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THE JURISDICTION & PRACTICE THE COUNTY COUETS ®ptg t IN ADMIRALTY, PROBATE, AND ADMINISTRATION CASES, VV'I BY JAMES EDWARD DAVIS, OF THE MIDDLE TEMTLE, ESQUIRE, BAURISTER-AT-LAW. LONDON : BUTTERWORTHS, 7, FLEET STREET, £;ito publishers to the Ojiutn's most rvrrllent Jthijcstn. HODGES, FOSTER & CO., DUBLIN. CALCUTTA: THACKER, SPINK & CO. BOMBAY: TU ACKER, VININO & CO. MELBOURNE: GEORGE ROBERTSON. 1872. 3> 2/? M-2. co LONDON : PRINTED DY C. ROWORTII AND SONS, NEWTON STREET, W.C. 3 c*3 CD 35 CM PREFACE. The present "Work forms a Second Volume to the re- cently published Fourth Edition of the Author's " Prac- tice and Evidence in Actions in the County Courts." As stated in the Preface to that "Work, it was " found necessary to devote a separate Volume to the Equitable Jurisdiction and Practice in Bankruptcy, and in various miscellaneous matters." The rapid sale of the First Volume leads the Author to hope that the corresponding arrangement and treat- ment of the subjects will render this Volume equally acceptable. The insertion of carefully selected additional Forms of Plaints and other proceedings in Equity, is one feature to which attention may be called here, as it is not disclosed on the Title-page. JrxE, 1872. 7'?87F>9 CONTENTS OF VOL. II. PART IV. THE JURISDICTION AND PRACTICE OF THE COUNTY COURTS IN EQUITY. Chapter I. THE JURISDICTION IN EQUITY. SECT. PAOE 1. Equitable Jurisdiction in general .. .. .. .... 2 2. Jurisdiction in Suits by Creditors, Legatees, Devisees, Heirs at Law and Next of Kin .. .. .. .. .. •• C> 3. Jurisdiction in Suits for the Execution of Trusts . . .. .. 9 4. Jurisdiction in Suits for Foreclosure or Redemption, or for en- forcing any Charge or Lien .. .. . .. ..10 5. Jurisdiction in Suits for Specific Performance of, or for the delivering up or cancelling, any Agreement for the Sale or Purchase of Property .. .. .. .. •• ..12 6. Jurisdiction in Suits for Partition .. .. .. •• ..17 7. Jurisdiction in Proceedings under the Trustees Relief Acts, or under the Trustee Acts .. . . .. .. •• ..18 8. Jurisdiction in Proceedings relating to the Maintenance or Ad- vancement of Infants .. .. .. .. •• .. 20 9. Jurisdiction in Questions as to the Separate Property of Married Women .. .. .. .. •• •• •• .. . 21 10. Jurisdiction in Suits for the Dissolution or Winding-up of any Partnership.. .. .. .. •• •• .... 21 11. Jurisdiction in Proceedings for Orders in the Nature of Injunc- tions, or for Stay of Proceedings at Law. . . . . • 22 12. Jurisdiction in Suits transferred to the County Courts . . . . 23 Chapter II. THE GENERAL COURSE OF PROCEEDINGS IN AN EQUITY SUIT IN THE COUNTY COURTS .. ..24c Chatter III. OF THE PLAINTIFF'S PROCEEDINGS IN ORDER TO COM- MENCE A SUIT IN EQUITY. 1. The Court in which Proceedings are to be taken . . . . . . 30 2. Proceedings by Plaint and Summons. . .. .. .. ..31 VI CONTENTS. Chap. III.— plaintiff's proceedings, btc.— (continued). SECT. PAGE :;. Proceedings by Petition .. .. .. .. .. .. 49 4. Proceedings for ( (rders in the Nature of Injunctions .. . • 51 5. Proceedings by Trustees and Executors on Payment into Court under Sect. 24 of " The County Courts Act, 1807 " . . . . 63 6. Service of Process .. .. .. . . .. . . . . 5'J ClIAPTEK IV. THE DEFENDANT'S PROCEEDINGS IN A SUIT. 1. Admission .. .. .. .. . . .. •• ..61 2. Disclaimer or Answer .. .. .. .. .. .. •• 68 3. Staying Proceedings .. .. .. .. .. .. ..64 Chapteb V. VARIOUS PKOCEEDINGS BEFORE THE BEARING. 1. Proceedings by Attorney .. .. .. .. .. ..65 •_'. Conduct of the Suit or Proceeding .. .. .. .. .. GiJ .".. Enlarging or abridging Time for taking Steps, &c .. .. 66 4. Bx parte Applications .. .. .. .. .. .. 66 5. Affidavits 67 c. Filing of Documents .. .. .. .. .. .. .. 68 7. Application for Copies of Documents .. .. .. .. 68 8. Inspection and Admission of Documents .. •• .. .. (;> 9. Summoning Witnet .. .. .. .. .. .. 10 h». Examination of Witnesses before Hearing .. .. .. .. 71 11. Notice of Intention to use Affidavits at the Hearing .. .. 1% 12. Dismissal of the Suit at the Plaintiff's Instance before the Return- Day 72 Chapter VI. THE HEARING. 1. How Parties to come prepared 2. Evidence .. 3. Amendments 4. Trial by Jury B. Decrees and Decretal Orders .. (i. Final Decree 7. Rehearing' 8. Registration of Decrees. . Chapter VII. PROCEEDINGS IN CARRYING OUT DECRETAL ORDERS. 1. Drawing up Decretal Orders .. .. .. •• .. ..8.5 2. Adding Parties 86 CONTENTS. Vil Chap. VIL— carrying out decretal orders — {continued). SECT. PAGE 3. Appointment of Receiver 86 4. Order for Sale of Property 88 5. Order for Preparation and Execution of Deeds 88 6. Reference to the Registrar 88 7. Application to Judge for further Directions 95 8. Advertisements . . • • • • • • • • • • . • 98 9. Pavment of Money into and out of Court 96 10. Payment of Legacy or Money to which an Infant or Person be- yond Seas is entitled . . • • • • • • • • . . 97 11. Powers and Duties of the Registrar in respect of Funds in Court 99 1 2. Interest on Debts and Legacies 100 13. Auditing Registrar's Accounts 100 14. Proceedings on Abatement of Suit by Death, Marriage or other wise . . . . • • • • • • • • • • • • 100 Chapter VIII. ENFORCEMENT OF DECREES AND ORDERS. 1. Mode of enforcing Decrees and Orders in general 102 2. Execution to enforce Payment of Money . . . . . . . . 103 3. Execution to enforce Delivery of Lands or Goods 104 4. Committal for Contempt for Neglect to obey Decree or Order .. 105 5. Order of Commitment on a Judgment-Summons 107 Chapter IX. TRANSFER OF PROCEEDINGS. 1. Transfer to the Court of Chancery on Application of the Parties. . 109 2. Transfer to the Court of Chancery where the Subject-matter ex- ceeds the Jurisdiction of the County Court . . . . . . 109 3. Transfer from the Court of Chancery to the County Court .. 110 4. Transfer from one County Court to another Ill Chapter X. APPEAL 113 Chapter XI. FEES AND COSTS UNDER THE EQUITABLE JURISDICTION OF THE COUNTY COURTS. 1. Fees }JJ 2. General Rules as to Costs y J 3. Scale of Costs of Counsel and Attornies 121 4. Miscellaneous Rules relating to Costs 124 viil CONTENTS. Chapter XII. SPECIAL EQUITABLE JURISDICTION OE THE COUNTY COURTS IN VARIOUS MATTERS. SECT. • PAGE 1. Equitable Jurisdiction in Charitable Trusts . . .. .. • - 125 2. Literary Institutions .. .. .. •• .. •• •• 129 3. Friendly and other Societies .. .. .. .. .. •• 130 4. Equitable Jurisdiction of County Courts in Winding-up Societies and Companies . . . . - • • • • • • • • ■ 138 5. Enforcing or setting aside Agreements between Attorneys and their Clients HO 6. Acknowledgment of Deeds by Married Women H2 PART V. ADMIRALTY JURISDICTION OF THE COUNTY COURTS. Chapter I. JURISDICTION IN MARITIME CASES BEFOEE THE COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868. 1. Of the Nature and Jurisdiction of Admiralty Cases in general .. 116 2. The Arrest of Foreign Ships under " The Merchant Shipping Act, 1854" 150 3. County Court Jurisdiction in Salvage Cases under the Merchant Shipping Acts, 1854 and 1862 151 Chapter II. ADMIRALTY JURISDICTION UNDER "THE COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868," AND THE AMENDMENT ACT, 1869. 1. County Court Districts for Admiralty Purposes . . . . . . 1 57 2. Extent of Jurisdiction . . . . . . . . . . ..159 3. Commencement of Suit .. .. .. .. .. .. 163 4. Defendant's Proceedings in the Suit .. .. .. .. 166 5. Transfer of Admiralty Causes from the County Court .. .. 167 6. Second or Cross Suits. . .. .. .. .. .. ..169 7. Arrest and Detention of Vessel or Property pending Proceedings 170 8. Inspection and Copies of Instruments and Documents .. ..172 9. Trial of Admiralty Causes .. .. .. .. .. . . 173 10. Enforcement of Decrees .. .. .. .. .. ..178 11. Appeal 182 12. Fees and Costs . . 183 Chapter III. APPEALS TO THE COUNTY COURTS FROM THE DE- CISION OF SURVEYORS AS TO THE UNSEAWORTHI- NESS OF VESSELS UNDER « THE MERCHANT SHIP- PING ACT, 1871" 189 CONTEXTS. i X PART VI. JURISDICTION OF THE COUNTY COURTS IN QUES- TIONS AS TO THE GRANT AND REVOCATION OF PROBATE OF WILLS AND LETTERS OF ADMINIS- TRATION. SECT. PAGE 1. Jurisdiction .. .. .. .. .. .. .. .. 190 2. Procedure . . . . • . . . . . '. . . . . . 192 3. Fees and Costs . . . . . . . . . . . . . . . . 197 PART VII. JURISDICTION AND PRACTICE OF THE COUNTY COURTS IN BANKRUPTCY. Chapter I. THE CONSTITUTION AND GENERAL POWERS OF COUNTY COURTS IN BANKRUPTCY. 1. The general Scope and Principles of "The Bankruptcy Act, 18G9" 199 2. Description of the Court . . . . . . . . . . . . 2( 1 1 3. General Powers and Jurisdiction of the Courts and Judges .. 203 4. Rules for regulating the Practice and Procedure in Bankruptcy . . 206 Chatter II. GENERAL PROVISIONS AND RULES RELATING TO THE PRACTICE IN BANKRUPTCY. 1. Computation of Time .. .. .. .. .. .. .. 210 2. Sittings of the Court 211 ;;. A ppearance of Parties by Attorney or Agent .. .. ..211 4. Mode of applying to the Court .. .. .. .. .. 212 o. Affidavits 213 6. Mode of giving Security when required .. .. .. .. 214 7. Service and Execution of Process .. .. .. .. ..215 8. Evidence 216 9. Witnesses .. .. .. .. .. .. .. .. 217 Chapter III. OF THE CIRCUMSTANCES UNDER WHICH A PERSON IS LIABLE TO BE MADE A BANKRUPT. 1. The Principles of the Law in reference to Persons liable to be adjudged Bankrupts .. .. .. .. .. .. .. 218 2. The general Circumstances under which Bankruptcy may be en- forced 220 3. Of Traders 221 4. Who may be adjudicated Bankrupt . . .. .. .. .. 222 .5. Who may petition .. .. .. .. .. .. .. 224 6. The Petitioning Creditor's Debt 224 CONTENTS. Chapter IV. OF THE ACTS OF BANKRUPTCY. SECT. 1. Assignment for the Benefit of Creditors 2. Fraudulent Convej-ance . . . • 3. Absenting- and beginning to keep House 4. Filing a Declaration of Inability to pay 5. Execution against a Trader . . 6. Debtor's Summons 7. Proceedings under "The Absconding Debtors Act, 1870" 8. The Time within which Acts of Bankruptcy must be committed PAGE 226 227 229 230 231 231 239 240 Chapter V. THE PETITION IN BANKRUPTCY. 1. The Presentation of the Petition 241 2. Verification of Petition .. .. .. .. .. .. 244 3. Service of Petition . . . . . . . . . . . . . . 246 4. Notice by Debtor of Intention to dispute Petition . . • . . . 248 5. Restraint of Actions and Legal Process, after Presentation of Petition 249 6. Appointment of Receiver and Manager after Petition .. .. 251 7. Arrest of Bankrupt after the Presentation of the Petition . . . . 252 Chapter VI. THE HEARING AND ADJUDICATION. 1. The Hearing 254 2. Staying Proceedings on the Petition . . . . . . . . . . 255 3. Adjudication of Bankruptcy .. .. .. .. .. .. 259 4. Dismissal of the Petition . . . . . . . . . . . . 261 Chapter VII. THE FIRST MEETING OF CREDITORS. 1. General Provisions .. .. .. .. .. .. •• 263 2. Proceedings preliminary to the Meeting .. .. .. .. 264 3. The Proceedings at the Meeting .. . . .. .. .. 265 4. The Attendance of the Bankrupt . . . . . . . . . . 267 5. The Right and Mode of Voting 269 6. Minutes and Report of Proceedings . . . . . . . . . . 270 Chapter VIII. OF THE TRUSTEE IN BANKRUPTCY. 1. Appointment of Trustee 2. Committee of Inspection to superintend the Trustee 273 275 CONTENTS. XI Chap. VIII.— of the trustee in bankruptcy— (continued). SECT. PAGE 3. Hesitations as to Trustees and Committee of Inspection . . . . 276 4. Death, Resignation or Removal of Trustee .. .. .. .. 277 5. Duty of the Trustee 279 6. Power of the Trustee 282 7. Accounts of the Trustee 283 8. Costs of Trustee 287 Chapter IX. DUTY OF THE BANKRUPT ON ADJUDICATION. 1. The Duty of the Bankrupt in general .. .. .. .. 289 2. The Bankrupt's Examination . . .. .. .. .. .. 292 3. Miscellaneous Provisions relating to the Bankrupt's Duty in ad- ministering the Property . . . . . . . . . . . . 293 Chapter X. VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. 1 . Meetings of Creditors subsequent to the first . . . . . . 295 2. Acceptance of Composition or Settlement . . . . . . . . 297 3. Transfer of Proceedings . . ■ . . . . . . . . 300 4. Trial of Questions of Faet by a Jury .. .. .. .. 301 5. Appeal in Bankruptcy .. .. .. .. .. .. .. 303 G. Death of the Bankrupt 304. 7. Annulling the Adjudication .. .. .. .. .. .. 304 Chapter XL THE EFFECT OF ADJUDICATION ON THE BANKRUPT'S PROPERTY AND RIGHTS. 1. The Vesting of the Property .. .. .. .. .. 307 2. Time of Commencement of the Bankruptcy . . . . . . 308 3. Description of the Property divisible amongst Creditors .. .. 308 4. Goods of which the Bankrupt is reputed Owner .. .. .. 310 5. Effect of Adjudication on Claims against tlie Bankrupt .. .. 315 6. Stopping in Transitu . . .. .. .. .. .. .. 315 7. Avoidance of Voluntary Conveyances and Transfers .. .. 317 8. Avoidance of Fraudulent Preferences .. .. .. .. 318 9. Protection of certain Transactions .. .. .. .. .. 320 lit. Effect of Bankruptcy on Property taken in Execution .. .. 322 11. Disclaimer of Onerous Property .. .. .. .. .. 325 12. Property defeasible on Bankruptcy . . .. .. .. .. 327 13. Effect of Bankruptcy in Miscellaneous Matters . . . . . . 328 PAGE . 331 .. 332 . 333 . 336 . 337 . . - 339 . 340 Xll CONTENTS. Chapter XII. OF GETTING IN THE BANKRUPT'S PROPERTY. SECT. 1. Taking Possession of the Property in general 2. Dealings with Property of particular Kind . . 3. Delivery of Money and Securities by Agents 4. Appropriation of Pension or Salary 5. Actions and Suits in respect of the Property 6. Discovery of Property 7. Seizure of Property by Warrant 8. Sale and Mortgage of Property 9. Taking Accounts of Property Mortgaged or Pledged, and of the Sale thereof .. .. .. .. .. 341 Chapter XIII. PROOF OF DEBTS. 1. Description of Debts proveable .. .. .. .. .. 342 2. Proof in Case of Mutual Credits, Debts and Dealings . . . . 344 3. Proof by secured Creditors .. .. .. .. .. .. 34(> 4. Proof in the Case of Rent and Payments due at stated Periods . . 348 5. Proof where Persons injured by Disclaimer of onerous Property . . 848 6. Proof against Separate Estates .. .. .. .. .. 34!) 7. Rules relating to Proof of Debts .. .. .. .. .. 349 Chapter XIV. DISTRIBUTION OF BANKRUPT'S PROPERTY. 1. Dividends 353 2. Priorities .. .. .. .. .. .. .. .. 3J7 Chapter XV. CLOSE OF THE BANKRUPTCY AND DISCHARGE OF THE . BANKRUPT. 1. Close of Bankruptcy .. .. .. .. .. .. .. 3.59 2. Discharge of Bankrupt 3G0 3. Release of Trustee .. .. .. .. .. .. .. 3G5 4. Accounts of closed Bankruptcy . . . . . . . . . . 3(!7 5. Status of undischarged Bankrupt . . . . . . . . . . 309 Chapter XVI. LIQUIDATION BY ARRANGEMENT OR COMPOSITION WITH CREDITORS. 1. The General Effect of the Provisions for Arrangement and Compo- sition .. .. .. .. .. .. .. .. .. 371 2. Liquidation by Arrangement . . . . . . . . . . . . 372 3. Composition with Creditors . . . . . . . . . . . . 378 4. Rules respecting Liquidation by Arrangement or Composition .. 381 5. Forms .. .. .. .. .. .. .. .. .. 391 CONTENTS. XUl Chapter XVII. FEES IN BANKEUPTCY PROCEEDINGS 402 Chapter XVIII. COSTS IN BANKRUPTCY. SECT. 1. General Provisions relating to Costs . . .. .. .. .. 4(>."> 2. Scale of Costs in Bankruptcy . . .. .. .. .. . . 4<>ti o. Scale of Costs in Liquidation by Arrangement .. .. .. 413 Chapter XIX. PUNISHMENT OF FRAUDULENT DEBTORS 41G INDEX 421 TABLE STATUTES, ORDERS, RULES AND FORMS RE- FERRED TO IN THIS VOLUME. [* For the convenience of reference, larger figures are employed in the column of pages to indicate where each section of Count)/ Court and Bankruptcy Acts, Orders, and Rules n-ill be found at length. The ordinary type is used where the section, or rule is merely re- ferred to. E. g., 28 . VOL. II. b Xviil TABLE OF STATUTES. TAGE 21 & 22 Vict. c. 101, s. 5 . . Friendly Societies . . . . 131 n. B. 6 .. „ „ .. • • 131 n. s. 7 .. „ „ 133 22 & 23 Vict. c. 17 .. Bankruptcy— prosecutions .. .. 419 c. 35 .. Equity — jurisdiction .. .. .. 18 23 & 21 Vict. c. 38, s. 9 . . „ plaintiff's proceedings . . 50 c. 58, s. 1 .. Friendly societies .. .. 132 n. c. 127, s. 27 .. Equity— costs 124 s 28 . costs •• •• . 124- c. 13G ('' The Charitable Trusts Act, 1860") . . 125 n. s. 1 1 .. Equity — jurisdiction .. .. 2, 12(j n. c. 145, s. 27 •• „ jurisdiction .. .. .. 19 24 & 25 Vict. c. 10 (" The Admiralty Court Acts, 1861") . . .. 148 s. 4 .. Admiralty .. .. .. ..148 s. 5 .. „ .. .. 148, 149, 160 n. s. G .. „ 149 s. 7 .. „ 149 s. 8 .. „ 149 s. 9 .. „ 152 n. s. 10 .. „ 149, 160 n. s. 11 .. „ 148 n. s. 17 .. „ 172 n. c. 134 (" The Bankruptcy Act, 1861") . . 199, 223 n. 25 & 26 Vict. c. 42 ("The Chancery Regulation Act, 1862") Equity — trial by j ury . . . . . . 75 s. 2 .. „ trial by jury 76 S. 3 .. „ trial by jury .. .. .. 76 s. 4 .. „ trial by jury .. .. .. 76 c. 63 (" The Merchant Shipping Act Amendment Act, 1862") 151,155 s. 49 .. Admiralty .. .. 151,153,154 s. 50 .. „ 154 s. 64 .. „ 162 c. 87 (" The Industrial and Provident Societies Act, 1862") 2,139,140 s. 17 .. Winding-up societies .. . . 138, 139 n. c. 89 (" The Companies Act, 1862") Equity— jurisdic- tion 22, 138, 139 s. 126 .. Winding-up societies .. .. .. 138 .. Equity — jurisdiction .. .. .. 22 c. 112 ("The Charitable Trusts Act, 1862") 125 n., 126 n. 27 & 28 Vict, c. 25 (" The Naval Prize Act, 1864") . . . . 148 n., 160 28 & 29 Vict. c. 86 . . Bankruptcy— partners . . . . 222 n., 321 s. 5 . . Priorities . . . . . . . . 358 c. 99 (" The County Courts Act, 1865") Equity 2, 6, 24, 62, 77, 121 s. 1 . . Equity— jurisdiction 2, 6, 9, 10, 1 2, 13 n., 1 4, 18, 20, 21, 23 „ plaintiff's proceedings 49, 52 s. 2 .. „ jurisdiction . . .. ..3,14 s. 3 . . „ transfer of proceedings . . 109 s. 5 . . „ decretal orders . . . . 97 s. 6 „ jurisdiction .. .. .. 4 s. 7 . . „ trial by jury .. .. .. 74 s. 8 . . „ enforcement of decrees . . 102 s. 9 . . „ jurisdiction .. .. 4,109 s. 10 .. „ plaintiff's proceedings .. 30 s. 11 .. „ plaintiff's proceedings ..31n. „ transfer of proceedings . . HI TABLE OF STATUTES. XIX 28 & 29 Vict. c. S 9,s. 13 .. s. 15 . . s. 16 s. 17 .. s. 18 .. s. 19 8.21 .. PAGE Equity— fees 116 n. „ registration of decrees . . 84 „ jurisdiction .. .. ,.3,5n. „ jurisdiction . . .. .. 5n. „ costs .. .. .. ..121 n. » appeal 113 „ appeal 113 „ jurisdiction .. .. ..5,31 „ transfer of proceedings . . 11 1 n. 30 & 31 Vict. c. 4S (" Sale of Land by Auction Act, 1867") ss. 4, 5, 6, 7 . . . . . . . . . . . . 15 n. c. 69 . . Ecpiity — suits by creditors . . . . 8 c. 117 135 s. 3 .. Friendly societies .. .. 131 n., 132 c. 124, s. 8 .. Admiralty .. .. .. ..160 n. C. 131 (" Tbe Companies Act, 1867 ") . . 138, 139, 140 ss. 41, 42, 43.. Winding-up societies .. .. 138 ss. 44 45 46.. .. ».139n. c. 142 (" Tbe County Courts Act, 1867 ") . . . . 121 Equity — jurisdiction .. .. .. 23 „ transfer of proceedings . . HO „ jurisdiction .. .. .. 13 „ plaintiff's proceedings . . 31 „ costs .. .. .. . .1111 11. „ costs .. .. .. ..121 n. Charitable trusts . . . . . . 128 Equity — jurisdiction .. .. ••3,19 „ plaintiff's proceedings 49 n., 53, 56 „ jurisdiction .. .. ••3,20 „ decretal orders . . . . 97 „ proceeding in suits . . . . 25 „ jurisdiction . . . . . . 4 n. Equity jurisdiction .. .. .. 17 s, 9 s. 14 s. 15 s. 20 s. 24 s. 25 s. 26 s. 27 31 & 32 Vict. c. 4 s. 9 s. 12 c. 40 ("Tbe Partition Act, 1868") Equity jurisdiction Equity jurisdiction . . . . . . 17 17 71 ("Tbe County Courts Admiralty Jurisdiction Act, 18G8") 154,161 s. 3 s. 4 s. 5 s. 6 s. 7 s. 8 s. 9 s. 10 s. 11 s. 12 s. 13 s. 14 s. 15 s. 16 s. 17 s. 18 s. 19 s. 20 s. 21 Admiralty 157 159, 161, 187 .. 160 • • 158 • • 167 • • 167 • - 168 154 n., 161, 162 .. 174, 176 n. .. 174 • • 178 .. 173 • • 164,174 •• •• 174 • • 174 • • 183 • • 183 .. 176 ..176 • • 163 12 XX TAULE OF STATUTES. 31 & 32 Vict. c. 71 (" The County Courts Admiralty Jurisdiction Act, 1868")— continued. page 32 & 33 Vict. c. 10 s. 22 s. 23 s. 24 s. 25 s. 26 s. 27 s. 28 s. 29 s. 30 s. 31 s. 32 s. 33 s. 34 s. 35 s. 36 Admiralty Equity jurisdiction Equity jurisdiction .. .. .. Equity — Bnits by creditors, &e. y Courts Admiralty Jurisdiction Amend ment Act, 180'J ") Admiralty s. 29 c. 46 c. 51 (" Count s. 1 s. 2 s. 3 s. 4 s. 5 s. 8 c. G2 (" The Debtors Act, 1869") Equity enforcement of decrees Bankruptcy s. 4 . . Bankruptcy — Punishments of lent debtors • • 170 .. 179 .. 178 158 n. .. 182 .. 182 .. 182 .. 182 .. 182 no, 182 • • 182 lcs, 183 .. 158 .. 158 .. 158 5 .. 5n. .. 161 .. 161 .. 161 160 n., 161 .. 175 158 n. 107, 108 200, 219, 416 fraud u- 416 416 416 416 418 418 419 419 419 419 419 419 419 419 420 420 416 n. c. 71 (" The Bankruptcy Act, 1S69") Equity jurisdic- tion " 12 Bankruptcy 199,200 Arrangement of provisions . . 200 n. Principles of the law .. .. .. 219 s. 1 . . Bankruptcy — title of act . . 201 n - s. 2 . . „ limitation of act . . 201 n - s. 3 . . „ commencement of act 201 n - s. 4 . . „ interpretation 201 n> 221 n., 268 n., 307, 326 s. 5 s. 9 s. 11 s. 12 s. 13 s. 14 s. 15 s. 16 s. 17 s. IS s. 19 s. 20 s. 21 s. 22 s. 23 s. 29 TABLE OF STATUTES. XXI PAGE 32 & 33 Vict. c. 71, s. 5 . . Bankruptcy — registered companies 221n., 222 s. G .. „ petition 220,221,241,242 „ who may be adjudicated bankrupt . . . . 222 „ petitioning creditor's debt 224 „ acts of bankruptcy 226, 228, 229, 230, 240 „ commencement of bank- ruptcy .. ..308 „ execution . . . . 324 s. 7 . . „ debtor's summons 231, 240 s. 8 „ service of petition . . 246 „ the hearing of petition 254 259, 261 s. 9 .. ,, staying proceedings on petition .. .. 255, 262 s. 10 .. „ adjudication .. 260 s. 1 1 . . „ commencement of bank- ruptcy .. .. 308 s. 12 . . „ claims against bankrupt 315 „ stoppage in transitu . . 315 „ proof l>y secured creditors 347 s. 13 . . „ restraint of actions 249, 250, 315, 325 „ appointment of receiver 251 „ taking possession of pro- perty 330 „ liquidation .. ..382 s. 14 . . „ first meeting of creditors 263, 264, 266 „ appointment of trustee 273, 275 „ vesting of property . . 307 s. 15 . . „ description of bankrupt's property . . 308, 330 n. „ reputed ownership . . 310 „ disclaimer . . . . 326 „ actions and suits . . 336 s. 16 .. „ proxies .. .. .. 212 „ first meeting of creditors 265, 269 „ secured creditor 315 n. „ proof by secured creditor 347 s. 17.. „ adjudication .. 259,261 „ trustee 274 „ vesting of property . . 307 s. 18 . . „ appointment of trustee 270, 274 s. 19 . . „ attendance of bankrupt 267 „ duty of bankrupt 289, 292 ., taking possession of pro- perty .. .. 330 s. 20 . . „ duty of the trustee . . 279 „ power of tbe trustee . . 283 „ accounts of the trustee . . 283 „ meetings of creditors . • 295 „ taking possession of pro- perty 330 s. 21 .. „ meetings of creditors .. 296 XX11 TABLE OF STATUTES. PAGE 32 & 33 Vict. c. 71, s. 22 . . Bankruptcy — possession of property by trustee .. .. 331 „ choscs in action . . . . 33G 8. 23 . . „ disclaimer of onerous property 325, 320, 330 n. „ proof .i . . . . 348 8. 24 . . „ disclaimer of onerous property 326, 330 n. s. 25 . . „ power of the trustee . . 282 „ actions and suits . . 336 „ sale of property . . . . 340 s. 26 . . „ duty of the bankrupt . . 293 s. 27 . . „ power of the trustee 283, 330 „ mortgage of bankrupt's property . . . . 340 s. 28 . . „ acceptance of composition or arrangement . . 297 „ annulling adjudication •» 305 s. 20 .. „ duty of the trustee .. 281 s. 30 . . „ duty of the trustee . . 281 8.31 .. „ description of debts prove- able 342 s. 32 . . „ priorities 357 8. 33 . . „ apprentices and articled clerks 328 b. 34 . . „ distraining for rent 329, 348 8. 35 . . „ proof in the case of rent and periodical payments 348 a. 36 . . „ interest on debts . . 354 8. 37 . . „ proof against separate estates .. •- 349 8. 38 . . „ allowance to bankrupt . . 294 s. 39 . . „ mutual credits . . . . 344 8. 40 . . „ proof by secured creditors 346 s. 41 .. „ dividends .. •• 353 s. 42 .. „ „ .... 353 s. 43 . . „ „ .... 353 s. 44 .. „ „ .... 353 s. 45 .. „ „ .. .. 353 s. 40 .. „ „ .... 353 s. 47 . . „ close of bankruptcy . . 359 s. 48 .. „ discharge of bankrupt .. 360 s. 40 .. „ discharge of bankrupt .. 361 s. 50 . . ., discharge of bankrupt . . 361 s. 51 .. „ release of trustee .. 365 s. 52 . . „ release of trustee . . 365 s. 53 . . „ release of trustee . . 366 s. 54 . . „ status of undischarged bankrupt .. 369, 370 6. 55 . . „ comptroller . . 202 n. „ accounts of the trustee . . 286 s. 56 . . „ accounts of the trustee . . 286 s. 57 .. „ accounts of the trustee . . 286 s. 58 .. „ accounts of the trustee . . 286 s. 59 . . „ description of the court 201 „ petition when to be filed 241, 242 s. 60 . . „ London district . . 202 TABLE OF STATUTES. XXU1 PAGE 32 & 33 Vict. c. 71, s. 61 . . Bankruptcy-London district . .202 n. s. 62 .. » » m •• ^r, n - s.63.. „ „ » •« 202 n. 9.64.. „ n » •' 202 n. 65 » » n " S | G (; *." ," jurisdiction of local courts 203 restraint of proceedings.. 250 s 67 . „ delegation of powers . . 204 si 68 .. „ fees .. •• •• 402 s q(j f # disqualification to sit in parliament . . • • 203 s 70 . . M appearance by attorney . . 211 5 ' rji " # , n reviewing and rescinding orders . . . • • • 203 „ adjudication .. •• 261 appeal .. .. •• 303 s> 70 . . „ general powers of courts 203 '„ restraint of actions 250 n. M trial of facts by jury .. 301 „ appeal . . . • • • 303 „ priorities.. .. 357,358 ,75 . enforcement of orders and warrants ..205, 216 n. s 74 .. courts auxiliary to each other 204 c nn examination in Scotland or Ireland .. 205,216 o 7fi enforcement of orders and warrants . . 205, 216 n. s 77 .. n commitment .. .. 206 s!?8 .. „ rales 206 „ costs 405 s 79 .. ., change of jurisdiction 203 s _ 80 ,. n jurisdiction of court .. 203 appearance of parties 212, 236 ", petition .. .. 244 n. staying proceedings 256, 395 first meeting of creditors 269 „ transfer of proceedings 300, 301 „ death of bankrupt . . 304 s 81 .. „ annulling adjudication .. 305 s ' 82 '. . ,, validity of proceedings . . 20'J g'_ g3 M appointment of trustee 274, 278 „ regulations as to trustees and committee of in- spection .. .. 276 „ actions and suits . . . . 336 s 84. . . n first meeting of creditors 266 „ annulling adjudication 304, 305 s 85 . . „ letters to the bankrupt . . 294 g_ 86 '. . „ arrest of bankrupt 252, 265 o* 87 „ execution against trader 231, 324, 325 S- 88 .. „ sequestration .. • . 331 s " 89 . . „ appropriation of pension or salary . . • • 333 s go , , n appropriation of pension or salary . . • • 334 XXIV TABLE OF STATUTES. PAGE 32 & 33 Vict. c. 71, s. 91 . . Bankruptcy— fraudulent conveyance 229 „ voluntary conveyance .. 317 s. 92.. „ fraudulent conveyance . . 229 „ fraudulent preference .. 318 s. 93.. „ ] lower of the trustee .. 283 „ delivery of money and securities . . . . 322 s. 94.. „ protection of certain trans- actions.. .. .. 320 s. 95.. „ protection of certain trans- actions 315 n., 321, 322, 321 s. 9f> . . „ discovery of property . . 337 g. 97.. „ discovery of property .. 337 s. 98 . . „ order for payment of ad- mitted debt .. .. 338 s. 99 . . „ seizure of property . . 339 8.100.. „ partners.. .. 222,242 s. 101 .. „ dismissal of petition .. 262 B. 102.. „ partners 242 s. 103 . . „ partners.. .. 2G9 n. „ priorities.. .. .. 358 s. 105 . . „ actions in the case of part- nership . . . . 33G s. 10P, .. „ first meeting of creditors 270 s. 107.. „ evidence 216 B. 108.. „ evidence-. .. .. 216 s. 109.. „ seal of court .. .. 207 s. 110.. „ first meeting of creditors 264 „ general meetings . . 297 s. Ill . . „ choses in action .. 331 n., 336 s. 112.. ,, restraint of actions .. 250 „ joint contracts .. .. 336 s. 113 .. „ cxemptionfromstampduty209 s. 114.. ,, computation of time .. 210 s 115.. „ returns by oilieersof courts 208 s. 116.. „ unclaimed dividends .. 354 s. 117 .. „ bankrupt trustee.. 308 "■ s. 118 . . „ duty of petitioning credi- tor's debt . . . . 225 s. 119.. „ construction of previous acts, &c. . . 201 n. s. 120.. „ privilege 223 s. 121 . . „ members of parliament 223 n. s. 122 . . „ members of parliament 223 n -» 224 n. s. 123.. „ members of parliament 223 n. s. 124 . . „ members of parliament 223 n. s. 125 . . „ licruidationbv arrangement 372, 373, 376, 3S0, 381, 395 n. s. 12G . . „ composition 372, 37G, 378, 380, 381, 391 n. s. 127.. ,, liquidation by arrange- ment or composition 375, 379 Schedule I. „ traders 221 Schedule IT. „ metropolitan courts .. 202 c. 83 (" The Bankruptcy Repeal and Insolvent Court Act, 1869") 199 n., 219 c. 110 (" The Charitable Trusts Act, 1SG9 ") . 125 n. TABLE OF STATUTES. XXV PAGE 33 & 34 Vict. c. 23 .. .. Bankruptcy— convicts 329 c. 28 (" The Attorneys and Solicitors Act, 1870") s. 4 .. Enforcing attorneys' agreements .. 140 ss. 8, 9, 10 Enforcing attorneys' agreements .. 141 ss. 13, 14 Enforcing, &c. attorneys' agreements.. 142 s. 19 .. Equity — revivorship for costs . . .. 101 c. 34 . . . . Charitable trusts . . . . . . 125 c. 45 .. ... Admiralty .. .. .. 158 n. c 60, s. 6 . . Bankruptcy — brokers . . . . . . 420 c. 76 (" The Absconding Debtors Act, 1870") . . 239 s. 1 . . Bankruptcy proceedings against ab- sconding debtors . . . . . . 239 s. 2 .. When arrest not valid.. .. .. 239 s. 3 .. Security for debt given after arrest . . 239 s. 4 .. Construction of terms . . .. .. 239 s. 5 .. Costs and fees .. .. .. .. 239 c. 93 ("The Married Women's Property Act, 1870") Equity . . . . . . . . 5, 36 n. Bankruptcy . . . . . . 223 n. s. 5 .. Friendly and other societies .. 132 n. s. 9 .. Equity jurisdiction .. .. .. 21 c. 104 (" The Joint Stock Companies Arrangement Act, 1870") 138 n. 34 & 35 Vict. c. 31, s. 5 .. Friendly societies .. .. 131 n. c. 80 .. . . Friendly and other societies . . 131 n., 132 c. 110 (" The Merchant Shipping Act, 1S71") . . 189 s. 10 . . Admiralty 189 ORDERS, RULES, AND FORMS. [See the explanation prefixed to the Table of Statutes, ante, p. xv.] — ♦ — THE COUNTY COURT ORDERS AND RULES IN EQUITY, 1868. Order I. Suits (Plaint and Summons). Rule 1. Commencement of suit .. .. .. .. .. 31 r. 2. Names . . . . . . . . . . . . 31 r. 3. Plaint 32 r. 4. Plaint filed by attorney . . . . . . . . 32 r. 5. Form of plaint .. .. .. .. .. 32 r. 6. Delivery to registrar and filing of plaints . . . . 32 r. 7. Summons on plaint . . . . . . . . . . 33 r. 8. Date and return of summons . . . . . . . . 33 r. 9. Service of summons . . . . . . . . . . 60 r. 10. Service when defendant is out of jurisdiction . . .. 60 Order II. Suits (Proceedings after service). Rule 1. Admission . . . . . . . . . . . . . . 61 r. 2. Notice of admission .. .. .. .. .. 61 r. 3. Statement of disclaimer or answer .. .. 63, 119 n. r. 4. Statement to be filed 63 r. 5. Statement filed by attorney . . . . . . • . 63 r. 6. Dismissal of suit . . . . . . . . . . . . 72 XXVI TABLE OF ORDERS, RULES, AND FORMS. Order III. Suits (Evidence). paoe Rule 1. Evidence to be taken viva voce .. . . . . 73 r. 2. As to admission of documents . . . . . . 68 r. 3. Inspection of documents . . . . . . . . . . 68 r. 4. Summons to witness . . . . . . . . 70 r. 5. Compulsory production of documents . . . . . . 70 r. G. Documents unobjected to received in evidence . . 26, 74 r. 7. Affidavit 72 r. 8. Examination de bene esse.. .. .. .. .. 71 r. 9. Special examiner . . . . . . . . . . 72 r. 10. IIow examination conducted . . . . . . 72 r. 11. Allowance to witnesses .. .. .. .. .. 124 Order IV. Suits (Hearing). Rule 1. IIow parties to come prepared 73, $G r. 2. Hearing 73 r. 3. Affidavits 74 r. 4. Decree or decretal order 27, 28, 77 r. 5. J ury . . . . . . . . . . . . . . 76 r. G. Record for trial 76 Order V. Suits {Decretal orders'). Rule 1. Registrar to draw order •• . . .. .. 85 r. 2. Preparation of a deed . . . . . . . . . . 88 r. 3. Receiver .. .. .. .. •• .. ..86 r. 4. Sale of real property .. .. .. .. 88 r. 5. Sale of personal property .. .. .. .. •• 88 r. 6. Accounts or inquiries .. .. .. .. 89 Order VI. Execution of Decretal Orders. Rule I. Deed how settled 88 r. 2. In taking accounts, registrar to be chief clerk . . . . 89 r. 3. In taking accounts, account book prima facie evidence 28, 89 r. 4. Advertisements for creditors, &c. .. .. .. 90 r. 5. Creditors need not attend without notice . . . . 90 r. G. Securities, deeds and documents to bo produced to regis- trar .. ..90 r. 7. Pedigree or proof to be produced to the registrar . . 90 r. 8. Costs when not allowed . . . . . . . . . . 91 r. 0. Proof of debts or claims .. .. .. .. .. 91 r. 10. Notice of allowance .. .. .. -. 91 r. 11. Claims not before made . . . . . . . . . . 91 r. 12. Claims too late 91 r. 13. Allowances .. .. .. .. .. .. 90 r. 14. Application to judge for further directions .. .. 95 Order VII. Suits (Absent parties). Kule 1. Inquiry as to parties .. . . .. .. ..88 r. 2. Notice to parties . . . . . . . . . . 88 r. 3. Application to vary or to add to decretal order . . 88 Order VIII. Suits (Registrar's certificate). Eule 1. Registrar's certificate . . . . . . . . 92 r. 2. Registrar's certificate to lie in office . . . . . . 92 r. 3. Variation of registrar's certificate . . . . . . 92 r. 4. Confirmation of certificate .. .. .. .-92 Order IX. Suits {Final decree). Rule 1. Final decree " 82 TABLE OF ORDERS, RULES, AND FORMS. XXvii Oedee X. Suits (Revivor and supplement), pace Rule 1. Order under 15 & 16 Vict. c. 86, s. 52 101 r. 2. Order to be served . . . . . . . . . . . . 101 r. 3. Person served to be bound thereby and may appeal . . 101 Oedee XI. (Proceedings under Trustee Acts, and relating to infants'). Rule 1. Petition 49 r. 2. Petitions by trustees . . . . . . . . . . 49 r. 3. Petitions by guardian or trustee of infant or next friend 49 r. 4. Application for injunction .. .. .. .. 52 [N.B. — TJiere is no rule 5 given in this order.'] r. 6. Payment, transfer or deposit in trust . . . . . . 53 r. 7. Form of affidavit . . . . . . . . . . • « 54 r. 8. Endorsement on affidavit . . . . . . . . 54 r. 9. Certificate of registrar . . . . . . . . . . 54 r. 10. Payment of money . . . . . . . . . . 54 r. 11. Transfer of stock .. .. .. .. • • 54 r. 12. Deposit of security .. .. .. .. ..54 r. 13. Notice to treasurer of deposit . . . . . . . . 54 r. 14. Where no treasurer .. .. .. .. .. 54 r. 15. Acknowledgment of payment .. .. .. ..55 r. 16. Entries in books, &c. .. .. .. .. •• 55 r. 17. Who may petition for order as to fund . . . . 55 r. 18. Notice to trustees.. .. .. .. .. •• 55 r. 19. "When trustees to pay costs . . . . . . • • 55 r. 20. Time of filing petitions and giving notices . . 49> 52 r. 21. Registrar to issue notices . . . . . . . . 60 r. 22. Service of petitions and notices.. .. .. .. 60 r. 23. Pacts may be supported by affidavit . . . . . . 74 r. 24. Registrar to draw up order . . . . . . 85 u - r. 25. Orders as to suits to extend to proceedings under this order . . . . . . . . . . . . 49 n - Oedee XII. Suits and Peoceedings (Ex parte applications). Rule 1. Peremptory motions .. .. .. .. 52,66 r. 2. Orders how drawn . . . . . . . . . . • • 67 r. 3. Orders how drawn and executed . . . . . . • • 67 Oedee XIII. Suits and Peoceedings (Amendments). Rule 1. Amendments . . . . . . . . . . . . 74 Oedee XIV. Suits and Peoceedings (Affidavits). Rule 1. Affidavits to be expressed in the first person . . . . 67 r. 2. Sources of knowledge to be stated . . . . . . 67 r. 3. Costs of affidavits when disallowed . . . . . . 67 r. 4. Filing of affidavits 67 r. 5. Erasure, blotting, interlineation, &c. in affidavits . . 67 Oedee XV. Suits and Peoceedings (Rehearing). Rule 1. Rehearing to be allowed on special grounds only . . 84 Oedee XVI. Suits and Peoceedings (Enforcement of decrees and orders). Rule 1. Service of decree or order ,. .. .. .. 102 r. 2. When execution may issue . . . . . . . . 102 r. 3. Warrant of fi. fa. .. .. .. .. .. .. 103 r. 4. Warrant of assistance or possession . . . . . . 104 r. 5. Service of orders in the nature of injunction . . . . 102 r. 6. Notice where breach of order in nature of injunction. . 105 r. 7. Notice where neglect to obey decree or order . . . . 105 XXV1U TABLE OF OKDERS, RULES, AND FORMS. Order XVII. Funds in Court. PAGB Rule 1. Eegistrar's accounts to be audited .. .. .. 100 r. 2. Payment into court .. .. .. .. .. 96 r. 3. Entry of payment into court and payment of interest . . 97 r. 4. Registrar to transmit bank book to postmaster general 99 r. 5. Drawing out money from savings bank . . . . 99 r. 6. Interest on investment . . . . . . . . . . 100 r. 7. Service of orders under sect. 5 of act . . . . . . 99 r. 8. Where default in payment to accountant general . . 99 r. 9. Married women . . . . . . . . . . • • 97 Order XVIII. Transfer op Proceedings to or from Court of Chancery. Rule 1. Transfer wbcre amount exceeds jurisdiction of county curt HO r. 2. Transfer from Court of Chancery . . . . . . HI r. 3. Indorsement . . . . . . . . . . . . HI r. 4. Registrar to apply to judge for instructions . . . . HI Order XIX. Appeal. Rule 1. Appeal to be by case .. .. .. .. .. 113 r. 2. Notice of appeal .. .. . . .. .. .. 114 r. 3. Proceedings not to be stayed unless vice-chancellor or judge order . . . . . . . . . . . . H4 r. 4. Case to be signed by judge . . . . . . . . H4 r. 5. "Where parties do not agree, judge to settle case .. 114 r. 6. Copy of case deposited with registrar .. .. .. 114 r. 7. Case to be transmitted . . . . . . . . . . 115 r. 8. If appeal not prosecuted, successful party to proceed . . 115 r. 9. Entering judgment on appeal .. .. .. .. 115 r. 10. Appeal to Lancaster Court of Chancery . . . . H5 Order XX. Duties of Registrar. Rule 1. Registrar to keep books and enter proceedings therein 32 "• r. 2. Documents to be distinguished by the number of the plaints and letters .. .. .. .. "68 r. 3. Duty of registrar when he rejects affidavits or where documents are imperfect . . . . . . . . 67 r. 4. Summons, &c. to be sealed . . . . . . . . 33 "• r. 5. Registrar to appoint time and place for taking accounts 90 r. 6. Hearing before registrar . . . . . . . . . . 90 r. 7. Further time for certificate .. .. .. .. 90 r. 8. Registrar to retain money to abide result of appeal . . H4 r. 9. Custody of securities . . . . . . . . . • 54 n - r. 10. [Added by County Court Rules, 1870.] Legacy on succession duty . . . . . . . . . . . . 100 Order XXI. Duties of High Bailiff. Rule 1. As to sale of personal property .. .. .. .. 88 r. 2. Services and executions . . . . . . . . . . 69 r. 3. Possession . . . . . . . . . . . . . . 104 r. 4. Payment over of money .. .. .. .. .. 103 Order XXII. Duties of Receiver. Rule 1. Receiver to give security .. .. .. .. ..88 r. 2. His accounts to be audited by registrar . . . . . . 86 r. 3. To produce voucher and to verify . . . . . . 86 r. 4. To produce account for audit upon notice . . . . 86 r. 5. Audit once a year . . . . . . . . . . 87 r. 6. Parties need not attend audit . . . . . . . . 87 r. 7. Court may order income to be paid direct to parties . . 87 TABLE OF ORDERS, RULES, AND FORMS, XXIX Order XXIII. Practice. page Rule 1. Proceedings may be wholly or partly printed . . . . 33 »• r. 2. Documents to be sealed . . . . . . . • . . 85 n - r. 3. Service . . . . . . . . . . . . 59 r. 4. Cbange of attorney . . .. .. .. .. .. 66 r. 5. Setting down for hearing . . . . . . . . 33 r. 6. Days for equity sittings . . . . . « . . 26 n., 33, 73 r. 7. Where christian name unknown . . • . , • . . 32 r. 8. Copy of documents for use of judge . ■ . . . . 33 r. 9. Copies of proceedings to be forwarded to judge .. . . 33 r. 10. Registrar to prepare all copies . . . . ■ . . . 68 r. 11. Acts may be done by counsel or attorney . . . . 65 r. 12. Service on attorney . . . • . . . . . . 65 r. 13. Service on attorney . . . . . . . . . . 66 r. 14. Substituted service . . . . . . . . "59 r. 15. Judge to order in what newspapers advertisements to be inserted, &c. .. .. .. .. .. .. 96 r. 16. Advertisements in London Gazette .. .. .. 96 r. 17. Conduct of suits . . . . . . . . . , . . 68 r. 18. Enlarging or abridging times . . . . . . . . 66 r. 19. Undertaking by next friend to pay costs . . . . 33 r. 20. Transfer of suit from one court to another . . . . 112 r. 21. Taxing officer 124 r. 22. Interest on debts 100,1-4 r. 23. Interest on legacies .. .. .. .. ..100 r. 24. Decrees to be registered . . . . . . . . . . 84 r. 25. Notice of application for discharge from custody . . 106 r. 26. Forms 32 "• r. 27. Adoption of common law rules . . . . . . 3 n-> ^ r. 28. (Additional rule given by County Court Rules, 1870). . 59 Order XXIV. Interpretation 24 n. FORMS IN EQUITY. [N.B. — The forms with a * are the additional forms mentioned in the Preface to this Volume.'} General form of heading and conclusion for plaints .. .. 34 „ „ „ for affidavits . . . . 08 „ „ „ for petitions . . . . 50 General form of heading for notices, admissions, statements, orders, certificates, and warrants . . . . . . . . 52 General form of heading for and conclusion for decretal order or decree or orders of committal . . . . . . . . 78 Mem. to be placed at foot of every summons, notice, decree, or order of court, or any other process of the court . . . . 34 No. 1. Undertaking by next friend of infant to be responsible for defendant's costs . . . . . . . . . . . . 33 2. Affidavit in support of application for substituted service . . 60 3. Order for substituted service .. .. .. .. .. 60 4. Administration. [Clause 1 of sect. 1 of the act.] By creditor .. . . . . . . . . . . . . 34 By legatees (specific) . . .. .. .. .. .. 35 By legatees (pecuniary) . . . . . . . . . . 35 By legatees (residuary) . . . . . . . . . . 35 Next of kin . . . . . . . . . . . • • • 35 XXX TABLE OF ORDERS, RULES, AND FORMS. Forms in Equity— continued. page No. 5. Execution of trusts. [Clause 2 of sect. 1 of the act.] . . 35 * Plaint by cestui que trust . . .. .. .. .. 36 No. G. Foreclosure. [Clause 3 of sect. 1 of the act.] . . . . 37 Redemption . . .. .. .. .. .. .. 37 * Foreclosure: another form. Assignment of stock . . .. 38 * Foreclosure: another form. On mortgage by deposit with- out express agreement ; prayer for injunction to re- strain actions to recover the deposited deeds . . .. 39 No. 7. Specific performance. [Sect. 9 of 30 & 31 Vict. c. 142.] . . 42 * Another form of plaint for specific performance of agreement for sale of real estate .. .. .. .. .. 43 * Another form of plaint for specific performance of agree- ment to execute mortgage . . . . . . . . . . 44 * Plaint to secure transfer to and registration by defendant of shares bought by him . . . . . . . . . . 47 No. 8. Under Trustee Relief Act [Clause 5 of sect. 1 of the act.] 50 9. Under Trustee Acts . . . . . . . . . . . . 50 10. Maintenance and advancement of infanta. [Clause 6 of sect. 1 of the act.] . . . . . . . . . . . . 51 11. Partnership. [Clause 7 of sect. 1 of the act.] .. .. 40 * Another form of plaint for dissolution of partnership . . 41 No. 12. Notice of application for order in the nature of injunction. [Clause 8 of sect. 1 of the act.] . . . . . . . . 52 13. Summons on plaint .. .. .. .. .. .. 48 14. Notice to admit and inspect .. . • .. .. .. 69 15. Application for summons to produce .. .. .. .. 71 16. Summons to witness .. .. .. .. .. .. 71 17. Defendant's admission .. .. .. •• .. .. CI 18. Affidavit of signature to defendant's admission .. .. CI 19. Defendant's statements .. .. .. .. .. .. 63 20. Decretal order — administration suit .. .. .. .. 78 21. Form of order under ( >rder VI. Rule 14, or under Order XII. 96 22. Form of order under Order VI. Rule 14, or under Order XII. 9G 23. Decretal order for reference in foreclosure suit by legal mort- gagee . . . . . . . . . . • . • . . . 80 24. Decretal order of sale in a suit by a legal or equitable mort- gagee or person entitled to a lien . . . . . . . . 80 25. Decretal order — dissolution of partnership . . . . . . 81 20. Final decree for foreclosure . . . . . . . . . . 