, 482 ; costs in cases of, 482 Vesting orders, 520 Wills, 504, Officers of, 469-478 ; registrar, master, accountant and sergeant at arms, 469, 470; registrar and master to appoint clerks, 470; not allowed fees, 470; to make quarterly returns, 470; local masters, deputy registrars and usher how appointed, 471; duties of, 471; salaries of officers provided for, . GENERAL INDEX. 577 CHANCERY, COURT OF —( Continued.) 472; governor may appoint clerks, 472; oath*of office, who to administer, 472; sheriffs and gaolers, 473; surrogate clerk, 541 Prisons, 526 Rules of decision of, 474, 475 Seal of, 467 Sittings of judges of, 271, 272. _Sce ACCIDENT and other general headings throughout the index. CHANGE OF INTEREST, or liability, practice on suit becoming defective by, 45, et seq. 278, 279; application of words, 46 CHATTEL MORTGAGE. See MORTGAGE. CHILD, where born pending suit, 45, CHILDREN. See INFANTS. CHRISTMAS VACATION. See VACATION. CIRCUITS for examination and-hearing, 245. CLIENT, communications of, to solicitor, when privileged, 312. COLLUSION, bow charged in bill, 17. COMMISSION, Examination for, of witnesses, writ of, practice as to, 245; joining in, and striking commissioners’ names, 245 Foreign, may issue on certificate of master, 199. See EXAMINATION. COMMISSION OF REBELLION, abolished, 235. COMMISSIONERS FOR TAKING AFFIDAVITS, Out of jurisdiction, act respecting, 565, e¢ seg. COMMITTEE OF LUNATIC, how appointed, 175. See LUNATIC. COMPOSITION of dower, 515. COMPUTATION OF TIME, order as to, 3. See TIME. CONDITIONS, of sale, provisions respecting on sales by court, 136 ; form of, 158, 165; contract of sale to be printed under the, 157, 271 Where party obtains an order on condition, and fails to perform it, 118, 119. CONDUCT, Sale of, 131, 152, 266; where defendant in foreclosure suit asks a sale he may be required to take, 266. See SALE Suit of, discretion of court as to giving in certain cases, 11. CONFIRMATION OF REPORT. See MASTER’S REPORT. CONSUL, affidavit may be sworn before, when, 285, 567. CONTEMPT, clearing, 234; effect of, 234 Parties in, when application may be made by, 234 Process of, 282; for no production, 237; for non-payment of money abolished, 548 Waived by, taking office copies, when, 209 Witness refusing to be examined, 113. See PROCESS. CONTRACT, form of, to be signed by purchaser on sale by court, 187, 271; signing, 155, 157, 271; filing of, 156; to be printed under conditions of sale, 251. ‘ i CONVEYANCE, Master to settle, 162; religious bodies, by, 552; form of. See FORMS. , COPIES, order as to, 178, 209, 210 Affidavits, of, 178, 210 Answer, 210 Bills, 28 et seg. 210 . bes oe f, deputy registrar may make, st ae 7 ee Lnetee nat to be made by, 209 ; applications for, 209; delivery of, 210; how to be made and ee es 209, 210; refusal to supply, ect of, 210; effect of deman ing, ; ! ec and affidavits by solicitor, 209; certified by registrar, 209. CORONERS, tariff of fees to be paid to, 260, et seg. 73 578 GENERAL INDEX. CORPORATION, order as to, 30, 241; service on, 30, 241; foreign, 241, 242; order pro con. against, 30, 68, 241, 242; when application to be made, 30, 68, 241, 242 Answer of aggregate, to be put in under common seal, 337 Bill filed, by, 316; practice on, 816 Contracts of, 485 Production of documents, how obtained from, 99 Service of proceedings upon, 30, 68, 241, 242. COSTS, order as to, 217; general practice as to, 218, et seg. Admit, of refusal or neglect to, 188 Affidavits, of informal, disallowed, 218, 260 Amendment of bills, 222, 225 Answer, of informal, disallowed, 218, 260 Attorney general, of, practice as to, 219, 220 Bill, of informal, disallowed, 218, 260 = Cause, in, what are, 221 Contempt, of, 548; not taxable between party and party, 225; no contempt for non-payment of, 236; except of contempt, 234 Conveyancing, bill of, taxable, 221 Copies of pleadings, &c., of, 210 Counsel, 225, 229 Creditor coming in after decree, 192, 219 Crown and subject, as between, 219, 220 Demurrers, of, 221; demurrer ore tenus, 221 Disallowed, of bill, answer or affidavit which is not written legibly, divided into paragraphs and numbered, 218, 225, 260 Dismissal of bill, by plaintiff, on, 220; for want of prosecution, 222 Dismissed suit, of, need not be paid before institution of second suit, 220 Foreclosure suits, in, 223 Forms of bills of, 428-465. See FORMS. Impertinent matter, of, 253; of improper pleadings, 2538, 260 Lien of solicitor on documents ordered to be produced, 103; no defence against production, 103, 866; how affected by change of solicitor, 312; general practice as to, 224, 225 Lunatic, 511 Master’s office, in, control of master over, 188, 192 Mortgage suits, in, 223; when mortgagee has proceeded at law, 189, 256 Motions, of, 222 Parties, of, having a common interest, regulation of, by court, 11 Party and party, what allowed as between, 217, 219, 225 Payment of enforced by fi. fa. ven. ex., and sequestration, 236 Process for, 236 Pro confesso, in suits taken, 485, et seg. Receiver’s, forms of. See FORMS. Redemption suits, in, 223 Re-hearing. See FORMS. Reservation of, 222 - Re-taxation of, 218, 275; costs of, 219, 275; order as to, applies to bills already taxed, 275 : Security for, when required from plaintiff, 5-10, 16, 318; bonds to be made for, to registrar, or deputy registrar, 210, 211; all defendants to be included in same bond, 6, 211; order for may be obtained on precipe in certain cases, 5; and in other cases on motion, 5; not granted unless plaintiffs all reside out of jurisdiction, 5: what the order should state, 5; each defendant is entitled to order, 5; as to waiver by filing answer, 5, 6; service of order, 5; bond and sureties, 5, 6; notice of filing bond to be given, 6; where sureties objected to,-6; ag GENERAL INDEX. 579 COSTS—( Continued.) to meaning of words ‘‘resident” or ‘permanently resident,” 6, 314; where, being in service of Crown, exempts from giving security, 6, 7, 314; who may be surety, 6; as to penalty and nature of security, 6,211; what constitutes waiver of security, 6,8; where place of residence mis-stated in bill, 6, 7, 818, 315; interpleader suit, 7; cross suit, 7; suit to restrain action at law, 7; when defendant having conduct of suit, to give security, 73; as to security from persons not parties to suit, 7; where plaintiff has no fixed residence, 7, 814; or is at sea, 7; or leaves his residence, 7, 8, 314; after answer, special application necessary, 8; as to security in case of ex- ecutors, administrators, and infants, 8; infants, 315; where plaintiff goes abroad pending suit, 8, 314; stat. 22 Vic., ch. 33, has materially changed practice, 8; where party has property within jurisdiction, 8; judge bound to notice territorial divisions of province, 8; plaintiff may pay money into court in lieu of giving bond, 8, 9; where married woman, or infant sue by next friend, 9, 314, 315; where such next friend dies or retires, 9; a mar- ried woman defendant, asking security, must do so by next friend, 9; where order for security not complied with, 9; where suit revived by representa- tive, security ordered, 9; proceedings where order applied for on motion, 10; deputy master, where bill filed, has jurisdiction to grant, 10; as to suing ou bond, 10. Sheriff, tariff of, to be paid to, for execution of process, &c., 231, 260, et seq. Solicitor to pay, if occasioned by his over caution, neglect, or mistake, 226 Solicitor and client, what allowed on, 217, 219, 224, 225 Specific performance suits, in, 223 Subpena for, abolished, 236 Tariff of, 226, et seg., 260 et seg. Taxation of, order as to, 217; rules as to, 217, 218; may be had without express reference, 218, 265; when revived, 205, 219. See TAXATION. Taxation of Solicitors’ bills, petition and order for. See FORMS. Taxed, gross sum may be ordered in lieu of, 217. Trustees, 482. See FEES, FORMS, TAXATION. COUNCIL, PRIVY. See PRIVY COUNCIL. COUNSEL, fees to, 225, 229 Signature of, to Bill of Complaint dispensed with, 26. COUNTY COURT, EQUITY SIDE, act respecting, 537, ef seg.; removal from to Chancery, 537; jurisdiction of Chancery as to, 537; Chancery Judges to frame rules for, 537, 538; effect of rules, 538; costs of, 5388; appeals from to Chancery, 538; security on, 538; Court of Chancery to regulate practice as to, 539. : COURT OF CHANCERY ACT (22 Vic.. ch. 12,) 466, 526. See CHANCERY, COURT OF. JURISDICTION. COURT OF ERROR AND APPEAL. See ERROR AND APPEAL, COURT OF. CREDITORS, Administration order may be obtained by, as to personalty or realty, 86 ; form of affidavit on, 348 Fi. Fa. lands, by, when necessary parties, 20 : Judgment, by, when necessary parties, 20; form of bill by, 21 Parties to suits concerning, 13. : CROSS-EXAMINATION. See AFFIDAVIT, WITNESSES. CROSS SUIT, the test of a, 7. ; CUSTODY OF INFANTS’ ACT, (18 Vic., ch. 126.) Objects of generally, 657, 558; does not give a legal defence to mother, 557, 658. See INFANTS. D. DATE of Filing, &c., proceedings to be observed, 97. DEATH, aeneiie on abatement of suit by, 49, et se. 278-9. See ABATEMENT. 580 GENERAL INDEX. DE BENE ESSE, examination, 244. DECEASED PERSON, Account of debts, &c., of, directed without suit, on application of executor, &e., 88 Payment of, debts of. See ACCOUNT. Administration of personal estate of, directed without suit, on application of creditor, legatee, or next of kin, 85, et seg.; of real estate, directed without suit, 85; on application of creditor, or person interested under will, 85 Representative of, dispensed with by the court, or one appointed, 125; when not, 126,127; order appointing, how made, 127; effect of, 126. DECISION, Rules of, in Court of Chancery, 474, 475. DECLARATION, Right of, may be made without granting relief, 124 Making of, out of jurisdiction, act respecting, 565. DECLARATORY, ~ Decree when made, 123, 124; practice thereon, 124. DECREE, Word “ order” includes ‘‘ decree” in orders of June, 1853, 3 Order as to, observations on, 387, 388 Administration, for, 88 Absent trustee, against, 387 Applicatiou to add to or vary, who may make, and within what time, 12; where bill pro confesso, 79, 80 Appeal from. See APPEAL. Carriage of, 184; for payment of money, person having, deemed the plain- tiff, 550 Copy of, how authenticated, 187 ; deputy-register may make office, 263 Declaratory, when may be sought, 123; not of mere legal rights, 124 Drawing up, settling and passing, 208; power of registrar to introduce alterations in, 208, 212 Effect of, where defendant makes default at hearing, 252 Endorsement on, when served on parties made in the master’s office; schedule N., 150, 205; schedule A, 189, 257; schedule B., 140, 258 When before process, 235, 236 Enrolment of, time for, 213; when vacated, 214 Entry of, 78 Error in, how corrected, 212 Fees on, 228, 231 Foreclosure, for, obtained on preecipe, 76, 77, 185, 281; may be enforced after stay of proceedings on subsequent default in payment, 133 Forms of and directions as to, 387-3890. See FORMS Misjoinder of plaintiff’s, modification of in case of, 128 Motion for, after answer, 89; before answer, 93, in what cases allowed, 90, 263; evidence and practice on, 90, 91; affidavits to be filed, 90, 91, 92; setting down, 90, 239, 2638; decree made on, 92; notice of, 91; form of, "941: service of, 91 Office copies of, how authenticated, 187; may be made by deputy-registrar to whom reference is made, 263 ; endorsements on, schedules A. and B. 139, 140, 257, 258; schedule N. 201 Order’ of revivor or supplement, whether obtained before decree, 49 Partial, 124, 125 Passing, 78, 208 Personal representative may be made in absence of, practice as to, 126, 127; or a person may be apppointed to represent for purposes of the suit, 126 et seq Petition to reverse or vary, 275-7 GENERAL INDEX. 581 DECREE—( Continued.) Proceedings on, in Chambers, 149, ed seg.; in master’s office, 184, ef seg. Process to enforce, 252 et seq.; against persons not parties, 237 Pro pee v8 et seg; how made absolute, 79; how obtained in foreclosure suits, 13 Redemption, obtained on precipe in suit for, 76, 77, 185, 281 Registration of, 521, 565 Re-hearing of, petition for, 51 ct seg. See RE-HEARING. REVIEW. Review of, on ground of error, petition for practice as to 275-277 Sale, for, of mortgaged property may be obtained on precipe, 76, 77, 185, 281. See SALE BY THE COURT Service of, on persons not originally parties; where parties made by judge in Chambers, 150, 151; by master, 201; in mortgage suits, 137-140, 255-258; before process, how effected, 235; endorsement on when served before process, 235, 236 Signed and enrolled, 218, et seg. Supplemental. See ORDER. See FORMS. ORDER. DECRETAL ORDER, word ‘order’ includes, in Orders of June, 1853, 8. See DECREE. ORDER. DEEDS, delivery . may be ordered, 163 ; setting aside for fraud, 476 et seg.; volun- tary, 479. DEFECTIVE, practice where suit is, by imperfection in bill, 42-45, 278, 279; where by event subsequent to institution of suit, 45-51 . Dismissal of bill in cerlain case, where suit, 45. DEFENCES, by answer and demurrer only, 54. DEFENDANT, Absconding, 36-38, 264; who is, 36; proceedings against, 36-38; advertise- ment for, 36, 87; insertion of, 87; order pro confesso against, 36-38, 70-74 Absent, 32, et seg., 284, 524; for more than two years before bill filed, 37 ; in suits for foreclosure and specific performance, 38; service of office copy bill on, 32-34, 38, 254, 285; substitutional service on, 34-36; order pro confesso against, 70, 74 Concealed, 37, 264 Cross-examination by, of co-defendants witnesses, 26 Cross-examination of, 111-114; order not necessary for, 111, 248, 274; on motion for decree, 91 Death of. See ABATEMENT. REVIVOR. Default of, at hearing, court may make decree on, 252 Dismissal of bill, may move for, for want of prosecution, 114, et seg.; or on payment of amount due on mortgage defore decree, 132 Examination of, as witness by plaintiff or co-defendant, 111 et seg., order not necessary for, 248, 274 a a ays Sica Hearing, may set down cause for, and serve notice if plaintiff does not, within one month after publication, 252 ; . sot Lav, at, pleading equitable pleas, as to setting up samein equity, 120, 501, 502 Parties, cannot object for want of, in certain cases, 10 et seg. . Proceedings, may move to stay, after decree in foreclosure suit on payment of amount due, 133 Bite ae Pro confesso, may appear on hearing, 17; may move for leave to answer after order, 60, 61; or after decree where not absolute, 79, 80 Relief may be given to, ina proper case, 65; must be prayed for, 65 Security for costs, when required from, 7. See ANSWER. DELIVERY of deeds, 163. | DELIVERY OF POSSESSION, After final order in foreclosure, 129, 264. or on dismissal of bill in redemption suits, §82 GENERAL INDEX. DEMURRER, order as to, 54; general principles es 54 et seg. 831 Admits statements in bill unless repugnant, &., Allowed to whole bill puts an end to suit, 57 ; iter pending injunction, 57 Amended bill, when allowed to, 57 Amending bill after, 41, 57 Answer and, parts of bill demurred to should be distinguished on, 56 Costs of, to be paid by defendant, if overruled, by plaintiff, if allowed, 56; on submission to, 56. See COSTS. Filing, 54; notice of, to be given, 54, 57, 97, 98; effect of, 54 Form of, 54. See FORMS. Hearing of cause set down on, days for, 251, 272 Endorsement on, 208, 209 Injunction, how affected by, 57 Names and address for service to be endorsed on, of solicitor, 208; or party suing in person, 209 Office copies of, 209, 210 Ore tenus, when allowed, 55 Revivor after allowance of, 46 Separate, when necessary, 55 Setting down, time for, 54, 55, 56; long vacation not reckoned i in, 4 Time for putting in, 54. DEPOSIT, Re-hearing, on, 211 Sale, on, in lieu of foreclosure, 130; amount of, 131; may be dispensed with, 130. Security for costs, in lieu of, 8, 9. DEPOSITIONS, Party to suit, any, may use, on terms, 250 Taken in another cause, may be read on notice without order, 105, 205, 274; when, 105, 106 Taking of, on exaniination by the court, 109; must be in first person, 249; by master, 199; form of paper, 397; by special examiner, 181; must be in his handwriting, 181 Witness must sign, 109, 250. See EVIDENCE. WITNESS. DEPUTY MASTER AND REGISTRAR, order as to duties of, 214-217 Appointment of, 471 Bill may be filed with, 27, 215 Book to be kept by, 216 Decrees, office copies of, may be made by, 262 Fee to, on setting down cause, 247, 256 List of causes for examination, to prepare, 247 Office copies of decrees may be