83 * Another form of final decree for foreclosure, reciting pro- ceedings . . . . . . . . . . . . . . 83 No. 27. Partnership — Final decree . . . . . . . . . . 82 28. Notice of decretal order to absent party . . . . . . 86 29. Notice to creditor to prove his claim .. .. .. .. 91 30. Notice to creditor of allowance of claim . . . . . . 91 31. Registrar's certificate . . . . . . . . . . . . 92 Notice of decretal order .. .. .. .. .. 92 Personal estate account .. .. .. .. .. 92 Reference to account . . .. .. .. .. 92 Variations from accounts . . . . . . . . . . 93 Special allowances in accounts .. .. .. .. 93 Reference to transcript of account .. .. .. 93 2fo personal estate received. • .. .. .. .. 93 Funeral expenses .. .. .. . . .. .. 93 Debts 93 Interest on debts . . . . . . . . . . . . 93 Legacies and annuities .. .. .. .. .. 94 Interest on legacies .. .. .. .. .. .. \>i TABLE OF ORDERS, RULES, AND FORMS. XXxi Forms in Equity— continued. No. 31. Registrar's certificate — continued. page Outstanding estate . . .. .. .. .. .. 94 Heal estate 94 Incumbrances on real estate. . . . .. .. .. 94 Rents and profits account . . .. .. .. .. 94 No rents and profits received . . .. .. .. 94 Next of kin . . . . . . . . . . . . . . 94 32. Notice that registrar's certificate may be inspected . . . . 95 * Registrar's certificate of amount of principal and interest due on mortgage in suit for foreclosure . . . . . . 95 33. Bond to be given by receiver . . . . . . . . . . 87 34. Warrant of execution on a decree or order of the court for the payment of money . . . . . . . . . . 103 35. Warrant of assistance . . . . . . . . . . . . 104 36. Warrant of possession .. .. .. .. .. ..104 37. Notice of change of attorney . . . . . . . . . . 66 38. Order of revivor . . . . . . . . . . . . . . 101 39. Order of payment of legacy into Court of Chancery . . 98 40. Order of transfer of suit or matter to Court of Chancery .. 110 41. Order in the nature of an injunction . . .. .. .. 82 42. Notice of application for committal . . . . . . . . 106 43. Order of committal for breach of an order in the nature of an injunction . . . . . . . . . . . . . . 106 44. Order of committal for neglect to obey decree or order . . 106 45. Warrant of committal .. .. .. .. .. .. 107 46. Notice of application for discharge from custody . . . . 107 47. Order of discharge from custody . . . . . . . . 107 48. Affidavit under 30 & 31 Vict. c. 142, s. 24 56 49. Certificate iu case of money .. .. .. .. .. 57 50. Certificate in case of transfer of stock . . . . . . 57 51. Acknowledgment of filing of receipts or transfer ticket . . 57 52. Certificate of deposit of security . . . . . . . 58 53. Notice of payment into post office savings bank, or of trans- fer of stock, or deposit of security . . . . . . . . 58 54. Notice to treasurer . . . . . . . . . . . . 59 55. Letter to Commissioners of Treasury as to drawing out money.. .. .. .. .. .. .. .. 59 Orders under " The Charitable Trusts Act, 1853" . . 126 Orders 13— 16 129 County Court Rules applicable to Proceedings under the Literary and Scientific Institutions, the Friendly Societies, and the Industrial and Pro- vident Societies Acts ISO, 135 Forms of summons, orders and wan-ant of execution under the Friendly Societies and other acts . . . . . . 136, 137 Orders and Rules on Winding-up a Society or Company . . 139 Orders and Regulations relating to the Acknowledg- ment of Deeds by Married Women . . 143, 144, 145 Form of affidavit of verification . . . . . . . . 144 County Court Rules under the Merchant Shipping Acts 155 TABLE OF ORDERS, RULES, AND FORMS. PAGE General Orders under "The County Courts Admiralty Jurisdiction Act, 1868" 158,159 Construction of terms 159 n. Rule 1. Sittings of the court . 164 n., 173 r. 2. „ „ ... .. 173 r. 3. „ „ ... 173 r. 4. Institution of suit . . 163 r. 5. „ „ 164 r. 6. „ „ 164 r. 7. „ „ 164 r. 8. Summons 165 r. 9. „ 165 r. 10. Appearance 166 r. 11. „ 166 r. 12. „ '. 16 6, 168 r. 13. „ 166 r. 14. „ 166 r. 15. Arrest 170 r. IG. „ 170 r. 17. , 170 r. 18. „ 170 r. 19. Security 170 r. 20. Release of property 170 r. 21. „ „ ... 171 r. 22. Witnesses 177 r. 23. „ 177 r.24. „ 177 r. 25. Affidavits .. 177 r. 26. „ 177 r. 27. „ 177 r.28. „ 177 r. 29. „ 177 r. 30. „ 177 r. 31. „ 177 r. 32. Oral evidence 176 r. 33. Registration of decrees and order 3 178 r. 34. Transfer of suit 168 r. 35. „ „ 168 r. 36. Second or cross suits 169 r. 37. „ „ „ . • . . 169 r. 38. Consents 160 r. 39. Enforcement of decrees . . . 179 r. 40. „ „ ... . 179 r. 41. „ „ ... 179 r 42 179 r. 43. Execution against vessel . . 179 r. 44. „ „ 180 r. 45. „ „ 180 r. 46. Transfer of sale 181 r. 47. „ „ 181 r. 48. „ „ 181 r. 49. Notice of defence in collision 167 r. 50. Tenders 167 r. 51 . , 167 r. 52. Payment out of court 181 r. 53. „ „ ... 181 r. 54. Appraisements 181 r. 55. Records of the court 172 TABLE OF ORDERS, RULES, AND FORMS. Admiralty Rule 56. r. 57. r. 58. r. 59. r. 60. r. 61. r. 62. r. 63. r. 64. r. 65. r. 66. r. 67. r. 68. r. 69. r. 70. r. 71. r. 72. r. 73. r. 74. r. 75. r. 76. r. 77. Orders— continued. Records of the court Copies j> • • Seal of the court »> »> Taxation of costs Filing Assessors Forms Fees and costs Common law rules PAGE 172 173 173 173 165 165 188 189 189 189 189 189 173 174 174 175 175 175 159 n. 183 183 159 FORMS UNDER THE ADMIRALTY JURISDICTION. No. 1. Praecipe to institute a suit .. .. .. .. .. 164 2. Praecipe for permission for suit to be heard at a special place 1 64 3. Summons . . . . . . . . . . . . . . 165 4. Summons .. .. .. .. .. .. .. 166 5. Warrant of arrest and detention .. .. .. ..171 6. Notice of sureties .. .. .. .. .. .. 171 7. Affidavit of justification .. .. .. .. .. 171 8. Bail bond 171 9. Order of release . . .. .. .. .. .. ..172 10. Praecipe to enter an appearance .. .. .. .. 166 11. Notice of hearing .. .. .. .. .. ..173 12. Order of transfer to High Court of Admiralty . . . . 169 13. Order of transfer to county court or the High Court of Ad- miralty 169 14. Final decree or order . . . . . . . . . . . . 178 15. Praecipe for a warrant of execution .. .. .. .. 180 16. Warrant of execution against the vessel or property of defend- ant 180 17. Order for transfer of sale to High Court of Admiralty .. 181 18. Praecipe for paying in money .. .. .. .. .. 167 19. Summons to assessors .. .. .. .. .. .. 175 20. Order fining an assessor for non-attendance . . .. .. 175 21. Note of final decree. As to this Form see . . . . . . 178 n. 22. Admiralty suit book 163 County Court Rules and Orders relating to Probate and Administration Suits 194 Rules 1 to 13 194,195 Order as to costs of counsel and attorneys . . . . . . 198 Forms 196,197 D. VOL. II. c XXxiv TABLE OF ORDERS, RULES, AND FORMS. THE BANKRUPTCY RULES, 1870. PAGE Rule 1. Definition of terms 206,207 r. 2. Delegation of powers . . . . . . . • • • 205 r. 3. „ , 205 r. 4. ;; ;; 205 r. 5. Sittings in chambers . . . . . . . • . . 211 r. 6. „ „ 211 r. 7. Proceedings .. .. .. .. .. •• 208 r. 8. „ 208 r. 9. „ 207 r. 10. „ 208 r. 11. „ 296 r. 12. „ 209 r. 13. „ 209 r. 14. „ 215 r. 15. Proceedings by company or co-partnership . . 233, 242 r. 16. Declaration of inability to pay debts . . . . • • 230 r. 17. Debtor's summons 232 r. 18. „ 232 r. 19. „ 232 r. 20. „ 232 r. 21. „ 233 r. 22. „ 233 r. 23. „ 233 r. 24. „ 233 r. 25. „ 233 r. 2G. Bankruptcy petition 241 r. 27. „ 243 r. 28. „ 242 r. 29. „ 245 r. 30. „ 245 r. 31. „ 241 t. 32. „ 245 r. 33. „ 261,262 r. 34. „ 243 r. ::.-.. „ 247 r. 36. „ 248 r. 37. „ 254 r. 38. „ 254 r. 39. „ 254 r. 40. „ 255 r. 41. „ 233,255 r.42. „ 255 r. 43. „ 256 r. 44. „ 256 t. 45. „ 260 r. 46. „ 261 r. 47. „ 256 r. 48. „ 255 r. 49. Evidence 216 r. 50. Motions and practice 212 r. 51. „ 212 r. 52. „ 212 r. 53. „ 213 r. 54. „ 213 r. 55. „ 213 r. 56. „ 213 r. 57. „ 211,213 TABLE OF ORDERS, RULES, AND FORMS. The Bankruptcy Rules, 1&70— continued, page Rule 58. . Service and execution of process . . .... 215 r. 59. Serviceof a debtor's summons or a bankruptcy petition 235 r. 60. „ „ „ » 235,246 r. 61. „ „ „ » 235, 247 r. 62. „ „ „ „ 236,247 r. 63. „ „ „ „ 236,247 r. 64. „ „ „ „ 236, 247 r. 65. „ „ „ „ 247 r. 66. „ „ „ „ 247 r. 67. Proof of debts • 349 350 350 350 350 350 350 350 350 350 351 r, 78. Taking accounts of property mortgaged or pledged, and of the sale thereof . . . . . • • • 341 r. 68.. r. 69. r. 70. r. 71. r. 72. r. 73. r. 74.. r. 75.. r. 76.. r. 77. 79. . „ 80.. „ 81.. 82. . Transfer of proceedings 83. . „ „ • • 84. . „ . „ r. 85. Proxy. 341 341 341 301 301 301 269 86. „ .. .. 269 87. Meetings of creditors 264 88. 7. » 264 89. „. „ 264 90.. . „ 265 91. „ 267 92.. . , 267 93.. „ 270 94.. „ 267 95. ,. „ 296 96.. „ 266,292 97.. ;;. ; 2% 98.. „ „ •• •• 297 99. „ „ .. 347 100.. „ „ 347 101. „ „ 347 102. „. „ 297 103. Trustee 259 104. „ 274 105. „ 274 106. „ 273,275 r.107. 273 r. 108. „ 287 r.109. „ 281 r.110. , 283 r.lll. 292 -ii2.. ;; 280 r.H3. „ 287 r. 114 288 c 2 ■ XXXVI TABLE OF ORDERS, RULES, AXD FORMS. The Bankruptcy Rules, 1870— continued. Kule r. r. r. r. r. 15. Trustee 16. 17. 18. 19. 20. 21. Where registrar trustee Committee of inspection Dividends Order of discharge Appeal 51. Affidavits Security Witnesses Discovery of bankrupt Application for di of bankruptcy property charge during: three rears after close PAGE 278 278 331, S47 3.-H 282 278 278 366 366 366 366 278 266 276 n. 275 275 354 354 354 355 355 355 355 361 361 361 361 361 303 304 304 304 304 304 304 304 213 213 213 214 214 214 214 214 214 214 215 215 215 215 215 217, 337 217 217 217 217 337 369 TABLE OF ORDERS, RULES, AND FORMS. XXXVll The Bankruptcy Rules, 1870 -continued. page Rale 173. Application for discharge during three years after close of bankruptcy .. .. .. .. .. 369 r. 174. „ „ „ „ . . 370 r- 175. „ „ „ „ .. 370 r. 176. Arrests, commitments .. .. .. .. .. 215 r. 177. „ „ 252 r- 178. „ „ 216 r- 179. „ „ 216 r. 180. Setting aside pay, &c 334 r- 181. „ „ 334 r- 182. „ „ 324 r. 183. Enforcement of debt against undischarged bankrupt. . 370 r- 184. „ „ „ „ . . 370 r. 185. „ „ „ „ .. 370 r. 186. Costs 405 r. 187. „ 405 r. 188. „ 405 M89. „ 405 • r. 190. Trial by jury 302 r. 191. „ 302 rr. 192—200. „ (relating to London Bankruptcy Court) 302 n. r. 201. „ 302 n. r. 202. „ 302 r. 203. „ 303 r. 204. Sittings of a county court . . . . . . . . 211 r. 205. „ „ 211 r. 206. Stamps 404 r. 207. Examination of bankrupt or witness .. .. .. 293 r. 208. Amendments 209 [ Rules 209 to 236 relate to the business of the London Bank- ruptcy Court,.] r. 237. Duties of comptroller, and the books and accounts to be kept by registrars and trustees .. .. 284 n. r. 238. „ „ „ r. 239. „ „ „ r.240. r. 241. r. 242. „ r. 243. „ r. J44. „ „ „ r. 24o. „ „ „ r. 246. „ „ „ r. 247. r. 248. r. 2ij. „ ,, „ r. 250. r. zol. ,, ., t) r. 253. r. 254. r. 255. r. 256. r. 257. r. 258. r. 259. r. 260. r. 261. position with creditors " " sot "• 284 n. •1 • ■ .. 208 » •• .. 208 „ .. • • 281 „ .. .. 281 „ .. .. 281 » • • 281 II •• • • 284 „ .. 284 „ . . 366 n. „ , . ..282 M • ■ .. 286 „ -.286 rangement or com- 376, 380, 381 ii .. 381 .. 381 .. 381 .. 381 .. 382 .. 382 .. 382 .. 382 » .. 382 XXXV111 TABLE OF ORDERS, RULES, AND FORMS. The Bankruptcy Rules , 1870— continued. PAGE Pule 262. Proceedings for liquidation by arrangement or com position with creditors . . . • . . . . . . 382 r. 263. »> >» » • • 383 r. 264. » >> >» • • 383 r. 265. » » » • • 383 . r. 26G. » jj >» • • 383 . r. 267. •>» ■ • » » • • 383 r. 268. » ■ • » n ' • 383 r. 269. t> » „ . . 383 r. 270. » » >> • • 383 r. 271. » » »» • • 384 . r. 272. » » >» • . 384 r. 273. >> » 374 n -.384 r. 274. >» » » • • 384 r. 275. » »> • . „ • . 384 r. 276. • j> >» » • • 384 r. 277. >> » ■ ■ ■ » • . 385 r. 278. » >> >) • • 385 r. 279. >» » >> • • 385 r. 280. n » • • )» • • 385 r. 281. » » >> • • 385 r. 282. » » » • . 385 r. 283. i> n ji • . 386 . r. 284. •j» » }> • • 386 r. 285. >> >J >> • • 386 r. 2S6. » » » • . 386 r. 287. »f » ■ » • . 386 r. 288. >» >j » • • 387 r. 289. » » » • • 387 r. 290. »» » » • • 387 r. 291. >> » >> • • 387 r. 292. tr >» i» • • 387 r. 293. n >» » ■ . 387 r. 294. )> » »» • • 387 r. 295.. » » 374 n., 387, 388 n. r. 296.. » II »> • • 388 r. 297. >» » » • • 388 r. 298. >> » «i « .388 r. 299. >» » >» • • 388 r. 300. 17 >> ,» ■ • 388 r. 301. l> » 51 • • 389 r. 302. » » 1> • • 389 .r. 303. >> )» ,» • • 389 r. 304. II >» « • .389 . r. 305. >y » J) • • 389 .r. 306. >> » JI • • 389 r. 307. »> » >» • • 389 r. 308. i> » » • • 389 r. 309. i»> » ,, • 389 . r. 310. » » ,f • • 390 r. 311. » j> ,> • •390 r. 312. >» » ,) • 390 r. 313. jj » ,» • • 390 r. 314. „ » ,, • • 390 r. 315. >> j» M • 390 r. 316. Trust deeds f J72 n. r. 317. j> < $73 n. r. 318. >» .. l J73n. r. 319. Prior rules an 207 n. TABLE OF ORDERS, RULES, AND FORMS. XXXIX PAGK The Bankruptcy Rules, 1871 20G » 207 n. Rule 1. ( Citation and construction of rules) . . • • 207 n. r. 2. Receiver 251, 330 n. r 3. „ 251 r. 4. Costs >•■ •• 405 r 5 406 ■l' 6 406 r 7 " 406 i s. ;; .. 406 r. 9. Accounts '-• *«iSr^ r 10 277 n. J;!?: ;; :: 208 r 19 .. .. •• •• •• •• •• 285 Ms 281 n. Mf 284 r 15 " 284 I 17 • " 355,367 .Ms! r, .. 367 .10 .. . . . . . . . . •• 367 ■1. ij- ,, • • oai r. 20. •• •• •• •• •• *' " "'- , ' r 21. • • > • • • •• •• ' * " " 367 r 22 •• •• •• •• •• ** " 8b7 -90 .. . . . . .. .. • • 367 J;||; ■ ;; 367 r 9.k' .. . . .. • • • • • • • • 867 r Qfi •• Oof r 97 . . . . . . • ■ • • OO I »• tl. >, •• •• QQC r. 28. Disclaimer of leasehold mterest • • oAO FORMS IN BANKRUPTCY. No. 1. Declaration of inability to pay 230 2. Affidavit for summoning a debtor 233 3. Affidavit for summoning debtors in partnership . . . . 234 4. Debtor's summons 234 5. Affidavit of service of debtor's summons 236 6 Substituted service of debtor's summons. Notice in Gazette . . 237 or paper .. •• •• •• • " " 7 Substituted service of debtor's summons. Notice in local ..237 paper .. 8. Affidavit on application to dismiss debtor's summons . . 238 9 Order on application to dismiss debtor's summons . . . . 238 943 10. Petition z *° 1 1. Affidavit of truth of statements in petition 245 12. Affidavit of truth of statements in petition 246 1 3. Application for appointment of a receiver, and order thereon 251 14. Affidavit of service of petition 247 xl TABLE OF ORDERS, RULES, AND FORMS. Forms in Bankruptcy— continued. page No. 15. Substituted service of petition. Notice in Gazette .. .. 247 l(i. Substituted service of petition. Notice in local paper . . 247 17. Notice by debtor disputing the truth of statements on petition 248 18. Order to stay proceedings on petition .. .. .. 257 1!). Bond on stay of proceedings .. .. .. .. .. 257 20. Notice of smeties . . . . . . . • • . . . 258 21. Affidavit of justification .. .. .. .. .. 258 22. [Is an order of the London court relating to transfer of pro- ceedings.] 23. Dismissal of petition . . . . . . . . . . . . 262 24. Dismissal of petition npou which proceedings are stayed where adjudication made on a subsequent petition .. 262 25. Adjournment of petition .. .. .. .. .. 255 26. Adjudication 259 27. Notice of first meeting in local paper . . . . . . 260 28. Certificate declaring registrar trustee . . . . . . 261 29. Order for first meeting and for the attendance of the bank- ruptcy thereat . . . . . . • • . . . . . . 265 30. Order of court for general meeting of creditors . . . . 296 31. Restraining action, &c. after bankruptcy .. .. .. 250 32. Affidavit for proof of debt with or without security . . 351 33. Proxy (when not added to proof) .. .. .. .. 352 34. Affidavit of proof of debt by agent of a company . . . . 352 35. Minutes of proceedings at first meeting .. .. .. 270 36. List of creditors assembled to be used at every meeting . . 271 37. Certificate of judge for transfer of proceedings .. . . 301 38. Export and certificate of appointment of trustee . . . . 272 39. Bankrupt's statement of affairs for first meeting . . . . 268 40. Bond of trustee 274 41. Certificate of appointment of trustee .. .. .. 275 42. Notice in Gazette of the appointment of trustee and of day for public examination of bankrupt . . . . . . 292 43. Admission of debt by debtor of bankrupt . . . . . . 338 44. Order to pay admitted debt .. .. .. .. .. 339 45. Memorandum of public examination of bankrupt . . . . 293 46. Notice of meeting to be held on resignation of trustee . . 278 47. Minutes at meeting for receiving resignation of trustee, &c. 279 48. Export and certificate of appointment of trustee to fill a vacancy caused by a resignation . . . . . . . . 279 49. Notice in Gazette of intended dividend .. .. .. 355 50. Application by creditor for order for trustee to pay dividend and order thereon . . . . . . . . . . . . 356 51. Eeport of trustee for closing bankruptcy .. .. .. 359 52. Order on report of trustee as to the closing of a bankniptcy 360 53. Application for directions by trustee . . . . . . . . 280 54. Order on application of trustee for directions . . . . 280 TABLE OF ORDERS, RULES, AND FORMS. xli Forms in Bankruptcy— continued. page No. 55. Notice in Gazette of meeting to authorize the trustee to ac- cept a composition . . . . . . . . . . . . 297 56. Order to stay proceedings on a composition, &c 395 57. Application to annul adjudication under sect. 28 .. .. 298 58. Order annulling adjudication under sect. 28 .. .. .. 298 59. Notice in Gazette and paper of bankruptcy having been annulled . . . . . . . . . . • . . . . . 306 60. Application for release by trustee and order thereon . . 366 61. Notice in Gazette of day a bankrupt will apply for his dis- charge . . . . . . . . . . . . . . . . 362 62. Application for order of discharge where a dividend of not less than 10s. has been paid . . . . . . . . . . 362 63. Application for order of discharge where the failure to pay a dividend of 10s. arose through negligence or fraud of trustee 362 64. Application for order of discharge on a special resolution that the bankruptcy or the failure to pay a dividend of 10s. arose from circumstances for which the bankrupt should not be held responsible . . . . . . . . . . . . 363 65. Application for an order of discharge during continuance of bankruptcy . . . . . . . . . . . . . . 363 66. Memorandum of application for order of discharge . . . . 364 67. Order of discharge 364 68. Notice to creditors of a bankrupt, who has paid an additional sum after close of his bankruptcy, making up a dividend of 10*. in the pound, that he will apply for an order of dis- charge 368 69. Notice in Gazette of order of discharge . . . . . . 365 70. Notice in Gazette that a creditor seeks to enforce payment of his debt out of the property of an undischarged bankrupt.. 370 71. Search warrant .. .. 339 72. Warrant of seizure . . . . . . . . . . . . 340 73. Warrant against debtor about to quit England, &c. . . 252 74. Subpoena (London Bankruptcy Court). 75. Subpoena or summons to witness in county court .. .. 217 76. Summons under sect. 96 (in a county court) . . . . . . 337 77. Order setting aside pay, pension, &c. under sect. 89 . . 334 78. Notice to bankrupt under sect. 90 . . . . . . . . 335 79. Order setting aside salary or income under sect. 90 . . . . 335 80. Application for enforcement of provision in a composition .. 300 81. Affidavit in support of application for enforcement of pro- visions of a composition under sect. 28 or 126 .. .. 300 82. Order for enforcement of provisions in a composition . . 300 83. Application by trustee for committal of bankrupt or other person . . . . . . . . . . . . . . . . 290 84. Affidavit in support of application for committal of bankrupt for contempt under sect. 19 .. .. .. .. .. 290 Xlii TABLE OF ORDERS, RULES, AND FORMS. Forms in Bankruptcy— continued. page No. 85. Affidavit of trustee under sect. 93 . . . . . . . . 332 86. Affidavit of person interested in a composition for committal 299 87. Notice of application for committal under sect. 19.. . . 289 88. Notice of application for committal under sect. 93 . . . . 333 89. Notice of application for committal under sects. 28, 126 . . 299 90. Order of committal under sect. 19 . . .. .. .. 291 91. Order of committal under sect. 93 .. .. .. .. 333 92. Order of committal under sect. 28 or 126 299 93. Warrant of committal for contempt . . . . . . . . 291 94. Order for discharge from custody on contempt . . . . 292 95. Warrant to apprehend a person summoned under sect. 96 . . 338 9G. Order to Postmaster General 294 97. [Certificate to speaker of the House of Commons under sect. 122] see 224 n. [Hales 98 & 99 relate to juries in the London court, see p. 302 n.] 100. Form of oath to be taken by the usher of the court on jury i-etiring to consider their verdict . . . . . . 302 n. 101. Register of bankruptcies in the London Bankruptcy Court see 208 n. 102. Bankruptcy petition book to be kept by chief registrars of the Loudou Bankruptcy Court, and registrars of the county • courts . . . . . . . . . . . . . . see 243 103. Debtor's summons book to be kept by the chief registrar in the London Bankruptcy Court or a registrar of a county court see 235 104. Estate book see 281 n. 105. Annual return to be made by trustees. . .. .. see 286 n. 106. Petition under sects. 125, 126 391 107. Affidavit in support of petition under sects. 125, 126 .. 391 108. Notice to creditors of general meeting . . . . . . 392 109. Affidavit to be annexed to the notice summoning first general meeting 392 110. Request with list of creditors .. .. .. .. .. 393 111. Notice for Gazette 393 112. Order changing place at meeting .. .. .. .. 394 113. Nomination of receiver or manager by creditors .. . . 394 114. List of creditors assembled to be used at every general meeting 395 115. -First general meeting where liquidation by arrangement re- solved on 396 116. First general meeting where composition resolved on . . 396 117. Notice concerning second general meeting . . . . . . 397 118. Resolution at second general meeting. . .. .. .. 397 119. To be added to statement of affairs in cases under sect. 126 where necessary . . . . . . . . . . . . . . 398 120. Form of affidavit to be used upon registration of a special cr extraordinary resolution . . . . . . . . . . 398 121. Certificate of trustee's appointment .. .. .. .. 398 122. Resolution for debtor's discharge .. .. .. .. 399 123. Report of trustee as to debtor's discharge . . .. .. 399 TABLE OF ORDERS, RULES, AND FORMS. xliii Forms in Bankruptcy— continued. page No. 124. Debtor's discharge 399 125. Notice to creditors to come in and prove their debts . . 400 126. Notice to claimant of trustee's rejection of his claim .. 400 127. Affidavit of computed amount of estimated assets or com- position . . . . 400 [The subsequent forms (128 to 136) relate to executions in the London court and therefore are not given here.] ADDITIONAL FORMS GIVEN WITH « THE BANKRUPTCY RULES, 1871." No. 1. Notice to trustee at instance of comptroller .. .. .. 287 2. Order of discharge. . . . . . . . . . . . . . 365 3. Notice in Gazette of dividend declared . . . . . , . . 356 4. Form of affidavit on nomination of receiver by creditors . . 401 5. Order for payment of money out of Bank of England . . 36S 6. Certificate of no receipts or payments by trustee . . . . 285 7. Affidavit of no receipts or payments by trustee in cases where there is no committee of inspection . . . . . . . . 285 LIST OF CASES CITED IN THIS VOLUME. A. PAGE Adams, Re .. .. 372,381 Alderson v. Temple .. .. 319 Alexandra, The .. ..172 Allen, Ex parte . . . . 357 Amherst's (Lady) Trusts . . 327 Anderson, Ex parte . . 302, 303 , Re . . 204, 249, 250, 303 Aston v. Meredith . . . . 17 Atkinson v. Bell . . . . 154 v. Woodall .. ..148 Att.-Gen. v. Castleford . . 69 v. Whitwood . . 69 Auriol v. Mills 326 B. Bailey, Ex parte 222, 322, 324, v. Finch . . 345, v. Johnson . . 305, Bain v. Sadler Banda and Kirwee Booty 312, Barclay, Re Beadnell v. Beeson Beardmore r. Shaw . . . . Beaumaris Castle, The Belcher v. Magnay . . . . Bell v. Simpson Benson v. Paul Beta, The Bilbao, The Billiter v. Young . . Birmingham Gas Light and Coke Co., Ex parte. . 372, Birmingham and Staffordshire Gas Light Co. . . 250, Bissell, Re 200, 231, 308, 371, Bittlestone v. Cooke Blair, Ex parte Bloxam v. Sanders . . . . Boddam, Ex parte Bolton v. Lancashire and York- shire Rail. Co. . . 377 346 345 7 148 313 155 225 162 323 228 14 149 160 228 381 329 376, 377 22S 406 316 327 316 Bond v. Hopkins Bourton v. Williams Bovill v. Cowan Brett, Ex parte Brewin v. Briscoe ■ v. Grant Briggs v. Sowry Brooke v. Pearson Brown v. Kempton Browne, Re . . PAGE . 77 . 12 . 69 . 347 . 323 . 313 . 329 . 327 . 320 .. 250 Cannon v. Johnson . . . . 17 Cheeseborough, Re . . 319, 320 Cheesewright v. Thorn 4, 34, 114 Cherry, Re 303 Clarke v. Hart 119 Clayton v. Renton . . . . 10 Clough v. London and North Western Rail. Co 317 Cohen, Ex parte 204,229,313,314, 317,318 Constable's case .. ..146 Cooke, Ex parte . . . . 327 Cooper v. Chitty 308, 321, 323, 325 Coventry, Re 143 Craven, "Re, and Ex parte 319, 320 Cunningham's case .. ,. 147 D. D'Aguila v. Lambert . . # , 315 Davies v. Brecknell . . 190 191 De Golls v. Ward 225 Denny v. Hancock . . # # 303 Denton v. Marshall 133 De Vecch j . , 250 Dewhurst, Ex parte . . 309 310 Dickson v. Cass , , 345 Dimond, Ex parte . . 257 Doe dem. Grimsby v. Ball , . 228 327 xlvi LIST OF CASES CITED. PAGE Doggett r. Eastern Counties Kail. Co 101 Doming, Re . • . . . . 144 Downing, Re .. ■• ..144 Dowse, The .. .. 160,161 Duignan, Ex parte 200, 231, 308, 371, 376, 377 Dumergue v. Rumsey . . ,. 328 E. Edge, Re 145 Edwards v. Brewer . . . . 316 v. Cooper . . . . 323 v. Glyn .. ..319 — v. Scarsbrook . . 322 Elizabeth, The 170 Ellens, The Two .. 149,150 Ellis, Ex parte 237 Elwes v. Mawe . . .. .. 312 Emerson, Ex parte .. •• 311 Empress, The . . . . . . 154 England, Re . . . . 380, 381 English Joint Stock Company, Ex parte . . . . 205, 305 Evans v. Bagshaw . . .. 17 -, v. Hallam .. ..323 Everard v. Kendall . . . . 160 Fallows r. Slatter Fanshaw, Re . . Farley V. Danks Fawcett *•. Fearne Finney, Re Forest Queen, The Forster v. Wilson G. Gawan, Ex parte Giffard v. Williams Giles, Re . • — — v. Grover.. Gilliat v. Giiliat Goldsmid r. Cazenove Gordon's Trust, Re Graham v. Chapman Great Eastern, The Green v. Steer . . Grimsby (Doe dem.) t Gross, Re Gunnell v. Whitear Gwynn, Re .. .. 115 250, 329 .. 261 .. 324 205, 305 .. 182 .. 345 31 Ball . 31 2,313 . 17 . 232 . 322 . 15 . 349 . 56 . 229 . 149 . 324 . 228 0,346 . 19 . 377 H. PAGE Hale v. Allnutt . . . . 228 Hall, Re 145 Re, Ex parte Rocke 249, 250, 315 322 377 Harris v. Ricketts . . ' 228,' 317 Hawkins, Re 311 v. Whitten . . . . 345 Hayward and Batten, Ex parte 225 , Re 225 , Re, Ex parte Jones 261 Heart of Oak, The . . . . 319 Henderson v. Bamber. . 138, 139 Herman Wedel, The .. ..154 Hewitt v. Cony .. ..162 Hickman, The 162 Hide, Re . . 343, 348, 349 Higinbotham v. Holme . . 327 Hitchcock, Ex parte Hodgson, Ex parte Holland v. Hart t>. Holland Homann, Ex parte Honey, Ex parte Hopkinson v, Rolt Horn v. Baker . . Horsley, Re . . Howe, Re Hull v. Macfarlane Hurst v. Mortimer Hutton v. Crnttwell Isaac, Ex parte . . 319, 320 .. 327 .. 12 . . See Index, "Partition" .. 314 .. 349 ... 12 .. 311,312 266, 267, 374 ..347 ..133 ..319 228,229,317 250 Jackson, Re . • James v. Griffin Jecks, Re . . 222, Jeffery, Re . . Jenne Paul, The Johnson, Re . . 322, v. Black Jones, Ex parte v. Harper K. .. 314 .. 316 322, 324, 377 .. 349 .. 154 323, 324, 325 148, 150 .. 261 .. 229 Kain, Re . . . Keane, Re Kennedy v. Wakefield 237 124 69 LIST OF CASES CITED. xlvii Keys, Ex parte Kingston, Ex parte L. PAGE 324, 378 310, 346 Lady of the Lake .. ..149 Land Credit Company of Ire- land, Re 344 Law v. Skinner . . . . 228 Lealley v. Veryard . . . . 193 Lear v. Leggett . . . . 327 Levy, Ex parte . . . . 388 Lockyer v. Savage . . . . 328 Lomax v. Buxton . . . . 229 v. Fisher . . . . 228 Longbottom v. Longbottom . . 9 Loretta, The 162 Louisa, The . . . . . . 154 Liickes, Ex parte 227, 228, 229, 230, 287 Lumley v. Desborough . . 124 Lickbarrow v... Mason . . . . 315 Linden v. Bankes . . . . 134 Lindon v. Sharp . . . . 228 Linford v. Gudgeon .. 5, 31, 111 Lingham v. Biggs .. ..311 Lloyd v. Lloyd . . . . 328 Llvnvi Coal and Iron Company, Ex parte . . 343, 348, 349 M. Macarthur, Ex parte . . 321, 358 Macartney v, Barrow . . . . 225 M'Ewen's case, Re Land Credit Company of Ireland . . 344 Macgregor Laird, The . . 172 Macklc, Re 406 Macleur v. Macleur .. .. 193 Manning, Re . . 249, 250, 387 v. Chambers . . 328 v. Flight .. ..327 Manton's Trusts, Re . . . . 56 Maria Luisa . . . . . . 154 Marks v. Feldman .. ..319 Mary, The 172 Mason v. Lickbarrow . . .. 315 Mathews, Ex parte ... . . 303 Mauritz, Ex parte . . . . 232 Melbourn, In re, and Ex parte 344, 357 Metropolitan Bank v. Offord. . 12 Middlesex, Ex parte Sheriff of 381 Middleton, Re 357 v. Chichester . . 108 Mills, Ex parte 249, 250, 387 PAGE Mills v. Anriol 326 Montefiore v. Bchrens . . 328 Muggeridge's Trusts . . . . 328 N. Newcastle (Duke of) i . Morris 223 Newton v. Scott .. 329 Nicholls v. Lefevre .. 316 Nicholson v. Bower .. 316 Norris v. Allen .. 193 Northumbria, The .. 176 Nuova Raffaelina .. 161 o. O'Loghlen, Re, and Ex parte 204, 205, 236, 261 Orde, Ex parte 266, 267, 374 Orient, The 150 P. .. 145 .. 328 .. 224 .. 17 ..317 .. 324 .. 17 .. 10 .. 329 .. 327 .. 324 .. 19 374, 376 .. 10 Packer, Re . . . Parnham's Trusts, Re Pearcey, Re . Pemberton v. Barnes . Penuell v Reynolds . v. Stephens Peters v. Bacon Phillips r. Hewston . v. Shcrvill Phipps v. Ennismore . Pike v. Stephens Pointon v. Pointon . Pooley, Ex parte Powell v. Roberts R, Ramsden, Re .. .. 321,358 Ramsey r. Eaton .. .. 324 Ratcliffe v. Barnard .. .. 12 Rayner, Ex parte 322, 323, 324, 325 Reg. v. Cunningham . . . . 147 v. Trafford . . . . 131 Riga, The 160 Rocke, Ex parte 249, 250, 315, 322, 377 Roebuck v. Chadebet . . . . 17 Rose v. Hart 345 Rothwell v. Timbrell .. .. 323 Rudd .v. Rowc . . . . . . 64 xlviii LIST OF CASES CITED. Rumboli, Ex parte liussell, Re PAGE .. 204 374, 376 Samuel Laing, The . . . . 182 Scotto v. Heritage . . . • 4 Seymour v. Lucas . . . . 328 Sharp v. Cosserat . . . . 328 Shea v. United Sick and Burial Society .. . . . . 131 Shee«. Hale : 327 Shelley, Re 314 Sheriff of Middlesex, Ex parte 380, 3S1 Silver v. Udall 17 Simons v. M'Adam . . . . 4 Skinner, Re 378 Slade v. Barlow . . . . 17 Slater v. Pinder 250, 309, 315, 322, 323, 325, 377 Smallcombe v. Oliver . . . . 328 Smith v. Cannan . . . . 229 v. Hodson . . . . 320 Smyth ». North .. ..327 Snaith v. Mingay . . . . 225 Snee v. Prescot .. ..315 Sparke, Re 204, 229, 313, 314, 317, 318 Stacey v. Barns . . . . 225 Stansfield v. Cubitt .. 314,323 v. Mayor of Ports- mouth 328 Stella, The 155 Stevens, Ex parte . . . . 145 Stewart, Ex parte . . . . 314 Straker v. Ewing .. .. 315 Start, Ex parte . . . . 224 Swan, The 168 Sydebotham, Ex parte . . 223 T. Taylor, Re 204 . v. Young .. ..327 Tcallv. Watts 17 TebbT. Hodge 313 Tempest, Ex parte . . 319, 320 Thomas v. Crowther .. •■ 193 v. Nurse .. •• 191 v. Williams • • . . 329 Tigress, The 316 Todhunter, Ex parte 322, 376, 377 Trafford's case 131 Trappes v. Harper .. ..311 PAGE Trappes v. Meredith . . . . 328 Turner v. Collins .. ..120 Twyne's case . . . . . . 228 Tyler v. Yates 17 U. Udall v. Walton .. ..323 Union Bank of Manchester, Ex parte . . .. . . .. 314 V. Vanlohe, Re . . . . 309, 310 Varbetian, Re 388 Veness, Ex parte . . . . 377 Vining, Re 314 W. Wallis v. Wallis Weeton v. Woodcock . . Weir, Re, and Ex parte Wells, Ex parte White, Ex parte v. Chitty v. Simmons Whitehead v. Anderson Whitfield v. Brand V. Prickett . . Whitmore r. Mason . . .. 64 .. 328 231, 238, 240, 308 .. 344 .. 344 .. 328 .. 12 .. 316 .. 311 .. 327 .. 327 .. 301 .. 176 .. 13 .. 154 Wieland, Ex parte Wigtownshire, The Willcox v. Marshall . . William and John, The Williams, Re 257 Wilmot v. Rose . . . . 329 Wiseman v. Vandeput . . 315 Wood, Re 227, 228, 229, 230, 287 Wooldridge, Ex parte . . 134 Wonham v. Machin .. .. 18 Worsley v. Demattos . . . . 228 Y. Yeo v. Tatem . . Young James, The v. Roebuck v. Waud Zealley v. Veryard 150 162 322 228 .. 193 @Djre |pratiixe mtir (Bbxbtxuz IN THE COUNTY COURTS. PART IV. THE JURISDICTION AND PRACTICE OF THE COUNTY COURTS IN EQUITY. CHAPTER I. THE JURISDICTION IN EQUITY. § 1. — Equitable Jurisdiction in general. § 2. — Jurisdiction in Suits by Creditors, Legatees, Devi- sees, Heirs-at-Law and Next of Kin. § 3. — Jurisdiction in Suits for the Execution of Trusts. § 4. — Jurisdiction in Suits for Foreclosure or Redemp- tion, OR FOR ENFORCING ANY CHARGE OR LlEN. § 5. — Jurisdiction in Suits for Specific Performance of, or for the Delivering up or Cancelling, any Agree- ment for the Sale or Purchase of Property. § 6.— Jurisdiction in Suits for Partition. § 7. — Jurisdiction in Proceedings under the Trustees Relief Acts, or under the Trustee Acts. § 8. — Jurisdiction in Proceedings relating to the Mainte- nance or Advancement of Infants. § 9. — Jurisdiction in Questions as to the Separate Pro- perty of Married Women. § 10. — Jurisdiction in Suits for the Dissolution or Wind- ing-up of any Partnership. § 11. — Jurisdiction in Proceedings for Orders 'in the nature of injunctions, or for stay of proceedings at Law. § 12. — Jurisdiction in Suits transferred to the County Courts. vol. II. V THE JURISDICTION IN EQUITY. Part IV. Chap. I. Jurisdiction in equity to be exercised in county § 1. — Equitable Jurisdiction in general. It has been elsewhere observed that no proposition can be clearer than that the rights of suitors, under the primary and ordinary jurisdiction of the county courts, are governed and controlled by the common law of this country, and that the judges of the county courts are equally bound with the judges of the superior courts of common law to administer the law according to the course of that common law, as distinguished from the principles and practice of the courts of equity (a). Nevertheless, in particular cases, the jurisdiction and powers of the Court of Chancery have been from time to time conferred on the county courts. Under the original County Court Act (9 & 10 Vict. c. 95, s. 65), the jurisdiction of the county court extended to the recovery of any demand not exceeding the sum of twenty pounds (b\ which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of a distributive share under an intestacy, or of any legacy under a will (c). So far as relates to partnerships, however, this was but a trifling extension of the common law jurisdiction ; for it is a settled rule that if partners finally balance all their accounts, an action at law lies for the ascertained balance ; and it seems that, to give the county court jurisdiction under this provision, the partnership must be determined, although the balance be not settled (e?). By the Charitable Trusts Acts (16 & 17 Vict. c. 137, s. 33 ; 23 & 24 Vict. c. 136, s. 11) jurisdiction was conferred on the county court, in the case of small charities, to give such equitable relief and make such orders and directions as might be given by the Court of Chancery. So in the case of the dissolution of literary and scientific institu- tions by 17 & 18 Vict. c. 112, and again by the statute 18 & 19 Vict. c. 63, the county court has all the powers of the Court of Chancery in disputes and other matters arising in relation to friendly societies, and by the 25 & 26 Vict. c. 87, in winding up industrial and provident societies. As already remarked (e), however, all this jurisdiction is trifling compared with the jurisdiction subsequently conferred by " The County Courts Act, 1865" (28 & 29 Vict. c. 99). That act, reciting that " it is desirable to confer on the county courts jurisdiction in equity," enacted : — Sect. 1. "The county courts held by virtue of an act passed in the session ot parliament holden in the ninth and tenth years of the reign of her present majesty, chapter ninety-five, shall have and exercise all the O) See Vol. I. p. 58. (b) Subsequently extended to 501. (c) See Vol. I. pp. 29, 767. (d) See Vol. I. p. ( THE JURISDICTION IN EQUITT. Part IV. § 2.— JURISDICTION IN SUITS BY CREDITORS, LEGATEES, DeVT- Chap ' 1- sees, Heirs at Law and Next oe Kin. Passing over for the present the special jurisdiction of the county courts uuder the Charitable Trusts Acts and relating to literary and scientific institutions and to friendly societies, and the winding- up of societies and companies (r), and dealing principally with the jurisdiction under the heads and in the order mentioned in "The County Courts Act, I860," the first is "All suits by creditors, legatees (whether specific, pecuniary or residuary), devisees (whe- ther in trust or otherwise), heirs at law, or next of kin, iu which the personal or real or personal and real estate against or for an account or administration of which the demand may be made shall not exceed in amount or value the sum of five hundred pounds" (s). The jurisdiction given by this first branch of the section is for an account or administration of real or personal estate. Account. It has been said that in consequence of the former inability of the courts of common law to examine interested parties as witnesses, and the power of a court of equity to compel a defen- dant to answer upon oath with regard to the truth of a transaction, the courts of equity acquired a concurrent jurisdiction with every other court in all matters of account ; but, in modern times, the true foundation of the jurisdiction of courts of equity in accounts is placed upon the fact that the remedy is generally more complete and adequate than it can be at law (Story's Equity Juris. § 450, 451). Although this equitable jurisdiction exists in a variety of cases, the jurisdiction conferred by this part of the section on the county courts appears to be confined to an account in the matter of the estate of a deceased person. A dm in is t ration. Courts of equity take cognizance of the administration of per- sonal assets, consequently of debts, legacies, the distribution of the residue, and the conduct of executors and administrators (3 Bla. Com. 437). This jurisdiction is, to a great extent, founded on the principle that it is the duty of the court to enforce the execution of trusts ; and that the executor or administrator, who has the property in his hands, is bound to apply that property to the payment of debts and legacies, and to apply the surplus according to the will of the testator, or, in cases of intestacy, according to the Statute of Distributions ; but the jurisdiction now assumed by courts of equity to so wide an extent over all adminis- trations in cases of testacy and intestacy, rests on auxiliary grounds, such as the necessity for taking accounts, and the consideration that the remedy at law, when it exists, is not plain, adequate and complete (Story's Equity Juris. § 532 — 535). (?•) As to these matters see post, (s) 28 & 29 Vict. e. 99, s. 1, sub-s. Chap. XII. (1,), ante, p. 3. JURISDICTION IN SUITS BY CREDITORS, ETC. Suits by Creditors.^ — In suits at common law nothing more PartIV. can be done than to establish the debt of the creditor, and if the Chaf - l - assets are not of a legal nature, or if a marshalling of the assets is indispensable to a due payment of the creditor's claim, the remedy at law cannot be effectual, and recourse must be had to equity. A creditor may proceed for payment of his own debt, and seek a discovery of the assets for this purpose only. If he does so, and an account is taken, the court will, upon the footing of such an account, proceed to make a final decree in favour of the creditor without sending him back to law for the recovery of his debt. The more usual course, however, pursued in the case of creditors is for one or more creditors to proceed by and on behalf of him or themselves, and all other creditors who shall come in, for an account of the assets and a due division of the estate (Story, Equity Juris. § 546, 547). The application to the Court of Chancery for relief in the administration of estates made by the executor or administrator himself, when he finds the affairs of his testator or intestate so much involved that he cannot safely administer the estate except under the direction of the court, or when for other reasons he desires to have the protection of the court, is now made under the Trustees Relief Acts, as to which see post, p. 18. Legal and Equitable Assets.^ —Those portions only of the assets of a deceased person are deemed legal assets which by law are directly liable, in the hands of his executor or administrator, to the payment of debts and legacies, and which can be reached by a suit at law against him, either by a common judgment, or by a judgment upon a devastavit against him personally. But it is, perhaps, more accurate to say, that legal assets are such as come into the hands and power of an executor or administrator, or such as he is intrusted with by law, virtute officii, to dispose of in the course of administration. In other words, whatever an executor or administrator takes qua executor or administrator, or in respect to his office, is to be considered as legal assets. Equitable assets are, on the other hand, all assets which are chargeable with the payment of debts or legacies in equity, and which do not fall under the description of legal assets. They are called equitable assets because, in obtaiuing payment out of them, they can be reached only by the aid and instrumentality of a court of equity. They are also called equitable for another reason, and that is, that the rules of distribution by which they are governed are different from those of the distribution of legal assets (see infra). It may be laid down as a general principle, that everything is considered as equitable assets which the debtor has made subject to his debts generally, and which, without his act, would not have been subject to the payment of his debts generally (t). (t) Story's Equity Jurist. § 551, is Bain v. Sadler, 40 L. J. (N. S.) 552. The latest case on this suhject Ch. 791. \ THE JURISDICTION IN EQUITY. Part iv. Administration and Marshalling of Assets."] — The personalty — HAP ' ' is the primary fund for the payment of debts and legacies, and, in the administration of assets, courts of equity follow the same rules in regard to legal assets which are adopted by courts of law, and give the same priority to the different classes of creditors which is enjoyed at law ; but in regard to equitable assets courts of equity, in the actual administration of them, adopt very different rules from those adopted in courts of law in the administration of legal assets. Thus, in equity, it is a general rule that equitable assets shall be distributed equally and pari passu, among all the creditors, with- out any reference to the priority or dignity of the debts, and if the fund falls short, all the creditors are required to abate in proportion. See now 32 & 33 Vict. c. 46, abolishing the distinction as to priority of payment between specialty and simple contract debts, ante, Vol. I. pp. 625, 626, note. In the sense of courts of equity, the marshalling of assets is such an arrangement of the different funds under administration as shall enable all the parties, having equities thereon, to receive their due proportions, notwithstanding any intervening interests, liens, or other claims of particular persons to prior satisfaction out of a portion of these funds. Thus, where there exist two or more funds, and there are several claimants against them, and at law one of the parties may resort to either fund for satisfaction, but the others can come upon one only, these courts of equity exercise the authority to marshall (as it is called) the funds, and by this means enable the parties whose remedy at law is confined to one fund only, to receive due satisfaction (Story's Equity Juris. § 553, 558). As to the payment of mortgage debts out of personalty, see 17 & 18 Vict. c. 113, and 30 & 31 Vict. c. 69. Suits by Legatees.] — Courts of equity exercise jurisdiction in regard to legacies, whether pecuniary or specific. No suit will lie at the common law to recover them unless the executor has assented thereto. In cases of specific legacies of goods and chattels, after the executor has assented thereto, the property vests immediately in the legatee, who may maintain an action at law for their recovery. The same rule has been attempted to be applied at law to cases of pecuniary legacies, where the executor had expressly assented thereto, and there are certainly decisions that, in the case of an express promise to pay a pecuniary legacy in consideration of assets, an action will lie ; but these cases seem not to have been decided upon satisfactory principles, and have been doubted and disapproved (Story's Equity Juris. § 591). But whether a pecuniary legacy is recoverable at law or not, after an assent thereto by an executor, it is very certain that courts of equity now exercise a concurrent jurisdiction with all other courts in cases of legacies, whether the executor has assented thereto or not (Id.). JURISDICTION IN SUITS FOR THE EXECUTION OF TRUSTS. ! Legatees are in general entitled to the same equities as creditors Part iv. ■where the personal estate is exhausted by specialty creditors. Chap - I- They are therefore permitted to stand in the place of the specialty creditors against the real assets descended to the heir (Story's Equity Juris. § 565). The jurisdiction of the original County Court Act, 9 & 10 Vict. c. 96, s. 65, as enlarged by the 13 & 14 Vict. c. 61, s. 1, extended to the recovery of any demand not exceeding the sum of 50/., which is the amount or part of the amount of a distributive share under an intestacy, or of any legacy under a will. For legacies within this amount, proceedings may still be taken as heretofore. As to the practice and cases decided under this provision, see ante, Vol. I. p. 767. — * — § 3. — Jurisdiction in Suits for the Execution of Trusts. " All suits for the execution of trusts in which the trust estate or fund shall not exceed in amount or value the sum of five hundred pounds" (w). What are technically called trusts, that is, estates vested in per- sons upon particular trusts and confidences, are wholly without any cognizance at the common law ; and the abuses of such trusts and confidences are beyond the reach of any legal process. But they are cognizable iu courts of equity; and hence they are called equitable estates ; and an ample remedy is there given in favour of the cestuis que trust (the parties beneficially interested) for all wrongs and injuries, whether arising from negligence or positive misconduct (Story's Equity Juris. § 29). Independently of the cases obviously within this branch of jurisdiction, the power here conferred will be useful in a class of cases which have been held to be just without the jurisdiction of the county court conferred by the original act giving power to sue in the county court for small legacies. Thus, where a testator devised to his son certain freehold and leasehold estates and chattels, on condition of his son paying {inter alia) to his mother the sum of 4*. a week during her life, it was held, that the mother's claim was not a claim of a legacy within the provision referred to (Longbottom v. Longbottom, 22 L. J. (N. S.) Exch. 74). A testator bequeathed to the defendant 100/. in trust to pay that amount to the plaintiff on his attaining twenty-one years, and in the meantime to invest it and to pay the plaintiff the interest, with power to the defendant, whom he styled "trustee," to advance either the part or the whole for the education, &c. of the plaintiff, or otherwise for his benefit during his infancy. The plaintiff, on attaining his majority, sued the defendant in the county court for a balance of 50/. of the 100/., part having been applied pursuant to the terms of the will ; it was held, that the county court had no («) 28 & 29 Vict. c. 99, s. 1, snb-s. (2), ante, p. 3. 10 THE JURISDICTION IN EQUITY. Part iv. jurisdiction under the original act, the 100/. not having been given . Chap " Ij as a legacy but by way of trust {Phillips v. Hewston, 25 L. J. (N. S.) Exch. 133, and see ante, Vol. I. p. 770). It is clear that the claimants in both the above cases would be entitled to relief in the county court under either the first or second sub-sections of sect. 1 of "The County Courts Act, 1865." It is to be observed that the county court jurisdiction extends to constructive or implied trusts as well as to express trusts (x). § 4. — Jurisdiction in Suits for Foreclosure or Redemption, or for enforcing any charge or llen. " All suits for foreclosure or redemption, or for enforcing any charge or lien, where the mortgage, charge or lien shall not exceed in amount the sum of five hundred pounds" (y). Bights of Mortgagors and Mortgagees."] — Although upon non- payment of the mortgage debt at the time stipulated by the deed the property becomes forfeited and the estate absolutely vested in the mortgagee at the common law, the courts of equity interpose and consider the real value of the tenements compared with the sum borrowed ; " and if the estate be of greater value than the sum lent thereon, they will allow the mortgagor at any reasonable time to recall or redeem his estate, paying to the mortgagee his principal, interest and expenses : for otherwise, in strictness of law, an estate worth 1,000/. might be forfeited for non-payment of 100/. or a less sum. This reasonable advantage, allowed to mortgagors, is called the equity of redemption : and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest (r). But, on the other hand, the mort- ar) Clayton, v. Renton, Law Hep., prayed for the deed to he set aside. 4 Eq. 158; 36 L. J. (N. S.) Ch. 428. Powell v. Roberts, Law Rep. 9 Eq. (y ) 28 & 29 Vict. c. 99, s. 1, sub-s. 169; 39 L. J. (N. S.) Ch. 44. In hold- (3), ante, j). 3. Where a second mort- ing that the county court hadjuris- gagee filed a plaint against the first diction, it appears to have been on the mortgagee and a purchaser from him ground that the prayer should not have (after notice of the second mortgage been to set aside the deed, as it would and claim to redeem), and the mort- not be proper in a suit of that kind, gagor's representatives, praying that and that the decree was properly silent the sale might be declared invalid and on the point. set aside, and also praying for an order (z) "It is now firmly established for redemption and foreclosure ; it that the mortgagor has an estate in was held, that the suit was within the land in equity, in the nature of a the county court jurisdiction although trust estate, which may be granted, the offer to redeem was disputed (and, devised and entailed." Story's Equity therefore, not being an ordinary re- Juris. § 1015. demption suit), and although the suit JURISDICTION IN SUITS FOR FORECLOSURE, ETC. 11 gagce may cither compel the sale of the estate, in order to get the PartIV. whole of his money immediately; or else call upon the mortgagor Chap - l to redeem his estate presently, or in default thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption without possibility of recall" (2 Bla. Comm. 158, 159). If the mortgagor permits the mortgagee to hold possession of the mortgaged property for twenty years without accounting, or without admitting that he possesses a mortgage title only, the mortgagor loses his right of redemption, and the title of a mort- gagee becomes as absolute in equity as it previously was in law. So with respect to a mortgagee : If he has suffered the mortgagor to remain in possession for twenty years after the breach of the condition without any payment of interest or any admission of the debt, or other duty, the right of foreclosure will generally be deemed to be barred and extinguished. However, in cases of this sort, as the bar is not positive, but is founded upon a presumption of payment, it is open to be rebutted by circumstances. (Story's Equity Juris. § 1028a, 10286, 8th edit.) As powers of sale are now generally inserted in mortgages, there will seldom be any necessity for resorting to the court to compel a sale in the case of express mortgages; but, on the other hand, in suits for foreclosure the court may direct a sale of the mortgaged property instead of a foreclosure, on such terms as it may think fit (15 & 16 Vict. c. 86, s. 48); and in most cases, it is presumed, the judge of the county court would act on this power, unless indeed it were apparent that a sale would not realize more than the mortgage debt and costs. It may be observed here that by the statute 4 & 5 W. & M. c. 16 (still in force), if any person mortgages his estate and does not previously inform the mortgagee in writing of a prior mort- gage, or of any judgment or incumbrance which he has volun- tarily brought upon the estate, the mortgagee holds the estate as an absolute purchaser, free from the equity of redemption of the mortgagor. Equitable Mortgages.^ — "Mortgages may not only be created by the express deeds and contracts of the parties, but they may also be implied in equity, from the nature of the transactions between the parties; and then they are termed equitable mortgages. Thus for instance, it is now settled in England, that if the debtor deposits his title deeds to an estate with a creditor, as security for an antecedent debt, or upon a fresh loan of money, it is a valid agreement for a mortgage between the parties, and is not within the operation of the Statute of Frauds" (a). This doctrine is not "ordinarily applied to enforce parol agree- ments to make a mortgage, or to make a deposit of title deeds for (a) Story's Equity Juris. § 1020. 12 THE JURISDICTION IN EQUITT. paht iv. such a purpose ; but it is strictly confined to an actual immediate . Chap " l and bona fide deposit of the title deeds with the creditor, as a security, in order to create the lien" (b). An equitable mortgage will not, in general, avail against a sub- sequent mortgagee by deed without notice of the prior deposit of the title deeds. Still the second mortgagee may, by not inquiring from the mortgagor for the title deeds, be guilty of gross negligence, sufficient to invalidate his title ; but it is otherwise if he has made such inquiry and a reasonable excuse was given for their non- delivery (c). Priority between actual Mortgagees."] — In the case of actual mortgage, the mere fact that a first mortgagee has left the title deeds in the possession of the mortgagor, without any attendant circumstances of fraud, will not be sufficient to postpone such first mortgagee to a second, who has taken the title deeds with his mortgage without any notice of the prior mortgage (d)% " The Bankruptcy Act, 1869," reserves the remedies of mortgagees, and if a mortgagee desires to foreclose against a bankrupt, he can only get that by an equitable suit, but if he only desires a sale, he ought to proceed in the bankruptcy court, although he has the right to proceed in equity (e). As to the right and mode of redeeming in the case of ejectment by mortgagee against mortgagor, see County Court Rules, 1868, Rule 256, ante, Vol. I. pp. 410, 411 (/). Where in a mortgagee's suit, the estate is sold under the di- rection of the court ; and the purchase-money is insufficient to pay all the incumbrances, no puisne incumbrancer is entitled to his costs incident to the sale until the debts and costs of all prior in- cumbrances have been fully discharged (g). § 5.— Jurisdiction in Suits for Specific Performance of, or for the delivering up or cancelling, any agreement for the Sale or Purchase of Property. " The County Courts Act, 1865," under the fourth head in sect. 1, gave jurisdiction to the county courts in " all suits for (b) Story's Equity Juris. § 1020. H. L. Cas. 514; 34 L. J. (N. S.) Ch. (c) Id. See as a recent case on 468. this subject, where the authorities are (e) White v. Simmons 40 L. J. cited, Batelitfe v. Barnard, 40 L. J. (N. S.) Ch. 689; see also The Metro- (N. S.) Ch. 147, 777. As to the effect jwlitan Bank y. Offord, 39 L. J. of non-registration of mortgage deeds (N. S.) Ch. 820. where registration necessary, see Hoi- (/) See also Bovrton v. Williams, land v. Hart, 40 L. J. (N. S.) Ch. 345. Law Rep. 9 Eq. 297 ; 39 L. J. (N. S.) (d) Story's Equity Juris. § 1020. Ch. 800. As to priority in general see the rule (g) Wonhamv. Ma chin, Law Rep. laid down in HopMnson v. Bolt, 9 10 Eq. 447; 39 L. J. (N. S.) Ch. 789. exercised. JURISDICTION IN SUITS FOR SPECIFIC PERFORMANCE, ETC. 13 specific performance, or for the delivering up or cancelling any PartIV. agreement for the sale or purchase of any property, where — HAP ' " . the purchase-money shall not exceed the sum of five hundred pounds" (h) In consequence of the omission of the word " of," after " specific performance," the precise effect of the above head, was to give the county court jurisdiction in all suits for specific performance, although it was intended to be confined to agreements for the sale or purchase of any property where the purchase-money shall not exceed 500/. This very material, although verbal, omission was remedied or attempted to be remedied by " The County Courts Act, 1867" (30 & 31 Vict. c. 142). Sect. 9 of that act enacts, that — "The jurisdiction which is given by the act passed in the session Suits in holden in the twenty-eighth and twenty-ninth years of the reign of her which juris- Majesty, intituled an act to confer on the county courts a limited juris- 28&29 Vict, diction in equity, so far as relates to cases coming within the fourth head c - 99, may be of the first section of the said act, may, from and after the passing of " this act, be exercised in all suits for specific performance of or for the reforming, delivering up, or cancelling of any agreement for the sale, purchase, or lease of any property where, in the case of a sale, or pur- chase, the purchase-money, or in the case of a lease, the value of the property, shall not exceed five hundred pounds." The act, it will be seeu, introduces the omitted word " of," and is intended to wholly supersede the fourth head of the original act. It is to be regretted that this intention was not carried out by expressly repealing the fourth head. As the 9th section is framed it is capable of being read simply as an extension of jurisdiction, leaving the fourth head to stand as before with the doubtful juris- diction " in all suits for specific performance." Nevertheless as there are no orders or rules or forms provided for the fourth sub-section of the first section of " The County Courts Act, 1865," that sub-section must be treated as no longer having any operation. The amended provision also expressly includes leases (i), and also the reforming of agreements. Suits for Specific Performance.^ — A court of equity may compel executory agreements to be carried into strict execution unless where it is improper or impossible : and hence a fiction is established, that what ought to be done shall be considered as being actually done, and shall relate back to the time when it ought to have been done originally (3 Bla. Comra. 438). (JC) 28 & 29 Vict. c. 99, s. l,sub-s. tion, it was held that a liberal con- (4), ante, p. 3. struction would include them. Jl \ll- (i) Although agreements for leases coxy. Marshall, Law Rep., 3 Eq. 270; were not originally expressly men- 36 L. J. (N. S.) Ch. 358. tioned in the fourth head of jurisdic- 14 THE JURISDICTION IX EQUITY. Chap. 1. Part iv. By the common law every covenant to sell or transfer a thing, if there is no actual transfer, is treated as a mere personal contract, and as such, if it is unperformed by the party, no redress can be had except in damages ; thus allowing the party the election, either to pay damages, or to perform the contract, at his sole pleasure. But courts of equity have deemed such a course wholly inadequate for the purposes of justice ; and they have not hesitated to interpose and require from the conscience of the offending party a strict performance of what he cannot without manifest wrong or fraud refuse (Story's Equity Juris. § 714). The Court of Chancery may, however, if it thinks fit, award damages to the party injured either in addition to or in substitution for such specific performance, and such damages may be assessed in such manner as the court directs (21 & 22 Vict. c. 27, s. 2). This same power is conferred (by force of ss. 1 and 2 of " The County Courts Act, 1865,") upon the county court. As to the mode of assessing the damages, see post, Chap. VI. §4. Agreements may be made respecting personal acts, personal property and real property. The county court jurisdiction is, however, confined to agreements for the sale or purchase of pro- perty, and the most ordinary suit of this kind is for the perform- ance of a contract for the sale of land, which may be brought either by the seller to compel the other party to complete the purchase to which he has agreed, or by the buyer to compel the seller to make a conveyance of the land ; and the general rule is not to entertain jurisdiction in equity for a specific performance of such agreements respecting goods, chattels, stock, choses in action, and other things of a merely personal nature, where a compensation in damages furnishes a complete and satisfactory remedy (Story's Equity Juris. § 718). It may be observed, that although under " The Common Law Procedure Act, 1854," the plaintiff, in an action in any of the superior courts, may claim a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested, it has been decided that this provision does not extend to a duty arising out of a personal contract, but refers to the class of cases in which there is a duty of a public nature, or a duty created by act of parliament in the fulfilment of which some one has a personal interest {Benson v. Paul, 6 E. & B. 273; 25 L. J. (N. S.) Q. B. 274). It does not therefore interfere with the cases which are ordinarily the subject of a suit in equity for specific performance, and clearly does not apply to suits for specific per- formance of agreements for the sale or purchase of property to which this branch of the equitable jurisdiction of the county court is confined. Suits for delivering up or cancelling Agreements.'] — When deeds are wrongfully withheld from those whose estates they JURISDICTION IN SUITS FOR SPECIFIC PERFORMANCE, ETC. 15 concern, the courts of equity will render assistance to obtain the PartIV. delivery of them; and those courts will also generally set aside, — HAP ' ' cancel, and direct to be delivered up, agreements and other instru- ments, however solemn in their form or operation, which, though good in law, justice or public policy require to be annulled; first, when there is actual fraud in the defendant, in which the plaintiff has not participated; secondly, when there is a constructive fraud against public policy, and the plaintiff has not participated therein; thirdly, when there is a fraud against public policy, and the plaintiff has participated therein, but public policy would be de- feated by allowing it to stand; and fourthly, when there is a con- structive fraud by both parties, but they are not in pari delicto (Story's Equity Juris. § 695). As to the first class of cases: When one party complains that another has circumvented him in a bargain by some misrepresenta- tion, he must show that such misrepresentation involved not only an actual falsity, but a falsity which materially influenced him in entering into the bargain. Thus false descriptions of non-essential and unimportant particulars will vitiate no bargain; nay, even a material misrepresentation will not be regarded by a court of equity in cases where the one party cannot be presumed to have placed any trust and confidence in the other. In matters of mere opinion, or those which are equally open to each side for examination and inquiry, this rule will hold good. The mere puffing and praise of a seller, bestowed upon his own commodity, will not be supposed to influence the judgment of a buyer of ordinary sagacity, and it is not the province of courts of justice to aid those who will not use their own sense and discretion (k). But the case is otherwise when the seller misrepresents or conceals some fact with regard to which the buyer must needs trust him for information ; some matter which could alone be in the seller's cognizance, or upon which he would be the best authority. If a man bargain to sell another a house in a distant town, knowing at the same time that the house has been burnt down, such a bargain will be set aside; for each party is, as a general rule, bound in every case to com- municate to the other his knowledge of mutual facts, provided he knows the other to be ignorant of them, and they be not naked and (k) " The Sale of Land by Auction rule is unsettled; and whereas it is Act, 1807" (30 & 31 Vict. c. 48), s. 4, expedient that an end should be put recites that, " whereas there is at pre- to such conflicting and unsettled opi- sent a conflict between her Majesty's nions;" and enacts, that "whenever courts of law and equity in respect of a sale by auction of land would be the validity of sales by auction of land invalid at law by reason of the em- where a puffer has bid, although no ployment of a puffer, the same shall right of bidding on behalf of the owner be deemed invalid in equity as well as was reserved, the courts of law holding at law." Sects. 5 and G provide for that all such sales are absolutely a reserved price, and sect. 7 restricts illegal, and the courts of equity under the practice of the courts of equity to some circumstances giving effect to open biddings. See GfUUat v. Gil- them, but even in courts of equity the Hat, 39 L. J. (N. S.) Ch. 142. 16 THE JURISDICTION IN EQUITY. Part iv. open, or equally within the reach of his observation. But this ■ Chap - 1 - must be restricted to facts immediately relating to the thing in question, for the mere concealment of extrinsic facts, which may possibly influence the market value of a commodity, and of which one party happens to have private and exclusive information, will not affect the validity of a bargain. Whenever, however, a fidu- ciary relation of any sort subsists between the parties, then the smallest concealment of anything whatever which tends to the dis- advantage of the one, whose interest the other is bound in faith to protect, will be scrutinized with the sharpest eye. It is a well- known rule of a court of equity, that no person standing in the situation of a trustee can purchase the property of his cestui que trust; this rule applies to all persons having either a fiduciary character, or having a power given them by their situation which it is possible they may abuse. The second class of cases consists of constructive frauds, or such acts or contracts, as although not originating in any evil design to defraud or injure another, yet having a tendency to deceive, or to violate public or private confidence, are deemed worthy of repression equally with frauds of the more gross or pal- pable sort. This class may be illustrated by secret dispositions of property by women in contemplation of marriage, without her in- tended husband's privity, which are held void as being in deroga- tion of the marital rights of the husband, and a fraud upon his just expectations. And a secret conveyance made by a woman, under like circumstances, in favour of a person for whom she is under no moral obligation to provide, would be similarly treated. But if she only reasonably provides for her children by a former marriage, in the absence of any palpable deception practised on the intended husband, such an arrangement will, it seems, stand good (3 Bla. Coram, by Kerr, 501, 502). It must be observed that the county court jurisdiction is con- fined to the case of agreements for sale or purchase (i. e. for money), so that settlements of the above description would scarcely fall within the cognizance of these courts. The third class may be illustrated by the common case of a gaming security, which will be decreed to be given up, notwith- standing both parties have participated in the violation of the law, because public policy will be best subserved by such a course. The fourth comprises a class of cases where, although both parties have participated in the guilty transaction, yet the one who seeks relief has acted under circumstances of oppression, im- position, hardship, undue influence, or great inequality of age or condition, so that in a moral, as well as in a legal point of view, his guilt may be deemed less than that of his associate (Story's Eq. Juris. 8th edit. § 695a\ It may be observed that no purchase made bona fide and without fraud or unfair dealing, of any reversionary interest in real or per- sonal estate, can now be opened or set aside merely on the ground JURISDICTION IN SUITS FOR PARTITION. 17 of undervalue (/ ) ; but this does not take away the protection thrown Part iv. by the courts of equity ' ; around unwary young men who are in the CnAP ' ' ■ hands of unscrupulous persons ready to take advantage of their necessities" (m). § 6. — Jurisdiction in Suits for Partition. " The Partition Act, 1868" (31 & 32 Vict. c. 40), (which pro- vides for a sale and distribution of the proceeds, instead of a partition of property, under certain circumstances), enacts — Sect. 12. " In England the county courts shall have and exercise the like power and authority as the Court of Chancery in suits for partition (including the power and authority conferred by this act) in any case where the property to which the suit relates does not exceed in value the sum of rive hundred pounds, and the same shall be had and exercised in like manner, and subject to the like provisions, as the power and authority conferred by section one of the County Courts Act, 1865" («). "Where in a partition suit the question was one of disputed legal title, and the plaintiff had not clearly established his claim, the court retained the bill for a year, with liberty to the plaintiff to bring such action as he might be advised (o). A joint tenant, or tenant in common, in reversion or remainder, cannot maintain a suit for partition (p) ; and if a plaintiff is not entitled to the relief prayed at the commencement of the suit, the defect is not cured by a subsequent acquisition of title (q). The court may, in a partition suit, direct a sale of part of the property and a partition of the remainder (r). The general rule is that all the costs of a partition suit are to be Costs of par- borne by the parties according to the benefit they gain under the tltlon slut " partition, that is to say, in proportion to the value of their shares. Otherwise, if one party has misconducted himself (s). (0 31 & 32 Vict. c. 4. L. J., Ch. 176. But Dotice should be (w) Tyler y. Yates, 40 L. J. (N. S.) given by advertisement. Peters v. Ch. 768. Bacon, 39 L. J. (!N. S.) Ch. 571. («) See also sect. 9 of 31 & 32 (0) Giffard v. Williams, 39 L. J. Vict. c. 40, respecting parties to the (N. S.) Ch. 735; see also Silver v. suit. As to the construction of the Udall, id. p. 118; and Slade t. Partition Act, see Pemberton v. Barlow, 38 id. 369. Barnes, 40 L. J. (N. S.) Ch. 675. (p) Evans v. Bagshaiv, 39 L. J. The prayer of a petition may be for (N. S.) Ch. 145. a sale and not for a partition. Aston (q) Id. v. Meredith, id. p. 241. An order (r) Roebuck v. Chadebet, 38 L. J. for sale may be made although one (N. S.) Ch. 488. of the parties entitled is out of the (s) Cannon v. Johnson, 40 L. J. jurisdiction. Teall v. Watts, 40 (N. S.) Ch. 46. D. VOL. II. 18 THE JURISDICTION IN EQUITY. Part IV. § 7. — JURISDICTION IN PROCEEDINGS UNDER THE TRUSTEES Chap - *• Belief Acts, or under the Trustee Acts. " All proceedings under the Trustees Relief Acts, or under the Trustee Acts, or under any of such acts, in which the trust estate or fund to which the proceeding relates shall not exceed in amount or value the sum of five hundred pounds" (t). The jurisdiction here given is somewhat difficult to define. In the first place, it seems uncertain what acts are included in the terms " Trustees Relief Acts" and " Trustee Acts," for there are acts containing important provisions relating to trustees which have no such general title, and yet there can he little doubt they were intended to be included. Again, the acts relating to trustees also relate to other matters, and to persons filling various other characters, fiduciary and otherwise, and to whom therefore this jurisdiction seems to extend. Further, "proceedings" under the acts are indefinite. Without attempting to settle these points, it may be observed, that by the 10 & 1 1 Vict. c. 96, (for better securing trust funds, and for the relief of trustees,) trustees, executors, adminis- trators, &c, or the majority where the consent of the others cannot be had (12 & 13 Vict. c. 74), may pay trust moneys, or transfer stocks into the Court of Chancery, and the court may make orders on petition, without bill, for application of the funds and administration of the trust (see more fully Sidney Smith's Chancery Practice, 7th edit., pp. 1113 — 1120); and by the more recent act, 22 & 23 Vict. c. 35, " to further amend the law of property and to relieve trustees," " any trustee, executor or ad- ministrator shall be at liberty, without the institution of a suit, to apply by petition to any Judge of the High Court of Chancery, or by summons upon a written statement to any such judge at chambers, for the opinion, advice, or direction of such judge on any question respecting the management or administration of the trust property, or the assets of any testator or intestate, such application to be served upon, or the hearing thereof to be attended by, all persons interested in such application, or such of them as the said judge shall think expedient; and the trustee, executor or administrator acting upon the opinion, advice or direction given by the said judge shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor or administrator in the subject-matter of the said application ; pro- vided nevertheless, that this act shall not extend to indemnify any trustee, executor or administrator, in respect of any act done in accordance with such opinion, advice or direction as aforesaid, if such trustee, executor or administrator, shall have been guilty of any fraud or wilful concealment or misrepresentation in obtaining such opinion, advice or direction ; and the costs of such application - • » (t) 28 & 29 Vict. c. 99, s. 1, sub-s. (5), ante, p. 3. JURISDICTION UNDER THE TRUSTEES RELIEF ACTS, ETC. 19 as aforesaid shall bo in the discretion of the judge to whom the Part rv. said application shall be made" (u). (It may be observed, that Chap - '" . although the statute allows the application to be by petition or summons, in the County Court the application must be by petition ; see Order XL, Rule 1, post, p. 49.) On the other hand, by " The Trustee Act, 1850" (13 & 14 Vict, c. 60, extended and amended by the 15 & 16 Vict. c. 55), the Court of Chancery may make orders vesting, or may appoint a person to convey, the real and personal estate of trustees or mort- gagees being lunatics, or of unsound mind, or infants, or of trustees out of the jurisdiction of the court, or who cannot be found, and of trustees jointly seised with parties out of the jurisdiction, &c, or where it is uncertain which of several trustees was the survivor, or whether the last trustee be living or dead, and of trustees dying intestate without an heir, or dying and it not being known who is his heir or devisee, and contingent rights of unborn persons, &c. Further, on the neglect of any person to transfer stock, or receive dividends, or to sue for any chose in action, an order may be made vesting the right in another person ; and a new trustee may be appointed in the place of a trustee convicted of felony ; and in all cases where it shall be expedient to appoint new trustees. (See, however, the 23 & 24 Vict. c. 145, s. 27, em- powering co-trustees, &c. to appoint fresh trustees in certain cases.) By 15 & 16 Vict. c. 86, any one of several cestuis que trust, without serving the others, and any trustee, may obtain a decree against any one cestui que trust for the execution of the trusts (x). " The County Courts Act, 1867" (30 & 31 Vict. c. 142), enacts that— Sect. 24. " Any moneys, annuities, stocks, or securities vested in any Trustees may persons as trustees, executors, administrators, or otherwise, upon trusts pay trust "i 1T10H6VS or within the meaning of an Act passed in the session of Parliament holden transfer stock in the tenth and eleventh years of the reign of her present Majesty, a . nd fecuri- chapter ninety-six, "for better securing trust funds, and for the relief court" e of trustees" (?/), where the same does not exceed in amount or value the sum of live hundred pounds, upon the filing by such trustees or other persons, or the major part of them, to or with the registrar of the county court within the district of which such persons or any of them shall reside, an affidavit shortly describing the instrument creating the trust according to the best of their knowledge, may in the case of money be paid into a Post Office Savings Bank established in the town in which the county court is held in the name of the registrar of such court, in trust to attend the orders of the court, and upon such persons filing with the registrar the receipt or other document given to them by the officer of the said bank, the registrar shall record the same, and give to them an acknowledgment in such form as may be directed by any («) As to the costs of trustees, see parties to suits, see Pointon v. Cnnnell v. Whitear, 39 L. J. (N. S.) Pointon, 40 L. J. (N. 8.) Ch. 609. Ch. 869, and cases there cited. (?/) See a notice of this statute, O) As to the effect of this act on ante, p. 18. C 2 w 20 THE JURISDICTION IN EQUITY. Part IV. rule of practice, which acknowledgment shall be a sufficient discharge Chap - L to such persons for the money so paid, and in the case of stocks or securities may be transferred or deposited into or in the names of the treasurer and registrars of such court, in trust to attend the orders of the court, and the certificate of the proper officer of the transfer or deposit of such stocks or securities shall be a sufficient discharge to such persons for the stocks or securities so transferred or deposited ; provided that where there is not a treasurer a person shall be nominated by rule of practice to whom the transfer or deposit in conjunction with the registrar may be made." Extension of Sect. 25. " For the purposes of the last section all the powers and b°"i2 r & S i3 ea authorities given to the Court of Chancery by the act passed in the Viet. c. 74, session of Parliament hohlen in the twelfth and thirteenth years of the to Court of reign of her present Majesty, chapter seventy-four, "for the further coiuTtj^courts. relief of trustees" (z), shall be possessed and exercised by the county courts, and any order made by virtue of such powers and authorities shall fully protect and indemnify all persons acting under or in pur- suance of such order." § 8. — Jurisdiction in Proceedings relating to the Main- tenance or Advancement of Infants. "All proceedings relating to the maintenance or advancement of infants in which the property of the infant shall not exceed in amount or value the sum of five hundred pounds" (a). The courts of equity possess an exclusive jurisdiction in respect to the guardianship over the person and property of infants. When a child has no other guardian, or the father, by his misconduct, has disqualified himself for the charge of his child, the Court of Chancery has a right to appoint one. The jurisdiction of the court, which extends to the care of the person of the infant, so far as is necessary for his protection, and to the care of his property for its due management and preservation, arises whenever a suit has been instituted relative to an infant's estate or person ; but it cannot be exercised unless the court has some property of the infant ; a guardian may, however, be appointed upon petition of the infant himself, or some other person on his behalf, without a suit being instituted (see 3 Bla. Com. by Kerr, ch. 28). It will be observed that the jurisdiction of the county court is confined to " proceedings relating to the maintenance or advance- ment of infants." This may give rise to some questions. (r) See a reference to this statute, O) 28 & 29 Vict. c. 99, s. 1, ante, p. 18. sub-s. ((>), ante, p. 3. jurisdiction as to separate property of married -women. 21 § 9. — Jurisdiction in Questions as to the Separate Pro- o«*». i." pertt of Married Women. " The Married Women's Property Act, 1870" (33 & 34 Vict. c. 93), by which property of various specified descriptions is, under certain circumstances, declared and deemed to be the separate property of married women, enacts that — Sect. 9. " In any question between husband and wife as to property declared by this act to be the separate property of the wife, either party may apply by summons or motion in a summary way. either to the Court of Chancery in England or Ireland, according as such property is in England or Ireland, or in England (irrespective of the value of the property) the judge of the county court of the district in which either party resides, and thereupon the judge may make such order, direct such inquiry, and award such costs as he shall think fit ; provided that any order made by such judge shall be subject to appeal in the same manner as the order of the same judge made in a pending suit, or on an equitable plaint would have been, and the judge may, if either party so requires, hear the application in his private room." The act itself must be referred to to ascertain what cases are within it, and as to whether in each instance women married before, as well as after the passing of the act (9th August, 1870), are within its provisions, the act not being uniform in this respect (b). § 10. — Jurisdiction in Suits for the Dissolution or Winding-up of any Partnership. " All suits for the dissolution or winding-up of any partnership in which the whole property, stock and credits of such partnership shall not exceed in amount or value the sum of five hundred pounds" (c). It is a clear general rule, that one partner cannot sue his co- partner at law in respect of the partnership accounts, or in any other matter connected with the partnership transactions, whether the firm exist for geueral purposes, or have reference only to a particular trade or branch thereof; — for this reason, that a court of law cannot do effectual justice between the parties — the in- vestigation and settlement of their accounts and affairs being peculiarly the province of a court of equity (Chitty on Contracts, 7th edit. p. 225). By the County Court Act, 9 & 10 Vict. c. 95, s. 65, as extended by the 13 & 14 Vict. c. 61, s. 1, the jurisdiction of the county court extends to the recovery of any demand not exceeding 50/., which is the whole or part of the unliquidated balance of a part- ed) See also ante, Vol. I. p. 509. (0 28 & 29 Vict. c. 99, s. 1, sub-s. (7), ante, p. 3. 22 THE JURISDICTION IN EQUITY. Part iv. nership account, but the action will, it seems, only lie after the — IIAP ' ' — dissolution of the partnership (see ante, Vol. I., p. 767). Courts of equity, however, have jurisdiction in all cases of partnership, and these courts have therefore been long resorted to for obtaining effectual redress in the case of disputes. They can decree an account, and wind up the affairs of the partnership, and can appoint a manager or receiver to close the business and make sale of the property, so that a final distribution may be made of the partnership effects. If deemed expedient, the court will restrain the partners from collecting the debts or disposing of the property of the concern, and will direct the moneys of the firm received by them to be paid into court, thus adapting its remedial authority to the exigencies of each particular case (Story's Equity Juris. § 672). In conformity with the practice of the Court of Chancery, the accounts of a partnership dissolved or wound-up in the county court will in general be directed to be taken, the registrar being the officer for the purpose of taking accounts. (See Order VI. Eule 2, post, Chap. VII.) It appears that the jurisdiction given to the county courts is confined to ordinary partnerships (d), and does not apply to the winding-up of registered joint stock companies. But it also seems that the provisions of " The Companies Act, 1862" (25 & 26 Vict. c. 89), allowing any unregistered partnership of more than seven members to be wound up under that act, might be adopted in the winding up in the county court of such a part- nership. It will seldom happen, however, that the whole pro- perty, &c, of a partnership of more than seven persons will not exceed 500/. By s. 126, however, of "The Companies Act, 1862," judges of county courts sitting at places more than twenty miles from the General Post Office are appointed commissioners for taking evidence in cases where companies are wound up, and the court may refer the whole or any part of the examination of any wit- nesses to any such judge, who is vested with full powers for that purpose (e). § 11. — Jurisdiction in Proceedings for Orders in the Nature of Injunctions, or for Stat of Proceedings at Law. " All proceedings for orders in the nature of injunctions, where the same are requisite for granting relief in any matter in which jurisdiction is given by this act to the couuty court, or for stay of proceedings at law to recover any debt proveable under a decree for the administration of an estate made by the court (d) As to what constitutes a partnership, see ante, Vol. I. pp. 596—601. (e) See post, Chap. XII. § 4. JURISDICTION IX PROCEEDINGS FOR ORDERS OF INJUNCTION, ETC. 23 to which the application for the order to stay proceedings is p*" 1 ^- jnaile" (/). — — It will be seen that orders in the nature of injunctions are con- fined to those matters over which jurisdiction is given by the new act, and that orders for stay of proceedings are confined to the case of actions brought to recover debts proveable under a decree for the administration of an estate made under the first or fifth Bub-sections of "The County Courts Act, 1865," s. 1 (see ante, pp. 3, 6, 18); and further, that the application for stay of pro- ceedings must be made to the court which made the decree. It seems that under this provision proceedings at law may be stayed not only in the court to which application is made, but in other courts, whether county courts or superior courts. A county court judge may, therefore, stay an action in the Court of Queen's Bench. This is, perhaps, the first time such a power has been given to an inferior court. In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against a breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, the court may award damages to the party injured, either in addition to or in substitution for such injunction, just as in the case of applications for specific perform- ance (21 & 22 Vict. c. 28, s. 2) : but this power seems scarcely to apply to the proceedings mentioned in the text, because, in the first place, it is not proceedings for injunctions, but for " orders in tlic nature of injunctions," that jurisdiction is conferred ; and secondly, jurisdiction is given only where such orders are requisite for granting relief, and the power to substitute damages would not apply, for it would be a contradiction in terms to substitute damages where an order is requisite. § 12. — Jurisdiction in Suits transferred to the County Courts. "The County Courts Act, 1867" (30 & 31 Vict. c. 142), sect. 8, enacts, that proceedings in equity, which might have been com- menced in a county court, may be transferred to the county courts (g). By giving power to any of the parties to apply to transfer a suit to the county court, the right of an unsuccessful defendant to set ii]) as a ground for the suit being dismissed without costs that it was unnecessary to resort to the superior courts of equity is in some measure taken away. (/) 28 & 29 Vict. c. 99, s. 1, (g) See the section at length, sut)-s. (8), ante, p. 15. post, Chap. IX. § 3. ( 24 ) CHAPTER II. THE GENERAL COURSE OF PROCEEDING IN AN EQUITY SUIT IN THE COUNTY COURTS. It has been elsewhere stated that the equitable jurisdiction of the county courts is to be governed and closely controlled, so far as principles and doctrine of relief and parties are concerned, by the established principles and rules of the superior courts of equity; but the practice as regards the conduct of a claim under the county court jurisdiction, is essentially distinct from the existing practice of the Court of Chancery. The county court practice in equity is a practice of its own, but having a much greater affinity to the practice in the county courts under their original common law jurisdiction than to the established practice in any other court (a) : as a proof of this, it is only necessary to refer to the fact, that " The County Court Act, 1865," incorporates all the prior statutes relating to the county courts, and that the rules in equity direct that the rules and forms and practice theretofore in force in the county courts shall be adopted in equity, so far as they are applicable. The rules, therefore, coupled with the original practice of the county courts, must be looked to for the outline of practice in equity (6). O) See ante, Vol. I. p. 58. (b) Order XXIV. of the County Court Orders in Equity, 1868, pro- vides that — " In the orders in equity the fol- lowing words shall have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there be something in the subject or context repugnant to such construction ; (viz.) : (1.) The words " the act" shall mean 28 & 29 Vict. c. 99 : (2.) The word "party" shall mean a party to a suit or proceed- ing ; and " person" shall mean any person, whether a party to the suit or pro- ceeding or not ; and the words " person" or " party" shall include a body politic or corporate : (3.) The word " affidavit " shall include statutable affirma- tions and attestations upon honour, and the word " sworn " shall include affirmed according to the statute and attested upon honour : (4.) Where any number of days is mentioned it shall mean " clear days :" (5.) The word " court" shall mean the county court having jurisdiction in the suit or proceeding, and the words " judge " and " registrar " shall respectively mean the judge and registrar of that court." EQUITY SUITS IX THE COUNTY COURTS. 