made by, 262 Orders of course to be drawn up on, by preecipe, 211, 216 Quarterly returns of bills filed, to transmit to registrar, 262. DESERTION, ground for alimony, 505, DEVISEE, Order for administration of real and personal estate of testator may be obtained by, without bill, 85 Parties in administration suits by, or against, rules as to, 11 Revivor, order of, against, how obtained. See REVIVOR. DILIGENCE, when required in moving to amend, 43. DISABILITY, PERSONS UNDER. See INFANT. LUNATIC. MARRIED WOMAN. DISBURSEWENTS. See SOLICITOR. DISCHARGE, abolished, 149, 189, DISCLAIMER. See ANSWER. GENERAL INDEX, 583 DISCOVERY, jurisdiction of court in cases of, 51. See CHANCERY, COURT OF, Bills for, abolished in certain cases, 35; when bill for, may be filed, 68, 54 Plaintiff's right to, 53 ; in aid of defence at law, 53 Prayer for general relief not to be inserted in bill for, 18, 20. DISMISSAL OF BILL, Defective, where suit, 45 Defendant may move for, when plaintiff refuses to be examined, 113; also on payment of mortgage debt in foreclosure suit before decree, 132 Injunction dissolved by, 311 Misjoinder of plaintiffs, no ground for, 128 Plaintiff, on application or default of, after setting down, equivalent to a dismissal on the merits, 253, after setting down, plaintiff not entitled to an order of course for, with leave to file a new one, 203; when plaintiff may dismiss his bill without costs, 116. DISMISSAL OF BILL FOR WANT OF PROSECUTION, Application for, made by motion, 114; who may move for, and in what cases, 114; when defendant may move, 116 e¢ seg.; how time computed, 116 et seg.; practice on, 114 ed seg.; after answer, 116; after close of evidence, 117; where plaintiff does not amend after order to amend, 41, 117; or amends after answer, 117; where suit defective, 45. DOCUMENTS, May be transmitted .by post, 210; or Special messenger, 210; copies of, how to be made, 209, 210 Production of, 98 et seg; ordered in Chambers, 98 ef seg.; or in master’s office, 103, 104, 199; unless privileged, 98 et seq.; solicitor by, on taxation, 374. See PRODUCTION OF DOCUMENTS. Proof of, 105 Referred to, in affidavit, to be made exhibits, 844; to be produced on cross examination, 182. DORMANT EQUITIES, Jurisdiction of court respecting, 517-519; and in regard to other equitable claims, 517-519. DOWER, Jurisdiction of court in cases of, 489. See CHANCERY, COURT OF. E. EJECTMENT, amount of bond in appeal in actions of, 290. ; ELECTION, law or in equity, 63 et seg. under for how obtained, 63 et seg.; discharged, 63: practice on, 63 et seg. See FORMS. ENDORSEMENT. See INDORSEMENT. ENQUIRY. ENQUIRIES. See INQUIRIES. ENROLMENT. See INROLMENT. ENTRY of Decrees, 78, 208; Oa nous TIES DORMANT. See a : Eouiry OF REDEMPTION. See MORTGAGE, MORTGAGEE, MORTGAGOR. ERASURES, in affidavits should be initialed by the commissioner before whom sworn, 344, in exhibits, 360. : ERROR AND APPEAL, COURT OF, ct respecting, 526 et seq. absent eae in, after security perfected, 532, 533 Appellant may discontinue appeal, 529 Clerk of, 527; his duties, 529; his fees and accounts, 536 itution of, 526 Pecan es stayed in suit in court below, 530; when not, 530, 531 ; practice on, 531, 532; when money paid, 532 Fees to be paid by, to law society, 551 584 GENERAL INDEX. ERROR AND APPEAL, COURT OF—( Continued. ) ; Judges of, 526; who to preside, 527; quorum, 527; sittings of, 527; may may make rules, 535, 536 Jurisdiction of, 527, 528; what matters appealable 527, 528; may quash proceedings, 527; or dismiss appeal, 528 ; Orders of, 286-302 Petition to, to be filed, 588; when, 584; form of, 5383; not to be answered, 533; when to be heard, 533 Security to be given. See BOND. Time within which to appeal, 534; when decree not absolute, 534. ESTATES TAIL, act respecting the assurance of, 558 et seg. EVIDENCE, orders as to 98, et seg., general principles as to, 105, 108-110 Administration, on motion for, 87, et seg. Admissible, of facts not alleged in the bill is not, 18 Admission of, after close of examination not favored, 249 Affidavit, by, not allowed at hearing, 252; except by consent or leave of court, 106 . Answer, rules as to reading as, by plaintiff or defendant, 62, 91 Creditors’ claims, to prove in the master’s office, 192, 197, 198 De bene esse, 244 Delivery of bill of costs to client, of, 392 Directions as to, in taking accounts, &c., under decree in master’s office, 185, 188; in chambers, 151 Documents, by, as memorials of deeds, letters, &c., 151 Entered, not to be, in decree, 212; but in registrar’s book, 212, 259 Excluded, of party who refuses to produce witnesses when called on, 249 Execution of ‘deeds, &c., of, 105 Facts, of, not alleged in the pleadings inadmissible, 59, 110 Further, when cause ordered to stand over for, 109; terms on which allowed, 248 Guardianship of infants, 364, 365, 489, 554; Guardian ad litem, 72 Hearing, to be used at, 105, 108-110; on bill and answer, 105, 110; by af- fidavit not allowed at, 252; taken before examiner not to be used at, without order, 106, 252, 280; to prove account, &c., on hearing pro confesso in mortgage suits, 134 Insufficent, where, practice as to, 108, 109 Law, given at, when may be read, 244 Maintenance and guardianship of infants, 364, 365, 489, 554 Master’s office, 185 Motions, on, for decree, 89-98; for injunctions, 120, 811; receiver, 170 Notice, of, 109 Necessary, what, to contradict answer, 62, 63 Parties, of, 110-112; may be struck out at hearing if interested, 111; may be rebutted, 112; penalty where party refuses to be examined by plaintiff, 113; by defendant, 113; rules as to reading, 118; order for, not requisite, 274. See PARTIES. Pablication of. See PUBLICATION. Read, must be, distinctly by counsel, 259 Service, of. 32, 34 Species of, 110 Taken, how, must be in first person, 249; in another court, when, may be used, 108; out of jurisdiction, 245; de bene esse, 244. See EXAMINATION. WITNESSES. - EXAMINATION, orders as to, 110-114, 248 et seg. Appointment for, not to be taken out, 248 Causes for, registrar and deputy to prepare lists of, 247; how called on, 248 GENERAL INDEX. 585 EXAMINATION—( Continued.) Commission for, how obtained and practice as to, 245 Conduct of, judge to regulate, 249 De bene esse, practice as to, 244 Defendant, of, 111; practice as to, 111, et seg. Examiner, before, notice of, 182, 183 Further, for, witness may be recalled, 249 Hearing of cause to take place at close of, 258 Interrogatories not to be used for, without leave, 110; usually used in ex- aminations out of the jurisdiction, 245 Jurisdiction, out of, to be on commission, 245 Notice of, time for service of, 248; form ot, 254 Parties, of, order as to, 110 e¢ seg., 248; order for, not necessary, 111, 248, 274; practice where united in interest or joint contractors, 111,112; rules on, 113; penalty for non-attendance, by plaintiff, 113; by defendant, 118; when to be had, 113, 114; where no deputy master in county, 240; when, out of examination term, 242 Place for, to be selected by plaintiff and designated in margin of bill, 243 eg ee to be caused to be transmitted on, by party setting down, 106, 247, Pro interesse suo, abolished, 183; practice in lieu of, 183, 184 Setting down for, 247; may be by any party after issue joined, 247; time for, 247; notice of and time for, 248; form of, 254. Taken, must be, in first person, 249 Terms for, 245 Witnesses, of, 243 ed seg., of all parties to take place at place designated in margin of bill of complaint, 243; and during term for which set down, 248; where no deputy master in county, 248; out of examination term, 242; no list of, to be furnished, 248 Venue to be laid by plaintitf, and designated in margin of bill, 243; any party may apply to change, 244 Viva voce, to be, 110. See DEPOSITIONS. EVIDENCE. EXAMINER. WITNESSES. EXAMINER, SPECIAL, order as to, 180 Attendance of witnesses before, how enforced, 180; for cross-examination, 182, 183 Examination of witnesses by or before, 181; how conducted, 181 Number of, 181 Powers of, 181. EXCEPTIONS, : Affidavit on production of documents to, may be made, quere in this pro- vince, 99 Impertinence, for, abolished, 253 Master’s report, to, abolished, 269 Scandal, for, abolished, 253. EXECUTORS. See EXECUTORS AND ADMINISTRATORS. EXECUTORS AND ADMINISTRATORS, ; Account of debts, &c., of deceased, directed on application of, 88; how taken, 198, 199; form of order, 212, 218; when taken with wilful default against, 87-89, 198, 199 Mim ; Administration on motion by and against, 87, 88; creditor’s suit therefor, 484 : Jurisdiction of the court relative to, 482, et seq. Law, proceedings at, against, restrained after decree, 122, 123; as to costs at, 122, 123; as to notice of motion for the injunction, 87 Represented, when cestui que irust, by, 12, 321 74 . 586 GENERAL INDEX. EXECUTORS AND ADMINISTRATORS—( Continued.) Revivor by and against, 46, e¢ seg. Security for costs when required from, 8. See CHANCERY, COURT OF. PERSONAL REPRESENTATIVE. EXECUTION, Conveyances, of, of property of infants, 514, 515; lunatics, 510, 511; on partition, 512; when to be directed by master, 200 Error and Appeal, may stay in court below, 580; exceptions, 530—532; if ee on, party appealing may demand it back from sheriff, 5382. See PROCESS. EXHIBIT, Account to be made an, and not to be annexed to affidavit when taken in chambers, 152; or in master’s office, 190 Documents, used on examination of witnesses must be marked as, 105; refer- red to in an affidavit, to be made, 344 Hearisg, used at, must be deposited with registrar and described in schedule, Endorsement on, form of, 344 May be proved on hearing on bill and answer, 105, 110 Order to prove viva voce at hearing, 105; form of, 385 : Proved by affidavit on order, 104, 105 Schedules of, to be made, when cause stands for judgment, 260, EXPENSES, . See COSTS. . EXTENSION OF TIME, Granted in chambers, 147; by deputy-master, 215, 216; for payment of mortgage money, 142, 148. F. FACT, Questions of, arising in suit, the court may summons a jury to try before itself, 522, 523; may be decided by the court without a jury, 522. FATHER, Access of mother to infant in custody of, may be ordered under Custody of Infants Act, 557; except where mother guilty of adultery, 558. FEES : ; Counsel, what allowed to, as between party and party, 226, 229 Setting down causes, on, 106, 247, 259 Suitors’ fee fund, what to be paid to, 525, 551, 552 Tariff of, 226, et seg.; sheriffs and coroners, 260, et seq. See COSTS. SOLICITOR. FEE FUND. See SUITORS’ FEE FUND. FEMALES, Included in words importing the masculine gender, in Orders of June, 1853, 2. FEME COVERT. See MARRIED WOMAN, FIERI FACIAS. See WRIT. FILING OF PLEADINGS, order as to, 97, 98 Answer, 63; to amended bill, 63; long vacation not reckoned in time for, 4; may be without oath or signature on order, or by consent, 65; supple- mental, 65, 66 Bill, 26; effect of, 27 Demurrer, 54; cause may be set down by any party forthwith after, 54, 56 Notice of, to be given on the same day, 97, 98 Office, to be effected in same, 27 Replication, 93 ; only one to be filed, 98; long vacation not reckoned in time for, 4, FOLIO, is 100 words in conveyancing a3 well as Chancery in this province, 485. GENERAL INDEX. 587 FORECLOSURE, orders as to, 129-145, 254-258 Account in suit for, may be taken at hearing, 184; not where defendant dies pending the taking of, 135; or referred to judge in chambers, 186; or master, 136; principles regulating the taking of, 195, 196; proceedings where state of, changed after decree or report, 188, 189, 268, 269 Attendance to receive money in suit for, 141, 142 Bill for, form of, 19, 322; observations on, 19, 317, 318; endorsement on when served, 29, 135, 281; dismissal of before decree on payment of amount due, 132, 133; right to file, 140 Costs in suits for, 223; where plaintiff proceeds at law, 139, 256 Decree for, obtained on preecipe where no answer, 135, 281; to be served on incumbrancers made parties, 139, 255; endorsement on when served, (schedule A,) 139, 257 ; office copy of may be made by deputy-registrar, 137, 262; must be duly stamped, 137; observations as to form of, 141 Dismissal of bill for, on payment of amount due before decree, 132, 183 Enlargement of time for payment of money in suit for, 142 Equity of redemption, persons interested in may be made parties in the master’s office, 187, 264 Final order for, observations as to, 143, 144; possession may be ordered to be delivered on or after, 129, 264; forms of, 376, 377 Hearing on order pro confesso in suit for, 134; evidence at, where account taken, 134; hearing in ordinary way, 186 Incumbrancers, to be made parties by master, 136, 137, 254, et seg.; plaintiff takes reference as to, at peril of costs of enquiry, 135, 187; evidence on which made parties, 156, 254, 255; to be served with office copy, decree, 187, 255; endorsed with schedule A, form of, 139, 257; effect of failing to appear, 137, 256; made parties before decree to be served with schedule B, form of, 140, 258. See INCUMBRANCERS. Indorsement on office copy bill for, when served, 29, 185, 281; on decree, 139, 257 Opening, practice as to, 144, 145 a Order, final, for, observations as to, 143, 144; forms of, 876, 877; for pos- session may be granted on or after final order for, 129, 264 Parties to suits for, 13, 19, 20, 140, 141; persons interested in equity of redemption may be made, in master’s office, 137, 264; prior mortgagees not to be made, unless relief sought against them, 137, 255; practice where unnecessary made, 137 a . Payment of money in suits for, defendant may move to dismiss bill before decree on, 132, 133; or to stay proceedings after decree, 133; after which, decree may be enforced on subsequent default in, 133; time and place for, 141, 142; enlargement of time for, 142, 143; master to appoint, into some bank, 138, 265, 266; proceedings where account changed by, after decree or report, 138, 139, 268, 269 Possession, delivery of, on or after final order for, 129, 264 Report in suits for, forms of, 403-406 a : Sale may be directed in lieu of, 129; conditions as to, 129 et seg.; deposit on, 131; time for, 130, 1381; guere whether granted after decree for foreclo- sure, 131; where directed, other incumbrancers to be brought in, 136, 255 Suit for, proceedings in, when defendant cannot be found, 38 ; defendant may move to stay proceedings after decree, or to dismiss bill before decree in, on payment of amount due, 132, 133. See MORTGAGE. MORTGAGEE. MORTGAGOR. FOREIGN PARTS, Affidavits, &c., how sworn in, 565-568; of service of bill, how sworn in, 34, 285 Answer, how sworn in, 60. Ste BILL. EXAMINATION. SERVICE. 588 GENERAL INDEX. FORMS, Abstract of title, 400 Accounts of personal estate, 358 Of rents and profits, of real estate, 359 Advertisement for absconding defendant, 36, 70 For sale under decree, 899 For creditors, to come in under decree, 398 Affidavit, General form of, 344, 345 Title and commencement, 345 Jurat to ordinary, 180; of illiterate person, 345); joint affidavit, 346 On production, 100, 365 Of service of order or decree requiring an act to be done, 346; of office copy bill, 31; of notice of motion, 347; of petition, 351 In support of motion to amend bill, under Order IX., sec. 14, 347 By creditor, in support of motion for administration order, 347 By legatee, in support of same, 348 By next of kin, in support of same, 349 Of execution of deed by an attesting witness, 351 By a person not an attesting witness, 352 To be annexed to interpleader bill, 352 To obtain order to examine a witness de bene esse, 852 To obtain order for a commission to examine out of jurisdiction, 353 To support application for an order appointing a guardian to an infant de- fendant and for maintenance, 364 To prove judgment debt, 350; mortgage debt, 350 Of attendance to receive money, 353 Of non-payment of money reported due, 354 Of fitness of proposed receiver, 360 Of justification by receiver’s sureties, 361 Of justification of surety on appeal bond, 291 For fixing a reserved bidding, 361 Of fitness of proposed auctioneer, 362 Of auctioneer as to result of sale, 363 Of insertion of advertisement of sale, &c., 363 Verifying advertisement of sale, 361 Verifying abstract, 349 Verifying accounts and answering enquiries as to realand personal estate, 354 Verifying receiver’s account, 360 In support of petition to tax solicitor’s bill of costs, 392 Agreement to be signed by purchaser under decree for sale, 157, 271 Answer, General form of, 58, 3834 Title and commencement, 334 Answer of an infant, 335 Commencement of answer of lunatic and his committee, 335 Jurats to answers, general jurat, 58 Of illiterate person, 59, 335 Of married woman, 836 Of guardian to infant, 336 Of joint answer, 336 Of a corporation, 337 Of quaker’s answer, 336 Appointment of judge in chambers, 149 Of receiver by judge or master, 169 Authority from relator to file information, 317 From next friend to file bill, 317 GENERAL INDEX. 