25. The proceedings are taken in the county court in the district of Part iv. ■which the property is situated, or business carried on, or where ■ CH * P - H - the parties or one of them reside or carry on business, according to the subject-matter of complaint. Nearlyall suits, except proceedings under the Trustees Relief Act or under the Trustee Acts, and except proceedings relating to the maintenance of or advancement of infants, and except proceedings for orders in the nature of injunctions, are begun by a plaint con- taining the names and addresses of the parties, and a concise statement of the grounds upon which the plaintiff seeks relief, and a summons with a copy of the plaint is served upon the defendants. Proceedings under the Trustees Relief Act and under the Trustee Acts, and proceedings relating to the maintenance or ad- vancement of infants, are by petition, stating names and descrip- tions of the parties, the nature of the trust and how created, the property to which it relates, and the substance of the order sought for; and proceedings for orders in the nature of injunctions are begun by notice of application, stating the names, &c, and the substance of the order sought for. Copies of these petitions and notices are served upon the defendants with a notice from the registrar informing them of the time when the petition or applica- tion will be heard (c). Service is in general effected by the bailiff of the court, ac- cording to the present practice of the courts. Provision is made, however, for substituted service, "where justice requires it," and for service on a defendant who is out of England. The defendant is not obliged to give any notice of defence or to take any step corresponding with putting in an "answer," but may reserve his full defence, whether of law or fact, for the hearing (unless, perhaps, in those exceptional cases where notice of a defeuce is required under the present law and practice of the county courts). He may, however, if so inclined, within eight days after the service of the summons, "by a statement in writing signed by him, disclaim any interest in the subject-matter of the suit, or admit or deny any of the statements in the plaint, or raise any question of law on such statements without admitting the (r) "The County Courts Act, the proceedings under the uth, Gth, and 1867" (30 & 31 Vict. c. 142), enacts, 8th clauses of the first section of the sect. 27, that " any proceeding taken act, (that is to say) proceedings under in the county courts under ' The the Trustees Relief Acts, or under County Courts Act, 1805,' confer- the Trustee Acts, proceedings relating ring an equitable jurisdiction on such to the maintenance or advancement courts, may, if so directed by rules of infants, and proceedings for ordera and orders to be made under such in the nature of injunctions to be by act, be commenced by summons." petition, but in other cases the pro- " The County Courts Act, 1865," did cedure was by plaint and summons, not prescribe the mode of commenc- The existing equity orders retain this ing suits in the county courts. The arrangement. See ante, Vol. I. pp. orders framed under that act directed 61, 62. 26 GENERAL COURSE OF PROCEEDING IN Part iv. truth thereof; or he may state concisely any new fact or docu- Chap - n - ment upon which he intends to rely as a defence at the hearing, or which he thinks advisable to bring to the notice of the court ;" and in exercising his discretion as to costs, the judge is to consider the fact of a defendant's having or not having availed himself of these powers. On the other hand, the defendant may, to save expense, sign an admission of the plaint and submit to the judgment of the court. A plaintiff, moreover, may before the hearing withdraw altogether or as against some of the defendants, and have the plaint dis- missed as against all or any of the defendants, but he must pay the costs. On the return day of the summons the suit is heard in open court (d), and all parties must be prepared, as far as the nature of the case admits, with evidence to enable the judge to try the whole matter of the suit upon the merits and to determine it by a iinal decree, or to make such decretal order, or give such direc- tions, for adding parties to the suit for making inquiries, taking accounts, realizing assets, or doing any act which the judge may consider necessary to enable him to make a final decree upon a subsequent adjourned day. In those cases in which a plaint and summons are issued, the evidence of witnesses is taken viva voce on oath, but affidavits may be used if notice of the intention be given to the opposite party and no notice of objection given. Upon the hearing of any petition or application under the Trustee Acts, or in relation to infants or for injunctions, as already mentioned, the facts relied upon in support of or in opposition to such petition or application are proved by affidavit, unless the judge otherwise directs. The amount of damages in auy case where the court may award damages, or any question of fact arising in any suit or proceeding, may, by order of the judge, be tried by a jury summoned and chosen as in other cases in the county court. The question of fact, or as to the amount of damages for the jury, must be put in writing by the judge, and it is then called the "Record for Trial." Thei'e is an important provision with regard to evidence : " Where any documents are produced to the court from proper custody, they shall be read without further proof if they appear genuine, and if no objection betaken thereto ; and if the admission of any document so produced be objected to, the judge may ad- journ the hearing, and the party objecting shall pay the costs caused by such objection in case the same shall afterwards be proved, unless the judge shall otherwise order." (j[) The rules provide, that " the the judge otherwise orders, and shall times of the sitting of a county court appoint a special day or days for a in matters of equity shall be those sitting of the court in matters of appointed for the transaction of the equity." general business of the court, unless AN EQUITY SUIT IN THE COUNTT COURTS. 27 The above rule is a somewhat strong invasion on the duties and Part iv. rights of parties with respect to the burden of proof. Under the Chap il rule, it seems that a promissory note produced by the holder, or a bill of exchange by the drawer or indorsee, or a receipt produced by the debtor, or a letter by the person to whom it is addressed, will be presumed and taken as proved without any proof whatever in fact ; and that a party asking to have the documents proved in the usual way must submit to be mulcted in the costs, even if suc- cessful in the suit, and although he may never have seen or heard of the document before it is tendered. Still, there is no doubt that in many cases the rule will work well (e). It is to be observed, that this rule, so far as costs are concerned, may be found to conflict with a previous rule, that no costs of proving any document shall be allowed unless a notice to inspect and admit has been given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense. The inspection of documents in the possession or control of the opposite party, and the production of documents by third persons, and the attendance of witnesses, are fully provided for in con- formity with the statute 15 8c 16 Vict. c. 86, ss. 18 and 20. The common law rules of the county courts with respect to amendments are expressly applied to proceedings in equity. The effects of death, marriage, or of any change or transmission of interest or liability, may be remedied by an order of revival, or supplementary decree or order, as may be necessary. A vice-chancellor may, on an ex parte application, or, if he think fit, after hearing a summons, transfer a suit or matter to the Court of Chancery, upon such terms as to security for costs or otherwise as he thinks fit. On the other hand, if it appears to the judge of the county court that the suit or matter could be more conveniently prosecuted in some other county court, it may be transferred to such other county court ; or if, during the progress of any suit or matter, it appears that the subject-matter exceeds the limit in point of amount of the county court jurisdiction, it must be transferred to such one of the vice-chancellor's courts as the lord chancellor by general order directs. The vice-chancellor may, however, direct the suit to proceed in the county court not- Avithstanding such excess in amount. So, also, where suits or proceedings are commenced in different courts by parties in the same interest, such suits or proceedings are transferred to the court in which the first plaint or petition was filed and there proceeded with. " Upon the hearing the court may dismiss the suit or grant the relief asked by the plaint or any part thereof, or may grant any other relief consistent with the case made by the plaint, or make (e) There is a similar rule in the servations upon it, ante, Vol. I. Common Law Rales. See the ob- p. 464. 28 GENERAL COURSE OF PROCEEDING IN Part iv. any order giving directions for or with respect to the prosecution HAP ' '—. of the suit, as the circumstances of the case may require, and also make such order as to costs as the court may think fit." Decretal orders are drawn up by the registrar, the rules providing for their form and contents in various special cases, as orders for sale of property, taking accounts and preparation and execution of deeds. Accounts and inquiries directed to be taken are taken and made by the registrar, who has for that purpose all the powers and dis- charges all the duties of a chief clerk of the Master of the Rolls or a vice-chancellor in the Court of Chancery. In conformity with the power given to the Court of Chancery by the 15 & 16 Vict. c. 86, s. 54, a rule provides that " where a decretal order directs accounts to be taken, any books of accounts in which the accounts required to be taken, or any of them, have been kept, shall, unless the judge shall otherwise direct, be taken as prima facie evidence of the truth of the matters therein con- tained, w T ith liberty to the parties interested to take such objections thereto as they may be advised." Various rules are provided with respect to the payment of money into court, and its investment, the proof of debts, the sale of property, the preparation of deeds and various interlocutory matters. When the court has determined all the questions raised between the parties, the registrar draws up a final decree in accordance with the judgment of the court. Every decretal order and final decree is transmitted for registration to the registrar of county court judgments in Loudon. No decree or order once made is reheard unless the judge on special grounds thinks such rehearing necessary, and then only on such terms as the judge thinks fit. An appeal is, nevertheless, given to parties dissatisfied with the determination or direction of the judge, on any matter of law or equity or on the admission or rejection of any evidence. The appeal is to such one of the vice-chancellors as the lord chan- cellor by general order directs. The decision of the county court judge is, however, final upon questions as to the value of property for the purpose of determining the question of the jurisdiction of the court, nor is there an appeal against the decision of the judge on the ground that the proceedings might or should have been taken in any other county court. The costs of suits are in the discretion of the court (f). A scale of costs and charges to be paid to counsel and attorneys in the county courts has been framed. The registrar is the taxing officer of the court. Judgments, decrees and orders of the county court are executed and enforced by process of the court. A copy of every decree is at the instance of the successful party served upon the party bound by it, and after the expiration of three days, the decree or order CO See post, Chap. XL § 2. AN EQUITY SUIT IN THE COUNTY COURTS. 29 may be enforced by a warrant of fi. fa. in the case of a decree or pabtiv. order for the payment of money, or by a warrant of possession or Chap - "• warrant of assistance in the case of a decree or order for the delivery up to any person of lauds or tenements, goods or chattels. These warrants are executed by the bailiff of the court. No special provision whatever is made by act of parliament for process against tbe person by attachment for contempt or other- wise, but the rules assume the existence of a power of committal for contempt in disobeying orders in the nature of injunctions, and decrees or orders to pay money or do an act within a certain time. The power of commitment to prison on a judgment summons in the county court can, it seems clear, be applied to a decree or order in equity for payment of money (g). Having given an outline of County Court Practice in Equity, the various steps in the progress of a suit form the subject of subsequent chapters. (g) See ante, Vol. I. p. 335. ( 30 ) CHAPTER III. OF THE PLAINTIFF'S PROCEEDINGS IN ORDER TO COMMENCE A SUIT IN EQUITY. § 1.— The Court in which Proceedings are to be taken. § 2. — Proceedings by Plaint and Summons. § 3. — Proceedings by Petition. § 4. — Proceedings for Orders in the nature of Injunc- tions. § 5. — Proceedings by Trustees and Executors on payment into Court under Sect. 24 of " The County Courts Act, 1867." § 6. — Service of Process. § 1. — The Court in which Proceedings are to be taken. " The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts :— in what Sect. 10. " With respect to the court in which proceedings in equity- courts pro- shall be taken — i)e l teken Sha11 " 1* Proceedings under this act -which relate to the recovery or sale of any mortgage, charge or lien on lands, tenements or heredita- ments shall be taken in that County Court within the district of which the lands, tenements or hereditaments, or any part thereof, are situate : "2. Proceedings under the Trustee Acts, 1850 and 1852, shall be taken in the County Court within the district of which the persons making the application, or any of them, reside or resides : " 3. Proceedings for the administration of the assets of a deceased person shall be taken in the County Court within the district of which the deceased person had his last place of abode in England, or in which the executors or administrators, or any one of them, shall have their or his place of abode : " 4. Proceedings in partnership cases shall be taken in the County Court within the district of winch the partnership business was or is carried on : " 5. Proceedings for the specific performance or the delivery up or cancelling of agreements shall be taken in the County Courts within the district of which the defendants, or any one of them, reside or resides, or carry on or carries on business : "6. Proceedings in any suit or other matter under this act, which are not otherwise provided for, shall be taken or instituted in the COURT IN WHICH PROCEEDINGS ARE TO BE TAKEN. 31 County Court within the district of which the defendants, or Part iv. any or either of them, shall reside or carry on business "(a). Chap, in. This statute employs, it will be seen, the words " reside," and " place of abode," and " last place of abode," while the County Courts Act (1867) uses the term "dwell" (b). Still, some of the decisions as to what constitutes a dwelling place may be useful in the construction of " reside" and " place of abode" (c). Where Officer of County Court a Party.'] — " The County Courts Act, 1856" (19 & 20 Vict. c. 108, s. 21), which enacts, that " if an action be brought against an officer of a County Court, the summons may issue in the district of which he is an officer, or in any adjoining district the judge of which is not the judge of a court of which the defendaut is an officer," applies to suits in equity, as well as to actions, by force of " The County Courts Act, 1865" (28 & 29 Vict. c. 99), conferring equitable jurisdiction, s. 21 of which enacts, that that act and the other County Court Acts shall be read and construed as one act(e?). § 2. — Proceedings by Plaint and Summons. Suits by creditors, legatees, devisees, heirs-at-law, or next of kin ; suits for the execution of trusts ; suits for foreclosure or redemption, or for enforcing any charge or lien ; suits for the dissolution or winding-up of any partnership ; aud suits for specific performance of, or for the reforming, delivering up, or cancelling of any agreement for the sale, purchase or lease of any property ; are commenced by filing a plaint. The following rules relate to the plaint and summons in the above cases : — "All suits under the 1st, 2nd, 3rd, or 7th clauses of the first section Order i. of the act (e), and under the ninth section of 30 & 31 Vict. c. 142, Ruiei. shall be commenced by filing a plaint in equity in the county court to ^ent^T^uU. which jurisdiction in the matter is given by the tenth section of the act (/). " Every plaint in equity shall state the name, address and description Rule 2. of the plaintiff, and of the person intended to be brought before the Sanies, court as defendant : and where any party sues or is sued in a represen- ' * tative character he shall be so described in the plaint ; but this rule shall be subject to the 38th Rule of the preceding County Court Rules" (g). (a) As to the transfer of suits to L. J. (N. S.) Ch. 614 another more convenient county court, (e) See ante, p. 3. see 28 & 29 Vict. c. 99, s. 1 1 , post, (f) County Court Orders and Chap. IX. § 4. Rules in Equity, 18G8, Order I. (/;) See ante, Vol. I. p. 130. Rule 1. (e) See ante, Vol. I. pp. 131, 132. (y) Id. Rule 2. (d) See Liu ford v. Gudrjeon, 40 32 PLAINTIFF S PROCEEDINGS IN ORDER TO COMMENCE A SUIT. Part IV. Chap. III. Order XXIII. Rule 7. Where chris- tian name un- known. Order I. Rule 3. Plaint. Rule 4. Plaint riled by attorney. Rule 5. Form of plaint. Rule 6. Delivery to registrar and filing of plaints. The 38th Rule of the County Courts (Common Law) referred to, provides that — " AVhere the plaintiff is unacquainted with the defendant's christian name, the defendant may he described by his surname, or by his sur- name and the initial of his christian name, or by such name as he is generally known by, and the defendant may be so described in the summons ; and in the event of the plaintiff or defendant not appearing, the proceedings under sects. 79 and 80 of 9 & 10 Vict. c. 95 (/<), may be taken as if the true christian name and surname had been stated in the summons, and all subsequent proceedings thereon may be taken in conformity with such description, but without prejudice to any amend- ment made at any future time by direction of the judge." The County Court Rules in Equity further provide that — " Where any party to any suit or proceeding is unacquainted with the christian name of any person whose name he desires to insert in any plaint, proceeding, or document, he may describe such person by his surname or by his surname and the initial of his christian name or by such name as he is generally known by" (/). " Every plaint in equity shall contain a concise statement of the grounds upon which the plaintiff seeks to obtain relief; and shall ask for the specific relief to which he conceives himself entitled, and also for general relief" (k). " Where the plaint is filed by an attorney, he shall indorse thereon his name or firm and place of business, and that the plaintiff sues by him as attorney ; and where there is more than one plaintiff, and the plaint is not filed by an attorney, the plaintiff who actually files the same shall indorse thereon his name and address" (/). "Plaints in equity may be in forms similar to those set out in the schedule to these orders, with such variations as the nature and circum- stances of each particular case may require" (??i). " The plaintiff or his attorney shall deliver at the office of the regis- trar the plaint, with as many copies thereof as there are persons to be brought before the court as defendants, and the registrar shall forthwith indorse on the plaint a memorandum of the day on which the same was received by him, and when such plaint shall be so indorsed it shall be taken for all purposes to have been duly filed on the date so indorsed thereon" (»). (7i) These sections provide for dealing with cases where either party is absent. See ante, Vol. I. pp. 250, 255. (i) County Court Orders and Rules in Equity, 1868, Order XXIII. Rule 7. ( k) County Court Orders and Rules in Equitv, Order I. Rule 3. (Z) Id. Rule 4. (w) Id. Rule 5, Order XXIII. Rule 26, provides that " all proceedings and documents may be in forms similar to the forms in the schedule to these orders where the same are applicable; and in cases where no forms are pro- vided, parties shall frame the pro- ceedings or documents, using as guides those contained in the sche- dule." (w) Id. Rule6. " The registrar shall keep a book to be called ' The Suits and Proceedings in Equity Book,' and shall enter and number in such book each suit or proceeding con- secutively in the order in which they are entered, and shall also enter therein a note of all documents filed and steps taken in such suit or pro- ceeding. Order XX. Rule 1." PROCEEDINGS BY PLAINT AND SUMMONS. 33 " Where any proceedings or documents are filed, an extra copy, in addition to the copies to be delivered under these orders, shall be left •with the registrar for the use of the judge" (o). " The registrar shall, on the filing of such plaint, make out a sum- mons to the defendant, or to every defendant where there is more than one, to appear, and submit to the judgment of the court thereon " (p). " The summons shall be in the form in the schedule, and be dated of the day on which the plaint was filed, and may be returnable at any court to be holden not less than one calendar month nor more than three calendar months from the filing thereof" (q). Another order provides that — " On the entry of a plaint or filing of a petition, the registrar shall set down the suit or matter for hearing by, in the case of a plaint, making the summons returnable on a day certain, and, in the case of a petition, inserting in the notice the day on which the matter is to be heard" (r). " The times of the sitting of a county court in matters of equity shall be those appointed for the transaction of the general business of the court, unless the judge shall otherwise order and shall appoint a special day or days for a sitting of the court in matters of equity" (s). " The registrar shall transmit by post, prepaid, to the judge, five days before the sitting of the court, all copies of proceedings ami documents left for his use under these orders" (<). Next Friend.~\ — " Before the name of any person shall be used in any suit or proceed- ing as next friend of any infant, married -woman, or other party, such person shall sign an undertaking, in the form given in the schedule, to be responsible for any costs to which the plaintiff or applicant may become liable in the course of the suit or proceeding, and such under- taking shall be annexed by the registrar to the plaint or petition" (u). Undertaking by Next Friend of Infant to be responsible for Defendant's Costs (a?). In the County Court of holden at I, the undersigned , being the next friend of A. B., who is art infant, and who is desirous of entering a plaint [or of taking proceed- ings] in this court against C. D., of, etc., hereby undertake to be re- sponsible for the costs of the said C. D., of, etc., in the cause, and that if the said A. B. fail to pay to the said C. D., when and in such manner (o) Order XXIII. Rule 8. \p) County Court Orders and Rules in Equity, 1 868, Order I. Rule 7. " Before any summons, notice, or other document, or any copy thereof, shall be issued by the registrar, the same shall be sealed with the seal of the court." Order XX. Rule 4. " All plaints, petitions, statements, and documents whatsoever in any suits or matter under the act which are required to be filed shall be on foolscap paper, and may be wholly or partly printed or written, and dates D. VOL. II. and sums occurring therein may be expressed in figures." Order XXIII. Rule 1. (q) Order I. Rule 8. (r) County Court Orders and Rules in Equity, 1868, Order XXIII. Rule 5. (*) Id. Rule 6. (*) Id. Rule 9. (?/) County Court Orders and Rules in Equity, Order XXIII. Rule 19. (x) County Court Forms in Equity, 1868, No. 1. Part IV. Chap. III. Order XXIII. Kule 8. Copy of docu- ments for use of judge. Order I. Kule 7. Summons on plaint. Rule 8. Date and re- turn of sum- mons. Order XXni. Kule 5. Setting down for hearing. Rule 6. Days for equity sit- tings. Rule 9. Copies of pro- ceedings to be forwarded to judge. Order XXIII. Rule 19. Undertaking by next friend to pay costs. 34 plaintiff's proceedings in order to commence a suit. part iv. as the court shall order, all such costs of such cause as the court shall Chap. Hi. direct him to pay to the said C. D., I will forthwith pay the same. Dated this day of (Signed) General Form of Heading and Conclusion for Plaints (y). No. of plaint in equity. In the County Court of holden at A. B., of, etc. [address and description], plaintiff, and C. D., of, etc. {address and description], defendant, o o o o c This plaint was filed by of attorney for the plaintiff, [or by of ]. Mem. to be placed at Foot of every Stimmons, Notice, Decree or Order of Court, or any other Process of the Court (z). Hours of attendance at the office of the registrar [j)lace of office] from ten till four, except on [here insert the day on which the office loill he closed], when the office will be closed at one. Administration:— [Clause 1 of Sect. 1 of the Act.] By Creditor (a). A. B., the above-named plaintiff, states as follows : — 1. E. F., late of was at the time of his death, and his estate still is, indebted to the plaintiff in the sum of [here insert nature of debt and security, if any]. 2. The said E. F. duly made his last will, dated the day of and thereof appointed C. D. executor [or devised his estate in trust, etc., or died intestate, as the case may be]. 3. The said will was duly proved by the said C. D. [or letters of ad- ministration were granted, etc.]. 4. The defendant has possessed himself of the personal [and real, or the proceeds of the real] estate of the said E. F., and has not paid the plaintiff his said debt. 5. The said E. F. died on or about the day of and had his last place of abode within the jurisdiction of this court. [Omit this if C. D. has his place of abode within the jurisdiction of this court.] 6. The whole of the personal [and real] estate of the said E. F. does not exceed in amount [or value] the sum of 5007. (6). 7. The plaintiff prays that an account may be taken of the personal [and real] estate of the said E. F. deceased, and that the same may be duly administered under the decree of the court, and for such further or other relief as the court may think fit. (y) County Court Forms in Equity, (5) It seems that a specific state- 1868. ment as to the value is not absolutely (z) Id. necessary. Cheeservright v. Thorn, (a) Id. No. 4. See heading and 38 L. J. (N. S.) Ch. 615. conclusion, supra. PROCEEDINGS BY PLAINT AND SUMMONS. 35 By Legatees {Specific). Part iv. Omit paragraph 1, and commence paragraph 2. E. F., late of , duly made his last will, dated the day of , and thereof ap- pointed C. D. executor, " and by such will bequeathed to the plaintiff [here state the specific legacy}. For paragraph 4, substitute — The defendant is in possession of the personal estate of the said E. F. and, inter alia, of the said [here name the subject of the specific bequest] . For the commencement of paragraph 7, substitute — The plaintiff prays that the defendant may be ordered to deliver to him the said [here name the subject of the specific bequest], or that, etc. By Legatees {Pecuniary). Omit paragraph 1 and substitute for paragraph 2 — E. F., late of , duly made his last will, dated the day of , and thereof ap- pointed C. D. executor, and by such will bequeathed to the plaintiff a legacy of £ In paragraph 4, substitute " legacy " for " debt." By Legatees {Residuary). Omit paragraph 1, and substitute for paragraph 2 — E. F., late of . , duly made his last will, dated the day of , and thereof ap- pointed C. D. executor, and by such will bequeathed to the plaintiff the residue [or a part of the residue] of his personal [or and the proceeds of his real] estate. In paragraph 4 substitute "the residue [or share of residue] so be- queathed " for " said debt." Next of Kin. For paragraphs 1, 2, 3 and 4, substitute — 1. E. F., late of was at the time of his death possessed and entitled of personal estate. 2. He died on or about the day of intestate. 3. Letters of administration were duly granted to the defendant, and that he has possessed himself of the personal estate of the deceased [leave out " lettei's of administration were duly granted to the defendant and that" if none have been granted]. 4. That the plaintiff is next of kin [or one of the next of kin] of the said E. F. Execution of Trusts (c). [Clause 2 of Section 1 of the Act.] Plaint in Equity. In the County Court of holden at A. B. of, etc. [address and description] .... plaintiff, and C. D. of, etc. [address and description], the or one of the cestui que trusts {see rule 6 of 15 & 1G Vict. cap. 86, sec. 42 {d)) defendant. A. B., the above-named plaintiff, states as follows : — 1. He is one of the trustees under a deed of settlement bearing date on or about the day of made upon the marriage of the said (c) County Court Forms in Equity, {d) Rule 6 of sect. 42 of 15 & 16 1868, No. 5. Vict. c. 86, provides that any " exe- d2 Chap. III. 36 plaintiff's proceedings in order to commence a suit. Part iv. E. F. and G. II., the father and mother of the defendant [or a deed of HAP- IIL assignment of the estate and effects of E. P., for the benefit of C. D. the defendant, and other the creditors of E. P.]. 2. The said A. B. has taken upon himself the burden of the said trust, and is seised of [or in possession of or of the proceeds of] the lands, tenement, and hereditaments [goods and chattels], conveyed [or assigned] by the before-mentioned deed. 3. The trust estate [or fund] does not exceed in amount [or value] the sum of .£500. 4. The said C. D. claims to be entitled to a beneficial interest under the before-mentioned deed. 5. The plaintiff is desirous to account for all the rents and profits of the said lands, tenements and hereditaments [and the proceeds of the sale of the said or part of the said lands, tenements and hereditaments, or goods and chattels, or the proceeds of the sale of or part of the said goods and chattels, or the profits accruing to the plaintiff as such trustee in the execution of the said trust] ; and he prays that the court will take the accounts of the said trust, and also that the whole of said trust estate may be administered in the court for the benefit of the said C D. the defendant, and all other persons who may be interested in such admi- nistration, in the presence of the said C. D. and such other persons so interested as the court may direct, or that the said C. D. may show good cause to the contrary. [N.B. — Where the suit is by a cestui que trust, the plaint may be modelled, mutatis mutandis, on the plaint by a legatee, and if breach of trust is alleged by way of wilful default or othenoise, the plaints shall shortly state the circumstances and pray for consequential relief] Plaint by cestui que trust (e). The above-named plaintiff S. B., residing at , states as follows : — 1. That she was married to her present husband T. B., on or about the month of 187 (/). 2. That in, on or about the month of , 187 , the said T. B. deserted the said S. B., and the said S. B. has not since the said month of 187 , ever had any communication with the said T. B. 3. That the said S. B. being a married woman, and having accumu- lated the sum of £ by her own savings paid the same into the Savings Bank, situate , in the joint names of herself and the above-named defendant, with a view to protect the same from all claims which might be urged by her husband. 4. That the defendant attended with the plaintiff on the day of , when the said £ was deposited in the joint names of S. B. and E. J., the defendant a trustee for her, with a view of protecting same from her husband. cutor, administrator or trustee may before " The Married Women's Pro- obtain a decree against any one perty Act, 1870" (33 & 34 Vict. c. legatee, next of kin or cestui que 93), but that act would not, it trust for the administration of the seems, affect any claims arising estate or the execution of the trusts." under the circumstances alleged in O ) MS. Form. See heading and this form. See the provisions of the conclusion, ante, p. 34. statute, ante, Vol. I. pp. 509, 510. (/) This plaint was instituted PROCEEDINGS BY PLAINT AND SUMMONS. 37 5. That the said S. B. obtained the usual protection order which was Part iv. granted to her by esquire, magistrate of , ou the day of CltAP - In - , 187 , which was duly registered at the County Court on the day of , 187 . 6. That the said defendant now claims some interest in the said sum of £ , which has increased to the sum of £ , which the plaintiff claims as her money, as being paid in and invested for her sole benefit. 7. That the said defendant has several times been applied to by the plaintiff to aid by his presence, and giving the necessary notice for the withdrawal of the sum of £ , the money of the said S. B., which the defendant has declined to do, but threatens and intends to deal with such sum as if the same were his own which plaintiff denies. 8. That the plaintiff submits that the defendant should do and perform all necessary acts and deeds to enable her to receive the said sum of £ from the Savings Bank, situate as aforesaid. 9. That it is submitted that the defendant should pay the costs of this application. 10. That the plaintiff should have such further or other relief as the circumstances of the case may require. Foreclosure. — [Clause 3 of Section 1 of the Act] (g). A. B., the above-named plaintiff, states as follows : — 1. By an indenture of mortgage bearing date on or about the day of 187 , a freehold [copyhold or leasehold] cottage, with the garden and appurtenances, situated within the jurisdiction of this court, were conveyed [or assigned] by the defendant to him the plaintiff, his heirs, [or executors, administrators,] and assigns, for securing the prin- cipal sum of £ together with interest thereon after the rate of £5 per centum per annum, subject to redemption upon payment by the said defendant of the said principal and interest at a day long since past. 2. There is now due from the defendant to the plaintiff the sum of £ for principal and interest on the said mortgage. 3. The plaintiff prays that the court will order the defendant to pay him the said sum of £ with such further interest as may accrue between the riling of the plaint and the day of payment, and also the costs of this suit, on some day to be named by the court, and in default that the equity of redemption of the said mortgaged premises may be foreclosed, or that the said premises may be sold, and the proceeds applied in and towards the payment of the said principal, interest, and costs; and he prays that for that purpose all proper directions may be given and account taken by the court. Redemption. Transpose parties and also the facts in paragraph 1. For paragraph 2 substitute — 2. There is now due from the plaintiff to the defendant, for principal and interest on the said mortgage, the sum of £ which the plaintiff (g) County Court Forms in Equity, 1868, No. 6. See heading and con- clusion, ante, ]». 34. 38 plaintiff's proceedings in order to commence a suit. Part iv. is ready and willing to pay to the defendant, of which the defendant Chap, hi. ^ e f ore filing this plaint had notice. For paragraph 3 substitute — The defendant prays that he may redeem the said premises, and that the defendant may be ordered to re-convey [or re-assign] the same to him upon payment of the said sum of £ and interest, with such costs as the court may order (if any), upon a day to be named by the court, and that the court will give all proper directions for the prepara- tion and execution of such re-conveyance [or assignment], and doing such other acts as may be necessary to put him into possession of the said premises, freed from the said mortgage. Foreclosure : another Form: — Assignment of Stock (h). P. R., the above-named plaintiff, states as follows : — 1. By an indenture of mortgage dated the day of ,187 , and made between the defendant of the one part, and the plaintiff of the other part, in consideration of the sum of £ paid and advanced to the defendant by the plaintiff, the defendant assigned all that the part or share of him the defendant, whether already accrued or at any time thereafter to accrue to him by succession, devise, survivorship or bequest, or in any other mode whatsoever, of and in the sum of £ £3 per Centum Consolidated Bank Annuities, and of and in the sum of £ cash, and of and in all other sums of stock and cash then or thereafter to be standing in the name of the Accountant-General of the High Court of Chancery, in trust to the credit of a cause of v. , therein particularly mentioned, and of and in the dividends, interest and annual proceeds thereof, after the decease of G. M., therein mentioned, but subject to the several payments therein referred to, unto the plaintiff, his executors, administrators and assigns, for securing to him and them the said principal sum of £ , together with interest thereon after the rate of £ per centum per annum, subject to redemp- tion upon payment by the defendant of the said principal and interest at a day long since passed. 2. The plaintiff on the day of , 187 , duly gave notice in writing to the trustees of the will by virtue whereof the said funds arose, and on the day of , 187 , obtained a stop order of the High Court of Chancery to restrain the share of the defendant therein. 3. There is now due from the defendant to the plaintiff the sum of £ for principal and interest on the said mortgage, and also some costs properly incurred in relation thereto, not exceeding £ 4. The plaintiff prays that the court will order the defendant to pay him the said sum of £ , with such further interest as may accrue between the tiling of the plaint and the day of payment, together with such costs as aforesaid ; and also the costs of this suit on some day to be named by the court, and in default that the equity of redemption of the said mortgaged premises may be foreclosed ; and he prays that for the purposes aforesaid all proper directions may be given and accounts taken by the court, or that he may have such further or other relief in the premises as the court may think fit. (/;) MS. Form. See heading and conclusion, ante, p. 34. PROCEEDINGS BY PLAINT AND SUMMONS. 39 Foreclosure: another Form: — On Mortgage by Deposit without express Part I v. Agreement; Prayer for Injunction to restrain Actions to recover the Chap, hi. deposited Deeds (J). The Brewery Company, Limited, the above-named plaintiff, states as follows: — 1. On the day of , 187 , the plaintiff company lent the defendant the sum of £ upon the security of his promissory notes for that amount, and interest thereon from the date thereof at the rate of £ per cent, per annum, and of an equitable mortgage by the defen- dant to the plaintiff company of certain leasehold premises known as " The Jolly Farmers" situate in the parish of , in the county of , held under a lease granted by indenture dated the day of , 187 , and made between M. F. of the first part, R. B. of the second part, and W. Gr. of the third part, and also certain leasehold premises in the rear of the said last-mentioned premises, held under a lease thereof by indenture dated the day of , 187 , and made between the said M. F. and S. N. of the one part, and the defendant of the other part. 2. The said equitable mortgage was effected by the deposit by the defendant with the plaintiff company of the said leases, and certain other documents relating to the said leasehold premises, but no memo- randum of equitable mortgage was then or has since been signed or given by the defendant. 