589 FORMS—( Continued.) é Bills, General form of address, commencement, and title to, 313 Of bill by husband and wife, 313 By wife and next friend, 314 By infant, 815 By lunatic, 316 By railway company, 316 Of information, 317 Authority from relator, 317; from next friend, 317 Bill of foreclosure or sale, 19, 322 By judgment creditor, 21 Redemption, 21 Partnership account, 22 For dissolution of co-partnership, 22 Specific performance, of parol agreement, 23 Stay waste, 24 Stay trespass, 25 To use name of trustee, 25 To appoint new trustee, 26 To enforce payment of annuity, 322 To compel conveyance of legal estate by the purchaser of the equitable estate, 324 To remove cloud or forged deed from title, 327 For specific performance of an agreement for purchase of land, or in default foreclosure, 23, 238 To declare absolute deed to have been intended by way of security only and for redemption, 329 Endorsements on office copies, 28, 29 Bond, for security for costs, 421 For security on appeal, 289, 300 Certificate, of Lis Pendens, 414, 551, 565 Of state of cause, 414 Of final order of foreclosure, 414 Of bank manager of non-payment of mortgage money, 424 Conditions of sale, 165 Conveyance under a decree for sale, 425 Costs, Of demurref allowed, 428 Of demurrer over-ruled, 429 Of interlocutory motion in chambers, refused, 480 Of creditor proving claim on mortgage, 431 The same on judgment, 431 Of obtaining final order of foreclosure, 481 Of motion for injunction considered as an interlocutory application, 432 Defendant’s costs on same, 461 On motion to dissolve injunction, 462 OF cause, pro confesso, plaintiff’s costs, 435 Plaintiff ’s costs of cause, defended suit, 442 Of sale and conveyance, 444 Purchaser’s costs 447 Of appointing receiver, 448 . Of passing receiver’s accounts, plaintiff ’s cost, 449 The same, receiver’s costs, 450 Defendant’s costs of suit, 451 Of re-hearing, 457 =e Master’s office, 459 590 GENERAL INDEX. FORMS—( Continued.) Costs—( Continued.) Appeal from Master’s report, 459 On appeal to Court of Error and Appeal, appellant’s costs, 463 Respondent’s costs, 464 Decrees, Form of introductory part of, 888, 389 For redemption, 389 For specific performance, 389 Demurrer, Title and commencement, 331 Conclusion, 332 For want of equity, 332 For want of parties, 832 . For multifariousness , 833 Of Statute of Frauds, 338 Endorsement. See FORMS. Indorsement. Exhibit, endorsement on, 344. Fiat, on petition for re-hearing, 891 Endorsements on office copies bill, 28, 29; in mortgage suits, 129, 135, 281; On answer, 58 On decree, schedule A., 189, 257 On decree, schedule B., 140, 258 Ou decree, schedule N., 150, 201 On decree requiring act to be done, of consequence of disobedience, 335 On exhibit, 344 On petition for re-hearing, 391 Information, commencement of, 316 Authority from, relator to file, 317 Judge’s appointment, 149 Jurats, to answer, 58, 59, 835, 337 To affidavits, 180, 345, 346 Of execution, 180, 368. Master’s office, Surcharge, 396; notice of, 396 ; Headings and conclusion for depositions on examination or cross-exami- nation of witnesses, 397, 398 Advertisement for creditors, 898 Advertisement for sale, 899 5 Abstract of title, 400 Notice to attach thereto, 402 Report, on sale under decree, 157, 270 Report in foreclosure suit, no parties added, 403 Report in same, where parties added, 404 Subsequent report in same, 406 Report in specific performance suit, 406 Report in administration suit, 407 Notices of motion, Title and commencement of, in court, 337 Conclusion, 387 Title and comraencement of, in chambers, 338 Conclusion, 838 For administration of estate of deceased person, 86 me ee time for filing affidavit under four day order for production, 3 For time to answer, 338 For leave to open biddings, 338 GENERAL INDEX. 591 FORMS—( Continued.) Notices of Motion—( Continued.) For special injunction, 342 For injunction to stay proceedings at law, 339 For injunction to stay waste, 889 ; For injunction to stay cutting of timber, 342 To dissolve injunction, 342 For appointment of receiver, 339 To dismiss bill for want of prosecution, 839 To amend bill, 339 To dissolve injunction, 342 To take bill pro confesso, 340 To take bill pro confesso against absent defendant, 70 To enlarge time for payment of mortgage money, 340 For purchaser to pay purchase money into court, 340 To assign guardian, 340 For security for costs, 341 For an order nisi to dismiss bill on default of giving security, 841 For decree, 341 For an order for substitutional service on attorney at law, 341 To discharge receiver on payment of money into court, 341 Notices generally, To admit and inspect documents, 343 To produce documents at examination and hearing, 348 Of examination, 254 Of filing answer, 342 Of filing replication, 348 To settle or pass decree or order, 344 To annex to abstract of title, 402 In case of absconding defendant, 37 - Oath to be administered to guardian of infant defendant, 336n Orders, Title and commencement, 369 For security for costs, 369 For substituted service of bill of complaint, 369 For service of billin Lower Canada, 370 For service of bill out of jurisdiction, 370 For service of bill by advertising, 370, 371 For married woman to answer separately from her husband, 371 Allowing demurrer, 371 Over-ruling demurrer, 383 To amend, 372 To amend by adding a party defendant, 386 Appointing guardian ad litem to infant, 372 Pro confesso, of course, 372 Pro confesso, after service by advertising, 872 To produce, 373 Nisi on non- production, 373 Absolute on non-production, 386 For taxation of solicitor’s bill of costs, i ee To read pleadings and proceedings in another cause, 75 Directing menos ord ehomities under administration order, 212, 376 Appointing new day for payment of money, 376 Final for foreclosure, 876, 377 Final for sale, 878 To elect, 378 592 GENERAL INDEX. FORMS—( Continued.) Orders—( Continued.) To dismiss for want of prosecution, 379 To examine de bene esse, 379 To revive, 879, 380, 381 Enlarging time for payment of mortgage money, 382 On petition for re-hearing, 387 For subpcena to issue to Lower Canada, 386 Appointing guardian and directing maintenance, 382 For injunction, 383 To dissolve injunction, 383 To discharge from custody a party committed for contempt, 384 For writ of arrest, 384 For vesting, 385 For delivery of possession after final order of foreclosure, 385 To prove exhibits viva voce at hearing, 385 To change solicitor, 386 To issue subpoena to Lower Canada, 386 Petitions, For appeal, 299, 533 For re-hearing, 390 Judge’s fiat thereon, 891 Undertaking and certificate, 391 To tax solicitor’s bill of costs, 891 For sale of infant’s estate under 12 Vic., ch. 72, and for appointment of guardian, 392 Power of attorney to receive money, 424 Preecipe for order to elect, 378 For order to revive, 379, 380 Receiver’s accounts, plaintiff’s and receiver’s costs of passing, 449 Receiver’s costs of appointment and passing account, 448, 449 Receiver’s recognizance, 422 Replication, 95 Reports, In foreclosure suit, no parties added, 403 The same where parties added, 404 Subsequent report in same, 406 In specific performance suit, 406 In administration suit, 407 Sale, Agreement by purchase at, 157; conditions of, 165 Style of cause after revivor, 380, 381 Writs, Of subpeena, 415 ji. fa. for costs, 415 Of fi. fa. for debt and costs, 416 Of appeal, 287 Of arrest, 417 Of injunction, 418 Of attachment, 419 Of sequestration, 419 Of assistance, 420. FRAUD, how alleged in bill, 17 Jurisdiction of court as to, 476; generally, 476; misrepresentation and con- cealment, 476; frauds on creditors, 478; on persons peculiarly liable te imposition, 478; voluntary deeds, 479. See CHANCERY, COURT OF. GENERAL INDEX. 593 FRAUDS, STATUTE OF, may be set up by demurrer, 55; efect of, on contracts relating to real estate, 493, 494. FRIDAY, GOOD. See GOUD FRIDAY. FRIEND, NEXT. See NEXT FRIEND. FURTHER DIRECTIONS, Hearing on, days for, 251, 254, 272; time for service of notice of, 254, FUTURE RIGHTS, court will not declare, 124. ; G. GAOLS, prisons of Court of Chancery, 526, GAOLERS, officers of court, 473. GENERAL ORDERS. See ORDERS, GENERAL. GOOD FRIDAY, notice of motion given for, irregular, 4. GOVERNOR GENERAL, Ccurt to be holden ai place appointed by, 473 Judges may be removed by, on address from both houses of parliament, 467 ; subject to appeal to Privy Council, 467 Officers to be appointed by, viz., one Accountant, 470; additional Clerks of Court, 472; one Master in ordinary, 469; one Registrar, 469; and a Ser- geant at arms, 470 Seal of court, to be appointed by, 467. GUARDIAN, Ad litem, appointment of, to infant or person of unsound mind, 71 et seg.; after decree, 72, 240; practice and proccedings on, 72 et seq.; where suit revived, 49; notice of motion for, 71; how served, 71; practice on refusal to act by, 73; or death of, 73; appointed in chambers, 74; Deputy Master may appoint for infants only. 74, 215: may be appointed on application of party, 238; may be appointed on motion for administration order, 88 Answer, how signed and sworn by, 336 Infant, of, act relating to appointment of, 553; how appointed, 175, 554; by whom, 554; security to be given by bond, 555; condition of, 555; autho- rity of guardian, 555; removal of, 556; may be appointed on application for sale of infant’s estate, 167, 514. See INFANTS. LUNATIC. GUARDIANSHIP OF INFANTS, Applications for, made in chambers, 146. SeeGUARDIAN. INFANTS. i. HABEAS CORPUS, judge in chambers may grant writ of, 148 HEARING. See CAUSE, SETTING DOWN. . . : HEIR AT LAW, may bave decree for administration without serving bill on co-heir, 11; may have order for administration without bill filed, 85. HUSBAND AND WIFE, See MARRIED WOMAN. I IDIOT. See COMMITTEF, LUNATIC. Te . IMPERTINENCE, exceptions for abolished, 253 ; allegation in answer that its silence is not to be an admission, is ee G2, COME. husband’s, guide in alimony suits, 505, : TRCUMIBE NCE GS bedets as to, in suits for foreclosure or sale, 136, et seg., 254 tL is : Due to be made parties when relief sought against them, 137, 255 Priority of, need not be determined before sale directed, 129 . Sale of mortgaged property in licu of foreclosure may be directed on appli- € 594 GENERAL INDEX. cation of, 129; terms on which granted, 180; as to deposit, 180, 181; as to conduct of, 131, 266; qucre, whether directed after decree of foreclo- sure, 131; or against dissenting, 130; where, directed, other incumbrancers to be brought in, 136, 255 Subsequent, when to be added by master, 137 et seg., 254, et seg.; guerre when not directed by decree, 255; evidence on which made parties, 136 et seg., 254, 255; to be served with office copy decree, 187, 255; endorse- ment on, (schedule A.,) 139, 257; effect of failing to appear, 187, 256; allowed no costs for disclaiming, 137 Suit by subsequent, parties to, 137, 255. INDORSEMENT, Affidavits, on, 208, 209 Bills, on, 28; in mortgage cases, 29, 185, 281; where served out of the jurisdiction, 33 # Decree, on, when served on persons made parties, schedule N., 150, 201; schedule A., 139, 257 ; when served before process, 235, 236 Documents, on, 208, 209 S Exhibits on, 344 Petitions, on, in nature of bill of review, 275, 276; for re-hearing, fiat, &., 391 Pleadings, on, name and address of solicitor, 208; or party suing, or defending in person, 209 Writs, on, 208, 209. INFANTS, Access to, 518; act respecting, 557, 558 Answer by, 334, 835 Bill must contain description of next friend, 18, 815; next friend need not be of substance, 18, 316; dismissed if not filed by next friend, 315 Cestui que trusts, when sufficiently represented in a suit by trustees, 12 Custody of, 513, 557; act respecting, 557 et seg. ; father usually entitled to, 558; 10ay be given to mother where children under 12, 557 Equity of redemption of, may be sold in lieu of foreclosure, 180 e¢ seg. Estate of, may be sold under direction of court, 513, 514; petition for to be presented by guardian, or person applying to be appointed guardian, 167 ; practice on application for sale of, 166-168 Guardian of, how appointed, 175, 558, 554; may be appointed on application for sale of estate of, 167, 514; to give security by bond, 555; condition of, 555; authority of, 555, 656; removal of, 556. See GUARDIAN. Guardian ad éitem to, how appointed, 71; where infant made party after decree, 72, 74, 240; may be appointed on application of infant, 238. See GUARDIAN. Guardianship of, application as to, to be made in chambers, 146 Jurisdiction of court as to, 489-518. See CHANCERY, COURT OF. Maintenance and advancement of, application for to be made in chambers, 146; form of order directing, 382, 383 Mortgagor, sale may be directed against, in lien of foreclosure, 130 et seg. Mction for decree in what cases allowed, 90, 263 Next friend, sues by, 18, 19, 315 Sale of estates of, may be ordered, 166, 513; but not contrary to a devise, 514; how application for, to be made, 514; guardian may be appointed on, 167, 514; court may direct execution of conveyance on, 514; money raised by, to be applied as court directs, 515; quality of moneys raised, 515; composition for dower may be made on, 515; order as to, 166 et seg.; mode of procedure, 166 e¢ seg.; petition for, how presented, 167; form:and veri- fication of, 167, 168, 392 et seg ; infant to be produced, 168; examined if above 7 years old, 168; master may examine, 168; advertisement for, how settled, 166. : INFORMANT, word, “plaintiff,” includes, in Orders of June, 1853, 2. GENERAL INDEX. 595 INFORMATION, Form of address of, 813 ; commencement, 316; word “ bill” in Orders, June, 1853, includes information, 2 Names and address for service to be endorsed on, of solicitor, 208; or party __ acting in person, 209. See BILL. ae order as to, 119, 120; general principles regulating, 120 et seg., 809 et seg. Administration, motion for, may be granted on proceeding by, 87, 122 Affidavits in support of motion for, 123; may be used to support or coutra- dict answer, 123; amendment of bill waives notice of motion for, 811; but does not dissolve unless record be changed, 311; answer treated as an affi- davit on application for, or for the dissolution of, 123, 311 Applications respecting, usually made by motion, 310; sometimes by peti- tion, 310, 311 Awarded: 1. To restrain proceedings in other courts, where the defence cannot be properly raised, 120 et seg., 809, 501, 502; as to proceedings against executors, 87 2. To restrain wrongful acts of a special nature, 309, ex gr. alienation or removal from the jurisdiction, of property, 310; breach of contract, trust, or confidence, 809; infringement of copyright or patent right, 309; interpleader suits, in, on what terms, 310; obstruction of ancient lights, 809; nuisance, public or private, 310; trespass, 309; waste, jurisdiction of court in cases of, 309, 490, 491, 504 See CHANCERY, COURT OF. WASTE. Breach of, plaintiff’s rights on, $11 Damages may be awarded in suit for, 809 Default of answer, on, abolished, 119 Demurrer allowed or dismissal of bill puts an end to, 311 Evidence on motions for, or to dissolve, 311 Ex parte, when granted, 310 . Law, to stay proceedings at, 119 et seg. 501, 502; how obtained, 120; motion for, 121; service of notice, 339; affidavit on, what to contain, 839; nul- lity, should not be treated as, though improperly obtained, 311 Prayed for, should be, by bill, 310; when granted, when not prayed for, 811 Service of, should be personal, 312 Vacation, may be moved for in, by petition, 310 Waste, to stay, 810, 490-492; where party in possession claims by adverse legal title, 504. INQUIRIES, ap cata ee see As to personalty outstanding or undisposed of, &c., in administration suit, 87 Form of order for, 212, 213. INROLMENT, decrees, of, practice as to, 214; within what time, 213; effect of, 218; when vacated, 214; on ground of surprise, or malé@ fides, 214. INSTRUMENTS, executed under Chancery Act valid as against infants, 515; lunatics, 510, 511; partition, 512. : INSUFFICIENCY, exceptions for, to affidavit on production, 99. re INTEREST, in subject matter of suit, where suit becomes defective by transmission of, 45. See DEFECTIVE. INTEREST, computation of, directed by decree, how made, 195-199, 308; on debts and legacies, 200, 412; on mortgages, 195, 196, 808; on purchase money of land, 197 ; master may make rests, 193. A INTERLINEATIONS, in affidavits, shoul. be initialed by commissioner, 344; also in accounts sworn to, 860. INTERLOCUTORY, orders, not to be enrolled, 213. : eer JNTERPLEADER SUITS, defendant in, when to give security for costs, 7; bill in, 319; observations on, 820; injunction, when granted in, 310, INTERPRETATION, of words used in orders of June, 1853, 2, 3, 596 GENERAL INDEX. INTERROGATORIES, Bill of complaint not to contain any, 26 Examination of parties and witnesses upon, not allowed without leave, 110; otherwise when witness out of jurisdiction, 245. INVENTORY, to be filed by lunatic’s committee, 508, 509; how verified, 609. IRREGULARITY, moved against must be specified in notice, 176, 278. ISSUE, Joinder of, by filing replication, effect of, 93; effect of on passing publication, 246. See REPLICATION. Law, court may direct trial of, at, 521; jurisdiction and practice as to, 622, 523; application for new trial of, 522, 623 Trial of, Court of Chancery may summon jury for, before itself, 522; but will not generally against the wish of either party, 522. J. JUDGES, appointment of, 467; to hold office during good behaviour, 467 Circuits to be made by, 474 Deputy-registrars may be sppointed and removed by, 470, 471 Masters in the country may be appointed and removed by, 470, 471 Oath of office to be taken by, 469 Retiring annuities of, 468 Salaries, 467, 468; how provided for, 468 Sittings of, 251, 271, 272; may sit together or separately, 473. JUDGMENT’, decree may be drawn up notwithstanding abatement between hearing and delivery of, 49 Standing for, cause not to be deemed, unless exhibits deposited with regis- trar, &c , 260. JUDGMENT CREDITORS. See CREDITORS. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. See PRIVY COUNCIL. JURAT, Affidavit, to, ordinary, 180; of service or execution, 180; of illiterate per- son, 845; of joint, 846 Answer, to, ordinary. 58, 59; of illiterate person, where read over by solici- tor or clerk, 59, 885; of illiterate person where read over by commissioner, 835; of married woman, 336; of infant when sworn to by guardian, 336; of joint, 836, 337; of quaker, 886; of corporation, 827; of Canada Com- pany. 60. See FORMS. OATH. JURISDICTION OF THE COURT, Affidavits, how sworn out of, 34, 180, 285, 566 Answer, how sworn out of, 60 Bilbo fered out of, 34, 180, 524; time for answering when so served, Court to take judicial notice of divisions of province, 8 Security for costs to be given by plaintiff when resident out of, 5 et seg.; or by defendant in position of plaintiff, 7. : See BILL. CHANCERY, COURT OF, SERVICE. JURY, may be summoned by court, 622; when allowed or directed, 622, 623. See ISSUE. JUST ALLOWANCES, What master to allow under head of, 195, 198. K KNOWLEDGE, means of, to be shewn in affidavits, 178, 270. GENERAL INDEX. 597 L. LAND. Vesting order may be made instead of conveyance of, 520 Sale, of by court, 152, et seg. Bill for specific performance of contract concerning, observations on, 818; forms, 23, 328 Decree for specific performance, 389. See SALE, SPECIFIC PERFORMANCE, VESTING ORDER. LAST ANSWER, meaning of term, 40, 116, 117 LAW, proceedings at, how and when restrained by injunction, 120 et seg., 389; jurisdiction of court as to, 501 Questions of, may be decided in Chancery, 119. See LEGAL RIGHT. LEGACY, interpretation of word in orders of June, 18538, 8 Computation of interest on, 200, 412. LEGAL RIGHTS, court of Chancery may determine, 119 Decided, how, 119 Decree declaratory of mere, not made, 119. LEGATEE, interpretation of word in orders of June, 18538, 3 May obtain order for administration of personal estate of deceased, 85; real estate, 85; form of affidavit on, 849 Rules as to parties in administration suits by or against, 11, e¢ seg. LENGTH, practice where pleading, petition, or affidavit, of unnecessary, 253 LETTERS, between co-defendants not privileged, 102. LETTERS PATENT. See PATENT. LIEN, nove on documents produced for inspection, 103 Production of documents, no defence against the, 103, 866 Of solicitor, how affected by change of solicitor, 312. LIMITATION OF SUITS, act respecting, 562 e¢ seg.; period within which action to recover land or rent to be brought in equity, 563; in cases of express trust, 563; concealed fraud, 564; acquiescence, 564. LIMITATIONS, STATUTE OF, May be set up by demurrer, 48. LIS PENDENS, as to doctrine of, 27; act as to registration of certificate of, 565; effect of registration, 27, 521; where necessary, 27; how discharged, 27, 621. LONG VACATION, time for, 8. See VACATION. LUNATIC, meaning of word in Chancery Act, 506 . Act relating to, 506 et seg. See eae : Answer by, 835; by committee where so found by inquisition, 60; otherwise by guardian ad litem, 60 . S Bill, committee of, should obtain leave of court before filing, 316; if found by inquisition to be filed by committee, 316 ; otherwise by next friend, 316 ; or Attorney-General may file information, 316 : Commission de lunatico inquirendo, application for, to be made in chambers, 148; may be dispensed with, 506; traverse of, within what time, 507; where tried, 507; new trials of may be granted, 508 ; traverser to file secu- rity, 507; when traverser barred, 507; proceedings in lieu of traverse where no commission issued, 508 : : E . Committee, how appointed, 175, 508; to give security and file inventory veri- fied by oath, 508, 509; to apply to court to sell or mortgage real estate where personal estate insufficient, 508, 509; what petition for, to contain, 509; practice on, 509, 510; may execute valid conveyances under direc- tion of court, 510, 511; costs of proceedings to be paid out of estate of lunatic, 511 bts of, to be paid rateably, 509 ; Cine a ‘ile to, how appointed, 71; after decree, 240; practice as to, 598 GENERAL INDEX, LUNATIC—( Continued.) 72-74; master cannot appoint, 74; must be appointed in chambers, 74; may be appointed on motion for administration order, 88 Information on behalf of, form of commencement of, @R6 3 16 Jurisdiction of court as to, 240, 490, 506 et seq. Mortgagee, committee may act for, 510, Next friend of, may file bill, 216 3/ Partner, where one, becomes, 240 Pro-confesso order against, void, 71 Property of, care of, 240, 508; committee to give security and file inventory of, verified by their oath, 508, 509 Protector of settlement, Court of Chancery is, under act for assurance of estates tail in case of a, 558 Relator, on information filed by Attorney-General, 516 Supplemental order, where sole plaintiff becomes, before decree, 48 Specific performance of contract by, how enforced, 511; costs in suits for, 241 Trustee, committee may act for, 510. See CHANCERY, COURT OF. M. MAINTENANCE, Infants, of, application for, to be made in chambers, 146; evidence required, 167; form of petition for, 392-396 ; form of order for, 382, 383. MARRIAGE, practice on abatement of suit by, 45, et seg., 278, 279; before decree, 46; does not abate appeal, 533. MARRIED WOMAN, Allowance for, &. See ALIMONY. Answer by, when joint, 60, 335; separate, 60, 335; order for separate must be obtained, 61, 835; practice as to, 61, 62; if infant, must be by guardian, 61; form of jurat to, 336; commencement of, where plaintiff is a, 814; form of order for separate, 871 Applications on bebalf of, must be by next friend, 9 Bill on behalf of, when to be filed by next friend, 18, 815; when husband may be co-plaintiff, 18, 815; next friend must be a solvent person, 9, 18, 815; and must obtain consent of, to file bill, 315; commencement of bill, 814, 815; service of, on husband is good service on wife, 31, 61; order to take, pro confesso against, 61, Next friend of, must be solvent, 9, 18, 315 Pro confesso, order, against a, how obtained, 61. See NEXT FRIEND. MASCULINE snes words importing the, include females in Orders of June, 1853, 2. MASTER, Appointment of, 469 Accounts, power of, in taking, 193; practice as to taking generally, 194; in foreclosure or redemption suits, 195; in specific performance suits, 197; ou judgments, 197; in cases of partnerships, 197; of principal and agent, 198; of trustees, 198; of executors and administrators, 198 Advertisement for creditors and next of kin, 199 Appointments, issued by, 187, 265; how served, 187; default in attendance on, 187, 265 : Book to be kept by, 189 Conveyances to be settled by, 200 Decree when brought before, 185; manner of prosecution of, 185 ; considera- tion of, 186; as to who may attend, 187 Deeds, execution and delivery of, directed by, 200 @ENERAL INDEX. 599 MASTER—( Continued.) Documents to be produced before, 199 ee parties, 199; and witnesses, 199; how had in counties pe ae application by party to appoint a, may be made to Occupation rent, to fix, 193 a to be examined before, 199; added by, 200; how, 136; how served, 201; prior and subsequent, when to be added in suits for foreclosure or sale, 137, 254, et seg. ; qgueere, where not directed by decree, 255; to be served with office copy decree, 137, et seg., 201; form of notices to, 139, 140, 201; effect of failing to appear, 137, 138, 201; persons interested in equity of redemption may be made in, 137, 264 Powers of, 184, 186; in taking accounts, 198, et seg. Proceedings before, 184; certificate of, 191 Reference before, directions as to prosecuting, 185; may vary, 186 Rents and profits received, &c., or which but for wilful neglect or default might have been, 198, 195 Rests, power of, as to, 193 Repairs and improvements, to take account of, 193, 196 Report, no document to be recited in, 193; how prepared, settled, and signed, 202, et seg.; practice on, 202; how confirmed, 203, 269; filing of, 2038, 269; duplicate of, may be filed, 208, 269; appeal from, 208, 205, et seg.; practice on appeal from, 205, e¢ seg., 269; how set down and called on, 239; days for, 251, 272; error, how corrected in, 204; reviewing, 206 ; objections and exceptions to, unnecessary, 203, 269; general, as to, 204; separate, as to, 204; account, proceeding where state of changed after, in mortgage suits, 138, ef seg., 269, et seg.; sale, of, 156, et seg., 270, etseg. See FORMS. Sale, mode of, directed by, 200; report on, 156, et seg., 270, et seg. Wilful neglect and default, 193, 195 Witnesses examined before, 199; foreign commission may issue on certificate of, 199. See MASTER’S OFFICE. MASTER'S OFFICE, Orders relating to, 184 ef. seg., 214 et seq. Accounts, bringing in, 188; how enforced, 188; form of bringing in, 190; power of master in taking, 193; practice as to generally, 194; in fore- closure or redemption suits, 195; in specific performance suits, 197; on judgments, 197; in cases of partnership, 197; of principal and agent, 198; of trustees, 198; of executors and administrators, 198; as to allow- ance of interest in taking, 308 Advertisement for creditors, 192, 199; and next of kin, 199; appointments in, 187; how served, 187; default in attendance upon, 187 Bringing in deeree or order of reference, 184; accounts, 188; how enforced, 188 Book to be kept in, 189; of account taken as prima facie evidence, 185 Certificate of proceedings, 191 Conveyances how settled in, 200 Copies of proceedings in, 190 Costs occasioned by refusal to admit, 187 . Creditors, advertisements for, 192; claims, how proved, 192; judgment, practice of as to taking accounts of, 197 ; - : Decree to be brought into, within 14 days, 184; consideration of, 185; as to who may attend, 187 . : Directions as to prosecuting reference, 185 et 8eq.} to be observed without warrant, 186; as to who may attend, 186, 187; directions may be varied, 186 600 GENERAL INDEX.» MASTER’S OFFICE—( Continued.) Documents to be produced in, 199 Evidence, how to be aiduced in, 185; witnesses examined in, 199; foreign commission to issue on certificate from, 199 Executors and administrators, practice as to taking accounts in cases of, 198 Foreclosure suits, practice as to taking accounts in, 195 Just allowances, as to, 195, 198 Parties to be examined in, 199; added in, 200, 201; how served, 201; when not proper to be made in, 15. See MASTER. Partnership, practice in taking accounts in cases of, 197 Principal and agent, practice of taking accounts in cases of, 198 Proceedings, certificate of, 191; taken in long vacation, guere, whether regular, 4 Redemption, suits for, practice as to taking accounts in, 195; parties inter- ested in equity of, made parties in, 137 Reference, order of, to be brought in within 14 days, 184; how prosecuted, 185, et seg. ; proceeding on, 190, 191; postponement of, 191; prosecution of, may be transferred, 191; court may undertake reference in lieu of, 145 Refusal to admit, costs of, 188 a Specific performance suits, practice as to taking accounts in, 197 States of facts abolished in, 189 Surcharge, mode of, 190; notice to be given, 190 Trustees, practice as to taking accounts in cases of, 198 Warrants, issued from, 187, 188, 265; when, 265; to consider decree, 185; not to be issued separately, 187, 265. See MASTER. MATTER UNNECESSARY, practice where pleading, petition, or affidavit contains, 2538. MESSENGER, oath of, on filing answer, may be waived, 60. MINUTES OF DECREE. See DECREE. MISCELLANEOUS POINTS ON ORDERS, 808 et seg. MISJOINDER OF PLAINTIFFS, suit not to be dismissed by reason of, 128. MISTAKE, jurisdiction of court in cases of, 479, 480. See CHANCERY, COURT OF. MONEY IN COURT, how controlled, 524, 524; how paid out, 211, 524; to be paid into Commercial Bank with privity of registrar, 211. MONEY, MORTGAGE. See MORTGAGE. MONTH, means lunar month in orders of June, 1853, 3. MORTGAGE, general principles as to, 140 et seg. ; 485 et seg. Absolute in form, but intended as security, 485-487 Banks of province may hold and enforce, 488 Chattel, 488 Deed of, when ordered to be produced, 102; execution of in blank, 487 Equity of Redemption, sale of, 487; parties interested in, made parties in the Master’s office, 137 Foreclosure of, orders as to, 129 et seg.; 254 e¢ seg.; 281-288. See FORECLOSURE. Future advances and floating balance. to secure, 487 Interest on money secured by, 195, 308 Jurisdiction of court in cases of, 485-488; prior to the 4th March, 1887, 515, 516 Money secured by, interest on, 195, 808; stipulation that in default of pay- ment of interest that principal should become due void, 487; mortgagor entitled to six month’s time for payment of, in foreclosure suit, 131 Power of sale in, 145, 487 Redemption, suits for, 129 e¢ seg.; 254 cd seg ; 281-283 See REDEMP'LION. Sale of property held on may be directed in lieu of foreclosure, 129 et seq. See SALE BY THE COURT. GENERAL INDEX. 601 MORTGAGE—( Continued.) Vendor’s lien for purchase money lost by taking, 487. See FORECLOSURE. MORTGAGEE. MORTGAGOR. MORTGAGEE, Costs, not entitled to, in equity where he institutes harrassing proceedings at law, 189, 256 Default in payment, has right to call in mortgage money on, 132 Equitable, by absolute deed, 485-487 . Lunatic, estate of may be conveyed under direction of court, 510 Production of deeds by, 102 Sale, when directed in lieu of foreclosure against consent of, 130, See INCUMBRANCERS. MORTGAGE. MORTGAGOR, z Equity of redemption, persons‘interested in, made parties in the Master's office, 137 Infant, sale may be directed if beneficial to, 180 Right 0°, to compel mortgagee to produce deed, 102 Sale of mortgaged property not directed so as to oppress, 180; when ordered instead of foreclosure, 129 e¢ seg.; practice on, 130 e¢ seg.; may be required to take conduct of, 266; in case of, ordered to pay balance of mortgage debt, 182. See SALE BY THE COURT. Sureties of, 132; when parties to suit, 132; liability to pay balance on mort- gace after sale, 132 See FORECLOSURE. MORTGAGE. MORTGAGEE. REDEMPTION. MOTHER. See CUSTODY OF INFANTS. INFANTS. MARRIED WOMAN. MOTION, orders as to, 89, e¢ seg.; 176, et seg.; general principles regulativg, 89, 176, 337 Affidavits to be used on, when to be filed in support, 177; in answer, 178, 268; to be set out in notice of, 178; as to misnomer in, 176; cross- examination of party making, 182, 183 Appeal from order made on, in chambers, 148, 274; made in court. See APPEAL. RE-HEARING. Application for relief by, in lieu of examination pro inleresse suo, 183, 184 Chambers, what, may be made in, 146-148 Costs may be given on, though not asked for by the notice, 176 Decree, for, after answer, 89-92; before answer, 93; in what cases allowed, 263: evidence on, 90, 91, 263; practice as to reading answer on, 62; how called on, 239; days for hearing of, 251, 272; setting down of, 239, 263 Dismiss bill, to. See DISMISSAL OF BILL. Evidence to be used on, 177-183; admissions of service need not be verified, 177; affidavits to be filed with registrar, 177, 178; practice as to affidavits and cross-examination thereon, 178-183 Ex parte, when may be made, 176 . Hearing of, days for, 251, 272; notice of, to be served 2 clear days before, 177 : Married woman, of, made by next friend, 176 eo ; Notice of, when to be given, 175; what it must state, 176, 177, 837; time for service of, 177; forms of, 337-342. See FORMS. NOTICE OF MOTION. Pro interesse suo, for relief in lieu of examination, 183. See INJUNCTION. RECEIVER, &c. MOTION FOR DECREE. See MOTION. : ; MULTIPLICITY OF SUITS, jurisdiction of court in cases for preventing, 501. See CHANCERY, COURT OF. N. NE EXEAT PROVINCIA, writ of, now called writ of arrest, 547. See WRIT OF ARREST. 