3. The said loan of £ is still owing with interest thereon from the day of , 187 . 4. At the time of the said loan the defendant had been supplied with goods by the plaintiff company, and the plaintiff company has subse- quently supplied the defendant with goods, and there has been a running account between the defendant and the plaintiff company, and there is now owing from the defendant to the plaintiff company the sum of £, for goods sold and delivered. 5. The defendant has agreed with the plaintiff company that the amount which should become owing from the defendant to the plaintiff company for goods sold and delivered should be secured by way of mortgage of the said leasehold premises, and the said deed so deposited as aforesaid are held by the plaintiff company, and the said company is entitled thereto as a security as well for the said trade debt as the said sum of £ and interest thereof. 6. The plaintiff company after the said deposit of deeds supplied the defendant with goods upon the faith of the said deposit, and it is the custom of the trade as between brewers and their customers, that deeds when deposited by the latter should be a security for the amount which may become owing for goods sold and delivered, as well as any loan which may have been advanced by the brewers to the customer. 7. The plaintiff company has recently made several applications to the defendant for payment of what is due from him to the plaintiff com- pany in respect of the said loan and trade debt, but the defendant refuses or neglects to make such payment. 8. The defendant alleges that he is entitled to redeem the leasehold premises upon payment to the plaintiff company of the said sum of and interest thereon, and pretends that the said trade debt is not a (i) MS. Form settled by counsel. See form of heading and conclusion, ante, p. 34. 40 plaintiff's proceedings in order to commence a suit. p.aht iv. charge on the said leasehold premises and threatens to bring an action Chap, hi. a g a ; ns t the plaintiff company for recovery of the said deeds. The plaintiff prays that the court will order the defendant to pay the plaintiff the said sum of , and interest thereon from the day of , 187 , to the day of payment, and also the said sum of £ , and further the costs of this suit, on some day to be named by the court, and in default that the equity of redemption of the said mortgaged premises may be foreclosed, or that the said premises may be sold and the proceeds applied in and towards the payment of the said principal, interest and costs, and prays that for that purpose all proper directions may be given and accounts taken by the court. And the plaintiff also prays that if necessary the defendant may be restrained by the order and injunction of this court from commencing and prosecuting any action for recovery of the said deeds. Partnership (k). [Clause 7 of Section 1 of the Act.] A. B., the above-named plaintiff, states as follows : — 1. He and the said C. D. the defendant have been for the space of years [or months] last past carrying on business together at within the jurisdiction of this court, under certain articles of partnership in writing, signed by them respectively [or under a certain deed sealed and executed by them respectively, or under a verbal agreement between them, the said plaintiff and defendant]. 2. Divers disputes and differences have arisen between the plaintiff and defendant as such partners, whereby it has become impossible to carry on the said business in partnership with advantage to the partners. 3. The whole of the property, stock and credits of such partnership do not exceed in value the sum of £ 4. The plaintiff desires to have the said partnership dissolved, and he is ready and willing to bear his share of the debts and obligations of the partnership according to the terms of the said articles [deed or agreement]. 5. The plaintiff prays the court to decree a dissolution of the said partnership, and that the accounts of the said partnership trading may be taken by the court, and the assets thereof realized, and that each party may be ordered to pay into court any balance due from him upon such partnership account, and that the debts and liabilities of the said partnership may be paid and discharged, and that the cost of the suit may be paid out of the partnership assets, and that any balance remain- ing of such assets after such payment and discharge, and the payment of the said costs, may be divided between the plaintiff and the defendant, according to the terms of the said articles [deed or agreement], or that if the said assets shall prove insufficient, he the plaintiff and the said defendant may be ordered to contribute in such proportions as shall be just to a fund to be raised for the payment of and discharge of such debts, (A>) County Court Forms in Equity, 1868, No. 11. See form of heading and conclusion, ante, p. 31. PROCEEDINGS BY PLAINT AND SUMMONS. 41 liabilities and costs (I). And to give such other relief as the court shall Part iv. think fit. Chap - iix - [N.B. — In suits for winding-up of any partnership omit the prayer for dissolution; hut instead thereof insert a paragraph stating the fact of the partnership having been dissolved.] Another Form of Plaint for Dissolution of Partnership (to). E. P., the above-named plaintiff, states as follows : — 1. On or about the day of 187 , the plaintiff and the defendant entered into a verbal agreement with each other that they would take the Anchor Beerhouse, situate in street , in the county of (within the jurisdiction of this court), by purchas- ing the existing lease or tenancy, goodwill and stock thereof, and would carry on the business of beershop-keepers there in partnership, and as the sum of £ , or thereabouts, was required for the purchase of the said lease or tenancy and goodwill it was agreed between them that the plaintiff should advance and bring in the sum of £ towards such pur- chase, and that the like sum of £ should be borrowed from Messrs. and brewers, and that the defendant should furnish the remainder of the money required for the purpose aforesaid. 2. The plaintiff accordingly on the day of 187 , paid to the defendant the sum of £ out of her own monies, and the said defendant with that sum and the like sum of £ borrowed as aforesaid, and a further sum furnished by himself, completed the said purchase on behalf of himself and the plaintiff as such partners as aforesaid, and on the day of 187 , the plaintiff and defendant as such partners entered into the possession of the said beerhouse. 3. The plaintiff and defendant from the time of their so taking posses- sion until the day of 187 , carried on the said business in partnership at the said beerhouse under the verbal agreement herein- before mentioned. 4. On the said day of 187 , the defendant by threats and violence compelled the plaintiff to leave the said premises against her will, and he refuses to allow her to return to the said premises. 5. Under the circumstances aforesaid it has become impossible to carry on the said business in partnership with advantage to the partners. 6. The whole of the property, stock and credits of the partnership do not exceed in value the sum of £ 7. The plaintiff desires to have the said partnership dissolved, and she is ready and willing to bear her share of the debts and obligations of the partnership so far as under the circumstances hereinbefore men- tioned she is justly liable for the same respectively. 8. The said defendant has since the said day of 187 , been and still is in sole possession of the said partnership premises, (Z) An injunction may be here of all or any of the partnership prayed for to restrain the defendant assets, estate and effects without the from disposing of the partnership sanction of the court; and that a property, with or without the appoint- receiver may be appointed to collect ment of a receiver ; thus [" and that and get in the debts due and owing to the defendant may be restrained by the said partnership."] the order and injunction of this court (?») MS. Form. See form of from selling, assigning and pledging heading and conclusion, ante, p. 34. or otherwise converting and disposing 42 plaintiff's proceedings in order to commence a suit. Part iv. stock and effects, and in sole receipt of the income and profits thereof, Chap, in. anc i ne ] ias since that time altogether and improperly excluded and still so excludes the plaintiff therefrom, and he threatens and intends to sell and dispose of the partnership interest in the said premises and the part- nership stock and effects without the consent or concurrence of the plain- tiff, and if he does so the plaintiff is in danger of losing her share of the proceeds thereof. 9. The plaintiff believes that the defendant caused the partnership term and interest so purchased as aforesaid to be assigned or transferred to himself alone ; but if he did so it was without her concurrence or con- sent. 10. The plaintiff prays the court to decree a dissolution of the said partnership, and that the accounts of the said partnership business may be taken by the court and the assets thereof realized, and that each party may be ordered to pay into court the balance due from him or her re- spectively upon such partnership account, and that the debts and liabili- ties of the said partnership may be paid and discharged, and that the balance of such assets (after such payment and discharge) may be divided between the plaintiff and defendant according to the terms of the said agreements, or that if the said assets shall prove insufficient the plaintiff and defendant may be ordered to contribute in such proportions as shall be just to a fund to be raised for the payment and discharge of such debts and liabilities, and that the defendant may be restrained by the order of this court from selling or disposing of the said partnership property or any part thereof (unless with the concurrence and consent of the plaintiff or under the order of the court), and from receiving the income and profits of the said business, and that some proper person may be appointed to receive the same and to manage the said business until the same shall be sold under the order of the court, and that the defendant may be ordered to pay the costs of this suit. And that the court may give such other relief as to the coux - t shall seem tit. Specific Performance.— [Section 9 of 30 & 31 Vict. c. 142] (ii). A. B., the above-named plaintiff, states as follows : — 1. By an agreement dated the day of and signed by the above-named defendant C. D., he the said C. D. contracted to buy \or sell to] him certain property, therein described and referred to, for the sum of £ 2. He has applied to the said C. D. specifically to perform the said agreement on his part, but that he has not done so. 3. The said A. B. has been and still is ready and willing specifically to perform the agreement on his part, of which the said C. D. has had notice. 4. The plaintiff prays that the court will order the said A. B. specifi- cally to perform the said agreement, and to do all acts necessary to put the said A. B. in full possession of the said property \or to accept a con- veyance and possession of the said property], and to pay the costs of the suit. \_N.B. — In suit for delivery up to be cancelled of any agreement omit paragraphs 2 and 3, and substitute a paragraph stating generally the (n) County Court Forms in Equity, elusion, ante, p. 34. See sect. 9 of 1868, No. 7. See heading and con- 30 & 31 Vict. e. 142, ante, p. 13. PROCEEDINGS BT PLAINT AND SUMMONS. 43 grounds for requiring the agreement to be delivered up to be cancelled, Part iv. such as that the plaintiff signed it by mistake, under distress, or by the CliAP - 1IL fraud of the defendant, and alter the prayer according to the relief sought.] Another Form of Plaint for Specific Performance of Agreement for Sale of Meal Estate (o). T. J., the above-named plaintiff, states as follows : — 1. That C. P., the above-named defendant, had or pretended to be on and before the day of , 187 , seised of or well entitled to a freehold estate of inheritance, consisting of a messuage, dwelling-house and tenement with the appurtenances thereto belonging and appertaining, known as No. , Street, Bermondsey, in the county of Surrey ; and that the said C. P. on or about the day and year aforesaid contracted and agreed with the said plaintiff to sell to him the said plaintiff the said messuage, tenements, and dwelling-house with the appurtenances thereunto belonging and appertaining, for the sum of £ sterling. 2. That thereupon the said plaintiff paid to the said defendant as an earnest to bind the said agreement, and in part payment of the said purchase-money the sum of £ , and received from the said defendant an acknowledgment in writing in the words and figures following : , 187 . " Received, of Mr. J. the sum of £ , as deposit on the house No. , Street C. P." and that the said acknowledgment was duly stamped with a receipt stamp. 3. That on or about the day of 187 , the said defendant furnished to the plaintiff a document purporting to be the abstract of the defendant's title to the said messuage, tenement, and dwelling-house with the appurtenances which was manifestly insufficient and uncertain, and did not show a good and sufficient title in the said defendant to the said estate which he the said defendant has or pretends that he has in the said messuage, tenement and dwelling-house, with the appurtenances; and thereupon the said plaintiff has from time to time objected to the defendant's title as so shown, and made the usual requisitions for the production of further information and evidence thereof, but the said defendant has hitherto wholly neglected and refused to furnish or show the same. 4. That from the month of last thence hitherto the plaintiff has always been willing and ready to complete the performance of his part of the said agreement, and has for that purpose kept and retained the sum of £ sterling unemployed, and the same has remained unproductive so as to be ready at any time to be paid over to the said defendant on the completion of the said purchase of which the defen- dant has often had notice. 5. That the said defendant from the month of hitherto has been in the possession of the said messuage, tenement and dwelling- house with the appurtenances, and in the enjoyment of all the rents, profits, benefits and advantages thereof. (o) MS. Form. See heading and conclusion, ante, p. 84. 44 plaintiff's proceedings in order to commence a suit. Part IV. 6. That the plaintiff has done all things on his part to be done to — HAP ' L entitle him to the specific performance of the said agreement, and he is ready and willing and hereby offers to do anything on his part still remaining to be done. 7. The plaintiff submits that he is entitled to the relief hereinafter prayed. The plaintiff prays as follows : — 1. That the defendant may be decreed specifically to peform the said agreement so made in the month of , 187 , as aforesaid if the said defendant can make a good title to the messuage, tenement and dwelling-house with the appur- tenances, and that the said defendant may be decreed to make and execute, and to procure to be made and executed, a proper conveyance of the said messuage, tenements and dwelling-house with the appurtenances to the plaintiff. 2. That in case the said defendant shall not be able to make a good title to the said messuage, tenement and dwelling- house with the appurtenances, account maybe taken of what is due to the plaintiff for loss of interest on the said sums of £ and & , and that the sum of £ may be returned to him. 3. That an account may be taken of the rents and profits and benefits derived by the said defendant from the said mes- suage, tenement and dwelling-house with the appurtenances from the day and year when the said purchase ought to have been completed, and that the defendant may be decreed to pay the amount thereof to the plaintiff. 4. That damages may be awarded to the plaintiff in addition to, or if specific performance be impossible, in substitution for, specific performance. 5. That the defendant may pay the costs of this suit. 6. That the plaintiff may have such further or other relief as the nature of the case may require. Another Form of Plaint for Specific Performance on Agreement to execute Mortgage (p) . T. J. and W. J., the above-named plaintiffs, state as follows : — 1. By an indenture of lease bearing date the day of , 187 , and made between and duly executed by W. B. of the one part and C. E. of the other part, all that messuage, or tenement and here- ditaments situated and being No. , Street in the county of , then in the occupation of the said C. E., together with the rights of way or passage, and the right to use the quay or wharf in the same indenture respectively mentioned were demised to the said C. E., his executors, administrators and assigns for the term of twenty-one years from the day of , 187 , at the yearly rent of £ and under and subject to the covenants, conditions and agreements in the same indenture contained and on the lessee's part thenceforth to be paid, ob- served and performed as by the same indenture and other the documents herein stated or referred to, to which the plaintiffs crave leave to refer when produced, will appear. (p) MS. Form settled by counsel. See heading and conclusion, ante, p. 34. PROCEEDINGS BY PLAINT AND SUMMONS. 45 2. By divers mesne assignments and acts in the law and ultimately Par t IV. by an indenture bearing date the day of , 187 , and made CHAr - IIL between E. R. of the one part and the defendant of the other part, the premises comprised in and demised by the indenture of lease herein- before stated became and were thenceforth and down to and at the time of signing the memorandum of deposit and agreement of the day of ,187 , hereinafter stated, vested in the defendant for the re- sidue of the said term of twenty-one years granted by the said indenture of lease. 3. On the said day of , 187 , the plaintiffs lent and advanced to the defendant the sum of £ upon the security of the leasehold pre- mises comprised in and demised by the said indenture of lease, and of the title deeds relating to the same, and at the time of such advance the defendant deposited with the plaintiffs the said title deeds, and duly signed and delivered to the plaintiffs a memorandum of deposit and agreement of that date, which, omitting the schedule describing the said title deeds, was in the words and figures or to the purport and effect fol- lowing, that is to say : — " To Mr. T. J. and Mr. W. J. " In consideration of £ this day lent and advanced by you to me, and collaterally secured by my note of hand to you on demand, I hereby deposit with you the under-mentioned deeds as security for the repay- ment of the said sum of £ with interest thereon at the rate of £ per cent, per annum. And I hereby charge and make liable the same deeds, and the property to which they refer, with and to the repayment of the said sum of £ and interest. And I undertake when called upon to execute unto you a good and valid mortgage with a power of sale, subject to one month's notice for the repayment of the said sum of £ and interest, and the expense of and incidental to the prepara- tion of such mortgage. Dated this day of , 187 . " (Signed) G. 0." 4. On or about the day of 187 the defendant exe- cuted a deed of composition for the benefit of his creditors, and in conse- quence thereof, the plaintiffs, through Messrs. and , their solicitors, caused a draft of a deed of mortgage to be prepared of the said leasehold premises, in accordance with and in pursuance of the terms of the said memorandum or agreement of the day of , 187 , and sent the same to the defendant for approval. The defendant, however, refused to peruse the said draft, and he also refused, and he still refuses, to execute a legal mortgage of the said leasehold premises, or otherwise to carry his said agreement into effect, and he returned the said draft to the said Messrs. and , accom- panied by a letter dated the day of 187 , and which, omitting the merely formal parts, was in the words and figures, or to the purport and effect following, that is to say : — " Considering the fearful amount you have run my bill to, and likely to be turned out of my house in a month, I am advised not to sign the paper. I may add I have stated all particulars to my solicitor, Mr. of Street." 5. The whole of the said sum of£ , with interest for the same from the time when the same was advanced and a small sum for costs, are still due and owing to the plaintiffs on the security hereinbefore mentioned. The allegation contained in the letter of the defendant 46 plaintiff's proceedings in order to commence a suit. Part iv. hereinbefore stated, to the effect that the plaintiffs' said solicitors had Chap, hi. charged the defendant an excessive sum for costs, is wholly untrue. 6. The defendant is and has been for some time past in the actual occupation of the said leasehold premises, and the same are but a scanty security for the monies so due and owing to the plaintiffs as aforesaid. 7. The plaintiffs are advised and submit that the defendant ought to be ordered and decreed specifically to perform his undertaking contained in the said memorandum or agreement of the day of , 187 , for the execution of a good and valid mortgage, in accordance with the terms of such undertaking, and that the plaintiffs are entitled to such other relief as is hereinafter prayed. Prayer. The plaintiff's therefore pray as follows : — 1. That the defendant may be ordered and decreed specifically to perform and carry into effect his undertaking contained in the said memorandum or agreement of the day of , 187 , to execute unto the plaintiffs a good and valid mortgage, with power of sale, subject to one month's notice, for securing to the plaintiffs the repayment of the said sum of £ , and interest after the rate of £ per cent, per annum, and of the expense of and incidental to the preparation of such mortgage, and that such mortgage may be settled by the judge or such conveyancing counsel as he may direct, in case the parties differ, the plaintiffs being ready and willing, and hereby offering to perform and do all necessary acts (if any) which ought to be performed by them for the purpose of carrying such agreement into effect. 2. That if necessary an account may be taken by and under the order and direction of this court of what is due for principal and interest in respect of the advance of £ , so made to the defendant by the plaintiffs as hereinbefore stated, and of the costs and charges incurred by the plaintiffs in the pre- paration of the said draft mortgage, or in any way incidental thereto ; and that the defendant may be ordered and decreed to pay to the plaintiffs what, upon taking such account, shall be found due to them, together with the costs of this suit, by a short day to be appointed for that purpose by this court, and that in default of such payment, the defendant, and all persons claiming under him, may be absolutely barred and foreclosed of all right and equity of redemption in and to the said leasehold premises, and every of them, and every part thereof. 3. Or, that if necessary, and in case of such default in payment on the part of the defendant as aforesaid, the said leasehold pre- mises may be ordered to be sold, and that the monies to arise upon such sale may be applied in payment of what shall appear to be due to the plaintiffs for principal and interest and costs, charges and expenses as aforesaid. 4. That all necessary orders and directions may be made and given for effectuating the purposes aforesaid, or any of them. 5. That the defendant may be ordered to pay the costs of this suit. G. That the plaintiffs may have such further or other relief as the nature of the case may require. Chap. III. PROCEEDINGS BY PLAINT AND SUMMONS. Plaint to secure Transfer to and Registration by Defendant of Shares Part iv. bought by him (q). A. B., the above-named plaintiff, states as follows : — 1. On the day of , 187 , the plaintiff applied for shares in the Company, Limited, and on or about the day of the same month shares in that company, numbered from to , were allotted to him, and his name was entered in the register of shareholders of the company as the owner or proprietor of those shares. 2. In the same month of the plaintiff instructed F. W., one of the licensed brokers of the Stock Exchange, London, to sell the said shares, and on the day of the same month, J. S. of the Stock Exchange contracted to purchase of the said shares for £ and on the day of the same month the said J. S. contracted to purchase the remaining shares for £ 3. The contract aforesaid was made between the said F. W., as broker for the plaintiff, and the said J. S. 4. On the day of , 187 , the said J. S. contracted to sell of the said shares to M. A., and they were eventually bought by the defendant for the price of £ 5. According to the practice of the Stock Exchange the said J. S. on the day of , 187 (appointed as a special settling day in the said shares), sent a notice or ticket to the office of the said F. W., requiring the said F. W. to transfer or cause to be transferred of the said shares into the name of the defendant, and on the day of , 187 , the plaintiff executed a deed of transfer of of the said shares, numbered from to both in- clusive, to the defendant. 6. On or about the day of , 187 , the certificate or certificates of the said shares were placed in the possession or power of the defendant; and the said sum of £ , and for the transfer stamp, was paid by the defendant to the said J. S. 7. The plaintiff has requested the defendant to register his name as a proprietor in the books of the company, but the defendant has neglected and refuses so to do, and the plaintiff has received divers letters and notices from the said company, requiring payment in respect of a call of £ per share, payable in the months of and 187 , on the said shares, Nos. to , and threatening legal proceedings in case the same were not paid, and the plaintiff has duly apprized the defendant of such letters and notices. 8. On the day of , 187 , a writ was issued out of her Majesty's Court of Common Pleas against the plaintiff at the suit of the said company, demanding £ for debt in respect of the said calls and interest, and £ for costs in the said action, and on the day of , 187 , the plaintiff paid in satisfaction of the action £ 9. The plaintiff prays that the defendant may be ordered to procure the shares, Nos. to , to be duly and effectually trans- ferred into and registered in the name of the defendant in the register book of shareholders in the said company, and that he may be ordered to execute, if he has not already executed, the deed of transfer and to deliver the same so duly executed to the secretary of the company in order that a memorial may be entered in the book called " The Register (q) MS. Form. See heading and conclusion, ante, p. 34. 48 plaintiff's proceedings in order to commence a suit. Part iv. of Transfers," and that he may be ordered to take all proper steps for — ^^ — effectually transferring and registering the shares, and that he may be ordered to repay the plaintiff the said sum of £ with interest, and indemnify the plaintiff against all losses and costs already incurred or to be incurred by reason of the defendant not having procured the shares to be registered, or by reason of the non-payment of the calls on the said shares, and to pay all costs of this suit, and that this court •will grant such further or other relief as the court may think fit. Summons on Plaint (r). No. of plaint in equity. In the county court of holden at (Seal.) A. B. [address, description'] plaintiff, and C. D. [address, description] defendant. You are hereby summoned to appear at the county court, to be holden at on the day of at the hour of in the noon, to show cause why the relief prayed for in the plaint hereunto annexed should not be granted. Dated this " day of 187 . Registrar. To C. D. defendant [or one of the defendants]. N.B.— If you do not attend either in person or by your attorney at the time and place above mentioned, such decree or order will be made and proceedings taken as the judge may think just and expedient. [Endorsement on Summons.] If you desire to lessen the amount of costs which you may be put to, you should follow such of these directions as may apply. If you desire to admit the truth of the allegations in the plaint, and to submit to the judgment of the court, you may, at any time before the return day of the original summons, appear before the registrar, and in his presence sign an admission of the truth of the plaint, and a consent to abide by and perform any decree or order the court may make. If you desire to disclaim any interest in the subject-matter of the suit, or if you intend at the hearing to deny any of the statements in the plaint, or raise any question of law upon such statement without admitting the truth thereof, you may deliver to the registrar, -within eight days after the service of the summons upon you, a statement signed by you to that effect. If you intend to rely on a set-off, infancy, coverture, a statute of limi- tations, or a discharge under a bankrupt or an insolvent act, as a defence, you must give notice of such special defence to the registrar five days before the day of hearing, and such notice must contain the particulars required by "The County Court Rules;" and you must deliver to the registrar as many copies of such notice as there are plaintiff's, and an additional copy for the use of the court. If your defence be a set-off, you must, with each notice thereof, deliver to the registrar a statement of the particulars thereof. (r) County Court Forms in Equity, 1868, No. 13. PROCEEDINGS BY PETITION. 49 Summonses for witnesses and for the production of documents will be issued upon application at the office of the registrar of the court upon payment of the proper fee. Part IV. Chap. III. § 3. — Proceedings by Petition. Proceedings under the Trustees Relief Acts, or under the Trustee Acts (s), and proceedings relating to the advancement of infants, are instituted by petition. The following Rules relate to such proceedings (t) : — "All proceedings under the 5th and 6th clauses of the first section of the act, shall be by petition, and such petition need not show title except so far as is provided by the rules in this order" (u). " Where a trustee petitions under the said 5th clause (x) for an order in any matter relating to the trust, he shall file his petition at the office of the registrar, and leave thereat as many copies thereof as there are persons beneficially interested in the due execution of the trust, and he shall state in such petition his own name, address, and description, and also the names, addresses, and descriptions of the persons beneficially interested, so far as he is able, and the nature of the trust, and how created, the property or money to which the same relates, and the sub- stance of the order which he seeks to obtain" (y). " Where any guardian or trustee of any infant petitions for an order relating to the maintenance or advancement of such infant, he shall file his petition at the office of the registrar, and where any person, as next friend of an infant, petitions on behalf of such infant for an order upon or against the guardian or trustee of such infant, he shall file his petition at the office of the registrar, and leave thereat as many copies thereof as there are guardians or trustees. And in such petition shall be stated the names, addresses, and descriptions of the petitioner, and of all the persons to whom such order is intended to relate, and shall also state the nature of the guardianship or trust, and how created, of the property to which the trust relates, and the substance of the order which the petitioner seeks to obtain" (z). " Under this order petitions shall be filed and notices shall be deli- vered (a) at the office of the registrar seven days before the sitting of the court at which the petition is to be heard or application made (b). Order XI. Rule 1. Petition. Rule 2. Petitions by trustees. Rule 3. Petitions by guardian or trustee of infant or next friend. Rule 20. Time of filing petitions and giving notices. (*) See ante, p. 18. (t) Order XI. which relates to " proceedings under the 5th, 6th and 8th clauses of the 1st section of the act. and section 21 of 30 & 31 Vict. c. 142," provides that, " the preceding orders relating to suits shall, in all cases where they are applicable, be construed as extending to proceedings under this order." (w) County Court Orders and Rules in Equity, 1868, Order XI. Rule 1. (a 1 ) See ante, p. 3. (y) County Court Orders and D. VOL. II. Rules in Equitv, 18G8, Order XI. Rule 2. (2) Id. Rule 3. See as to under- taking for costs, by next friend, Order XXIII. Rule 19, ante, p. 33. (a) This rule, so far as relates to the delivery of notices, refers to notices of applications for injunctions under the next section (§ 4). See ( >rder XXIII. Rule I8,p08t, Chap. V. § 3, as to enlarging and abridging time. (*) County Court Orders and Rules in Equity, 1868, Order XI. Rule 20. 50 plaintiff's proceedings in order to commence a suit. Part IV. General Form of Heading and Conclusion for Petitions (b). Chap. III. J * £ . w Proceeding in equity. In the county court of holden at In the matter of The petition of A. B., of, etc. [address and description]. & c o o » This petition was filed by of attorney for the plaintiff, [or by ]. Under Trustee Relief Act. — [Clause 5 of Section 1 of the Act] (c). Showeth, 1. That by a deed of settlement bearing date the day of made upon the marriage of 0. D. with E. F. certain freehold property in the settlement mentioned was conveyed to [or that C. D., deceased, by his will bearing date the day of and proved on the day of by your petitioner and Gr. H. in the Pre- rogative Court of the Archbishop of Canterbury, certain freehold pro- perty in the will mentioned was devised to] the petitioner, together with G. H., upon certain trusts, inter alia [here set out the clause or portion of the trust deed or will upon which the order of the court is required] . 2. That the said G-. H. died on or about the day of leaving the petitioner surviving trustee. 3. That disputes and doubts have arisen under the clause before set out, as to whether [here set out the specific question upon which the opinion, advice, or direction of the court is required]. 4. That the trust estate [or fund] to which this proceeding relates does not exceed in value the sum of £500. 5. That the persons interested in this application are I. J. of, etc. [address and description], K. L. of, etc. 6. Your petitioner prays the court to declare its opinion, advice, or direction whether [here state specific question which the court is ashed to determine]. N.B. — By stat. 23 & 24 Vict. c. 38, s. 9, this must be signed by counsel. Under Trustee Acts (d). Showeth, 1. That C. D., deceased, by his will bearing date the day of and proved on the day of by your petitioner and G. H. in the Prerogative Court of the Archbishop of Canterbury, certain freehold property in the will mentioned was devised to [or that by deed of settlement bearing date the day of made upon the marriage of C. D. with E. F. certain freehold property in the settlement mentioned was conveyed to] the petitioner, together with G. H. upon certain trusts. 2. That the said G. H. died on. or about the day of leaving the petitioner surviving trustee. (i) County Court Forms in Equity, conclusion, supra. 1868. (d) Id. No. 9. See heading and (c) Id. No. 8. See heading and conclusion, supra. PROCEEDINGS BY PETITION. 51 3. That the said trusts are still unexecuted, and that the petitioner is Part iv. unable by reason of having left the neighbourhood [or his bodily infir- Chap.iii. mity, or any cause/or relinquishing trust] further to execute the said trusts; that it is for the advantage of the parties beneficially interested in the due execution of the trust that new trustees be appointed by the court in the place of the petitioner. 4. That and of, etc. [address and description] are proper persons to appoint as such trustees. 5. That I. J. of, etc. [address and description], and L. M. of, etc. [ad- dress and description], are the persons beneficially interested in the said trust. 6. Your petitioner prays that the said and or some other persons to be named by the court, be appointed trustees in his place and stead, and that the cost of the proceeding be ordered to be paid out of the trust fund, and to give such directions as may be necessary for exe- cuting such order. Maintenance and Advancement of Infants (e). [Clause 6 of Section 1 of the Act.] Showeth, 1. That he is guardian [or trustee] of C. D., an infant, and that by the will of E. P. a sum of £ was bequeathed to the petitioner, upon trust to apply the income thereof to the maintenance and education of the said C. D. during his minority, and to pay the said principal sum of £ to the said C. D. upon his attaining the age of twenty-one years. 2. That the said C. D. is now of the age of fourteen years or there- abouts, and is now resident within the jurisdiction of this court, and the petitioner has heretofore spent the whole of the accruing interest upon his maintenance and education. 3. That in the opinion of your petitioner it would be greatly to the interest and advancement of the said C. D. if a sum of £ , part of the said principal money of £ , was now expended by the petitioner in payment to G. H. of saddler, as a premium to the said G. H. to take and receive the said C. D. as his indoor apprentice. 4. The petitioner prays that he may be directed to use and appropriate the said sum of £ , part of the said principal trust money or sum of £ for the apprenticeship of the said infant accordingly. § 4. — Proceedings for Orders in the Nature of Injunc- tions. Applications for orders in the nature of injunctions are, in general, founded upon a notice delivered to the registrar with copies for service on the persons against whom the order is sought. (e) County Court Forms in Equity, 1868, No. 10. See heading and con- clusion, ante, p. 50. E 2 52 plaintiff's proceedings in order to commence a suit. Part IV. Chap. III. Order XI. Eule 4. Application for injunc- tion. The following Rule relates to these proceedings : — " Where any person intends to apply under the 8th clause of the first section of the act (/), for an order in the nature of an injunction (except as is provided in Order XII. for urgent cases (g)'), he shall deliver at the office of the registrar a notice of his intention to apply for the same, together with as many copies thereof as there are persons upon or against whom such order is intended to he obtained, and he shall state in such notice his own name, address, and description, and so far as he can, the names, addresses, and descriptions of all such persons, and also the substance of the order which the petitioner seeks to obtain" (h). Notices must be delivered at the office of the registrar seven days before the sitting of the court at which the application is to be made (e). In urgent cases, however, an order in the nature of an injunction may be applied for ex parte to the judge in or out of court, upon affidavits setting forth the facts, rendering such order immediately necessary, and upon such application the judge may either make an order absolute in the first instance, or make an order to be abso- lute at any time to be ordered by him unless cause be shown to the contrary (k). It is to be observed, that although applications for injunctions may be made after notice, independently of any plaint or other proceeding against the same person, an injunction may and, in general, does form part of the prayer in an equitable plaint; as for example, in a suit for dissolution of partnership, the plaintiff may pray for an injunction to restrain the defendant from disposing of any of the partnership property (Z). General Form of Heading for Notices, Admissions, Statements, Orders, Certificates and Warrants (m). Proceeding in equity. In the county court of holden at In the suit of A. B. v. C. D. Notice of Application for Order in the Nature of Injunction (n). [Clause 8 of Section 1 of the Act.] Take notice that I, A. B., intend to apply at the sitting of the court as aforesaid on the day of [or to Mr. Judge at his sittings or at on the day of as the case may be\ for an order in the nature of an injunction to restrain C. D. from further prosecuting an action which he has commenced against me in (/) See ante, p. 3. lg) See post, Chap. V. § 4. (A) County Court Orders and Rules in Equity, 1868, Order XI. Rule 4. (i) Id. Rule 20, ante, p. 49. (£) County Court Orders and Rules in Equity, 1868, Order XII. Rule 1. See this order more fully, post. Chap. V. § 4. (Z) See ante, p. 41, note. (m) County Court Forms in Equity, 1868. (») Id. No. 12. PROCEEDINGS FOR ORDERS IN THE NATURE OP INJUNCTIONS. 53 the exchequer of pleas to recover damages for the breach of the con- Part iv. tract for the specific performance of which this suit was commenced [or ChapI11 - to restrain him from receiving and giving discharges for any of the debts due to the partnership in the matter of the partnership between us for the winding-up of which the suit was commenced, or from digging the turf from the land which was agreed to be sold by him to me by the agreement the specific performance of which this suit is commenced to enforce, or as the case may be']. Dated this day of 187 . A. B. To C. D. [N.B. — Where the order in the nature of an injunction is to be applied for against a party whose name and address does not appear upon any pro- ceeding already filed in this suit, it must be stated in full to enable the high bailiff to serve the notice.'] § 5. — Proceedings by Trustees and Executors on Payment into Court under Sect. 24 of " The County Courts Act, 1867." The power given to persons by " The County Courts Act, 1867" (30 & 31 Vict. c. 142), s. 24, to pay into county courts moneys, annuities, stocks, or securities vested in them as trustees, executors, administrators or otherwise, upon trusts within the meaning of the act 10 & 11 Vict. c. 96, has been already noticed (o). The mode of doing this is not by plaint or petition, but by filing an affidavit (p). The following Rules relate to these proceedings : — " Any person desiring to pay money, transfer stock, or deposit secu- order xi. rity in trust to attend the orders of any county court, under sect. 24 of 30 ? u lj ~ . 30 & 31 Vict. c. 142 (q), shall file with the registrar of the county court c . 