76 602 GENERAL INDEX. NEWSPAPERS, See ADVERTISEMENTS. NEW TRIAL. See ISSUE. NEXT FRIEND, Authority from, form of, 317 Bill, should be fully described in, 9, 18, 19, 815; dismiesed if no, 315 Infant, must sue by, 18; or bill dismissed, 315; of infant need not obtain consent to file bill, 8315, 316 Jurisdiction, #hen out of, must give security for costs, 9 Lunatic may file bill by, 316 x Married woman when to sue by, 18, 815; making motion on her own behalf, must du so by, 9, 61, 176; of married woman must be solvent or give security for costs. 9; and must obtain her consent to file bill, 315 Security for costs when required from, 9, 18, 315. NEXT OF KIN, Administration of estates by one, 10; on motion without suit as to person- alty, 85; reality, 85; form of affidavit on, 349 Advertisement for, master may issue, 199 Parties, rules as to, to suits by, 10; against, 11. NOTICE, Absconding defendant. to, to answer or demur, 36 Administration, of motion for, 85 ef s-g; form of, 86 Admit and inspect documents. to. form of, 343 Answer, of filing, 61, 97; form of, 842 Appeal, of, to be served two months before hearing, 533 ; of hearing of, to be four days before bearing, 296 Bill, when filing of, does not constitute, 27, 521, 565 Constructive, by possession, 486 Demurrer, of filing. 57, 97; of setting down for argument, 251, 273 Examination, of, when to be served, 248; form of, 254 - Filing pleadings, of, 97, 98 Hearing, of, 251, 272, 278; on further directions, 254 Intention to use affidavits, of, must be given, 178 Judicial. court to take, of territorial divisions of province, 8 Lis pendens when not to constitute, 27, 521, 565 Motion, of. See NOTICE OF MOTION. Object to title, to, form of, 402, 403 Objections, of, to title, to be served and filed, 160 Parties, to, where incumbrancers are added in suits for foreclosure or sale, 255 ; schedule A, 189, 257; schedule B, 140, 258 Pass Jecree, to, 844 Pleadings, of filing to be given on same day, 97, 98 Produce, to, documents at examination and hearing, 343 Reading, of, affidavits. 178; answer on motion for decree, 62, 91 Replication, of filing 97, 98; form of, 348 Service of, 207, 208, 267; admission of, by solicitor need not be proved, 177 Settle minutes of decree, to, 344 Surcharge, of, 190; form of, 396,297. See FORMS. MOTION. SERVICE. NOTICE OF MOTION, orders as to, 89-93, 176; observations on, 89, 176, 837 Administration order for, form of, 85, 86 Affidavits to be used, to be filed contemporaneously with service of, 177, 178 Amend bill, what to state, 42; form of, 339, 340 Contempt, to commit for, substituted service of, 312 Costs may be given though not asked for by, 176 Decree, for, after answer, 89; before answer, 93; after service of, plaintiff ae abandon motion without leave, 90; service of, time for, 91; form ol, GENERAL INDEX, 608 NOTICE OF MOTION—(Continued.) Dismiss bill, for waut of prosecution, form of, 339; on default in giving security for costs, form of, 341 Enlargement of time, for, for production of docaments, form of, 338; for answering, form of, 338; for payment of mortgage money, form of, 340 Evidence to be used on motion, to be stated in, 178 Form of, must state distinctly what party wishes to obtain, 887; names of parties, 337; irregularity complained of, 278, 837; leave where motion made by leave, 887. See FORMS. Guardian, ad litem, to assign, form of, 840; service of, 71, 73 Infants, in case of, should be by the infant by his next friend, 389 Injunction, for, should not be served before bill filed, 177, 337 ; amendment of bill waives, 811; to dissolve, form of, 842; forms of. See FURMS. Must be served separately to restrain creditors from suing at law, 87 Trregularity in, vitiates order obtained on, 177 ; complained of, should be set out in, 278, 337 Pro confesso, for order to take bill, where service not personal, 69; form of, 340; by publication, form of, 70 Receiver, to appoint, form of, 339 Sale, to set aside, service of, 157 Service of, time for, 177; on solicitor or his agent, 207, 208, 267; affidavit of, must be regular, 368, See MOTION. 0. OATH, guardian of infant, to be administered to, on swearing answer, 336 Office, of, by judges. 469; by other officers of the court 472. See JURAT. OBJECTIONS, to master’s report, not necessary before appealing, 269; to title, ractice as to, 160. OFFICE COPIES. See CUPIES. OFFICER IN SERVICE OF CROWN. See SECURITY FOR COSTS. OPINIONS, of scientific persons may be obtained, 146. ORDER, meaning of word in Orders of June, 1853, 3; observations on form of, &c., 368, 369 Accounts and enquiries, for, form of, 212, 213 Administration, for, obtained on motion, 85, e¢ seg.; form of, 212, 218, 375, 376 Amend, to, vacation not reckoned in time for obtaining, 4; forms of, 872, 886 Appeal from. made in court, time for, 279, 280; made in chambers, 274 Chambers, what, may be made in, 146-148; effect of, 147 Conditional, effect of non-compliance with condition, 118, 119 Course, of, to be drawn up on precipe by registrar, 211; or deputy where bill filed, 215, 216; cannot be opposed, 211; must be entered, 211; service of, 369; discharge of, 21t, 369 Discharge of, made in chambers, when application for, to be heard, 274; made in court, within what time, 279, 280 : Dismissal of bill on preecipe, for. plaintiff not entitled to, after setting down for hearing, 253 ; form of, 384; for want of prosecution, when granted, 114, et seg.; form of, 379 : Drantes up of, practice as to, 208; one day’s notice of, sufficient, 208 2 Elect, to. is of course, 63; practice as to, 63-65; form of, 378, 879; precipe for, 378 Entry of, necessary Enrolment of, how and when mad Foreclosure, final, for, when grante 144, 145; forms of, 376, 377 to completion of it, 78, 208 ; when of course, 211 e, 213: not necessary when interlocutory, 213 d or refused, 143, 144; when set aside, 604 GENERAL INDEX. ORDER—( Continued.) Form of, directions as to, 212. See FORMS. General. See ORDERS, GENERAL. Guardian, to appoint, 882, 383; ad litem, 372. See GUARDIAN. Injunction, for, 383; to dissolve, 883; injunction operates from date of, 311 Interlocutory, need not be enrolled, 213 Passing of, 78, 208 Payment into court, for, against a purchaser when granted, 158 Pleadings and proceedings in another cause, to read, 375 Pro-confesso, vacation not reckoned in time for obtaining ex parte, 4. See PRO-CONFESSO. Production of documents, for, 99; form of, 100, 865 Receiver, for, how prosecuted, 168 e¢ seg. Re-bearing, for, form of, 387 Revivor, of, how obtained, 45, 46, 278, 279, 881; time for applying to dis- charge, 46, 279, 381; forms of, 380, 381 Sale, final, for, on what obtained, 144; form of, 378 Security for costs, for, how obtained, 5; form of, 369 Service of, 369. See SERVICE. Service, for, out of jurisdiction, 82-34, 284, 285; substitutional, 81, 86; by advertisement, 36-38 ; forms of, 869-371 Settlivg minutes of, notice to, 844; practice as to, 208 Solicitor, to change, practice as to, 312; form of, 886 Supplemental, how and when obtained, 45 e¢ seg., 278, 279; observations as to form of, 381 Taxation of costs, for, form of, 8374; for re-taxation is of course, 218, 275 Vesting, when granted and effect of, 520; form of, 385. See the various tetles throughout the index. ORDERS, GENERAL, Abrogated prior to 8rd June, 1853, 2 Construction of, 238 Continued in force by 20 Vic., ch. 56, sec. 21, &c., 525 Court may make, 525, 526; may dispense with, where justice requires, 238; power of court or judge to enlarge or abridge time, &c., unaffected by the, 237 Dispensed with, may be by court or judge where justice requires, 238 Effect, when to take, of 8rd June, 1858, 238 Operation of, 238. P, PARTIES, orders as to, 10-15, 124-128; general observations as to, 820, 321 Absent, decrees may be made saving rights of, 124, 125, 321 Amendment of bill by adding, 44, 45; order for, 386 Adjudication between some in the absence of others, 14, 124, 125, 321 Chambers, may be made by judge in, 150 Defending in person to endorse name, &c., on pleadings, 68, 209; notice of filing to be given by and to, 97 Demurrer for want of, what to state, 55; form of, 882, 833 Discretion of court as to requiring the making of, 11; as to proceeding where no personal representative, 125-127 Examination of, 110-114; when may be had, 118, 114 ; consequences of re- fusing to attend, by plaintiff, 113; by defendant, 118, 128; order not necessary for, 111, 248, 274; how had out of examination term, 242; how -had in county where no deputy master, 240 Hearing, adjournment of, to add, 44, 45 Jurisdiction, out of, court may proceed in absence of, 321 GENERAL INDEX. 605 PARTIES—( Continued.) Judge in chambers may make, 150 Master’s office, when may be made in, 12, 200, 201; in mortgage suits, 136, 137, 264, 255; when not, 16, 255 butte a ees - Da suit not to be dismissed merely for, 128; practice as Necessary, who are, 15, 320; should be made at or before the hearing, 15; formerly, may now be served with decree, in certain cases, 12; coming into existence pending suit, practice as to, 45, 47 New, when to be brought before the court by amendment or supplemental order, 44-51 Objection for want of, cause not to be set down on, 10; not to be taken in certain cases, 10-14; where neglected to be taken at proper time may be made in master’s office, 15 : Personal representative, court may proceed in absence of, 125; only in the case of parties having a nominal interest, 126; practice as to, 125-127 aac of deeds, &c., may be enforced against, when under examination, Representation, doctrine of and rules as to, 128, 820, 821; of cestui que trust by trustee, 12, by executors, 321 Sale, when ordered in lieu of foreclosure, additional, to be made, 136, 255 Service on, 12; of proceedings in suits for foreclosure or sale, 528; of schedule B, 187, 138 Suing in person to endorse name, Xc., on pleadings, 28, 209; notice of filing to be given by and to, 97 Suits, to, 15, 820; under the old practice, 15, 320 Administration, for, 10, 11, 14, 126, 127 Cestui que trust, by and against, 11-14 Company, by unincorporated, 320 Creditors, by, 321; by trustees of, 18; by some on behalf of others, 320 Devisees, by residuary, 11 Executors, by, 11, 15, 321 Foreclosure, 13, 19, 20, 186, 187, 140, 141, 255, 317, 818; by trustees, 13; by assignee lis pendens, 47; by subsequent incumbrancer, 255; against surety, 132 Heir, by, 11 Jointly and severally liable as principal and sureties, against persons, 14, 127 Judgment, by assignee of, 18 Legatees, by and against, 10, 11, 320 Married woman, by, 78 Municipal councils, by, to restrain waste, 15 Next of kin, by and against, 10, 11 Partnership, for account, &c., of, 14, 820 Principal and surety, against persons in relation of, 14 Protection of property pending litigation, for the, 11 Redemption, for, 13, 321 Sale, for, 14, 1386, 255; by subsequent incumbrancer, 256 Specific performance, for, 318 Sureties, against, 14; in foreclosure suits, 1382 Trusts, for the execution of, 11 . Trustees, by and against, 11-14, 321; for appointment of new, 11 Waste, in nature of, 11; by municipal councils, 16. PARTITION, acts respecting, 511, 561 ; jurisdiction of court in cases of, 511, e¢ seq.; etfect of decree for, 512; estates of married women, &c., to be bound by, 512; office copy decree to be evidence of, 512; powers of Court of Chan- cery respecting, 661; to have the like powers as in England, 562; by the court to be as valid as if by parties, 562. 606 GENERAL INDEX. PARTNERS, parties to suits between, rules as to, 14, 320. PARTNERSHIP, jurisdiction of court in cases of, generally, 484 Accounts of, rules as to, 197 198, 484 Bill for account of, 22; for dissolution of, 22 Corporations, 485 Limited, 485 Miscellaneous cases as to, 485 Parties to suits respecting, 14, 320 PARTY, meaning of word in Orders of June, 1858, 2. PATENT, jurisdiction of court in cases of letters, to decree the issue of, 602; to repeal and avoid, 502, et seq. PAYMENT INTO AND OUT OF COURT, Fee to registrar on, 231 Into, ordered, must be into Commercial Bank, 211; copy of part of the order directing, to be furnished to bank, 211; form of notice of motion for, against purchaser, 340 Out of, by check of registrar countersigned by one of the judges, 211. PERSON, weaning of word in Orders of June, 1853, 2 Deceased. See DECE1:SED PERSON. Unborn. See UNBORN PERSON, Unsound mind, of. See UNSOUND MIND. PERSONAL ESTATE, Vested in trustees, parties to suits concerning, 12. PERSONAL REPRESENTATIVE, When security for costs required from, 8, 9; order to revive against, 47; court may dispense with any, 125, et seg.; or may appoint one, 126; prac- tice on, 126, 127 ; form of order, 127. PETITION, genera! practice as to, 276, 277, 390 Addressed to judges cf the court, 277, 390 Amendment of, at hearing, 277 Answer, for leave to, after decree pro confesso, 79, 80 Appeal, of, to be filed two months before hearing, 298, 583; not to be answered, 298, 583; form of, 298, 299, 533, 534; to be certified by coun- sel, 299, 534 Counsel, when to be signed by, 277 County court, for removal of cause from, 537 Decree, to reverse or vary, what to state, 52; practice on, 52, 53; endorse- ment on, 52, 275, 276; how and when to be set down, 52, 53, 275 Evidence, used on, 277; should be stated on petition, 277 Fiat to be endorsed on, for re-hearing, form of, 891 Forms of, 890-896. See FORMS. Infants, of, to be presented by next friend, 277; or guardian in certain cases, 167, 514 Length, practice where, of unnecessary, 253 Lunatic, to traverse inquisition by which a person is found a, 507; to gell, mortgage, or lease real estate of, by committee, 509; coats of, 511 ; com- mittee to present, of, 277 Married woman, of, to be presented by next friend, 277 Order obtained on, how discharged, 277 Prayer of, 390. See FORMS. Re-hearing, for, what to state, 51, 81, 82; who may present, 280; form of, 890; endorsement on, 891; where error apparent on face of decree, 61 ; where bill taken pro conjfesso, 80-83; by wife where husband dead, 88 Signature by counsel necessary in all cases, 51, 80, 277, 280 Review, in nature of bill of, 52, 58, endorsement on, 52, 275, 276; how and when to be set down, 52, 53, 275 Sale, for, of estate of infant and appointment of guardian, 166, 513; what to GENERAL INDEX. 607 PETITION—( Continued.) state, 167; form of, 892-396; how verified, 167, 168; of estate of lunatic, 5(9; costs of 511; of estate of religious institutions, 552 Scandalous, may be ordered off the files if, 253 Service of, time for, 277 Taxation, for, of costs, 391, 892; for review of, 205. PLAINTIFF, meaning of word in Orders of June, 1853, 2 Affidavit by, on application to amend bill, 42, 43; form of, 847 Assignee of, may revive in foreclosure suit, 47 Bill, how filed by, 16, e¢ seg. See BILL. Cross-examination of, on affidavit on motion for decree, 91 Death of, practice in case of, 45-50 ener of, in bill should be full or security for costs my be required, Dismissal of bill on application of or on default of, after setting down equivalent to a dismissal on merits, 252, 253 Election by, to sue at law or in equity, order for, how obtained, 63, ed seq. ere of, order as to, 110-114; may be had at any time after answer, 118, 114 Misjoinder of, suit not to be dismissed on, but decree modified, 128 Production of documents by, 93-104. See PRODUCTION OF DOCUMENTS. Security for costs when required from, 6-10, 16, 18, 318, et seg. PLEA, abolished, 54. PLEADINGS, address of, to judges, 16, 283 Copies of, to be made by solicitor, 209 Divided into paragraphs and numbered, to be, 260 Evidence, may be read as, in what cases, 59,110 Examination of witnesses, party setting down for, to cause registrar or de- puty registrar to transmit, 106, 280, 281 Filing of, to be at same office, 215; notice of, to be given to adverse party on same day, 97 Improper length of, costs disallowed, 217, 253 Indorsement on, of date of filing, &c., 208, 209; name and address for ser- vice, of solicitor, 208; of party suing or defending in person, 209 Length, costs where, of unnecessary, 217, 253 Notice of filing. 