142, s. 24. having jurisdiction in the matter an affidavit, entitled in the matter of the last act, and of the particular trust, and setting forth : — 1. His own name, address, and description : 2. The place where he is to be served with any petition or summons, or any notice of any proceeding or order of the court relating to the trust fund : 3. The amount of money, stock, or security which he proposes to pay, transfer, or deposit in trust to attend the orders of the court : 4. A short description of the trust or of the instrument creating it : 5. The names, addresses, and descriptions of the persons interested in or entitled to, or claiming to be interested in or entitled to, the fund, to the best of the knowledge and belief of the trustee: 6. The submission of the trustee to answer all such inquiries relating to the application of the money or stock paid in or transferred or security deposited as the court may think proper to make or direct" (r). (o) See onto, p. 10. (?•) County Court Orders and (p) 30 & 31 Vict. c. 142, s. 24, Rules in Equity, 1868, Order XI. ante, p. 19. llule 6. (q) See ante, p. 19. 54 plaintiff's proceedings in order to commence a suit. Part IV. Chap. III. Rule 7. Form of affi- davit. Rule 8. Endowment on affidavit. Rule 9. Certificate of registrar. Rule 10. Payment of money. Rule 11. Transfer of stock. Rule 12. Deposit of security. Rule 13. Notice of to treasurer of deposit. Rule 14. Where no treasurer. " The affidavit may be in the form set out in the schedule to these orders, with such variations as each particular case may require" (s). " Immediately on the receipt by the registrar of the affidavit, he shall indorse thereon a memorandum of the day on which the same was received by him, and when such affidavit shall be so indorsed, it shall be taken for all purposes to have been duly filed on the date so indorsed thereon" (<). " The persons filing the affidavit, or any of them, may apply to the registrar to give to them a certificate entitled in the matter of the act 30 & 31 Vict. c. 142, and of the particular trust, and under the seal of the court, certifying that the affidavit has been filed, and such certificate may be in the form set out in the schedule to these orders, with such variation as each particular case may require" (w). " In the case of money, the persons filing the affidavit, or any of them, may, upon the receipt of the before-mentioned certificate, pay the money into a post office savings bank, under sect. 24 of 30 & 31 Vict. c. 142 (re), and obtain from the officer of the bank a receipt for the same, and shall forthwith leave the said receipt with the registrar, and the registrar shall accordingly indorse thereupon a memorandum of the day on which the same was received by him, and when such receipt shall be so in- dorsed it shall be taken for all purposes to have been duly recorded on the date so indorsed thereon" (y). " In the case of stocks, the persons filing the affidavit or any of them may, upon the receipt of the before-mentioned certificate, transfer the stocks into the names of the treasurer and registrar of the county court mentioned in the said certificate, in trust to attend the orders of the court, and shall forthwith leave the transfer ticket with the registrar, and the registrar shall immediately indorse thereon a memorandum of the day on which the same was received by him, and when such transfer ticket shall be so endorsed, it shall be taken for all purposes to have been duly recorded on the day so indorsed thereon" (z). " In the case of security, the person filing the affidavit may forthwith deposit the security with the registrar in the name of the treasurer and registrar, in trust to attend the orders of the court, and the registrar shall immediately indorse on the affidavit a memorandum of the day on which the security was deposited with him" (a). " The registrar shall, within twenty-four hours after the deposit of the security, send notice thereof by post to the treasurer of the court, stating therein the particulars of the deposit, which notice may be in the form in the schedule, with such variations as each particular case may re- quire" (&). " Where there is a county court in which there is not a treasurer, the transfer or deposit shall be made into the name of the registrar and of (s) County Court Orders and Rules in Equity, 1868, Order XI. Rule 7. (t) Id. Rule 8. («) Id. Rule 9. (x) See ante, p. 19. (y) County Court Orders and Rules in Equity, 1868, Order XI. Rule 10. (z) Id, Rule 11. O) Id. Rule 12. Order XX. Rule 9, directs, that "The registrar shall comply with all regulations which may from time to time be made by the Commissioners of her Majesty's Treasury for the safe cus- tody of any securities deposited with them under section 24 of 30 & 31 Vict. c. 142." (b) Id. Order XI. Rule 13. PROCEEDINGS BY TRUSTEES AND EXECUTORS. 55 the superintendent of the county court department of the treasury for the Part iv. time being" (c). Chap, in. " Immediately after the recording of the receipt or transfer ticket, or R U i e 15. the deposit of the security, the registrar shall give to the persons paying Acknowiedg- in the said money, or transferring the said stocks or depositing the secu- ^ent.° f ^ rity, an acknowledgment or certificate of such payment or transfer or deposit, and such acknowledgment or certificate may be in the form set out in the schedule to these rules, with such variations as each parti- cular case may require " ((F). " Immediately after the recording of the receipt or transfer ticket, or Rule 16. giving a certificate of deposit of security, the registrar shall cause the j^™/ 8 ^ necessary entry to be made in ' The Suits and Proceedings in Equity Book,' including the title of the particular trust, and the amount of money or stock paid or transferred, or security deposited, and the names and ad- dresses of the person or persons making such payment, transfer or deposit, and the names of every person stated in the affidavit to be, or to claim to be, interested in or entitled to such money or stock, and their addresses and descriptions, as given in the affidavit ; and the registrar shall forth- with, by post, send to each of such last-mentioned persons, to the ad- dresses given in the affidavit, a notice of the said payment, transfer or deposit, which notice shall be under the seal of the court, and may be in the form set out in the schedule to these rules, with such variations as each particular case may require" (e). " Any person interested in or entitled to the fund, or (if need be, but Rule 17. not otherwise) the trustee, may apply by petition, respecting the invest- ^Jjtionfor ment, paying out or distribution of the fund or income thereof, and the order as to petition shall be filed at the office of the registrar ; and the petitioner fund - shall leave thereat, where the petition relates to the income only of the fund, as many copies thereof as there are trustees and persons, other than the petitioner, interested in the due execution of the trust, so far as regards the income only, and in all other cases as many copies thereof as there are trustees and persons, other than the petitioner, interested in the due execution of the trust, and he shall state in such petition his own name, address and description, and a place where he may be served with any petition, or notice of any proceeding or order of the court, relating to the said fund, and also the names, addresses and description of the other persons interested, so far as he is able, the nature of the trust and how executed, the trust property, and the sub- stance of the order which he seeks to obtain" (/). " Unless the judge shall otherwise direct, the trustee shall be served Rule 18. with notice of every application made to the court respecting the fund ?* otI t ce to or the income, by any person beneficially entitled thereto " (g). " Where a trustee shall have availed himself of the provisions of Rule 19. sect. 24 of 30 & 31 Vict. c. 142 (/«), without sufficient reason, the judge when may direct such trustee to bear his own costs, and pay the costs of any jj^^ts! other parties, or to bear and pay any part of such respective costs, as the judge shall think fit " (i). (c) County Court Orders and Rules (g) Id. Eule 18. in Equity, 1868, Order XI. Rule (A) See ante, p. 19. 14. (i) County Court Orders and (d) Id. Rule 15. Rules in Equity, 1868, Order XI. (e) Id. Rule 16. Rule 19. (/) Id. Rule 17. 56 plaintiff's proceedings in order to commence a suit. Part IV. Chap. III. * Here insert present ad- dress and de- scription. If the ad- dress of any person in- terested be unknown to the trustee, this fact must be set forth in the affi- davit. In general the costs of all parties of a petition for payment to the tenant for life of the income of a fund paid into court under the Trustee Act are payable out of the income, and not out of the corpus of the fund (k). Affidavit, under 30 6c 31 Vict. c. 142, s. 24 (I). In the County Court of holden at In the matter of " The County Courts Act, 1867," and of [add the title of the particular trust, as "the trusts of a certain indenture of mortgage, dated the day of , and made between A. B. and C. D."] I, C. D., of [address and description], make oath and say as follows — 1. State place of service, as — My house, being , is the place where I am to be served with any notice or application relating to the trust fund hereinafter mentioned. 2. State the amount of money or stock proposed to be paid or transfeiTed or security deposited, in tmst to attend the orders of the court, as under the provisions of the said act, I desire to pay into the Post Office Savings Bank, the sum of hereinafter mentioned. 3. Set out a short description of the trust and of the instrument creating it, as, By the indenture before mentioned a certain messuage situate at with the appurtenances, was mortgaged by the said A. B. to me, my heirs and assigns, for securing to me the repayment on the day of , 187 , of the sum of £ , with interest for the same at the rate of £ per cent, per annum, and the said indenture con- tained a power of sale in case of default in payment, and it was by the said indenture declared, that the moneys to arise from any such sale should, after retaining thereout the expenses of executing the said power and the said principal money and interest, be paid to the said A. B., his heirs or assigns. The said A. B. died on or about the day of , and by his will, dated the day of , appointed E. F. of °, exe- cutor thereof, and devised the said hereditaments, subject to the said mortgage, unto G. H. of° and J. K. of°, in trust for the said E. F., for his life, and after his death upon certain trusts for sale, and for the divi- sion of the proceeds amongst the following persons, namely, the testator's son M. N. of*, and his children or child, and the testator's daughter 0., the wife of P. Q. of°, and her children or child. The said E. F. proved the said will in [state in what court], and is still living. The said G. H. never acted in the trusts of the said will, etc. On or about the day of , I sold the said hereditaments by public auction to X. Y., of [address and description] at the price of £ After retaining out of the said £ the costs of sale, and the sum of £ , being the total amount of principal moneys and interest due upon the said mortgage, and the sum of £ , being the costs of paying the fund into court, a balance of £ now remains in my hands, and the sum of £ , which I desire to pay into the Post Office Savings Bank, in trust to attend the orders of this court, is the said balance of £ (k) Be Manton's Trusts, 39 L. J. (N. S.) Ch. 764 ; reversing Re Gor- don's Trust, Law Rep., 6 Eq. 335; 37 L. J. (N. S.) Ch. 408. (Z) County Court Forms in Equity, 1868, No. 48. PROCEEDINGS BY TRUSTEES AND EXECUTORS. 57 4. State the names of the persons interested in, or entitled to, the fund, to PaetIV. the best of the trustee's knowledge or belief, as- To the best of my knowledge and belief, the said G. H. and J. K., as such trustees as aforesaid, and the said E. F., M. N. and his children or child (stating, if known, their names), and O. P. and her children or child (stating, if known, their names), are the only persons interested in the said fund. 5. Add submission to answer inquiries, as — I submit to answer all such inquiries relating to the application of the said fund of £ as the court may think proper to make or direct. Sworn at, &c. Certificate in Case of Money (m). In the County Court of holden at (Seal.) In the matter of " The County Courts Act, 1867." In the matter of the [trust* of ]. I hereby certify, that {state name, address, and description of party making the application'] has this day filed with me, the registrar of this court, an affidavit entitled as above mentioned, with reference to a trust fund or sum of £ therein mentioned, which sum, as therein stated, he desires to pay into my name as such registrar as aforesaid into a Post Office Savings Bank, as provided by the above act. Dated this day of 187 . Registrar of the court. Certificate in Case of Transfer of Stock (n) . In the County Court of holden at (Seal.) In the matter of " The County Courts Act, 1867." In the matter of this I hereby certify, that [state, name, address, and description of party making application] has this day filed with me, the registrar of this court, an affidavit entitled as above mentioned, with reference to a trust fund of £ Bank £3 per Cent. Consolidated Annuities in the books of the Governor and Company of the Bank of England, which, as therein stated, he desires to transfer into the names of the treasurer and of the registrar of this court [or the superintendent, etc.], as provided by the above act. Dated this day of 187 . Registrar of the court. Acknowledgment of filing of Receipt or Transfer Ticket (o). In the County Court of holden at (Seal.) In the matter of " The County Courts Act, 1867," and In the matter of this I hereby acknowledge, that [state the name, address, and description of the party giving to the registrar the receipt of the Post Office Savings Bank, (m) Conntv Court Forms in Equity, (n) Id. No. 50. 1868, No. 49. (o) Id, No. 51. Chap. III. 58 plaintiff's proceedings in order to commence a suit. Part iv. in the case of money, or the transfer ticket in the case of stock,] has this Chap, hi. day delivered to me, the registrar of the court, a receipt dated [name of officer of the Post Office Savings Bank'], for the sum of £ , stating that [state receipt], [or, a transfer ticket of the Governor and Company of the Bank of England, stating that [state as in ticket]. Registrar of the court. Certificate of Deposit or Security (p). In the County Court of holden at In the matter of" The County Courts Act, 1867," and In the matter of this (Seal) I hereby certify that [state the name, address, and description of the party depositing with the registrar the security], has this day deposited with me, the registrar of this court, in the name of myself and the treasurer [here state the nature of the security deposited]. Registrar of the court. Notice of Payment into Post Office Savings Bank or of Transfer of Stock or Deposit of Security (q). No. In the County Court of holden at (Seal) In the matter of" The County Courts Act, 1867," and In the matter of this Take notice, that on the day of [state name, address, and description of piarly toho has paid in the money] under the said act paid into the Post Office Savings Bank at , in the name of me, the re- gistrar of this court, the sum of £ , and in his affidavit filed in this court on the day of shortly described the instrument creating the trust, and stated the names of the persons interested in or entitled to the fund, to the best of his knowledge and belief, as follows, that is to say [state from the affidavit the paragraph containing the names of the persons interested or entitled] [or, " transferred into the names of of , and of me, the registrar of this court, in the books of the Governor and Company of the Bank of England, the sum of £ Bank £3 per Cent. Consolidated Annuities, in trust to attend the orders of this court, or deposited with me in the names of of , and of me the registrar of this court in trust to attend the orders of this court [here describe security"]. And further, take notice, that any person interested in, or entitled to, the said fund, may apply to this court respecting the investment, pay- ment out, or distribution of the fund, or of the income thereof, according to the practice of the court. Registrar of the court. O) County Court Forms in Equity, 1868, No. 52. (q) Id. No. 53. SERVICE OP PROCESS. 59 Notice to Treasurer (r). In the County Court of holden at (Seal.) In the matter of" The County Courts Act, 1867," and In the matter of this Take notice, that on the day of [state name, address, and description of party who has deposited the security] under the said act deposited with the registrar of this court, in the names of yourself and myself, in trust to attend the orders of this court (here describe security). Registrar of the court. To E. E., Treasurer, (or as the case may be.) Letter to Commissioners of Treasury as to Drawing out Money (s). County Court Office, (Seal.) My Lords, I have the honor to request that an authority may be addressed to the postmaster-general to allow me to draw out of the Post Office Savings Bank the sura of £ \_here insert the sum desired to be drawn out, adding, where the sum is not to pay interest], being the sum I am directed to draw out by order of court dated the day of 187 . I am, my Lords, Your obedient servant, Registrar of the County Court of holden at Part IV. Chap. III. § 6. — Service of Process. The Order and Rules provide that — " The high bailiff shall serve all documents issued to him by the registrar for service, and execute all warrants" (t). " Every document the mode of serving which is not specially defined by these orders, may be served, and the service thereof may be proved in conformity with the practice that has heretofore prevailed in the county courts as to the service of summonses, excepting so far as the same relates to the time of service" (»). " Where by reason of the absence of any party, or from any other sufficient cause, the service of any summons, notice, proceeding or document cannot be made, or ought in the opinion of the judge to be dispensed with, the judge may wholly dispense with such service, or may, at his discretion, order any substituted service or notice by adver- tisement or otherwise in lieu of such service" (x). "The fee for service of process shall be taken in respect of each Order XXI. Rule 2. Services and executions. Order XXIII. Rule 3. Service. Rule 14. Substituted service. Order XXIII. liule 28. (r) County Court Forms in Equity, 1868, No. 54. (s) Id. No. 55. (f) County Court Orders and Rules in Equity, 1868, Order XXI. Rule 2. (n) Id. Order XXIII. Rule 3. (x) Id, Rule 14. 60 PLAINTIFF S PROCEEDINGS IN ORDER TO COMMENCE A SUIT. Part IV. Chap. III. Order I. Rule 9. Service of summons. Rule 10. Service when defendant is out of juris- diction of county courts. Order XI. Rule'.']. Registrar to issue notices. Rule 22. Service of petitions and notices. defendant to be served, and where the process is to be served in a foreign district, a fee for each affidavit of service" (y). Service of Summons in Proceedings by Plaint and Summons under Sect. 2.] — " The summons, with a copy of the plaint annexed thereto, shall be issued by the registrar to the bailiff forthwith, who shall serve the same within seven days, and the service thereof shall be proved, in conformity with the present practice of the county courts ; provided always, that the court may, upon facts duly verified by affidavit, allow substituted service where justice requires it" (z). " Where a defendant shall be out of England, the judge, or in his absence the registrar, may, upon an affidavit of the fact, direct the service of the plaint and summons to be effected within such time and in such manner as the judge or registrar may think fit" (a). Affidavit in support of Application for substituted Service (Z>). I, J. S., of [address and description], make oath and say as follows : — State facts showing that defendant has been within the jurisdiction of the county courts at some time nut more than two years before the plaint teas filed, and that he is beyond the sens. Or, that upon inquiry at his usual place of abode (if he had any), or at any other place or places where prior to the time when the plaint was filed he might probably have been met ivith, he could not be found so as to be served, and that in either case there is just ground to believe that he has gone "but of the realm or otherwise ab- sconded to avoid being saved, and that service on J. N. will be effective to reach C. D. Then state deponent's means of knowledge of the facts deposed to. Sworn, etc. Ordtrfor substituted Service (c). It appearing to me, upon the affidavit of that it is desirable for the purposes of this suit that service of the plaint be made upon at , and that such service be deemed good service on the defen- dant C. D., I do order that service of the plaint and summons in this suit be deemed good service upon the said defendant C. D. Dated this day of . J. S , Judge. Service of Petition or Notice in Proceedings under Sects. 3 <£4.] — "The registrar, upon receiving any such petition or notice and the copies thereof, shall issue the copies under the seal of the court to the bailiff for service upon the respective persons to whom they are addressed, to- gether with a notice, signed by himself and under the seal of the court, informing them of the day and hour on which the petition or application will be heard, and that if they do not attend, either in person or by their attorneys, such order will be made and proceedings taken as the judge may think just and expedient" (d). " The bailiff of the court shall, four days at least before the hearing, serve all copies of such petitions and notices" (e). As to service in general, see ante, Vol. I., pp. 160, 298, 444. 1868, No. 2. See form of heading of affidavit, post, Chap. V. § 5. O) Id. No. 3. (d) Countv Court Orders and Rules in Equity, 1868, Order XI. Rule 21. (<•) Id. Rule 22. (y) This is an additional rule given by " The County Court Rules, 1870." (z ) County Court Orders and Rules in Equitv, 1868, Order I. Rule 9. (a) Id. Rule 10. (&) County Court Forms in Equity, ( 61 ) CHAPTER IV. THE DEFENDANT'S PROCEEDINGS IN A SUIT. § 1. — Admission. § 2. — Disclaimer or Answer. § 3. — Stating Proceedings. § 1. — Admission. " Where any defendant desires to admit the truth of the allegations in Order n. the plaint, and to submit to the judgment of the court, he may, at any Ad R "'® 1- time before the return-day of the original summons, in the presence of m ' ssi a registrar of a county court, or in the presence of one of his clerks, or of an attorney of one of the superior courts, sign an admission in the form contained in the schedule to these orders ; and the signature of the defendant thereto shall be verified by affidavit, unless signed in the presence of the registrar of the court in which the suit is, or of one of his clerks" (a). " The admission shall be delivered to the registrar, together with a Rule 2. copy thereof for each of the plaintiffs, or, where the plaint is filed by an Notice of attorney, with a copy for such attorney only ; and the registrar shall admissi0n - forthwith file the same, and transmit a copy by post to each plaintiff, or the attorney, as the case may be, and after the receipt of such copy the plaintiff shall be entitled to "the costs then already incurred, and to the further costs of attending the court and obtaining the decree or order to be made upon such admission, but to no other costs" (b). Defendant's Admission (c). I, the undersigned defendant, admit the truth of the allegations in the plaint, and hereby submit to the judgment of the court thereon. (Signed) C. D., defendant. Signed in the presence of [This paper marked (A.) is the paper referred to in the annexed affidavit.] Affidavit of Signature to Defendant's Admission (d). I, of , gentleman, an attorney of her Majesty's Court of at Westminster, make oath and say, that I was present on the day of one thousand eight hundred and sixty , and (a) County Court Orders and (r) Countv Court Forms in Equity, Rules in Equity, 1868, Order XI. 1868, No. 17. See form of heading Rule 1. ante, p. 52. (b) Id. Rule 2. (rf) Id. No. 18. 62 the defendant's proceedings in a suit. part iv. did see the above-named C. D., the defendant, sign the statement here- Chap. iv. lm t annexed, marked with the letter A., and that the name set to the said statement is in the handwriting of the defendant, and that the name set to the said statement as the witness attesting the same is in my handwriting. § 2. — Disclaimer or Answer. It seems doubtful whether a defendant in any suit in equity in the county court is compelled under any circumstances to give notice of a special defence, as in the case of actions (e). " The County Courts Act, 1846" (9 & 10 Vict. c. 96), sect. 76, provides, that " no defendant shall be allowed to set off any debt or demand claimed or recoverable by him from the plaintiff, or to set up by way of defence and to claim and have the benefit of infancy, cover- ture or any statute of limitations, or of his discharge under any statute relating to bankrupts, or any act for relief of insolvent debtors, without the consent of the plaintiff, unless such notice thereof as shall be directed by the rules made for regulating the practice of the court shall have been given" (/"). " The County Courts Act, 1865" (28 & 29 Vict. c. 99), giving the equitable jurisdiction to county courts, requires the above (and other) acts to be read and construed as one act. The question is, there- fore, whether the County Court Rules direct notice of the above defences to be given in equitable suits. The County Court Rules relating to special defences are the " Common Law Rules," as distinguished from the " Orders and Rules in Equity ;" the latter orders and rules, however, expressly provide that " the rules and forms and practice in actions in the county courts shall, subject to these orders, be adopted with reference to suits and proceedings in equity, so far as they shall be respectively applicable" (g). Are the Common Law Rules, then, relating to special defences applic- able to suits in equity? A difficulty in answering in the affirmative arises from the fact, that the rules relating to defences require notice to be given, not only in the cases mentioned in " The County Courts Act, 1846," but also where a defendant relies on ' ; an equitable or statutory defence" (A). An "equitable defence," then, clearly means an equitable defence to an action; and it is clearly impossible to contend that notice is required, if the rule is applicable to suits in equity. The safest course seems to be, to treat the rules relating to any special defence mentioned in " The County Courts Act, 1846," as applicable to suits in equity, and 0) See ante, Vol. I., pp. 188— in Equity, 1868, Order XXIII. Kule 192. 27. See the rule, ante, p. 3, note. ( f) See the section, ante, Vol. I., (h) County Court (Common Law) p. 189. Rules, 1868, Eule 88. See ante, (a) County Court Rules and Orders Vol. I., p. 189. DISCLAIMER OR ANSWER. 63 accordingly to give the required notice in any case within its scope. It is only in very exceptional cases that such a defence arises in equity. Although, however, notice of an answer or defence to an equit- able plaint or claim is not necessary, it will be often very expe- dient for a defendant in reference to costs to inform the plaintiff of the nature of his defence. The Rules of Practice in Equity provide for the defendant doing this. " The defendant may, within eight days after the service of the sum- mons, by a statement in writing signed by him, disclaim any interest in the subject-matter of the suit, or admit or deny any of the statements in the plaint, or raise any question of law on such statements without ad- mitting the truth thereof; or he may state concisely any new fact or document upon which he intends to rely as a defence at the hearing, or which he thinks advisable to bring to the notice of the court : Provided always, that in exercising his discretion as to costs, the judge shall con- sider the fact of a defendant having or not having availed himself of the powers given by this rule" (i). " The statement under the last foregoing rule shall be delivered to the registrar, together with a copy thereof for each of the plaintiffs, or where the plaint is filed by an attorney, with a copy for such attorney only; and the registrar shall forthwith file the same, and transmit a copy by post to each plaintiff or the attorney, as the case may be" (k). " Where the statement is filed by an attorney he shall indorse thereon his name or firm and place of business, and that the defendant defends by him; and where it is not filed by an attorney, the defendant who actually files the same shall indorse thereon his name and address" (I). Defendant' 's Statements (to). I the undersigned defendant [or one of the defendants] disclaim all interest under the will of the said E. F., in the plaint named [or as heir- at-law of, or as next of kin, or one of the next of kin of E. F., deceased, in the said plaint named]. Or, I the undersigned defendant state that I admit [or deny] [here repeat in the language of the plaint the statements admitted or denied]. Or, I the undersigned defendant submit that upon the facts stated in the plaint it does not appear that there is any agreement which can be legally enforced [or that it appears upon the said plaint that I am jointly liable with one E. F., who is not a party to the suit, and not severally liable as by the plaint appears, or that it appears by the said plaint that G. H. should have been a joint plaintiff with the said A. B. in the said suit, or as the case may be]. Or that the plaintiff has conveyed [or assigned] his interest in the said mortgage [or equity of redemption] to one I. J., or that I have con- veyed or assigned to H. L. by way of further charge for securing the sum of & , the equity of redemption in the property sought by the suit to be foreclosed]. Part IV. Chap. IV. Order II. Rule 3. Statement in the nature of a disclaimer or answer may be filed by defendant. Rule 4. Statement to be filed. Rule 5. Statement filed by at- torney. (i) County Court Orders and Rules in Equity, 18G8, Order II. Rule 3. (A) Id. Rule 4. (I) Id. Rule 5. (to) County Court Forms in Equity, 1868, No. 19. See heading and con- clusion, ante, p. 52. 64 THE DEFENDANT'S PROCEEDINGS IN A SUIT. Part IV. Chap. IV. Or that since the dissolution of the partnership the plaintiff has exe- cuted a deed under seal, whereby the plaintiff covenants to discharge all debts and liabilities of the partnership, and generally to release me from all claims and liabilities either by or to himself and others in respect of the said partnership trading [or as the case may be~\. (Signed) C. D., defendant. Where filed hy attorney add — This statement was filed by of attorney for the defendant. Frivolous or vexatious suits. § 3. — Staying Proceedings. Apart from the proceedings on a simple admission under sect. 1? a defendant may in certain cases obtain a stay of proceedings on payment of costs or even without payment of costs. " There are cases in which an application may be made by a defendant to stay proceedings without costs. Suppose a party, with- out any dispute having been raised by a defendant, files a bill. Then the defendant may well say, ' I never disputed your right. Why did you not apply to me before you filed a bill ? You have filed a bill merely to make costs.' In such a case the court, with- out going into the merits, would stop the suit without costs; on the ground, extrinsic to the merits, that the plaintiff ought never to have filed a bill at all" ( n). So, where a plaintiff has made default in payment of the costs acts'oTformer °f a former suit against the same defendant or the person whom he represents, for the same purpose, the defendant may obtain an order on motion, with notice to the plaintiff, staying all further proceedings until the plaintiff has paid such costs (o). Staying pro- suit :ire paid. (w) Kinder sley, V.-C, in Wallis v. Wallis, 4 Drew. 458, 463; 28 L. J. (N. S. ) Ch. 441; acted upon in Jf.udd v. Borne, 39 L. J. (N. S.) Ch. 846. (o) Darnell's Chancery Practice, 5th edit., p. 696, and cases there cited. ( 65 ) CHAPTER V. VARIOUS PROCEEDINGS BEFORE THE HEARING. § 1. — Proceedings by Attorney. -Conduct op the Suit or Proceeding. -Enlarging or abridging Time for taking Steps, &c. -Ex parte Applications. -Affidavits. -Filing of Documents. -Application for Copies of Documents. -Inspection and Admission of Documents. -Summoning Witnesses. -Examination of Witnesses before Hearing. -Notice of Intention to use Affidavits at the Hear- ing. § 12. — Dismissal of the Suit at the Plaintiff's Instance before the Return Day. § 2, § 3, § 4, § 5. § 6. i 7. i 8. § 9. § 10. S 11. § 1.— Proceedings by Attorney. In treating, in this chapter, of various steps that may be taken in a suit or proceeding subsequent to its commencement and before tbe hearing (a), it will be convenient in the first place to give the fol- lowing rules relating to the power of an attorney in acting on behalf of a client (b) : — " Where by these orders any act is to be, or may be done, by any party Order xxiii to a suit or proceeding, such act may be done either in person or by his Kule u - attorney" (c). t^^* " Where a party acts by attorney, service of any proceeding or docu- counsel or ment upon such attorney, or delivery of the same at his office, or sending attorne y- the same to him by post, shall be good service upon the party for whom s, e ™*l*' attorney (a) As to the transfer of snits and law matters, and solicitors in Chan- proceedings, see ])Ost, Chap. IX. eery. (b) The Orders and Kules in Equity (c) County Court Orders and Rules do not preserve the distinction in in Equity, 1868, Order XXIII. Kule name between attornies in common 11. D. VOL. II. F 66 VARIOUS PROCEEDINGS BEFORE THE HEARING. Part IV. Chap. V. sufficient except where personal service is required. Rule 13. Service may, by leave of the registrar, he effected by the attorney. Order XXIII. Rule 4. Change of. attorney. Order XXIII. Rule 17. Conduct of suit. sucli attorney acts, as upon the day when the same is so served or deli- vered, or upon which in the ordinary course of post it would be delivered, except in cases where by these orders personal service upon a party is required" (d). " Any proceeding or document may, by leave of the registrar, be served by the attorney of the party requiring to effect such service ; but the costs of such service, and proof thereof, shall not be allowed, except by order of the judge" (e). " Where any party to a suit or proceeding changes his attorney, he shall give notice in writing of such change to the registrar, stating the name or firm and place of business of the new attorney, and the registrar shall file the notice" (/). Notice of Change of Attorney (g). To the registrar of the court. Take notice that I, A. B. [or C. D.], have hitherto employed as my attorney G-. H. of in the above-mentioned cause, but that I have ceased to employ him, and that my present attorney is I. K. of A. B. [or C. D.] § 2. — Conduct op the Suit or Proceeding. " The judge may order what party shall have the conduct of any suit or proceeding, or any part thereof, and may rescind or alter such order or make new orders in that behalf, from time to time as he shall think fit" (h). Order XXm. Rule 18. Court may enlarge or abridge periods men- tioned in these orders. Order XII. Rule 1. Peremptory motions. § 3. Enlarging or abridging Time por taking Steps, &c. "The judge may, if he think fit, enlarge or abridge any of the times fixed by these orders for taking any step, or filing any document, or giving any notice in any suit or proceeding" (i). § 4. — Ex parte Applications. " Wherever in any suit or proceeding it shall become necessary to secure the possession of any property, or to obtain security from any person for any moneys in his possession, or to enforce the deposit or the payment into court thereof pending litigation, or the immediate sale of any goods or chattels, and the deposit or payment into court of the purchase-money thereof, or to obtain an order in the nature of an injunc- tion, any party may apply ex parte to the judge, either in or out of court, upon affidavits setting forth the facts, rendering such order immediately necessary, and upon such application the judge may either make an (d) County Court Orders and Rules in Equity, 1868, Order XXIII. Rule 12. O) Id. Rule 13. (/) Id. Rule 4. (y) County Court Forms in Equity, 1868, No. 37. (/t) County Court Orders and Rules in Equity, 1868, Order XXIIL Rule 17. (i) Id. Rule 18. AFFIDAVITS. 67 order absolute in the first instance, or make an order to be absolute at Part iv. any time to be ordered by him, unless cause be shown to the contrary, Chap. v - or may make such other order or give such directions in the matter as the judge mav think fit, and may order immediate execution" (fc). " The draft of all orders under the foregoing rule shall be prepared Rule 2. beforehand by the registrar of the court in which such suit or proceeding Orders, how is pending, and shall be presented by the party when he makes such application to the judge to settle and sign" (I). " The draft so signed shall be transmitted by the applicant to the Rule 3. registrar of the court in which the suit or proceeding is pending, who drawn'aniT shall draw up the order in conformity therewith, and seal and file the executed. same, and issue a copy thereof under the seal of the court to the bailiff for service, and execution shall be issued thereon, as by the order is di- rected" (m). See Forms of Order under these Rules, Forms No. 21 and 22, post, p. 96. § 5 — Affidavits. "All affidavits shall be expressed in the first person of the de- Order xiv. ponenf'O). . . sj^te'to " All affidavits shall state the deponent's age, occupation, quality, and be expressed place of residence, and also what facts or circumstances deposed to are in the first within deponent's own knowledge, and his means of knowledge, and person - what facts or circumstances deposed to are known to, or believed by Sou ^"eg ^f him by reason of information derived from other sources than his own knowledge to knowledge, and what such sources are" (o). be stated. " The costs of affidavit not in conformity with the last two preceding Ku 'e 3. rules shall be disallowed on taxation, unless the court shall otherwise affidavits direct" (p). whendis- " Before any affidavit is used it shall be filed in the office of the re- allowed - gistrar"(7). ..... . Fi ™ e f 4 - " No affidavit in which there is any knife erasure, or which is blotted affidavits. so as to obliterate any word, or which is illegibly written, or so altered R U ie 5. as to cause it to be illegible, nor any affidavit in which there is any in- Erasure, terlineation, unless the person before whom the same is sworn shall fnterii'neV have duly authenticated such interlineation with his initials in such tiun, etc. in manner as to show that such interlineation was made before it was affidavits, sworn, shall be filed or used in any suit or proceeding" (r). " Where a registrar rejects an affidavit under Order XIV. he shall order xx. give notice, by post or otherwise, to the party offering the same for Rule 3. filing, and of the reasons for such rejection; and where any other docu- gfetrarwhen ment is so imperfect upon the face thereof, or by reason of having blanks he rejects therein, that it cannot be easily read or understood, the registrar may "^"g a^u- (h) County Court Orders and (») Id. Order XIV. Kule 1. Rules in Equity, 1868, Order XII. («) 2d. Rule 2. Rule 1. (jj) Id. Rule 3. (0 Id. Rule 2. 0y ) Id. Rule i. O) Id. Rule 3. (/•) Id. Rule 5. f2 68 VARIOUS PROCEEDINGS BEFORE TIIE HEARING. ments are imperfect. Part iv. refuse to file, and may return the same by post or otherwise, to the Chap. v - party offering the same, to be re-written, or the blanks filled up" (s). General Form of Heading and Conclusion for Affidavits (€). No. of plaint in equity. In the county court of holden at In the suit of A. B. v. C. D. o o o e e Sworn at in the county of this ") day of one thousand eight J- hundred and sixty before me j Order XX. Kule 2. Documents to be distin- guished by the number of the plnint and letters. § 6. — Filing of Documents. " Upon the filing of any document it shall be distinguished by the number of the plaint or petition in respect of which it is filed being in- dorsed thereon, and it shall be further distinguished from other docu- ments filed in the suit or proceeding by placing after the number a dis- tinctive letter of the alphabet" (w). § 7. — Application for Copies of Documents. Order xxin. " Copies of all proceedings or documents shall be prepared by the Kuie lo. registrar for any person requiring the same, upon payment of the costs prepareadl of such copies when the order for the same is given" (x). copies. § 8. — Inspection and Admission of Documents. " Where a party desires to give in evidence any document, he may, not less than five days before the hearing, give notice to any other party in the cause who is competent to make admissions, requiring him to in- spect and admit such document ; and if such other party shall not within a reasonable time make such admission, any expense of proving the same at the hearing shall be paid by him, whatever be the result of the cause, unless the court shall otherwise order; and no costs of proving any document shall be allowed unless such notice shall be given, except in cases where, in the opinion of the registrar, the omission to give such notice has been a saving of expense" (y). Kuie 3. " Where a party desires to inspect any document in the possession or inspection of U11( j er £] ie CO ntrol of any other party, he may, five days before the hear- Order III. Kule 2. As to admis- sion of docu- ments. 21 & 22 Vict. c. 27, s. 7. documents in (s) County Court Orders and Rules in Equity, 1868, Order XX. Rule 3. (t) County Court Forms in Equity, 1868. («) County Court Orders and Rules in Equity, 1868, Order XX. Rule 2. C» Id. Order XXIII. Rule 10. (y) County Court Orders and Rules in Equity, 1868, Order III. Rule 2. The 21 & 22 Vict. c. 27 ("The Chancery Amendment Act, 1858"), s. 7, referred to in the margin of the above rule, is the corresponding pro- vision for suits in the High Court of Chancery. INSPECTION AND ADMISSION OF DOCUMENTS. 69 ing, give notice to such other party that he or his attorney desires to pakt iv. inspect the same at anyplace to be appointed by such other party ; and C " AP - v - if such other party shall not appoint a convenient place, or allow the posgessio party giving such notice or his attorney, to inspect such document control of mi within three days after receiving such notice, the judge may adjourn PP°s'te the hearing, and make such order as to costs as he shall think fit" (z). pat 7 * Sect. 18 of 15 & 16 Vict. c. 86 (amending the practice and is&i6vict. course of proceeding in the High Court of Chancery), l'eferred to c - 86 > s - 18 - in the margin of the above rule, enacts that " it shall be lawful for the court, upon the application of the plaintiff in any suit in the said court, whether commenced by bill or by claim, and as to a suit commenced by bill, whether the defendant may or may not have been required to answer the bill, or may or may not have been interrogated as to the possession of documents, to make an order for the production by any defendant, upon oath, of such of the documents in his possession or power relating to matters in question in the suit, as the court shall think right ; and the court may deal with such documents, when produced, in such manner as shall appear just." For the practice of the Court of Chancery, see Daniell's Chan- cery Practice, 5th edit., p. 1673. See also the County Court Practice as to Inspection and Recovery of Documents in Actions in the County Courts, ante, Vol. I. p. 225. And see Rule 27 of Order XXIII. of the County Court Orders and Rules in Equity, 1868, ante, p. 3 (a). The mere fact that documents are the property of the party jointly with another (not a party to the suit), is not an answer to an application for inspection. The nature of the joint ownership ought to be shown, so that the court may be able to draw any necessary inferences as to the rights of parties (6). Notice to Admit and Inspect (c). Take notice that the plaintiff [or defendant or petitioner] proposes to adduce in evidence on the trial in this cause [or matter] the several documents hereunder specified, and that the same may be inspected by the defendant [or plaintiff, or petitioner], his attorney or agent, at on , between the hours of ; and the defendant [or plaintiff or petitioner] is hereby required, within forty-eight hours from the last-mentioned hour, to admit that such of the said documents as are specified to be originals were respectively written, signed, or exe- cuted as they purport respectively to have been ; that such as are speci- (z) County Court Orders and (b) Bovill v. Cowan, 39 L. J. Eules in Equity, 1868, Order III. (N. S.) Ch. 768. Defendants may in Rule 3. some cases have an order for inspec- (a) As to the right of an agent to tion against co-defendants ; see Ken- inspect on behalf of his principal, nedy v. Wakefield, 39 L. J. (N. S.) see Attorney- General v. Whitwood Ch. 827. Local Board and Attorney- General (c) County Court Forms in Equity, v. Caxtleford Local Board, 40 L. J. 1868, No. 14. See form of heading, (N. S.) Ch. 592. ante, p. 52. 70 VARIOUS PROCEEDINGS BEFORE TIIE HEARING. Part IV. Chap. V. fied as copies are true copies ; and that such documents as are stated to have been served, sent or delivered, were so served, sent or delivered respectively, saving all just exceptions to the admissibility of all such documents as evidence on such trial. Dated the day of G. H., attorney for To E. F., attorney for Originals. Description of the Documents. Copies. Description of Documents. Original or Duplicate served, sent, or delivered, when, how, aud by whom. Order III. Rule 4. Summons to witness. Rule 5. Compulsory production of documents by parties to suit. 15 & 16 Vict, c. SB, ss. IS & 20. § 9. — Summoning Witnesses. " Where a party requires the attendance of any other party, or of any "witness, either to give evidence, or to produce documents, he shall apply to the registrar to issue a summons requiring such other party or witness to attend the court or the registrar, as the case may be, or to attend and produce documents ; and such summonses shall respectively be drawn up by the registrar, and be issued by him to the bailiff, who shall serve the same ; and in every summons to produce documents the registrar shall insert a description of the documents required " (d). " Where a party served with a summons under the last rule shall not at the hearing produce the documents required, the court may upon ad- mission or proof of the service of such summons within a reasonable time, and that such documents are in the possession of the party so served, and that they relate to the matter then pending before the court, make an order for their production by him, and the court may deal with them, when so produced, and with all costs occasioned by their non-pro- duction, as may appear just. Provided that nothing herein shall prevent the court from receiving secondary evidence of any document of which notice to produce has been given " (e). (). " If no application shall be made to vary the certificate, it shall be taken as confirmed, unless the judge shall otherwise order " (t). Form of Registrar's Certificate (a). In obedience to the decretal order of this court made in the above suit, I hereby certify that the result of the accounts and inquiries [or of the sale and apportionment] which have been taken and made in pur- suance of the made in this dated the day of 187 , is as follows. The plaintiffs and defendants have attended by themselves or by their respective attorneys. Notice of Decretal Order. Notice of the said decretal order of the day of 187 , has been served upon The persons so served include all the now living, and the per- sonal representatives of such of them as are dead, except such as are parties to this suit, and except hereinafter named Service of notice of the said decretal order upon the said was dispensed with. Personal Estate Account. The defendant the executor [or administrator] of the testator [or intestate] named in the said have received personal estate to the amount of £ , and they have paid or are entitled to be allowed on account thereof sums to the amount of £ , leaving a balance due from [or to] them of £ on that account. (q) County Court Orders and Rules in Equity, 1868, Order VIII. Rule 1. (r) Id. Rule 2. (s) Id, Rule 3. (t ) Id. Rule 4. ( u ) County Court Forms in Equity, 1868, No. 31. See form of heading, ante, p. 52. REFERENCE TO THE REGISTRAR. 93 References to Account. Part iv. The particulars of the above receipts and payments appear in the Chap, vii. account marked A., verified by the affidavit of the said defendant filed the day of and the account marked B., verified by the affidavit of filed the day of and which accounts are to be filed with this certificate. Variations from Accounts. Except that in addition to the sums appearing in snch account to have been received, the said defendant [or plaintiff] is [or are] charged with the following sums ; (that is to say) £ , and except that of the items of disbursement in the said account, I have disallowed those numbered , and I have deducted from the item numbered the sum of £ , and from the item numbered the sum of £ , and in addition to the disbursements appearing in such account the said defendant ha paid and been allowed the sum of £ Special Allowances in Accounts. The payments allowed to the said defendant [or plaintiff] in the said account include the sum of £ paid into court to the credit of this cause, on the day of 187 . Reference to Transcript of Account. The before-mentioned account marked A. has been altered, and the account marked A. B., and which is also to be filed with the certificate, is a transcript of the said account marked A. as altered and passed. No Personal Estate received. The defendant the executor [or administrator] of the testator [or intestate] named in the said have not, nor hath any or either of them, or any person or persons by their or any or either of their order, or for their or any or either of their use, received any part of the per- sonal estate of the said testator [or intestate]. Funeral Expenses. The funeral expenses of the testator [or intestate], amounting to the sum of £ have been paid and are allowed the defendant [or plain- tiff] the executor [or administrator] of the said testator [or intes- tate] in the said account of personal estate hereinafter mentioned]. Debts. The debts of the testator [or intestate, including the plaintiff's] which have been allowed are set forth in the schedule hereto, and with the interest thereon and costs mentioned in the said schedule are due to the plaintiff and the other persons named therein, and amount altogether to . No other person has been allowed, or come in and proved, any debt against the estate of the said testator [or intestate], and the time fixed by advertisement for that purpose has expired. Such of the said debts as are specialty are set forth in the first part of the said schedule, and amount to ; such as are simple contract are set forth in the second part of the said schedule, and amount to £ Interest on Debts. The interest on such debts is computed down to the date of this certificate, and after the rate of £4 per centum per annum, from the day of 187 , the date of the said decretal order, unless otherwise specified in the said schedule. 94 PROCEEDINGS IN CARRYING OUT DECRETAL ORDERS. Part iv. Legacies and Annuities. Chap, vii. rpj je i e g ac ; es g} ven by the testator, other than annuities, are set forth in the first part of the schedule hereto, and with the interest therein mentioned, remain due to the persons therein named, and amount alto- gether to £ The annuities given by the testator, with the arrears due thereon, are set forth in the second part of the said schedule. Such arrears amount to £ Interest on Legacies. The interest on such legacies is computed down to the date of this certificate, and after the rate of £4 per centum per annum, from the day of 187 , the end of one year after the testator's death, unless otherwise specified in the said schedule. The arrears of the annuities are computed to the date of this certifi- cate, and from the testator's death, unless otherwise specified in the said schedule. Outstanding Estate. The personal estate of the said testator [or intestate] [not specifically bequeathed] outstanding or undisposed of consists of the particulars set forth in the schedule hereto. Meal Estate. The real estate which the said testator [or intestate] was seised of or entitled to consist of the particulars set forth in the schedule hereto. Incumbrances on Real Estate. The incumbrances affecting the said testator's [or intestate's] real estate are specified in the schedule hereto. Rents and Profits Account. The defendants [or plaintiff the trustee named in the said decretal order have received rents and profits of the testator's real estate to the amount of £ and they have paid or are entitled to be allowed on account thereof sums to the amount of £ , leaving a balance due from [or to] them of £ on that account. No Rents and Profits received. The defendants [or plaintiff the trustees named in the said decretal order have not, nor hath any or either of them or any person or persons by their or any or either of their order, or for their or any or either of their use, received any sum or sums of money on account of the rents and profits of the testator's [or intestate's] real estate. Next of Kin. The next of kin, according to the statutes for the distribution of the effects of intestates, of the intestate named in the said living at the time of his death were of whom the said have since died. The legal personal representative of the said The legal personal representative of the said The legal personal representative of the said Dated this day of Registrar. REFERENCE TO THE REGISTRAR. 95 Notice that Registrar's Certificate may be inspected (x). Take notice that the certificate of the result of the inquiries made and accounts taken by me under the decretal order of this court made on the day of in this cause lies in my office and can be inspected by you up to and inclusive of the day of [here insert the day before the cause is to be further heard]. Registrar. To Part IV. Chap. VII. Registrar's Certificate of Amount of Principal and Interest due on Mort- gage in Suit for Foreclosure (y). In obedience to the decretal order of this court made in the above suit I hereby certify that the result of the accounts and inquiries which have been taken and made in pursuance of the decretal order made in this suit, dated the day of , 187 , is as follows : — 1. The plaintiff and defendant have respectively attended in person. 2. There is due to the plaintiff the sum of £ for principal, and the sum of £ for interest, calculated to the date of this certifi- cate on his mortgage security in the plaint mentioned, making together the sum of £ 3. There is also due to the plaintiff for costs charges and expenses properly incurred by him in respect of his mortgage security, not being costs of this suit, the sum of £ , and the said several sums of £ and £ being added to the sum of £ the amount of the plaintiff's taxed costs of this suit, they amount together to the sum of £ 4. The evidence produced hereon was the affidavit of the plaintiff filed the day of , 187 , and the exhibits A therein referred to. 5. There will be due to the plaintiff on the day of next, being six months after the date of this certificate the sum of £ for further interest at the rate of £ per cent, per annum on the said principal sum of £ , they amount together to the sum of £ 6. The said day of next, between the hours of ten in the forenoon and four in the afternoon at the county court of , situate at in the said county of , are named as the time and place at which the defendant T. M. is to pay the said sum of £ to the registrar of this court. Dated this day of , 187 . Registrar. § 7.— Application to Judge for further Directions. " Where the registrar, high bailiff, receiver, or any party has by any order vi. decretal order been directed to do any act for doing which it may be Kule * 4 - found necessary to have further directions or an order of the court, the u^'u'fge'for registrar shall apply to the judge for such direction or order, and upon further di- (ar) County Court Forms in Equity, (y) MS. Form. 1868,No.32. See heading, a ra^, p. 52. ing, ante, p. 52. See form of head- 96 PROCEEDINGS IN CARRYING OUT DECRETAL ORDERS. Part IV. Chap. VFI. as he may think fit, or may appoint a time to hear all parties upon the application so made by the registrar; and if the judge shall make such appointment for hearing, the same shall operate as a stay of proceedings in the suit until the day so appointed, if he shall so direct" (a). Form of Order under Order VI. Rule 14, or under Order XII. (a). It appearing to me that it will be for the benefit of the estate that the remaining outstanding debts be sold, I do order that the debts now due to the estate of E. F., the testator [or intestate] in the plaint in this suit mentioned, be sold as soon as conveniently may be by [the re- ceiver] by private contract [or public auction] for the highest price that can be obtained for the same. Dated this day of J. S., judge. Form of Order under Order VI Mule 14, or under Order XII. (5). It appearing to me that it is necessary for carrying out the objects of this suit that the real estate [or part of the real estate] of the deceased be sold, I do order that all that freehold [copyhold or leasehold] messu- age or tenement, etc. [setting out parcels, as in last conveyance'] being the real [or part of the real] estate of E. F., late of in the county of deceased, the testator [or intestate in the plaint in the suit mentioned], be offered for sale by public auction at the Hotel at by Mr. auctioneer, and be then and there sold [pro- vided the sum bid for the same be not less than £ or\ to the highest bidder without reserve. Dated this day of J. S., judge. Order XXIII. Kule 15. Judge to order in what newspapers advertise- ments to be inserted and costs thereof to be prepaid. Rule 16. Advertise- ments in London Gazette. Order XVII. Kule 2. Payment into court. § 8. — Advertisements. "The judge shall order in what newspaper any advertisements which may from time to time be ordered in any suit or proceeding shall be in- serted ; and when there is no fund in court, the expense of such adver- tisement shall be paid to the registrar by the party requiring the same before they are inserted" (c). " All advertisements to be inserted in the London ' Gazette' shall lie transmitted to the registrar of county court judgments in London, who shall cause them to be classified and inserted in lists under the direction of the commissioners of her majesty's treasury" (cZ). § 9. —Payment of Money into and out of Court. " Where a party is directed to pay money into court, he shall attend and pay the same into the office of the registrar, and obtain a receipt for the amount ; and the registrar shall, unless otherwise ordered by the (z) County Court Orders and Kules, 1868, Order VI. Rule 14. (a ) County Court Forms in Equity, 1868, No. 21. See Order XII. ante, pp. 66, 67. See form of head- ing, ante, p. 52. (b) lb. No. 22. See Order XII., ante, pp. 66, 67. (c) Countv Court Orders and Rules in Equity, 1868, Order XXIII. Rule 15. (d) Id. Rule 16. PAYMENT OK MONEY INTO AND OUT OF COURT. 97 judge, pay the same into a post-office savings bank, in accordance with Part iv. the provisions of section 26 of 30 & 31 Vict. c. 142" (e). Chap, vir. The section referred to (30 & 31 Vict. c. 142, s. 26) enacts that,— " Any money paid into a county court in equitable proceedings shall, Monies paid unless otherwise ordered by the court, be invested by the registrar of court^n 01 " 1 ^ the court, in his name as registrar, within forty-eight hours of its pay- equitable ment into court, in a post-office savings bank established in the town in P roce ed"ngs ... • , 1 1 • i • i -ii nmv ° e in - which the court is held, without restriction as to amount, and without vested in a the declaration required of a depositor in a savings bank ; and no part v° sl . offlce of any money invested in a post-office savings bank under this act shall S{n ings an be paid out to any registrar except upon an authority addressed to the postmaster-general by the commissioners of her majesty's treasury." The rules provide that, — " The registrar shall enter in the ' cash book' and ' ledger for equit- Order xvn. able proceedings' all sums so paid to the account of the suit or matter, Entr " l f ' in which it is paid, and where the interest of any fund, paid into a post- office savings bank, has been directed to be paid to any person, the registrar shall pay the same half-yearly out of any general moneys in fntVrest his hands" (/). payment into court and payment of In the Case of Married Women.] — " Where any married woman is interested in any principal money, stocks, shares, or securities exceeding in value 200?., or 10Z. in annual payments, she shall be examined by the judge apart from her husband, to ascertain whether the same shall be paid to him or made the subject- matter of a settlement, but if she be under age the court shall order a proper settlement to be made" (g). Rule 9. Married women. § 10.— Payment of Legacy or Money to which an Infant or Person beyond Seas is entitled. " The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts that— Sect. 5. " Any legacy or sum of money to which any person who is an infant or absent beyond seas may be found or declared entitled by any county court in any suit or matter under this act may be ordered by the court to be paid to the accountant-general of the Court of Chancer} 7 , in accordance with the provisions of section thirty-two of an act passed in the session of parliament held in the thirty-sixth year of the reign of his majesty king George the third, chapter fifty-two ; and the person ordered to pay the same shall, within such time as the court shall direct, produce to the registrar of the court the certificate of the accountant-general of the payment of such money; and if default be made in such payment the judge may direct a warrant of execution to Power to judge of a county court to order any legacy, &c. to which an infant or person beyond the seas may be entitled to be paid into the Bank of England, in accordance (e) County Court Orders and (/) Id. Rule 3. Kules in Eqiiitv, 1868, Order XVII. (ff) Id. Rule 9. Kule 2. D. VOL. II. 8. 32 of 36 Geo. 3, c. 02, 98 PROCEEDINGS IN CARRYING OUT DECRETAL ORDERS. Part iv. issue to the high bailiff of the court, who by such warrant shall be em- Chap, vii. p 0were( i t levy or cause to be levied by distress and sale of the goods with pro- an d chattels of such person a sum of money equal in amount to the sum visions of which he was ordered to pay to the said accountant-general and to the costs incurred by reason of such default, and the sum so levied shall be paid to and be receivable by the said accountant-general under the direction of the court ; and all amounts so paid or transferred into the Court of Chancery, with any dividends thereon, shall be paid or trans- ferred to the person or persons entitled thereto, or otherwise applied for his or their benefit, on application by summons to one of the vice- chancellors while sitting at chambers." By the statute referred to, 36 Geo. 3, c. 52, s. 32, the person having or taking the burthen of any will or testamentary instru- ment, or the administration of any personal estate in the case of infancy or absence beyond the seas, of any person entitled to any legacy, or to the residue of any personal estate, or any part thereof, chargeable with the legacy duty, is enabled to pay such legacy or residue, after deducting the duty chargeable thereon, into the bank in the name of the accountant-general to the account of the person for whose benefit the same is payable ; and such money is directed to be laid out by the accouutant-geueral, with- out any formal request for that purpose, in the purchase of three per ceut. consolidated annuities. Order of Payment of Legacy into Court of Chancery (h). Whereas it has been found by this court by its decree of the day of in this suit [_or matter] that K. L. of is entitled to the sum of ; and whereas the said K. L. is an infant [or absent beyond seas], and it appearing to the court that it is desirable that, under the power given to it by the fifth section of the act of par- liament passed in the twenty-eighth and twenty-ninth years of her majesty's reign, chapter ninety-nine, C. D., the defendant in this suit [or matter, as the case may be], should be ordered to pay such sum of money to the accountant-general of the Court of Chancery, in accordance with the provisions of section thirty-two of an act passed in the session of parliament held in the thirty-sixth year of the reign of his majesty King George the Third, chapter fifty-two, it is ordered that the said ] do pay the same accordingly, and do within days produce to the registrar of this court the certificate of the said account- ant-general of the payment to him of such money. By the court, Registrar. [Endorsement on last Order.'] N.B. — Your attention is drawn to the following provisions of the Act 36 Geo. 3, c. 52, and to the rule of this court. Any legacy or sum of money to which any person who is an infant or absent beyond seas may be found and declared entitled by any county (Ji) County Court Forms in Equity, 1868, No. 39. See form of heading, ante, p. 52. PAYMENT OF LEGACY, ETC. 99 court in any suit or matter under this act may be ordered by the court to be paid to the accountant-general of the Court of Chancery, in accord- ance with the provisions of section thirty-two of an act passed in the session of parliament held in the thirty-sixth year of the reign of his Majesty King George the Third, chapter fifty-two ; and the person ordered to pay the same shall, within such time as the court shall direct, produce to the regis- trar of the court the certificate of the accountant-general of the payment of such money; and if default be made in such payment the judge may direct a warrant of execution to issue to the high bailiff of the court, who by such warrant shall be empowered to levy or cause to be levied by distress and sale of the goods and chattels of such person a sum of money equal in amount to the sum which he was ordered to pay to the said accountant-general and to the costs incurred by reason of such default, and the sum so levied shall be paid to and be receivable by the said accountant-general under the direction of the court. Rule of Court. — Where default shall be made in the production of the certificate of the accountant-general the registrar shall give notice in writing to the judge of the fact of such default, and the judge may there- upon direct a warrant of execution to issue in accordance with section 5 of the act. Part IV. Chap. VII. The County Court Orders and Rules provide that — ■ " Where any order has been made upon any person to pay to the ac- countant-general in chancery any sum of money under sect. 5 of the act, such order shall be drawn up by the registrar and issued to the bailiff of the court, by whom the same shall be served personally upon the per- son ordered to make the payment" (i). " Where default shall be made in the production of the certificate of the accountant-general the registrar shall give notice in writing to the judge of the fact of such default, and the judge may thereupon direct a warrant of execution to issue in accordance with sect. 5 of the act" (/„•). Order XVII. Rule 7. Service of order under s. 5 of the act. Rule 8. Where de- fault made in payment to accountant- general of the Court of Chancery. § 11. — Powers and Duties of the Registrar in respect of Funds in Court. " In the first week of January in each year the registrar shall transmit to the postmaster-general his bank book, and upon its return he shall send a letter, in the form in the schedule, to the commissioners of the treasury, requesting them to authorize the postmaster- general to allow him to draw out a sum equal to the interest which he may have paid to persons during the then past year, and shall apportion the same and carry the proportion to the account of each fund on which he has paid interest as aforesaid" (I). " The registrar wherever he shall be directed by the court to draw out of a post-office savings bank the fund or part of the fund in any suit or (i) County Court Orders and (k) Id. Rule 8. Rules in Equity, 1868, Order XVII. (/) Id, Rule 4. Rule 7. h2 Order XVII. Rule 4. Registrar to transmit bank book to postmaster- general. Rule 5. Drawing out of money from savings bank. 100 PROCEEDINGS IX CARRYING OUT DECRETAL ORDERS. Part IV. Chap. VII. Rule 6. Interest on investments. Order XX. Rule 10. Where legacy or succession duty payable, it must be paid before execution of decree. matter, he shall send a letter to the commissioners of the treasury in the form in the schedule" (m). "Where money has before the 1st January, 1868, been invested in stock, and the investment is in the names of the treasurer and registrar alone, the registrar shall from time to time receive the dividends of all the funds so standing in their names, and shall re-invest the dividends in the same names, except where and so far as the court shall otherwise direct, and shall apportion the amount so re-invested in his books to the right accounts" (??). Payment of Legacy and Succession DutyJ] — " Before executing any decree or order directing the payment or transfer of any fund, or part of any fund, in respect of •which any duty shall be payable to the revenue under the acts relating to legacy or suc- cession duty, the registrar shall, before making the payment, require a certificate from the proper officer of the payment of the duty chargeable in respect of such fund, or any part thereof respectively" (w). Order XXIII. Rule 22. Interest on debts. Rule 23. Interest on legacies. § 12. — Interest on Debts and Legacies. " Creditors are to be entitled to interest in respect of debts as to such of them as carry interest after the rate they respectively carry, and as to all others after the rate of 4/. per cent, per annum, from the date of the decretal order, and to costs of successfully proving such debts ac- cording to the scale of costs in that behalf" (p). " Interest is to be computed ou legacies after the rate of 4/. per cent, per annum, from the end of one year from the date of the testator's death, unless otherwise ordered or a different rate is directed by the will" (q). § 13. — Auditing Registrar's Accounts. order xvii. " The accounts of a registrar in equitable proceedings shall be examined Rule l. a nd audited by the treasurer in the same manner as his accounts in other accounts to proceedings are now or shall be examined and audited" (r). be audited. § 14. — Proceedings on Abatement op Suit by Death, Marriage or otherwise. Revivor and Supplement.^ — Order x. " Upon any suit becoming abated by death, marriage, or otherwise, or Rule l defective in consequence of any change or transmission of interest or Order under * J ° (to) County Court Orders and Rules in Equity, 1868, Order XVII. Rule 5. O) Id. Rule 6. (o) County Court Rules, 1870, by which this Rule is made Rule 10 of Order XX. (p) County Court Orders and Rules in Equity, 1868, Order XXLLL Rule 22. (g) Id. Rule 23. (r) Countv Court Orders and Rules in Equity, 1868, Order XVII. Rule 1. PROCEEDINGS ON ABATEMENT OF SUIT BY DEATH, ETC. 101 liability, the judge shall, on application of any person having a right so to apply, make an order reviving the said suit, or such supplementary decree or order as may have become necessary in consequence of any such matters as aforesaid" (s). "An order under the foregoing rule shall be drawn up by the registrar and sealed with the seal of the court, and issued to the bailiff, who shall serve the same upon such person or persons as the court shall direct" (t). " After service of such order, the suit shall, as between the party by whom the order has been obtained and the party on whom it has been served, be in the same plight and condition as it was in before it had become abated or defective as aforesaid ; provided that the person so served may move the court at the next sitting, or by leave of the judge at any subsequent sitting, to discharge such order, and such motion shall be made upon affidavit of the facts relied upon to support the same" (u). Order of Revivor (x). Upon application of \lxere state by whom the application is made and the events which have happened rendering it necessary to apply"], I do order that this suit stand revived and be in the same plight and condition as the same was in at the time of the said abatement. Dated this day of • J. S., judge. Part IV. Chap. VII. 15 & 16 Vict, c. 86, s. 52. Rule 2. Order to be served. Rule 3. Person served to be bound thereby, and mav appeal, 15 & 16 Vict, c. 86, s. 52. (*) County Court Orders and Rules in Equity, 1868, Order X. Eule 1. Sect. 52 of 15 & 16 Vict. c. 86, referred to in the margin of Rules 1 and 3 of this order provides for orders instead of bills of revivor in the case of abatement of suits. (0 Id. Rule 2. (w) Id. Rule 3. As to revivorship for costs see 33 & 34 Vict. c. 28, s. 19, and Daggett v. Eastern Counties Railway Company, 40 L. J. (N. S.) Ch. 292. ( x) County Court Forms in Equitv, 1868, No. 38. See form of heading, ante, p. 52. ( 102 ) CHAPTER VIII. ENFORCEMENT OF DECREES AND ORDERS. § 1. — Mode of enforcing Decrees and Orders in general. § 2. — Execution to enforce Payment of Monet. § 3. — Execution to enforce Delivery of Lands or Goods. § 4. — Committal for Contempt for Neglect to obey De- cree or Order. § 5. — Order of Commitment on a Judgment-Summons. Power to enforce judg- ments of county courts in equity. Order XVI. Rule 1. Service of decree or order. Rule 2. When execu- tion may issue. Order XVI. Rule 5. Service of orders in the nature of an iuj unction. § 1. — Mode of enforcing Decrees and Orders in general. "The County Courts Act, 1865," enacts that — Sect. 8. " For the due execution of any judgment, decree or order made under the authority of this act, or of the rules and orders to be framed as hereinafter provided, the court shall have power to order, and the registrar upon such order shall have authority to seal and issue, and the high bailiff to execute, any writ or warrant of possession, writ or warrant of execution, or other process of execution for carrying into effect any judgment, decree or order of the said court; and such writs, warrants and processes shall be in the form and executed at the time and in the manner to be set forth in the rules and orders to be framed as hereinafter provided." " On the application of the party entitled to the benefit of the decree or order, the registrar shall issue to the bailiff a copy of such decree or order under the seal of the court with a notice to the party to be bound indorsed thereon, and the bailiff shall forthwith serve the same upon the party to whom such notice is addressed" (a). " No process shall issue to enforce any decree or order, unless by leave of the judge, until three days after a copy thereof under the seal of the court shall have been served upon the party to be bound thereby" (b). Service of Order in the Nature of an Injunction.'] — " Where an order in the nature of an injunction has been made, whether made ex parte or not, the registrar shall, if the party by whom it was obtained desires to have the same served by his attorney, issue for ser- vice a copy of such order, under the seal of the court, to such party" (c). (&) County Court Orders and Rules in Equity, 1868, Order XVI. Rule 1. (b) Id. Rule 2. As to enforcing decrees of stannaries courts, see ante, p. 5, note (m). (c) County Court Orders and Rules in Equity, 1868, Order XVI. Rule 5. EXECUTION TO ENFORCE PAYMENT OF MONET. 103 Payment over of Money.'] — p *" T 'J r - " All moneys coming into the hands of the high bailiff shall be paid over by him to the registrar to the credit of the suit or proceeding in 0r ^^ 1 which the same was so received by him within twenty-four hours after payment he shall have received the same" (d). over of v ' money. § 2.— Execution to enforce Payment of Money. " Where any decree or order is made for the payment of money into Order xvi. court or by one party to another, the registrar shall, after the expiration -warrant of of the time, if any, appointed by the decree or order for the payment a. fa. thereof, and after the expiration of the time limited by this order, upon application by the person having the conduct of the suit, or by the payee, issue to the bailiff of the court a writ of fieri facias as a warrant of execution, as provided by sect. 94 (e) of 9 & 10 Vict. c. 95" (/). Warrant of Execution on a Decree or Order of the Court for the Payment of Money (g). Whereas on the day of 187 , this court did, in the matter of this suit, decree [or order] that A. B. [or C. D.] should pay to C. D. [or A. B.] [or should pay into court] the sum of : And whereas a copy of such decree [or order] was duly served upon A. B. [or C. D., as the case may be:'] And whereas the said A. B. [or C. D.] has not paid the said sum of money according to the said decree [or order] : These are, therefore, to require and order you forthwith to make a levy, by distress and sale of the goods and chattels of the said A. B. [or C. D.] wheresoever they may be found within the district of this court (excepting the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of five pounds), the sum stated at the foot of this warrant, being the amount directed to be paid by the said decree [or order], including the costs of this execution, and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, of A. B [or C. D.] which may there be found, or such part or so much thereof as may be sufficient to satisfy this execu- tion, and the costs of making and executing the same, and to pay what you shall have so levied to the registrar of this court, and make return of what you have done under this warrant immediately upon the exe- cution thereof. Given under the seal of the court, this day of 187 . By the court, To the high bailiff of the said court, Registrar. and others the bailiffs thereof. Amount ordered to be paid . . Costs Total amount to be levied (d) County Court Orders and Rules in Equity, 186S, Order XVI. Rules in Equity, 1868, Order XXI. Rule 3. Rule 4. (_7) County Court Forms in Equity, (e) See ante, Vol. I. p. 74. 1868, No. 34. See form of heading, (/) County Court Orders and ante, p. 52. 104 ENFORCEMENT OF DECREES AND ORDERS. Part IV. Chap. VIII. Order XVI. Rule 4. Warrant of possession or assistance. Order XXI. Kuie 3. Possession. § 3. — Execution to enforce Delivery of Lands or Goods. " Where a decree or order made in any suit or proceeding for the de- livery up to any person of lands or tenements, goods or chattels, either as owner thereof, or to be sold, or to be held in possession until an order is made as to the disposition thereof, the registrar shall, upon the appli- cation of the person entitled to such possession, issue to the bailiff either a warrant of possession, or warrant of assistance, as the case may require" (h). " Where a warrant shall direct the high bailiff to take possession of, without selling or delivering to a party, any goods or chattels, he shall make or cause to be made an inventory or appraisement of the goods or chattels which he may take into his possession, and may, upon receiving as a deposit the amount of such appraisement or sufficient security, to be approved by the registrar, for the safe custody, and for the delivery up of possession upon request, of such goods and chattels, relinquish the possession thereof, on condition that the same shall be re-delivered to him or held to abide the order of the court" (/). Warrant of Assistance (k). Whereas, according to the tenor and true meaning of a decree [or an order] bearing date the day of 187 , made in the matter of this suit, the said defendant C. D. was ordered to deliver up posses- sion to A. B. in the said order named of all that, &c. [as in order]: And whereas a copy of such decree [or order] was duly served upon the said C. D., yet nevertheless he the said C. D., and other ill-disposed persons, his accomplices, have refused to pay obedience thereto, and detain and keep the possession of the said house [or tenement and premises] : These are, therefore, to authorize and require you to forthwith enter into and upon the said messuage [or tenement and premises], and that you do remove, eject and expel the said C. D., his tenants, servants and accomplices, each and every of them, out of and from the said mes- suage [or tenement and 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 him and his said 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 any wise to fail. Given under the seal of the court, this day of 187 . By the court, Begistrar. To the high bailiff of the said court, and others the bailiffs thereof. Warrant of Possession (I). Whereas on the day of 187 , this court did in the matter of this suit, decree [or order] that you the high bailiff of this court, (h) Countv Court Orders and Rules in Eqiiitv, 1868, Order XVI. Rule i. (i) Id. Order XXI. Rule 9. (ifc) County Court Forms in Equity, 1868, No. 35. See heading, ante, p. 52. (Z) County Court Forms in Equity, 1868, No. 36. See heading, ante, p. 52. EXECUTION TO ENFORCE DELIVERY OF LANDS OR GOODS. 105 should [or that A. B. should] take possession of the goods and chattels Part iv. of E. F. deceased, in the said suit mentioned, and which at the date of Chap - vnI - the said order were in the possession of the defendant [and sell and convert the same into money or keep and hold the same to abide the further order of the court, as the case may be]. These are therefore by virtue of the said decree [or order] and the statute in such case made and provided to will and require, authorize and empower, you and every one of you to whom this warrant is directed forthwith to enter into and upon the house and houses of the said C. D. and also in all other place or places belonging to the said C. D. where any of the goods or chattels, part of the estate of the said E. F., deceased, are suspected to be ; and there to seize all the goods and chattels whatsoever belonging to the estate of the said E. F., deceased. And in case of resistance, or of not having the key or keys of any door, or lock of any premises belonging to the said C. D., where any of the goods or chattels, part of the estate of the said E. F. are suspected to be, you shall break open or cause the same to be broken open, for the better execution of this warrant. Given under the seal of the court this day of 187 . By the court, Registrar. To the high bailiff of the said court, and others the bailiffs thereof. § 4. — Committal for Contempt for Neglect to obey Decree or Order. " Where any breach of an order in the nature of an injunction shall have been made, the registrar shall, upon the application by the person having the conduct of the suit, issue to the high bailiff or to such per- son for service by his attorney, a notice under the seal of the court, requiring the person who shall have been guilty of the breach of the said order to appear at a court, to be held on a day to be named therein, to show cause why he should not be committed for contempt for having disobeyed the said order"' (»*). " Where any person is required by any decree or order to pay money or do an act within a certain number of days after service of the copy of the decree or order, and such person shall not have paid such money or done such act within the time mentioned therein, the registrar shall, upon application by the person having the conduct of the suit, issue to the high bailiff, or to such person for service by his attorney, a notice under the seal of the court, requiring the person who shall have neglected to obey the decree or order to appear at a court to be held on a day to be named therein, to show cause why lie should not be committed for contempt in having neglected to obey such decree or order. Provided always, a party shall not by proceeding under this rule be precluded from enforcing the order by warrant of execution or any other process of the court" («). Order XVI. Rule 6. Where a per- son makes breach of an order in the nature of an Injunction, notice to be served upon him to show cause why he should not be committed. Utile 7. Where a per- son neglects to obey a decree or or- der, notice to be served on him to show cause why lie should not be committed. (m) County Court Orders and Kules in Equity, 18G8, Order XVI. Rule 6. (a) Id. Role 7. 