97, 98 . Office copies, of, to be made by solicitor, 209; and certified by registrar or deputy, 209; how written, 210 Scandalous, may be ordered off the files if, 258 Service of, 207, 208, 267; by parties, 219; costs of, 219; signature by counsel not requisite to bill, 26. See ANSWER. BILL, &c. PLURAL NUMBER, Interpretation of words in the, in Orders of June, 1853, 2. . ; POWER OF ATTORNEY, to receive money directed to be paid at a specified time and place, form of, 424. - ; . POWER OF SALE, in mortgage, exercise of, enjoinel pending appeal, 145; judg- ment creditors of mortgagee have an interest in due exercise of, 145; effect of registration of mortgage containing, 487. : : PRAYER FOR RELIEF, should be divided into paragraphs, 17; for specific relief, 16, 17, 18; general relief, 16, 18, 20; omitted in bill for discovery, 18, 20; to petitions, 390; by defendant in answer, 65. PRISON. See GAOL. : PRIVILEGED, what documents are, from production, 101-104, 367; who are, from treet, 234. . PRIVY COUNCIL, enactments relating to appeals to, 534, 535; judgment of Court of Error and Appeal final in matters not exceeding $4000, 5384; when ap- peal to be made, 534; security to be given on, 635; judges of Error and . 608 GENERAL INDEX. PRIVY COUNCIL—( Continued.) _Appeal to approve of, 585; execution when saved, 585; costs of appeal to, 5385; orders relating to, 303-307. PROBATE, Court of, appeals to former, transferred to Chencery, 544; bonds taken in, assignable, 544 Will of, prima facie, proof of will, 542 PROCEEDINGS, application to stay, by defendant on payment of amount due after decree in foreclosure suit, 133 Ex parte, are against a pro confesso defendant, 75; or corporation, 242, PROCESS, order as to, 232, 237 Answer, for want of. See PRO CONFESSO. Assistance, writ of, 236; order for writ not necessary, 236 Attachment, writ of, when to issue, 233 ; when cannot be executed, 234, 2865 ; with proclamations abolished, 235 Costs, for non-payment of, 236 Decrees, to enforce, 2382 Endorsement on decree or order, when served, 285, 236 Orders, to enforce, 232 Party, may issue at instance of or against person not a, 237 Sequestration, when to issue, 233; to whom directed, 235 Service of, 283; endorsed at time of, 235, 236; endorsement to state time of performance, 235; on non-production of documents, 237. PRO CONFESSO, orders as to, 67-84; 241, 242 Amendment of bill discharges order, previously obtained, 38, 40, 68, 75; unless made without prejudice, 38, 75 Answer, when allowed after order to take bill, 60, 61; when after decree, 79, 80 Bill may be taken, when party refuses to be examined, 113 Corporation, order, against, how obtained, 241, 242 Decree, when absolute, 77, 78; when not absolute how made so, 78, 79; answer after, when allowed, 79, 80; must be passed and entered, 78; when cause re-heard on merits after, 80; representatives of parties, bound by, saving new interests, 84 Hearing of cause taken, 76; in foreclosure suits, 184; defendant may appear at, 77; when set down, 76, 77, 184, 268; fee on, 231, 259; days for, 251, 272; evidence to be used at in foreclosure suit where account taken, 134; receiver, sequestration and payment may be ordered at, 84 Motion for order, to be made, when service of bill not personal, 69, 70, 74; or made out of jurisdiction, 68, 69; or when more than two months have elapsed since service, 67; or when sought against a married woman, 61 ; or a corporation, 241 Notice of motion for order, must be served when service of bill not personal, 69; or when more than six months have elapsed from date of service, 68 ; service of by advertisement where defendant cannot be found, 70, 71 Order to take bill, how obtained, where bill served personally within juris- diction, 67; two months after such service, 67; six months after, 68; where served personally out of jurisdiction, 68, 69; where bill not served personally, 69; and defendant cannot be found, 70, 71; where bill served solicitor, 31, 69, 70; where bill served by publication, 45 against Attor- ney- -General, 68; corporations, 241, 242; married women, 61, 68; order does not require service and proceedings i in suit are ex parte after, 80, 75, 242; order void against infants and lunatics, 71; not necessary in suits for foreclosure, redemption or sale, 67, 281-283 Payment of money may be ordered at hearing of cause taken, 84 Receiver may be appointed at hearing of cause taken, 84 Re-hearing on merits after cause heard, 80-88 ; granted on petition, 80 Sequestration may be ordered at hearing of cause taken, 84 GENERAL INDEX. 609 PRO eet Continued.) Service of order, not neces, 75, 242 PRODUCTION OF DOCUMENTS, a: Observations on, 98 et seg.; 366, 367 Accounting party in chambers, ordered from, 152 Affidavit, on, form of, 100, 104, 865; cross-examination on, 99, 181 Application to enforce, made in chambers, 98 e¢ scq.; former practice, 98, 99 Corporations, by, how enforced, 99 ; Detendant, by, when ordered, 98 e¢ seg., 867; order for, when and how ob- tained, 98, 99, 367; service of, 99, 237; effect of disobedience to, 99, 237; what must be produced, 101 et seg., 867; affidavit on, 100 et seg., 365; form of, 100, 104, 365; how enforced, 99; in master’s office, 108, 104; not ordered on application of co-defendant, 104; gquere, after decree, 867 Directed, at what place, 103, 104 ae after the, practice of producing before the hearing extended to, 103, Inspection of documents produced, who entitled to, 104 Information obtained on, not to be published, 104 Lien for costs no defence ngainst, 103, 366. See LIEN. Master’s office, practice as to production in, 108, 104 Orders for, service of, 237 Party, by, on examination of, 112 Plaintiff, by, how obtained by defendant, 100 e¢ seg., 867 Privileged from, what documents are, 102, 103, 367 Service of orders nisi and absolute for, 99, 237, 8368; when to be personal, 99, 237, 368; when not, 103, 104, 237, 868; endorsement on order when served, 99, 235, 236. PRO INTERESSE SUO, examination, abolished, 183; practice instead of, 188, 184. PROTECTION, of property pending litigation, rules as to parties to suits for, 11. PROTECTION ORDER, married woman who obtains, is entitled to answer sepa- rately, 62. PUBLICATION, Enlarging, 246, 247 Openiug, practice as to, 246, 247; applications for, not encouraged, 246 Passing of, when takes place, 246 Rules to pass, abolished, 245. PURCHASE-MONEY, may be paid into court at any time after confirmation of sale, 157, 158; payment into court of, is an acceptance of title, 158; motion to pay in, practice as to, 158; payment in full of, precludes laches, 494. PURCHASER, Decree, under a, on what grounds relieved from his purchase, 165 Form of contract to be signed by, on sale by court, 155, 157, 271. Q. QUARTERLY ACCOUNTS, registrar and master to render, of fees, 470. : QUARTERLY RETURNS, deputy registrar to make, to registrar of all bills filed, 262. QUESTIONS, adjudication on, in absence of some parties interested, 14, 124, 125 Of fact, tried at law or in equity, 521, 522 Of law, may be decided by Court of Chancery, 119. R. REAL ESTATE, limitation of suits relating to, 562-564 Parties to suits concerning, where vested in trustees, 12; sale of, may be ordered by court, in lieu of partition, 511, 612, 661, 562; when belonging 17 610 GENERAL INDEX. REAL ESTATE—( Continued.) to infants, 513; or lunatics to pay debts, 509; or for maintenance, 510; or to religious institutions, 552 Summons for administration of, in Chambers, 85 et seg. REAL REPRESENTATIVE, dispensed with as party to suit, 11. RECEIVER, order as to, 168 Accounts of, to be passed, 175; proceedings thereon, 175; certificate on passing, 175; course on default in passing, 175 Application for, usually made by motion, 170; on bill filed, 170; when made otherwise,.170 Appointment of, 168; who may be, 173; when at instance of defendant, 171: not usually at instance of persons haying the legal estate, 170; may be in chambers or by master, 168 Costs of, 175; ov appointment and on passing accounts, 448-451 Discharge of, 175; form of notice of motion fcr, 341, 342 Pro confesso, ordered on decree on bill taken, 84 Recognizance of, 169, 173, 174; amount of, 174; form of, 422, 428 Rights of, 174 Salaries and allowances of, 174, 175 Security to be given by, 169 ~Suing by. 174. RECOGNIZANCE, form of receiver’s, 422, 423; practice as to, 169, 178, 174. REDEMP ION, - : Bill for, forms of. 21, 329-331; endorsement on office copy of, 29, 135, 281 Decree for, may be obtained on pracipe in certain cases, 29, 185, 281-283 Endorsement on bill in suits for, 29, 185, 281 Parties to suits for, 18, 321 Possession, order for, in suit for, when granted, 129. REFERENCE, plaintiff has right to have, to master where bill filed, 27, REGISTRAR. order as to, 206-214 Appointment of, to be by Governor in council, 469, 470 Book, solicitors and agents, to be kept by, 207 Causes to be set down by, as entered, for examination, 247, 248; and for hearing, 251, 272 Certificate of, is conclusive evidence of filing, 208 Checks to he signed by, for payment out of court, 211 Duties of, 206-214 Evidence to be entered in book by, 212 Examination, to prepare list of causes for, 247; to set down causes for, as entered with bim, 247, 248; fee on, 259 Exhibits to be deposited with, when cause stands for judgment, 212, 260; to sign schedule of, 212, 269 Fees to be taken, 230, 231, 259: quarterly returns of, to be made by, 470; to form part of consolidated fund of province, 470 Hearing. to set down causes for, as entered, 251, 272; fee on, 259; to pre- pare list of causes for, 251, 272; also a peremptory list, 251, 272, 278 Office copies to be examined and certified by, 209 Orders of course to be drawn up by, on pracipe, 211 Pleadings, bow transmitted to and from, 210, 280 Quarterly returns of fees, to transmit to Minister of Finance, 470 Security for costs, bond for, to be to, 210. REGISTRAR, DEPUTY. See DEPUTY REGISTRAR. REGISTRATION, Acts respecting, 520, 521, 564, 565 Certificate of lis pendens, of, 27, 520, 565; how discharged, 26, 521 Decree of, 521, 565. RE-HEABING, orders as to, 51, 80, 81, 278, 279, 280 GENERAL INDEX, 611 RE-HEARING—( Continued.) Application for and in the nature of, to be made only in re-hearing term, 273 Cause, of, for error on face of decree, 51; after decree pro confesso, 80 Costs of, undertaking for by solicitor or party, 81 Deposit on, 81, 211 , Enrolment prevents, 51; except where error apparent on face of décree, 51 Error, for, on face of decree, 51 Notice of, 81, 273; time for, 277 Order for, form of. 387 Petition for, principles as to, 51, 81, 280; of course in lieu of bill of review, 51; cannot be presented for second re-hearing without leave, 61; state- ments in, 51, 58; to be signed by counsel, 51, 80, 81, 280; form of, 390; endorsement thereon, 391 Practice as to, 51, 80-83, 2738, 279, 280 Pro confesso, of cause taken, 80 Setting down for, 81, 273; time for, 81, 278, 277 Terms for, 81, 273 Time for. 80 83, 273, 279. See REVIEW. RELATOR, authority to file information to be signed by, form of, 317 Must be a person of substance, 816. RELIEF, prayer for general, not inserted in bill for discovery, 18; what may be given on motion for decree, 92, 93; may be given to defendant, if prayed for, and a case made, 65. RELIGIOUS INSCITUTIONS, Act respecting the property of, 552; sale of land belonging to, 552; notice of, 552; bow land sold, 552; conveyance on, how executed, 552; sanction of court required to, 552; trustees of, to show statements annually, 552, 553; and to account, 553; Court of Chancery has summary jurisdiction over, 553. RENTS AND PROFITS, receipt of, proceedings in mortgage suits where account changed after decree or report by, 138, 189, 268, 269. REPAIRS, master may take, into account, where they are necessary, 193; as to allowance of, to mortgagee in possession, 196. . REPLICATION, order as to. 93-07 Dismissal of bill for default in filing, practice as to, 95, 114-118 Filing, time for, 96; where bill amended. 96, 97 ; when undertaking to speed cause given, 115; long vacation not reckoned in, 4; of one, only aliowed, 93: notice of, to be given on the same day to adverse party, 95, 97, 98; effect of. 93 Form of, 95 Indorsement on, when filed, 94, 208, 209 Motion for decree, not to be filed in case of, 94 Notice of filing, to be given on same day, to adverse party, 95, 97, 98; form of, 348 ; One, only to be filed, 98; none on motion for decree, 94; when second allowed to be filed, 95 Practice as to, 93-95 Service of, 207, 208 : Vacation, long, not included in time for filing, 4 Withdrawal of, when permitted, 95. REPORTS See MASTER. REPRESENTATION. See PARTIES. REPRESENTATIVES, as to proceeiling in absence of, 45, 124-127 Mortgagee, of. See MORTGAGEE. Porssasl, See PERSONAL REPRESENTATIVE. Real. See REAL REPRESENTATIVE, 612 - GENERAL INDEX. REPRESENTATIVES—( Continued.) Bound by pro confesso decree, 84. RE-SALE, when ordered, 164-167. RESIDUARY DEVISEE, ‘ May have decree for administration without serving bill on co-residuary devisee, 11. RESIDUARY LEGATEE, Interpretation of words in Orders of June, 1853, 3 May have decree for administration without serving bill on other residuary legatees, 10. RESPONDENT. See ERROR AND APPEAL, COURT OF. RESTS, accounts when taken with, in suits respecting mortgages, 195; in suits for specific performance, 197; in suits between principal and agent, 198; be- tween persons in a fiduciary relation, 199 Master may take accounts with, without special direction, 193, 194. RE-TAXATION, of costs, 218, 275; order as to, applies to bills already taxed, 218, 275; costs of, 218, 275. RETURNS, deputy registrars to make quarterly, to registrar of bills filed, 262. REVIEW, orders as to, 51, 52, -275, 276 Bill of, abolished, 51; practice in lieu thereof, 51; bill in nature of bill of, abolished, 51; practice in lieu thereof, 51-58 Error on face of decree, petition for re-bearing to reverse decree on ground of, substituted for bill of, 51; enrolment of decree no objection to petition, 51; no petition for second re-hearing without leave, 51. See RE-HEARING Matter arising subsequent to decree or subsequently discovered, petition to vary or reverse decree on ground of, substituted for bill in nature of bill of, 62; what petition to state, 52; endorsement on, 52, 275, 276; how verified and served, 52; setting down and hearing of, 52, 58, 275, 276. See PETITION. REVIVOR, order as to, 45, 46, 278, 279; general application of, 50, 51; applies to suits already commenced, 46; does not apply where co-plaintiff should be a defendant, 47 Bequest, order for, may be obtained in case of, 45, 278 Bill of, abolished, 45, 2783; practice in lieu thereof, 45-51, 278, 279, 381 ‘«Change of interest or liability,” application of words, 46, 47, 881; to case of birth of-infant, 45, 47; assignee of plaintiff, 47 Death, in case of, of sole plaintiff, 48, 49; of defendant before answer, 46, 49; after answer, 49; of defendant who appoints sole plaintiff his executor, 48; of mortgagee before decree, 47; of purchaser in suit for specific per- formance, 47 . Defendant may, on notice, obtain order for, where plaintiff neglects, 49 Descent, order for, may be obtained in case of, 45, 278 Devise, order for, may be obtained in case of, 45, 278 Infants made defendants by, must have a guardian ad litem appointed, 50 Marriage, in case of, after replication, 46 Order for, is of course on preecipe, 46, 278, 881; gu@re, whether granted 20 years after abatement, 46; is liable to be objected to within 14 days from service, 46, 50; should be obtained on true state of facts, 47, 881; in administration suits may contain words, ‘that the personal representatives may admit assets or account,” 47; but not in specific performance suits, 47; forms of, 880-382; preecipe for, form of, 879, 880 Party first made by, quere, is an answer or order pro confesso necessary from or against, 50 Proceedings, where, taken after abatement, 49 Security for costs, when to be given on, 9 Service of order, 45, 46, 279; guere, whether personally or on solicitor, 50 ‘‘ Transmission of interest or liability,” order for, may be obtained where suit Gefective by reason of some, 45, 278, b GENERAL” INDEX, 613 RIGHT. See FUTURE RIGHT. LEGAL RIGHT. RULES OF DECISION. See CHANCERY, COURT OF. 8. SALE BY THE COURT, order as to, 152, et seg. an title, 160, 161; form of, 400-402; affidavit to verify, form of, Advertisement for, 153; what to contain, 153; form of, 899, 400; how settled, 154; how published, 154; how verified, 157; affidavit to verify form of, 361 . Agreement for purcbase, 155, 157, 271; how signed, 155, 157, 271 Appointment to settle advertisement, how obtained, 153; attendance on, 154 Auction, how conducted by auctioneer, 159; affidavit by, 157; form of, as to result of sale, 363; form of affidavit of fitness of auctioneer, 362 Biddings, how made, 155; when opened on, 164, 165; who may make, 155; reserved, how fixed, 154; when fixed, 155; affidavit for fixing, 361; must be notified in conditions of sale, 155 Conditions on, form of, 165; to be notified in the advertisement, where differing from the standing conditions, 154; reserved bidding or upset _ price must be notified in, 154, 155 Conduct of, as to, 181, 152, 266; who to conduct, 155; where defendant asks a sale, he may be required to take, 267 Confirmation of, how, 155, 156, 270, 271 Contract for, form of, 156-7, 271; signing, 155, 157, 271; filing, 156; to be printed under conditions of, 157, 271; how rescinded, 163 Conveyance on, 162; how prepared, 162; parties to, 162; covenants in, 163; form of, 425-428 Decree for, all incumbrancers should be directed to be made parties by, 255 ; obtained on preecipe, 135, 281; direction in, 1386; original to be used in master’s office, 153 Deposit on, 131; how paid, 155 Incumbrancers to be brought in on, by judge in chambers or master, 136, 255 Infants’ estates, of, order as to, 166, e¢ seg.; act as to, 513-515; may be ordered, 166; mode of procedure, 166, et seg.; petition for, 167 ; form of, 392, 396 ; how presented, 167; what to contain, 167; how verified, 168; guardian appointed on, 167; infant must be produced, 168; examined if above seven years old, 168; master may examine, 168; advertisement for, how settled, 166 é Master, power of, as to, 152, et seg.; mode of, directed by, 200; must be with the approbation of, 156, 157, 270, 271; to examine infant as to his con- sent to sale of his estate, 168 : Mortgaged property, of, may be directed in lieu of foreclosure, 129, e¢ seg.; to take place in what time aad in what cases, 130, et seq; incumbrancers to be made parties 254, e¢ seg; whether it will be directed after decree of foreclosure, 131; after sale mortgagor may be ordered to pay balance, 132. See FORECLOSURE. Objected to, how, 157 Opening biddings, practice as to, 164, e¢ seg. Order, final, for, how obtained, 144; form of, 378 — ds Particulars as to, 153; how verified, 153; partition, in lieu of, to be binding on parties, 511, 512, 562 ; Possession by purchaser, how obtained, 158, et seg. Proceedings on, 152-166; where account changed after decree or report, 188, 139, 268, 269 Purchase money, paid into court, 158, 159 614 GENERAL INDEX. SALE BY THE COURT—( Continued.) Purchaser on, to sign agreement, 155; when relieved from purchase, 164; conveyance to be prepared by, 162, 165; when entitled to possession, 158 Report on, order as to, 157; how obtained, 157; how confirmed, 157 ; form of, 157, 270, 271 ‘ Re-sale, terms of, 165, 166 Reserved bidding, how fixed, 154, 155; when fixed, 155; to be notified in conditions of sale, 155; affidavit for fixing, 361 - Fitle, how investigated, 160, et seg. Upset price, how fised, 154; when fixed, 155 Warrant to settle advertisement, 153; attendance on, 154; to settle report on, 157. - a SCANDAL, exceptions for, abolished, 253; scandalous part struck out or pleadings, &c., removed from files at hearing, 253; motion therefor may be made at _ any time before hearing, 253. SCHEDULE, of exhibits to be made in duplicate when cause stands for judgment, 260. SCIENTIFIC PERSONS, assistance of, may be obtained by the court, 146; employ- ment of, 146. : : SEAL, of court, 467; of notary public, &c., taking affidavit out of the jurisdiction need not be proved, 567; penalty for forging, 568; office copy decree to be duly authenticated by, 187; of corporation should be affixed to answer, 837 ; of commissioner swearing an answer should be affixed to the envelope enclosing same, 60; of party transmitting documents to registrar or deputy should be affixed to envelope enclosing same, 210 SECURITY FOR COSTS, practice as to, 5-10, 16, 19, 210, 211, 313-815. See COSTS. SEQUESTRATION, act relating to, 550 Attachment, when ineffectual, commission of, may issue without further order, 283; also when attachm«nt cannot be executed, 234, 235 Corporation, against, practice as to, 234 Commission of, to be directed to sheriff, 235; form of writ of, 419; may issue by and against person not a party, 237 Fee on writ of, to party suing out, 228; to sheriff on execution of, 282, 261, 262 Form of writ of, 419 Pro confesso, may be directed by decree on bill taken, 84 Property taken under, cannot be sold without order, 235; practice, where claimed by a third party, 235 Writ of, court may issue as formerly, 550; need not be signed by judge, 283; form of, 419, 420; endorsement on, 208, 209; by party suing out in per- son, 209; sheriffs’ fees on execution of, 282, 261, 262. - SERVICE, orders as to, 207, 208, 267 Absentees, on, 84, 284, 524 Addresses for, to be endorsed on all pleadings and proceedings by party su- ing or defending in person, 209; to be not more than three miles from office where pleadings filed, 209 Advertisement, by, where defendant cannot be found, of bill, 36-38, 264; of notice for order pro confesso, 70, 71 Affidavit of. See AFFIDAVIT. : Answer, of notice of filing, to be on day of filing, 97; supplemental notice of motion for, on whom to be served, 66 Appointments, of, on whom to be effected, 207, 208, 267 Bill, of, 28; how effected, 29-31; in case of a family, 88; on married woman, 81, 61; at dwelling house of defendant, 30, 381; out of jurisdiction without order, 83, 84, 284, 285, 624; out of jurisdiction under order, 32, 34, 285; substitutional, 31, 34-86; wh.re defendant cannot be found, 36-38, 264, 265; of amended bill, 41, 42. " See BILL. GENERAL INDEX. 615 SERVICE—( Continued.) Chambers, of notice of application or of appointment may be dispensed with or substituted service allowed by judge in, 149, 150 oe ci re or affidavits, to be effected within 48 hours from demand, Corporations, of bill on, 30, 241, 242 Decree, of, to bind persons not originally parties. 12; in chambers, 150; in 3 master’s office, 201; in mortgage suits, 187, 255; of decree requiring an act to be done, 238, 235 Demurrer, of notice of filing, to be on day of filing, 97 Documents, &e , of, on whom to be effected, 207, 208, 267 Fees on, to sheriff of bill, 231, 261; of other papers, 281, 261; to parties, 219 Infants, of decree on, 12 Jurisdiction, out of the, without order, act respecting, 83, 524; time for answering, demurriog, or appearing on proceedings after, 33, 34, 284, 285; of decree on person out of, not originally u party, 12; order for, how obtained, 32; form of, 370 Notices, of, on whom effected, 207, 208, 267. See NOTICE. Office copies of pleadings and affidavits, of, to be within 48 hours from demand, 209. 210 Order, of, original must be shewn on, 369 Papers, of, on whom effected, 207, 208, 267 Party, on, suing or defending in person, 209 Petition, of, time for, in ordinary cases, 277; in case of petition to vary or reverse decree in lieu of bill in the nature of a bill of review, 276 Pleadings, of, on whom to he effected, 2U7, 208, 267 Pro Confesso. of order, not necessary, 30, 75, 242 Production, of orders for, how made, 237 Publication in newspaper, by, of bill, 36-838; of notice of motion for order pro confesso, 70, 71 . Replication, of, on whom to be effected, 207, 208, 267; of notice of filing, to be on day of filing, 97 Substutional, of bill, 84; on attorney, in suit to restrain action at law, 31, 84, 35; of judgment creditor, 524; on solicitor, 31,35; of notice of motion, 85; order for, how obtained, 35; must be served and shewn, 35 Solicitor, on, or his town orcountry agent, 207, 208, 267 Warrants, of, how effected, 207, 2U8, 267; only one to be served, 265; time for, 187; practice as to. 187 Writs, of, on whom effected, 207, 208, 267. SETTING DOWN, appeal to Court of Error and Appeal, 296; from master’s report, days for, 251, 272; from decision of judge in chambers, day for, 274 Bill and answer, for bearing on, time for, where bill not amended, 96 ; where bill amended, 96, 97; fee on, 281 ; long.vacation not reckoned in time for, 4 Cause, of, to be in order of entry for examination, 747, 248; and for hearing, ee disch der made in, day for, 274 , application to discharge or vary or - 27 eae be heard on motion for, time for, 90, 263 ; ality for, 261, 272 Demurrer for argument of, practice as to, 54-56; days for, 251, 272; long vacation not reckoned in time for, 4 aTae : Dismissal of bill after, equivalent to a dismissal on merits, 253 Examination, for, may be by any party after issue joined, 247; each cause to be set down as entered, 247, 248; notice of, to be served, 248; form 254 > : : eaten directions, for hearing, on days for, 251, 254, 272; time for service ice of, 254 eda oe time for, 251, 272; days for, 251, 272; causes | for, to be set down ‘as entered, 251, 272; may be, by defendant if plaintiff neglects to, within one month after publication, 252; fee on, 269 616 GENERAL INDEX. SETTING DOWN—( Continued.) Motions, day for, 251, 272 Motion for decree, time for, 90, 268; days for, 251, 272 Notice of, to be served on all proper parties, for wu proper day, 251, 272, 278; time for, 251, 273 Objection to, must be taken before hearing, 252 2 Party to notify registrar of, seven days before the hearing, 251, 278 Petition to vary or reverse decree, in lieu of bill in nature of bill of review, how to be set down, 275; time for, 276 Pleadings to be transmitted when cause set down for examination, 106, 247, 280, 281 Pro confesso, for hearing, time for, 76, 77, 268; fee on, 231, 259; days for, 251, 272 : Re-hearing, cause for, to be for re-hearing term only, 278; time for, 273, 277; notice of, time for service of, 273, 277 Vacation, long, not reckoned in time for setting down demurrers, or causes on bill and answer under Order XVIIL, 4. SEVERING DEFENCE, costs of parties, 221. SITTINGS OF COURT, order as to, 251, 271, 272. SHAREHOLDER, bow to be alleged in bill, 17. SHERIFF, commission of sequestration to be directed to, 235 Proceedings against, to compel return of papers sent for service, 284 Service by, of what papers can be compelled, 234 Tariff of fees to be paid to, 231, 282, 260-262. SINGULAR NUMBER, interpretation of words in the, in Orders of June, 18538, 2. SOLICITOR, authority, cannot be compelled to produce his, 312 Change of, must be made by order, 312; except in case of death of, 312; may be made without any conditions as to costs, 312; where no order for, papers may be served on old solicitor, 312; how lien of, affected by change of, 312; form of order for, 886 Communication made by client to, privileged, 812; when not, 312 Compromise of suit by, when binding on client, 312 Costs of, against client do not carry interest without special agreement, 224; cannot be settled at a gross sum in lieu of taxed, without intervention of third party, &c., 224; payment of, by client under protest, practice on, 224; lien for, 224, 312; taxation of, practice as to, 224; form of petition for, 391, 892; how entitled, 224; form of order for, 374, 375; action at law for, restrained pending taxation, 875; costs of taxation, 224; where irregularly taxed may be re-taxed, 224 Discharge of client by, on, client may use papers notwithstanding lien, 312; dissolution of co-partnership of solicitors operates as a, 312 Fees to, tariff of, 226-229 Guardian ad litem, appointment of, as. See GUARDIAN. Hearing of cause, to attend at, 259 Lien of, for costs, practice as to, 224, 225, 312; is no objection to produc- tion by client of papers, &¢., 103; is subordinate to the equities between the parties to the suit, 224; how affected by claims of third parties, 224, 225 ; how affected by change of solicitor, 312 Name or firm and place of business of, to be endorsed on every writ, pleading, or proceeding, 208 Rolls, practice when struck off, 239 Service on, substitutional. See SERVICE. SOLICITORS AND AGENTS’ BOOK, Agent, name of to be entered in, by solicitor, 207, 216 Deputy registrar to keep, 216, 217 Registrar to keep, 206-208, 267 Service of papers, how effected, where solicitor neglects to enter name of agent in, 207, 208, 216, 217, 267. GENERAL INDEX. 617 SPECIFIC PERFORMANCE, Abandonment of contract, effect of, on decreeing or refusing, 498 Bill for, observations as to, 818, 819; forms of, 23, 828; form of, of parol contract partly performed, 23, 24; how served where defendant cannot be found, 38 Chattels, of contract respecting, when decreed, 500 Damages may be ordered in suits for, 492 Defendant, where, cannot be found, 38 Fraud in contract, effect of, in decreeing or refusing, 497 Frauds, statute of, 493, 494 General principles as to, 500 Jurisdiction of court in cases of, 492-501 Laches, 494 Lien of vendor, 499 Lunatic, contract of, how enforced by, 511 Mistake and misunderstanding, as to contract, 497 Option to purchase, contract with, when enforced by, 611 Rescission, when granted in lieu of, 498 Sale, of contract for, subject to incumbrances, 493: subject to a condition precedent, 499 Speculative purchase, when enforced by, 495 Time, when of the essence of contract, 494 Title, practice as to, in suits for, 496 Uncertainty in contract, effect of, in refusing, 497. STATUTES CITED, Imperial, 17 Edward, II., ch 9, 490 18 Eliz., ch. 5, 478 12 Car. II., ch. 24, 489 14 & 15 Vic., ch. 99, 180 15 & 16 Vie., ch. 80, 146, 147, 148 es ch. 81, 151 oe ch. 86, 180, sec. 8, 28; sec. 4, 27; sec. 5, 81; sec. 8, 130; sec. 88, 107; sec. 40, 179; sec. 42, 317; sec. 44, 126; sec. 45, 85; sec. 46, 85; sec. 47, 85; sec. 49, 128; sec. 50, 124; sec. 31, 125; sec. 52, 46; sec. 58, 120; sec. 59, 123; sec. 62, 119 18 & 19 Vie., ch. 90, 220 21 & 22 Vic., ch. 27, 522 Provincial, 7 Will. IV., ch. 2, 466, 502,9516 4&5 Vic., ch. 100,502 7S 12 Vic., ch. 64, 466, 504 = 12 Vic., ch. 72, 146, 154, 166 12 Vic., ch. 73, 487 13 & 14 Vic., ch. 50, 466 16 Vic., ch. 159, 466, 502 16 Vic., ch. 175, 244 20 Vic., ch. 56, 28, 33, 466, 504, 506 20 Vic., ch. 65, 512 Consol. Stats. Canada, ch. 60, 485 Consol. Stats. Upper Canada, ch. 12, 33 “ee “cs ch. 18, 388 “ “ ch. 15, 220 “ &e ch. 16, 198 “ “ ch, 22, 502 “ “ ch, 24, 233, 505 78 618 GENERAL INDEX. STATUTES CITED—(Continued.) Consol. Stats. Upper Canada, ch. 26, 478 6c < oe ch. 80, 320 «“ «“ ch. 74, 175, 490, 518 “ 6 ch. 86, 512 . ee se ch. 87, 195 “ “ ch. 88, 195 22 Vic., ch. 33, 8, 506 22 Vic., ch. 96, 482 24 Vic., ch. 41, 21. STATUTES PRINTED AT LENGTH, Consolidated Statutes of Upper Canada, 22 Vic., ch. 12, (actrespecting the Court of Chancery,) ss. 1-76, pp. 466-526 «© "ch. 18, (act respecting the Court of Error and Appeal,) ss. 1-21, 52, 66, pp. 526-536 «ch. 15, (act respecting county courts,) ss. 57, 58, 63, 65, 69, pp. 537-539 « ch. 16, (act respecting the surrogate courts,) ss. 26-81, 42-45, 51, 54, 79, 81, 82. pp. 539-544 : ‘© ch. 22, (act to regulate the procedure of the superior courts of common law and of the county courts,) ss. 176-182, pp. 544-547 «ch. 24, (act respecting arrest and imprisonment for debt,) ss, 8-15, 19, 28, pp. 547-551 “ch. 88, (act respecting the Law Society of Upper Canada,) pp. 551, 552 «ch. 69, (act-respecting the property of religious institutions in Upper Canada,) ss. 8-13, pp. 552, 558 «ch. 74, (act respecting the appointment of guardians and the cus- tody of infants,) ss. 1-11, pp. 553-558 «ch. 83, (act respecting the assurance of estates tail,) ss. 23, 37, 88, pp. 558-561 : «ch. 86, (act respecting the partition and sale of real estate,) ss. 5, 87, 38, 40, 41, pp. 561, 562 «© ch. 88, (act respecting the limitation of actions and suits relating to real property, and the time of prescription in certain cases,) ss. 27, 31-35, pp. 562-564 . “ch. 89, (act respecting the registration of deeds, wills, judgments, decrees in Uhancery, and other instruments,) ss, 40, 48, pp. 564, 565 : Consolidated Statutes of Canada, 22 Vic., ch. 79, (act respecting the attendance of witnesses in the courts of Upper and Lower Canada reciprocally,) ss. 4, 6, 7, p. 568 Provincial Statutes, 26 Vic., ch. 41, (act respecting affidavits, declarations and affirmations made out of this province for use therein, ) ss. 1-7, pp. 565-568. STATUTE OF FRAUDS, Contracts respecting real estate, effect of, on, 493, 494 Demurrer, may be set up by, 55; form of, 334, STATUTE OF LIMITATIONS, Demurrer, may be set up by, 55 Equity, of suits in, 563, 564 Mortgages, of suits relating to, 562, 563. STAY OF PROCEEDINGS, Forclosure suit, iv, defendant may move for, after decree on payment of amount due on mortgage, 1338. SUBP@NA, ad testificandum, attendance of witness who has made affidavit, to be used at hearing, may be compelled by, 107 GENERAL INDEX, 619 SUBPENA—( Continued.) Attendance of witness for oral examination, of any motion, petition, &e., may be compelled by, before court, deputy master, or special examiner, 180; form of, 415 Appear and answer, to, abolished, 15; effect of issue under the old prac- tice, 27; office copy bill to be served in lieu of, 28 Costs, for, abolished, 236 Duces tecum, for attendanance of witness before court, deputy master, or special examiner, 180, 182; for cross-examination on affidavit, 107 Indorsement on, of solicitor’s name and address, 208, 209; or of party sueing out, in person, 209 Lower Canada, may issue to, act respecting, 568 Rejoin, to, abolished, 93. Core UTIONAL SERVICE. See BILL. SERVICE. IT, Abated or defective, practice in case of. 45 et seg. See REVIVOR Administration may be by, and not summons, 85 Conduct of, 184; for administration, 87 Declaratory decree or order may be sought by, 124 Foreclosure, ssle may be directed in, 129, 130 Misjoinder of plaintiffs no ground for dismissal of, 128 Parties to. See PARTIES. See CAUSE. SUITOR'S FEE FUND, fees, &c., to be paid into the, 525; application of, 525. SUNDAY, practice where the time for doing any act, &c., falls on, 8, 4. SUPPLEMENTAL BILL, abolished, 42; practice in lieu of, 42, et seg., 278, 279. See BILL. SUPPLEMENTAL ORDER, observations on, 381. See REVIVOR.. SURCHARGES, how to be made, 152, 190; form of, 896; notice to be given in Chambers, 152; in master’s office, 190; form of, 396, 397. SURETIES, Mortgagor, of, may be made parties to suits for foreclosure, 132 ; liability of, after sale decree, to pay balance of mortgage debt, 132. SURROGATE COURT, Act respecting, 539, et seq. Administration by, pendente lite, 543 Appeals from, to Chancery, 539 ; in what cases, 539; costs of, 542; to former Probate Court transferred to Chancery, 544 Bonds taken in former Probate Court assignable, 544 Clerk of, officer of Court of Chancery, 541; his duties, 541; salary, 541 Fees to be paid by, to Law Society, 551 Papers, &c., to remain deposited in the Court of Chancery for purposes of reference, 543 : Probate of will granted by, to be prima facie proof of will, 542 Reference of matter in, to a superior court of common law, 539 Removal of causes from, to Court of Chancery, 540, 541 1 i ici -229; counsel f fees and disbursements to be allowed to solicitor, 226-229; ¢ : Te ance 229, 280; registrar, 230, 231; sheriffs and coroners, 231, 232, a : eR ea ION OF COSTS, orders as to, , et seq. ee ston for, form of petition and pe deal pens ge 892 ificate of, 205; how objected to, 205; costs of, 2. oe or not necessary when directed to be paid, 218, 265 ; form of, 374, 875 Party and party, as between, 217, 219, 225 620 GENERAL INDEX. TAXATION OF COSTS—( Continued.) Petition for, form of, 391, 892; affidavit in support of, 392 Re-taxation, when allowed, 218, 275; costs of, 219, 275. See RE-TAXA- TION. Solicitor and client as between, 217, 219, 224, 225. See COSTS. TAXING OFFICER, Costs, where awarded to paid may be taxed by, without order, 265 Discretion of, as to allowance of costs between party and party, 225 Gross sum in lieu of taxed costs, may be allowed by, in certain cases, 217 Unnecessary proceedings, discretion of, as to disallowing costs of, 217, 218. TERMS, examination, 245 Re-hearing, 81, 273. TIME GENERALLY, order as to, 3-5 Answer or demur, to, not reckoned after service of order for security for costs until security given, 4,5; applications for further, to be made in chambers, 147; or to deputy master, 215 Computation of, 8; one day inclusive and one exclusive, 3; ‘‘ months” mean lunar, 3; Sundays, &c., excluded, 3, 4; vacation when reckoned or not, 4, 258 Vacation for, 3; when not reckoned, 4, 258. TIME, within or after which certain proceedings should be taken Abridgement of, may be granted by court or judge in chambers, 237; or by master, of proceedings in his office, 186 Affidavits, for filing, after notice of motion for decree, 90, 91; plaintiff’s in reply, 92; for filing, to be used on motions, &c., generally, 177, 178; to be used in answer to motions, &c., 178,268 Amend bill, for obtaining order of course to, before answer, 89; after auswer, 40; for making amendment, 41 Answer, to put in, 63; after demurrer overruled, 57; to amended bill, 63 ; where bill served out of jurisdiction, 88, 34, 284, 285; court may prescribe a shorter, 3£, 285; application for further, to be made in chambers, 147 ; or to deputy master, 215 Appeals, for. See APPEAL, SETTING DOWN. Chambers, judge in, may enlarge or abridge, 237 Copies, pleadings, &c., for delivery of, 209, 210; where not delivered fur- ther time not to count against party demanding, 179, 210 Court may enlarge or abridge, for doing any act, &c., 287 Cross-examination, for notice of, 108, 182 Decree, to add to or vary by party served therewith, 12; in suits for fore- closure or sale, 257; for notice of drawing up, 208; for enrolment of, 213 Delivery of office copies pleadings, &c., 209, 210 Demurrer, to put in, 54; where bill served out of the jurisdiction, 33, 34, 284, 285; court may prescribe shorter, 84, 285; application for further, to be made in chambers, 147; or to deputy master, 215; for setting down for argument, 54-56 Election, time for filing, in compliance with order, 63 Enlargement of, may be granted by court or judge in chambers, 237 Enrolment of decree, for, 213 Examination of witnesses, for setting down for, 247; for notice of, 248 Further directions, for notice of hearing on, 254 Guardian ad litem, for notice of application to appoint, 71 Hearing, for setting down for, 251, 272; on bill and answer, 96; for notice of, 251, 273; for setting down for, pro confesso, 76, 77. 263 ; Judge in chambers may enlarge or abridge, for doing any act, &c, 237 Master’s office, for taking proceedings in, master has full discretion as to, 186 Mortgage money, for payment of, 131; enlargement of, 142, 148 GENERAL INDEX. 621 TIME—( Continued.) Moti . 9a: Seto alaly for service of notice of, after answer, 91; before answer, 35 ismissal for want of prosecution, 114-118 Notices, for service of. See NOTICE. SEKVICE Order made in court, within which, to disch : 9 . drawing up, 213 ‘i ischarge or vary, 279; for notice of etition, for service of, 277+ in li a) i ‘ Peo antag dae Sb, foc ocen of as See Le svi, ro ini . cic edeee ae where bill served within jurisdiction, 67, 68; publieation, 70: us ee on motion where service not personal, 69; on Production et denbanie te oof Smeuliitty ey oe Pablication, for passing, 246° e-hearing, for, 80, 278, 279; j i Revlienton, for filing, 96, for service of notice of, 81, 278 Revivor of suit, for, 46; for applicati i Service, for, of pleadings, ee Se SERVIC. Manso dete Vacation, for, when reckoned or not, 4, 258 ‘ e Warrant, for service of, 187. ae TITLE, order as to, and notes thereon, 160-162; i ‘Abstract of, 160, 161; form of, 400-402.” ABSTRACT,” ne Acceptance of, remarks as to, 318, 496, 497 , Costs, practice as to on shewing or not shewing, 161 Covenants as to, what, vendor to enter into, 163 Deposit, may be ordered to be returned in case of defective, 496 Dower, vendor bound to convey free from, 496 , Improvements by purchaser cannot be allowed for in case of defective, 496 Objections to, 16U; vendor cannot make, 161 : Vee money, purchaser can require u good, before paying any portion Report against title should state defective points, 161 Waiver of enquiry as to, what is, 318, 496-497; practice as to, 318. TRANSMISSION OF INTEREST OR LIABILITY, practice where suit defective ae te ee as to, 45, 46, 278, 279. See CHANGE OF TRESPASS, Form of bill to stay, 25. TRIAL See ISSUE. TROST, act relating to, 475 Breach of, and liability of trustee therefor, 199, 481 Constructive, 481, 482 Costs in cases of, 482 . Creditors, for the benefit of, jurisdiction as to, 482 Jurisdiction of court in cases of, 481, 482 New trustees, appointment of, 482 Parties to suits for the execution of, rules ag t TRUSTEE, accounts, what allowed or charged to, in Bill, to compel use of name of, 25; to appoint new, 26 defendant is a, 17 Cestui que trust, when represented by, 12, 321; as to dealing with, 481 Costs, when allowed to, or charged against, 482 Jurisdiction of the court, as to, 481, 482 Liability of, for breach of trust, 481 ; New, appointment of, 482; form of bill for, 26 Parties to suits by and against, rules as to, 11-14, See TRUST. 0, 11-18. See TRUSTEE. taking against, 198, 199 ; as to charge in, that 622 GENERAL INDEX. Uz UPSET PRICE, Judge or master may fix, without order, 154; must be notified in conditions of sale 155; and advertisement, 154. UNDERWRITING MASTER’S WARRANT, Should be a copy of the direction as entered in the master’s book, 187; wher party required to admit accounts, 188, 189. UNNECESSARY MATTER OR LENGTH, - Practice as to, in pleading, petition, or affidavit, 253. UNSOUND MIND, PERSON OF. See LUNATIC. USHER, May be appointed by court, 471; duties of, 471. Vv. VACATION, Christmas, at, 4 Injunction a be moved for during, 310 gee ; uot reckoned in computation of time for certain purposes 4, 258. VENDITIONI EXPONAS, Decree or order for payment of money, costs, charges or expenses, enforced by writ of, 549. VENDOR, Lien of, for purchase money, where it subsists, and when lost, 499, 500. See LIEN. SALE. SPECIFIC PERFORMANCE. TITLE. VENUE, selected by plaintiff, 248 ; and designated in margin of bill of complaint, , 243; any party to suit may apply to change, 242. VESTING ORDER, Application for, by whom made, 520 Chambers, made in, after decree for sale, 520° Conveyance may be directed in place of, 520 Effect of, 520 Form of, 385. VICE-CHANCELLOR, Appointment of, 467 Oath of office by, 469 Retiring annuity of, 468, 469 Salary of, 468. VOLUNTARY DEEDS, jurisdiction of court as to, 479. WAIVER, W. Fraud, of, 476 Security for costs, of. See COSTS. Title, of. See TITLE WARRANT, Accounts, to bring in not necessary to be served where direction made, 186; practice as to, 188, 189 Appointment, one, in lieu of separate, 187, 265 Consider decree, to, as to taking out and service of, 185, 186-7 ; may be dispensed with, 185, 186 Direction of master sufficient where party present, 186 Separate, not to be issued, 187, 265 Service of, 186, 187; time for, 187 Underwriting of, 187; to admit accounts, 188, 189. WASTE, Bill to stay, forms of, 24, 25 Injunction to restrain, practice as to granting, 309, 310, 491, 504 Jurisdiction of court in cases of, 490-492 Parties to suits respecting, rules as to, 11, 491. GENERAL INDEX. 623 WIFE, of i i WiLFUL aoe ou be examined as a witness, 111. See MARRIED WOMAN. Administrator or exeouto: i r when ch 3 i i 4 to, on a mere unproved aiesstnns A ms apse meee Seen when charged with, 198 ortgagee in possession, when charged with, 195, 196 as not in general chargeable with, 198, eae ma WITNESSES. ? acie proof of, 542. Admission of, after close of ination i jecti Affidavit by, See nneoe “oo is objectionable, 249 Allowances to, 181 Articles to discredit, abolished, 249 Attendance of, how enforced for examination before the court, 248 ; before examiner, 180, et seg., 249, 546; where residing in Lower Canada, 248, See before arbitrators, 546 ; for cross-examination before the court, vee oe ane eee puts 182; notice to produce, for cross-examin- ’ % oe Ais Cross-examination of, 182, 183; on affidavit, 107, 845; notice of, 108, 183 Depositions of, to be taken in the first person, 249; and signed by, 250 ; may be made use of by any party to suit, 250 : Discredit, course to be taken to, 249 Examination of, order as to, 243, et seg. See EXAMINATION. Lists of, not to be furnished on examination of, 248 Master, may examine, 199 Production of, court may require the, before itself, 250 Re-calling of, for further examination, order not necessary for, 249 Re-examination of, to follow immediately the cross-examination, 108. See AFFIDAVIT. DEPOSITIONS. EVIDENCE, EXAMINER. EXAM- INATION. WORDS, interpretation of, in Orders of June, 1853, 2, 3. WRIT, appeal of, form of, 287, 288; practice as to, 288; how endorsed, 294; how tested, 297 Arrest, of, act respecting, 547; how obtained, 547; bail on, 547; security required, 548; when to issue for non-payment of money, 548; observa- tions as to prayer for, in bill, 319; application for, to be made by motion supported by affidavit, 319; form of, 417, 418 Assistance, of, how obtained and practice as to, 236, 2387; form of, 420, 421 Attachment, of, practice as to, 283-235; form of, 419. See ATTACHMENT. Fi. fa , of, decree or order for payment of money, costs, charges, or expenses, enforced by, 549; forms of, for costs, 415, 416; endorsement on, 416; for debt and costs, 416, 417; endorsement on, 417 Forms of, 415-421. See FORMS. . . Indorsea:ent on, of name of solicitor, &c., 208, 209; or party suing out in on, 209 Thyunetion, form of, 418; service of, 812. See INJUNCTION. Judge, need not be signed by, 283 Sequestration of. See SEQUESTRATION. Service of, 207 Sigvature of judge not necessary to, 283 Subpeena, of. See SUBPENA. Ven. Ex., of, decree or order for payment of money, &c., enforced by, 549, See PROCESS. WRONGFUL ACT, injunction may be granted to restrain, 809-312, ERRATA AND ADDENDA. \ Page 18, line 8 from the bottom.] Strike out the words ‘Dalton v. McNider, 1 U. C. L. J. 57.” Page 20, lines 12 and 138 from the bottom.] Strike out these lines and insert: “¢ Formerly the judgment creditors of the mortgagee were necessary parties to a fore- ‘closure suit (Sanderson v. Ince, 7 Grant, 383;) they could be made however in the ‘master’s office (Id:d.) Since the passing of the act abolishing the registry of judg- “ments they are unnecessary parties and it would also seem that as the interest of “¢s, mortgagee is not saleable under fi. fa. lands, his creditors under fi. fa. lands are ‘improper parties either originally or in the master’s office.” Page 27, line 9 from bottom.] Strike out the word ‘‘as” and insert the word ‘¢and” instead. Page 28, line 6 from the top.] Strike out the first figure 3. Page 29, live 3 from the top ] Insert the word “redemption” before the word *‘ foreclosure.” Page 81, line 4 from the bottom.] After the words ‘4 Russ. 210” add: ‘ This ‘‘was under the old parctice, now, however, it is improper to state any facts in “the petition whether appearing in the pleadings or not. The form of petition now ‘‘used will be found at p. 390 infra.” Page 103, line 25 from the top.] After this'line add the words: ‘See further as ‘‘to production after decree, p. 367, infra.” Page 145, line 17 from the bottom.] The words ‘ proceedings to ale” should be “ proceeding to sale.” ~-y, Page 219, line 9 from the top.] Strike out the word ‘“‘rencw” and insert the word “review” in its place. 7 Page 240, line 17 from the bottom.] Strike out the figures ‘* XIII.” and substitute XV” Page 241, lines 2 in the heading of the page and 4 from the top.] Strike out ‘6 17th” and substitute “19th” in both places. Page 268, line 2 in the heading of the page.] Strike out the figures “1858” and gubstitute * 1861.” Page 819, line 9 from the top.] After the words ‘7 Grant, 606” add: ‘see, how- “ever, the remarks on the head note of this case at p. 498, infra.” ~ Page 440, between lines 7 and 8 from the bottom.] Insert ‘ Preecipe to set down ‘¢on further directions, 1s, 8d. Paid, 2s, 6d.” ROWSELL & ELLIS, PRINTERS, KING STREET, TORONTO,