106 ENFORCEMENT OP DECREES AND ORDERS. Part iv. " Any person who may be in custody may apply to the registrar for C hap, viii. ]jj s jj sc i iar g e therefrom, upon giving to the party at whose suit he was Order xxiii. committed notice of his intention so to apply two days previous to his Rule -2b. applying" (o). See § 5, post, pp. 107, 108, as to orders of commitment under « The Debtors Act, 1869." Notice of Application for Committal (p). Take notice that the plaintiff A. B. will on the day of 187 , apply to this court for an order for your committal to prison for having disobeyed the order of this court made on the day of 187 , enjoining and restraining you [or for having neglected to obey the decree or order made on the day of 187 , requiring you] (here set out the mandatory part of the decree or order) ; and further take notice that you are hereby required to attend the court on the first- mentioned day to show cause why an order for your committal should not be made. Dated this day of 187 . E. F., registrar. To C. D. the defendant. Order of Committal for Breach of an Order in the Nature of an Injunction (q). Whereas by an order of this court, dated the day of 187 [here recite the order] : Now, upon the application of the plaintiff, and upon hearing the defendant [or, if the defendant does not appear, reading the affidavit of X. Y., or, where service has been hy bailiff, of L. M., a bailiff of this court, or the County Court of holden at , showing, or being satisfied on oath, that a copy of the said order and notice of this application have been severally served upon the defendant C. D.], and upon reading the affidavit of, etc. [enter evidence], the court being of opinion, upon consideration of the facts disclosed by the said affidavit [or affidavits], that the said defendant C. D. has been guilty of a contempt of this court by a breach of the said order, doth order that the said defendant C. D. do stand committed to [here insert prison used by the court] for the said contempt. Order for Committal for Neglect to obey Decree or Order (r). "Whereas by a decree [or order] of this court dated the day of 187 [here recite the decree or order]: Now, upon the applica- tion of the plaintiff, and upon hearing the defendant [or, if the defendant does not appear, reading the affidavit of X. Y., or, where service has been by bailiff, of L. M., a bailiff of this court, or the County Court of holden at , showing, or being satisfied on oath, that a copy of the said decree [or order] and notice of this application have been severally served upon the defendant C. D.], and upon reading the affidavit of, etc. [enter evidence], the court being of opinion, upon consideration of the (o) County Court Orders and 1868, No. 42. See heading, ante, Rules in Equity, 1868, Order XXIII. p. 52. Rule 25. (?) Id. No. 43. ( p) County Court Forms in Equity, (?■) Id. No. 44. COMMITTAL FOR NEGLECT TO OBEY DECREE OR ORDER. 107 facts disclosed by the said affidavit [or affidavits], that the said defen- PartIV. dant C. D. has been guilty of a contempt of this court by neglecting to Chap, viii. obey the said decree [or order], doth order that the said defendant C. D. do stand committed to [here insert prison used by the court] for the said contempt. Warrant of Committal (s). To the high bailiff and others the bailiffs of the said court and all peace officers within the jurisdiction of the said court, and to the governor or keeper of the [here insert prison used by the court]. Whereas by an order bearing date the day of it was ordered that the defendant C. D. should stand committed to prison for contempt of this court : These are therefore to require you forthwith to arrest and apprehend the defendant C. D., and him safely convev and deliver to the governor or keeper of the [prison used by this court], and you, the said governor or keeper, to receive the defendant C. D. until further orders of this court. Dated this day of 187 . E. F., registrar of the court. Notice of Application for Discharge from Custody (t). Take notice that I intend on the day of 187 to apply to this court [or the registrar of this court] to discharge me from custody, I being desirous of clearing my contempt. Dated this day of 187 . C. D., defendant. To A. B., plaintiff. Order of Discharge from Custody (u). Upon application made this day of by for the defendant who was committed to prison for contempt by order of this court, dated the day of 187 , and upon reading the affidavit of the defendant filed the day of 187 , showing that he is desirous of clearing his contempt.and upon hearing the plaintiff [or, if no one appears for plaintiff , *Ae??,upon being satisfied that notice of this application has been duly served upon the plaintiff], this court [or I, the undersigned registrar of this court], do hereby order that the said defendant be discharged out of the custody of the governor [or keeper] of [here insert name of prison] as to the said contempt, but not as to the costs of the said contempt. Dated this day of 187 . E. F., registrar of the court. § 5. — Order of Commitment on a Judgment-Summons. "The Debtors Act, 1869" (32 & 33 Vict. c. 62), enacts that, with certain exceptions, no person shall be arrested or imprisoned (*) County Court Forms in Equity, 18G8, No. 46. See heading, ante, 1868, No. 44. See heading, ante, p. 52. p. 52. O) Id. No. 47. (t) County Court Forms in Equity, 108 ENFORCEMENT OF DECREES AND ORDERS. Part iv. for making default in payment of a sum of money. Among the ■ HAP ' 1 exceptions from the operation of the above enactment are — Default by a trustee or person acting in a fiduciary capacity, and ordered to pay by a court of equity any sum in his possession or under his control ; and Default in payment of sums in respect of which orders are in that act authorized to be made. By the act any court may commit to prison for a term not ex- ceeding six weeks, or until payment of the sum due, any person who makes defaidt in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court, where it is proved that the person making default either has or has had since the date of the order or judgment, the means to pay the sum in respect of which he has made defaults, and has refused or neglected, or refuses or neglects to pay the same. Moreover, even in the cases excepted from the act, no person can be imprisoned for a longer period than one year (x). It will be observed that the abolition of imprisonment is for making default " in payment of a sum of money," and, on the other hand, that the power to make orders of imprisonment under the act is confined to cases of default " in payment of any debt or instalment of any debt." Questions may arise as to the effect of the act on certain orders of the county court under the equitable jurisdiction (y). It seems clear, however, that the power to imprison for contempt in disobeying orders of the court, not being orders for payment of a sum of money, are not affected by " The Debtors Act, 1869" (z). An order on a defendant trustee (made in a suit) to pay the plaintiff a specified sum, being the balance of the proceeds of the sale of stock, trust property sold by the defendant, may be enforced by imprisonment, although he may have parted with the actual possession of or control over the money prior to the order for payment; but interest due in respect of such trust money is not money in the trustee's possession or under his control, and, therefore, cannot be so enforced («). (.r) See the whole Law and Prac- p. 92S, also sect. 8 of the act. tice on an Order of Commitment on (z) See General Order of the Court a Judgment-Summons, ante, Vol. I. of Chancery made under the act, p. 335. dated 7th January, 1870. (?/) As to committals under the act (a) Middletan v. Chichester, 40 in the High Court of Chancery, see L. J. (N. S.) Ch. 237. Daniell's Chancery Practice, 5th edit. ( 109 ) CHAPTER IX. TRANSFER OF PROCEEDINGS. § 1. — Transfer to the Court of Chancery on Application of the Parties. § 2. — Transfer to the Court of Chancery where the Sub- ject-Matter EXCEEDS THE JURISDICTION OF THE County Court. § 3. — Transfer from the Court of Chancery to the County Court. § 4. — Transfer from one County Court to another. § 1. — Transfer to the Court of Chancery on Application of the Parties. "The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts that — Sect. 3. " Any one of the vice-chancellors, on the application at power to a chambers of any party to any suit or matter pending under this act, vice-chan- shall have power, then and there, or, if he shall think fit, after hearing transfer of 1 '** a summons served upon the other party or parties, to transfer the same suits from to the Court of Chancery, upon such terms, if any, as to securitv lor .""J 1 /" 5°" rt costs or otherwise, as he may think fit." Chancery. § 2. — Transfer to the Court of Chancery where the Sub- ject-Matter EXCEEDS THE JURISDICTION OF THE County Court. " The County Courts Act, I860" (28 & 29 Vict. c. 99), enacts that — Sect. 9. " If during the progress of any suit or matter it shall be made where to appear to the court that the subject-matter exceeds the limit in point wnountot of amount to which the jurisdiction of the county courts is herein- Sarterofrait limited, it shall not affect the validity of any order or decree already exceeds limit made, but it shall be the duty of the court to direct the said suit or ^coono? 8 " matter to be transferred to the Court of Chancery, and thereupon the county court, said suit or matter shall proceed in such one of the vice-chancellor's B"ltmaybe courts as the lord chancellor may by general order direct; and rach courtof vice-chancellor shall have power to regulate the whole of the procedure chancery, Sic, 110 TRANSFER OF PROCEEDINGS. Part IV. Chap. IX. Order XVIII. Rulel. Transfer to Court of Chancery where sub- ject-matter exceeds the amount to which juris- diction is given by act. in the said suit or matter when so transferred : provided always, that it shall be lawful for any party to apply to such vice-chancellor at chambers for an order authorizing and directing the suit or matter to be carried on and prosecuted in the county court, notwithstanding such excess in the amount of the limit to which jurisdiction in the matter is hereby given to the county courts ; and the vice-chancellor, if he shall deem it right to summon the other parties or any of them to appear before him for that purpose, after hearing such parties, or on default of the appearance of all or any of them, shall have full power to make such order." In respect to the transfer of proceedings under this section, where the excess of jurisdiction is discovered in the progress of an inquiry before the master under order of the court, the orders provide that — " If during the progress of any inquiry under order of the court it shall be made to appear that the subject-matter of the suit or proceeding exceeds the amount to which the jurisdiction of the court is limited, the registrar may proceed with the particular account or inquiry whicli is then before him, unless he thinks it inexpedient so to do, but he shall at the next sitting of the court present a certificate of the state of the suit and proceedings, and if the judge shall be of opinion that such excess exists, he shall make an order for the transfer of the suit or matter to the Court of Chancery; and the registrar shall make and file with the record a copy of such certificate and order, and shall transmit the original, together with the order of the judge thereupon, under the seal of the court, by post or otherwise, to the office of the clerk of records and writs in chancery, or to such other office or officer as the lord chancellor may by general order direct, and shall also send notice, by post or otherwise, of the fact, to all parties and persons entitled to be served with a copy of the decree" (a). Order of Transfer of Suit or Matter to Court of Chancery («). Whereas it appearing that the subject-matter of this suit exceeds in amount the sum of 500/., it is ordered that this suit [or matter] be transferred to the High Court of Chancery, together with the annexed certificate of the registrar of this court, showing the state of the suit [or matter] and the proceedings that have been had therein in this court. By the court, Registrar. § 3. — Transfer from the Court of Chancery to the County Court. " The County Courts Act, 1867" (30 & 31 Vict. c. 142), enacts that — Proceedings Sect. 8. " Where any suit or proceeding shall be pending in the High in equity may Court of Chancery, which suit or proceeding might have been com- be transferred (a) County Court Orders and Rules in Equity, 1868, Order XVUI. Rule 1. ( b ) County Court Forms in Equity, 1868, No. 40. See form of heading, ante, p. 52. TRANSFER FROM THE COURT OF CHANCERY TO THE COUNTY COURT. Ill menced in a county court, it shall be lawful for any of the parties Part iv. thereto to apply at chambers to the judge to whose court the said suit ChaP - 1x - or proceeding shall be attached to have the same transferred to the . „ . mi L • i • 1 1 -ii "- county county court or one of the county courts in winch the same might have courts, which been commenced (c), and such judge shall have power upon such ap- might; have plication, or without such application, if he shall see fit, to make an therein? 06 order for such transfer, and thereupon such suit or proceeding shall be carried on in the county court to which the same shall be ordered to be transferred, and the parties thereto shall have the same right of appeal that they would have had had the suit or proceeding been commenced in the county court." The following Rules relate to transfers under the above section: — " Where any suit or proceeding is transferred under section 8 of the Order xvtii. 30 & 31 Vict. c. 142, to a county court, the plaintiff shall lodge with the Tra n S u / e e r j rom registrar thereof the order of transfer, together with all original docu- court of r ° m ments in the suit or proceeding in his possession, and also a statement Chancery of the names and addresses of the several parties to the suit, and their 8 "^(Utsi 11 attorneys, and the defendant shall lodge all original documents in the Vict. c. 142. suit or proceeding in his possession, and either party shall from time to time lodge office copies of any further documents the judge or registrar may require" (d). " The registrar shall forthwith indorse on the order of transfer the Rule 3. date on which the same was lodged" (e). indorsement. " When the order of transfer is lodged, the registrar shall forthwith ? u,e 4 - apply to the judge for directions as to the further steps in the suit or appiyto"^ proceeding, and thereupon the judge may give such directions for carry- judge for ing on the suit or proceeding as he may think fit, or he may appoint a time to hear and determine any matters in such suit or proceeding, and direct the registrar to summon all parties to appear on the day so appointed. And the judge shall also, if he think fit, order the registrar to give notice to the parties to the suit or proceeding, or any of them, that the order of transfer has been lodged" (/). instructions. § 4. — Transfer from one County Court to another. " The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts that — Sect. 11. "If during the progress of a suit or matter it shall be made As to transfer to appear to the court that the same could be more conveniently pro- of suitfrom secuted in some other county court, it shall be competent for the court court°to n y to transfer the same to such other county court, and thereupon the suit another, or matter shall proceed in such other county court." (c) If an officer of a county court ford v. Gudgeon, 40 L. J. (N. S.) is a defendant, the suit may be trans- Ch. 514. ferred to an adjoining district, the {d) County Court Orders and judge of which is not the judge of a Rules in Equity, 18G8, Order XVIII. court of which the defendant is an Rule 2. officer, 19 & 20 Vict. c. 108, s. 21 ; see (e) Id. Rule 3. 28 & 29 Vict. c. 99, s. 21; and Lin- (/) Id. Rule 4. 112 TRANSFER OF PROCEEDINGS. Part IV. Chap. IX. This is a strong power given to a judge of one court to transfer a suit absolutely from his own court to another. There is no appeal, however, from the order (g). Order xxiii. " Where suits or proceedings shall be commenced in different courts Rule 20 jjy parties in the same interest, such suits or proceedings shall be trans- suits or pro- ferred to the court in which the first plaint or petition was filed, and ceedings from shall there be proceeded with in the same way in all respects as if they another in ' ia( ^ Deen commenced in that court" (h). certain cases. (#) As to appeals, see post, in Equity, 1868, Order XXIII. Rule Chap. X. 20. (A) County Court Orders and Rules ( H3 ) CHAPTEE X. APPEAL. "The County Courts Act, 1865" (28 & 29 Vict. c. 99), enacts that— Sect. 18. " If any party in a suit or matter under this act shall be dis- Parties satisfied with the determination or direction of a judge of a county court SSSraDDea] on any matter of law or equity, or on the admission or rejection of any evidence, such party may appeal from the same to the vice-chancellor authorized as aforesaid, provided that such party shall, within thirty days after such determination or direction, give notice of such appeal to the other party or his attorney, and also deposit with the registrar of the county court the sum of ten pounds as security for the costs of the appeal ; and the said court of appeal may make such final or other de- cree or order as it shall think fit, and may also make such order with respect to the costs of the said appeal as such court may think proper; and such orders shall be final ; provided that nothing herein contained shall authorize any party to appeal against any decision of a county court, given upon any question as to the value of any real or personal property, for the purpose of determining the question of the jurisdiction of the court under this act, nor to appeal against the decision of a county court on the ground that the proceedings might or should have been taken in any other county court." Sect. 19. "In any case which may be the subject of an appeal under Appeal to be this act in causes arising within the county palatine of Lancaster, the made eit . ,ier appeal may be made either to the High Court of Chancery or a vice- court of ' g chancellor thereof, or to the court of chancery of the county palatine of chancery or a Lancaster or the vice-chancellor thereof; and that in case of an appeal ^l^ 11 " 1 " to the Court of Chancery for the said county palatine or the vice-chan- cellor thereof, the order on such appeal shall have the same effect as if it had been made by a vice-chancellor of the High Court of Chancery ; but no appeal shall be made to the Court of Chancery of the said county palatine or the vice-chancellor thereof unless the consent thereto in writ- ing of the respondent or respondents on such appeal, or of his or their solicitor or solicitors, shall be first obtained." Sect. 18 appears to give a very reasonable and ample power of appeal, not confined at all by the amount in difference, and allow- ing full time, after the decision of the county court judge, for parties to decide whether they will appeal, and requiring a mode- rate sum by way of deposit for costs. " Where any party desires to appeal under section 18 of the Act Rule l. agrainst the determination or direction of a judge of a county court, ^PP eaI t0 be o v o y * dv case such appeal shall be had in accordance with the provisions of 13& 14 vict. section 15 of 13 & 14 Vict. c. 61 (a), upon a case to be stated for ^lu^e*' and ss. 18 and O) See ante, Vol. I. p. 287. ly oI the Act - D. VOL. II. 1 114 APPEAL. Part IV. Chap. X. Rule 2. Notice of appeal. Rule 3. Proceedings not to be sta\ cd unless vice-chan- cellor or judge other- wise order. Order XX Rule 8. Regist rar to retain money to abide result of appeal. Order XIX. Rule 4. Case to be signed by judge. Rule 5. Where par- ties do not agree on case, judge to settle same. Rule 6. Copy of case deposited with re- gistrar. the opiuioa of the vice-chancellor appointed in that behalf by the lord chancellor " (b). "The notice of appeal shall be in writing, and shall be signed by the appellant, his counsel or attorney, and such notice shall be sent, together with the statement of the grounds, by post or other- wise, to the registrar as well as to the successful party" (c). " The pendency of an appeal shall not operate as a stay of pro- ceedings, but the vice-chancellor to whom such appeal is made, or the judge from whose decree or order the appeal is made, may stay the proceedings pending the appeal, on such terms as to giving security or otherwise as to such vice-chancellor or judge may seem fit" (d\ " Whenever a notice for appeal is given, the registrar shall detain the proceeds of any execution which may then be in or may come into his hands pending such appeal, to abide the event of such appeal, unless the judge shall otherwise order "(e). " The appellant shall prepare the case for appeal, and all cases on appeal shall, unless the judge shall otherwise order, be presented to him for signature at the court held next after the parties shall have agreed upon the same ; and if the judge approves thereof it shall he signed by him, and sealed with the seal of the court; but where the judge does not approve of the case submitted to him, both parties shall be summoned to attend him where and when the judge shall appoint, and at the place and time so ap- pointed both parties shall be heard as to the form of the case, and the judge shall finally settle and sigu the same, and it shall then be sealed by the registrar" (f). " Where the parties do not agree upon the form of the case to be stated, the appellant shall lodge with the registrar the draft case prepared by him, and the registrar shall give notice to the parties that the same has been so lodged, and will, on a day to be named in the notice, be presented to the judge for his signature, and on such day the parties may appear before the judge, who shall determine the form of the case, and finally settle and sign the same, and it shall then be sealed by the registrar" (g). " When the case shall be so signed and sealed, a copy thereof shall be deposited with the registrar, and another sent by post or otherwise by the appellant to the successful party within three days next after the time of signing and sealing the same, and if the ap- pellant do not comply with this rule the successful party may pro- (J) County Court Orders and Rules in Equitv, 1868, Order XIX. Rule 1. (jo) Id. Rule 2. (d) Id. Rule 3. In accordance with this rule the vice-chancellor will, if he thinks fit, stay the proceed- ings without any application to the judge. Checspwright v. Thorn, 38 L. J. (N. S.) Ch. 615. (?) County Court Orders and Rules in Equity, 1868, Order XX. Rule 8. (/) Id. Order XIX. Rule 4. Iff) Id. Rule 5. APPEAL. 115 ceed upon the decree or order unless the judge shall otherwise Part i v. direct" (h). ._ (:hap - x i_ " The appellant shall, within three days next after the case has Rule 7. heen signed and sealed, transmit the same with a copy thereof ^1^^ under the seal of the court, by post or otherwise, to the office of the clerks of records and writs in chancery, or to such other office or officer in the court as the lord chancellor may by general order direct, and shall give notice, by post or otherwise, to the successful party that he has done so ; in default whereof the successful party may proceed on the decree or order, and shall, on the application to the court, be entitled to such costs as he shall have incurred in consequence of the appellant's proceedings ; provided that, instead of proceeding on such decree or order, the respondent, if he think fit, may, within twenty-eight days from the signing and sealing of the case, transmit it in the manner described, and give the like notice to the appellant of such transmission" (i). " If, after the case has been transmitted, the appellant do not Rule 8. prosecute his appeal, the court of appeal may dismiss the same for p f r0 *ecufed, 0t want of prosecution, and thereupon the decree or order appealed successful from may be prosecuted and enforced as if there had been no such J?^ 101 ' 10 " appeal, and the respondent in the appeal shall be entitled to all costs he may have incurred by reason of the appeal, to be recovered as costs in the court below" (k). " When the court of appeal shall have made a decree or order, Rule 9. either party may deposit the same or an office copy thereof with ^^"nton the registrar of the county court, and upon being so deposited such appeal. decree or order shall be filed and may be enforced as if it had been made by the county court" (/). "All the rules in this order shall apply to appeals under sect. 19 Ruieio. of the act to the Court of Chancery of the county palatiue of Lan- Lancaster caster, and the vice-chancellor thereof, except that the case when Court of signed and sealed shall be transmitted to the registrar of that hancer7 - court" (m). Costs on Appeal. - ] — In giving or withholding costs the court takes into consideration the conduct of the parties during the liti- gation and other circumstances, and there is no general rule that costs should follow the event (w). (A) County Court Orders and Rules costs should follow tbe result of an in Equity, 1868, Order XIX. Rule 6. appeal, is contrary to the practice of (i) Id. Rule 7. Lord Eldon, Sir William Grant (k) Id. Rule 8. and all the great authorities. It has (0 Id. Rule 9. never been the rule of the Court of (/?() Id. Rule 10. Chancery, and shall not be intro- (n) In Fallows v. Slatter, 38 L. J. duced by me." There is not, how- (N. S.) Ch. 609. Stuart, V.-C, ever, any inflexible rule at common said, " The rule of common law, that law. See ante, Vol. I. pp. 295, 296. i2 ( 116 ) CHAPTER XL FEES AND COSTS UNDER THE EQUITABLE JURISDICTION OF THE COUNTY COURTS. § 1. — Fees. § 2. — General Rules as to Costs. § 3. — Scale of Costs of Counsel and Attornies. § 4. — Miscellaneous Rules relating to Costs. — ♦— § 1. — Fees. Suitors pay the following fees, which are received by the regis- trar and accounted for and paid over by them to the treasurers of their respective courts, or where there is no treasurer, as may be directed by order of the commissioners of the treasury (a). & s. d. For every plaint or petition .. .. .. .. .. .. 10 For every suit or matter transferred to a county court . . . . 10 For the hearing .. .. .. .. .. .. .. ..100 For a decretal order .. .. .. . . .. .. ..100 For a final decree .. .. . « .. .. .. .. ..100 N.B.— These fees are only to he charged once in a suit or matter. The following further fees are received by the registrars for the use of themselves and the high bailiffs as the remuneration for the duties performed by them under the equitable jurisdiction of the courts : — Registrars' Fees. For filing every plaint or petition, and issuing sum- mons or notice thereon . . If more than one defendant, then for every ad- ditional defendant If defendant out of England, then in addition (including filing affidavit) . . . . Where the Subject- matter of the Suit or Proceeding Does not exceed 100Z. & S. d. 6 2 5 Where it ex- ceeds 1001. £ S. d. 9 2 7 (a) " The County Courts Act, 1865" (28 & 29 Vict. c. 99), sect. 13, and schedule, specified these fees in the first instance (see ante, Vol. I. pp. 20, n., and 91); hut these fees are superseded by an Order of the Treasury of 30th December, 1867. See the entire Order, ante, Vol. I. pp. 17-24. FEES. 117 Registrars' Fees— continued. For filing or recording order by judge for adjourn- ment .. .. .. .1 For issuing every warrant . S For preparing power of attorney For filing affidavit and receipt, giving certificate, and issuing notices in matters under Order XI., Rules 6 to 16 inclusive Where the notices under Order XL, Rule 16, shall ex- ceed five, then for every additional notice 6d. For filing and sealing every affidavit, or other docu- ment not being a document annexed to an affidavit . . For every application to inspect an affidavit For every summons to a witness For attesting admission of defendant and filing For filing statement of defendant, or notice by plaintiff for dismissal of cause . For drawing, filing, and sealing every decretal order, final decree, or an order on a petition, or application for an order in the nature of an injunction (includ- ing issuing the copy of same for service) If more than one copy of decree, &c. to be issued, then for every additional copy For perusing and filing papers, application to judge, drawing directions to proceed, and notice to par- ties on transfer of proceedings from Court of Chan- cery For drawing advertisements and inserting For advertisements, — sum paid. For every sitting in which the registrar is employed in taking accounts, making inquiries, or acting as a special examiner When the sitting is longer than one hour, then for every additional hour or part of an hour Where the registrar shall be required to attend elsewhere than at the court or office, in addition to the above Mileage one way from the office to place of examination, for each mile For application to judge for further directions (in- cluding drawing order) For drawing draft order for an ex parte application, and the order as afterwards made For certificate directed to be made by any decretal order For every inspection of certificate at registrar's office For giving any notice required by any of " the orders" (including copying) For office copy of every document, per folio Where the Subject- matter of the Suit or Proceeding Part IV. Chap. XT. Does not exceed 10 s - 46 « of 187 . (a) County Court Forms (Common Law), No. 165. 138 SPECIAL EQUITABLE JURISDICTION". Part IV. Chap. XII. Winding-up of societies. Winding-up may be re- ferred to county courts. As to transfer of suits from one county court to another. Farties ag- grieved may appeal. § 4. — Equitable Jurisdiction of County Courts in Winding- up Societies and Companies. " The Industrial and Provident Societies Act, 1862," 25 & 26 Vict. c. 87 (to consolidate and amend the Laws relating to Indus- trial and Provident Societies), provides that, — Sect. 17. "Any society registered under this act may he wound up either by the court or voluntarily, in the same manner and under the same cir- cumstances under and in which any company may be wound up under any acts or act for the time being in force for winding-up companies ; and all the provisions of such acts or act with respect to winding-up shall apply to such society, with this exception, that the court having jurisdic- tion in the winding-up shall be the county court of the district in which the office of the society is situated " (i). Winding-up Joint Stock Companies.^— By sect. 126 of "The Compauies Act, 1862" (25 & 26 Vict. c. 89), judges of county courts sitting at places more than twenty miles from the general post-office were appointed commissioners for taking evidence in cases where companies are wound up, and the court may refer the Avhole or any part of the examination of any witnesses to any such judge, who is vested with full powers for that purpose. " The Companies Act, 1867" (30 & 31 Vict. c. 131), enacts,— Sect. 41. "Where the High Court of Chancery in England makes an order for winding-up a company under the principal act (c), it may, if it thinks fit, direct all subsequent proceedings to be had in a county court held under an act of the session of the ninth and tenth years of the reign of her present majesty, chapter ninety-live, and the acts amending the same ; and thereupon such county court shall, for the purpose of winding-up the company, be deemed to be ' the court' within the mean- ing of the principal act, and shall have, for the purposes of such winding- up, all the jurisdiction and powers of the High Court of Chancery." Sect. 42. "If during the progress of a winding-up it is made to appear to the High Court of Chancery that the same could be more conveniently prosecuted in any other county court, it shall be competent for the High Court of Chancery to transfer the same to such other county court, and thereupon the winding-up shall proceed in such other county court." Sect. 43. " If any party in a winding-up under this act is dissatisfied (b) The acts now in force for wind- ing-up companies are" The Companies Act, 1862 " (25 & 26 Vict. c. 89), and " The Companies Act, 1867" (30 & 31 Vict. c. 131); see also " The Joint Stock Companies Arrangement Act, 1870" (33 & 34 Vict. c. 104). Under sect. 17, Byles, J., intimated that the judge of the county court has power to stay proceedings in actions brought against individual members of the society for goods supplied to the society before registration. See Henderson, v. Bamher, 35 L. J. (N. S.) C. P. 65. It will be borne in mind that this juris- diction on winding-up is quite distinct from the settlement of disputes in in- dustrial and provident societies, as to which, see ante, § 3. As to the juris- diction of the county courts in wind- ing-up ordinary partnerships, see ante, p. 21. (c) "The Principal Act" referred to, is " The Companies Act, 1862" (25 & 26 Vict, c. 89). WINDING-UP SOCIETIES AND COMPANIES. 139 •with the determination or direction of a judge of a county court on any Part iv. matter in such winding-up, such party may appeal from the same to the Chap - Xlt - vice-chancellor named for that purpose by the lord chancellor by general order ; provided that such party shall, within thirty days after such de- termination or direction, give notice of such appeal to the other party or his attorney, and also deposit with the registrar of the county court the sum of ten pounds as security for the costs of the appeal ; and the said court of appeal may make such final or other decree or order as it thinks fit, and may also make such order with respect to the costs of the said appeal as such court may think proper, and such order shall be final " (d). The exercise by county courts of these powers is so rare, as to render it not only unnecessary, but inexpedient to enter upon the jurisdiction and practice in relation to winding-up companies, involving as they do a very large proportion of the business of the Court of Chancery and a multitude of decisions. General Orders and Rnles^\ — " The general orders, rules, and Orders under forms of the High Court of Chancery regulating for the time being panS 'let, the mode of proceeding under 'The Companies Act, 1862,' shall 1867; and the be the orders, rules, and forms in all proceedings in the county and^rovi- courts for the winding-up of a society registered under ' The Indus- dent societies trial and Provident Societies Act, 1862,' or for the winding-up of 25 C & 2 6Vict. a company under 'The Companies Act, 1867,' so far as the same ec. 87, sa. are applicable : provided that, where it shall appear to the court c ^ 1 Vict inconvenient that the Bank of England should be the bank used for the purposes mentioned in the order and rules, it shall be com- petent for the court to name some bank to be used in lieu of the Bank of England" (e). Court Fees.~] — Proceedings under "The Industrial and Provident Societies Act, 1862." For every petition presented to a court, under section 17 of the £ s. d. above act '. .10 For every order for winding-up . , . . . .200 For every sitting or adjourned sitting of the court in the matter after the order for winding-up shall have been made . .0 15 For the taxation of every bill of costs 10 " The Companies Act, 18G2." For every sitting to take evidence 2 (d) In a case arising before this in Equity). " The Companies Act, provision, it was held that the ordinary 1SC7," sects. 44, 45, 46, provided for county court right of appeal to a com- the framing of county court rules and mon law court, did not apply to wind- the scale of costs and charges for ing-up orders under sect. 17 of "The counsel and attorneys, and also fees Industrial and Provident Societies for the remuneration of the registrars Act, 1862." Henderson v. Bomber, and high bailiffs of county courts. 35 L. J. (N. S.) C. P. 65. The above general order has been the (f) County Court Orders and Pules, only exercise of the power to frame 1868 (appended to Orders and Pules rules and orders. 140 SPECIAL EQUITABLE JURISDICTION. Part iv. « The Companies Act, 1867." ChapXI[ - £ s. d. For every sitting before the judge (/) . . . .200 Registrars' and High Bailiffs' Fees under " The Companies Act, 1867."]— Registrars' Fees. For every summons . . . 030 For every order . .050 For every office copy of order 5 For every advertisement 10 For every certificate 5 For filing every affidavit or statement on affirmation, declara- tion, or attestation upon honour . . . . . .016 For every sitting by the registrar 10 When the sitting is longer than an hour, then for every addi- tional hour or part thereof 7 High Bailiffs' Fees. Same fees for service and execution as in equitable matters. Costs.~\ — The following is the " Scale of Costs and Charges to be paid to Counsel and Attornies, under ' The Industrial and Provideut Societies Act, 1862,' and 'The Companies Act, 1867'" {g). "Attorneys shall be entitled to charge and be allowed in pro- ceedings under ' The Industrial and Provident Societies Act, 1862,' and in proceedings transferred to a county court under ' The Com- panies Act, 1867,' the same costs and charges as they would be allowed in the Court of Chancery, except that where the amount of the subscribed capital of the society or company shall not exceed 2,000/., they shall be allowed such costs and charges according to the lower scale authorized by the second rule of the 38th Consoli- dated General Orders of the Court of Chancery." § 5. — Enforcing or setting aside Agreements between Attorneys and their Clients. "The Attorneys and Solicitors' Act, 1870" (33 & 34 Vict, c. 28), contains some provisions which maybe conveniently treated under the head of Equitable Jurisdiction of County Courts. The above-mentioned statute enacts, — Sect. 4. " An attorney or solicitor may make an agreement in writing with his client respecting the amount and manner of payment for the whole or any part of any past or future services, fees, charges or dis- bursements in respect of business done or to be done by such attorney (/) Order of the Treasury, 30th December, 1867. (g) See note {e), ante, p. 139. ENFORCING, ETC. AGREEMENTS BETWEEN ATTORNEYS AND CLIENTS. 141 or solicitor, whether as an attorney or solicitor or as an advocate or con- Part iv. veyancer, either by a gross sum, or by commission or per-centage, or by Chap.xii. salary or otherwise, and either at the same or at a greater or at a less rate as or than the rate at which he would otherwise be entitled to be remunerated, subject to the provisions and conditions in this part of this act contained : provided always, that when any such agreement shall be made in respect of business done or to be done in any action at law or suit in equity, the amount payable under the agreement shall not be re- ceived by the attorney or solicitor until the agreement has been examined and allowed by a taxing officer of a court having power to enforce the agreement ; and if it shall appear to such taxing officer that the agree- ment is not fair and reasonable he may require the opinion of a court or a judge to be taken thereon by motion or petition, and such court or judge shall have power either to reduce the amount payable under the agreement or to order the agreement to be cancelled and the costs, fees, charges and disbursements in respect of the business done to be taxed in the same manner as if no such agreement had been made." After some other provisions, the act proceeds, — Sect. 8. " No action or suit shall be brought or instituted upon any such agreement ; but every question respecting the validity or effect of any such agreement may be examined and determined, and the agree- ment may be enforced or set aside, without suit or action, on motion or petition of any person, or the representative of any person, a party to such agreement, or being or alleged to be liable to pay, or being or claiming to be entitled to be paid, the costs, fees, charges or disburse- ments in respect of which the agreement is made by the court in which the business, or any part thereof, was done, or a judge thereof, or if the business was not done in any court, then, where the amount payable under the agreement exceeds fifty pounds, by any superior court of law or equity or a judge thereof, and where such amount does not exceed fifty pounds, by the judge of a county court which would have juris- diction in an action upon the agreement." Sect. 9. " Upon any such motion or petition as aforesaid, if it shall appear to the court or judge that such agreement is in all respects fair and reasonable between the parties, the same may be enforced by such court or judge by rule or order, in such manner and subject to such con- ditions, if any, as to the costs of such motion or petition as such court or judge may think fit ; but if the terms of such agreement shall not be deemed by the court or judge to be fair and reasonable, the same may be declared void, and the court or judge shall thereupon have power to order such agreement to be given up to be cancelled,- and may direct the costs, fees, charges and disbursements incurred or chargeable in respect of the matters included therein to be taxed in the same manner and according to the same rules as if such agreement had not been made ; and the court or judge may also make such order as to the costs of and relating to such motion or petition, and the proceedings thereon, as to the said court or judge may seem fit." Sect. 10. " When the amount agreed for under any such agreement has been paid by or on behalf of the client, by any person chargeable with or entitled to pay the same, any court or judge having jurisdiction to examine and enforce such an agreement may, upon application by the person who has paid such amount, within twelve months after the pay- ment thereof, if it appears to such court or judge that the special cir- 142 SPECIAL EQUITABLE JURISDICTION. Part iv. cumstanccs of the case require the agreement to be re-opened, re-open Chap, xtl. j.j ie same) an( j orc ler the costs, fees, charges and disbursements to be taxed, and the whole or any portion of the amount received by the attorney or solicitor to be repaid by him, on such terms and conditions at to the court or judge may seem just." " Where any such agreement is made by the client in the capacity of guardian or of trustee under a deed or will, or of committee of any person or persons whose estate or property will be chargeable with the amount payable under such agreement, or with any part of such amount, the agreement shall before payment be laid before the taxing officer of a court having jurisdiction to enforce the agreement, and such officer shall examine the same, and may disallow any part thereof, or may re- quire the direction of the court or judge to be taken thereon by motion or petition ; and if in any such case the client pay the whole or any part of the amount payable under the agreement without the previous allowance of such officer or court or judge as aforesaid, he shall be liable at any time to account to the person whose estate or property is charged with the amount paid, or with any part thereof, for the amount so charged; and if in any such case the attorney or solicitor accept payment without such aliowance, any court which would have had jurisdiction to enforce the agreement may, if it think fit, order him to refund the amount so received by him under the agreement." Subsequent sections (ss. 13 & 14) provide for the case of an attorney or solicitor dying or becoming incapable to act before the agreement has been completely performed. It is to be observed that the registrar is the taxing officer of a county court. § 6. — Acknowledgment of Deeds by Married Women (h). In pursuance of a recommendation of the county court commis- sioners, 1855, "The County Courts Act, 1856" (19 & 20 Vict, c. 108, s. 73), enacts that — " Any acknowledgment to be made by any married woman of any deed under the act of the third and fourth years of the reign of his late majesty King William the Fourth, chapter seventy-four, may be received by a judge of a county court in the same manner as such acknowledg- ment may be received by a judge of a superior court." Pursuant to the provisions of the act referred to, 3 & 4 Will. 4, c. 74 (" For the Abolition of Fines and Recoveries, and for the substitution of more simple modes of assurance"), the judge, before he receives the acknowledgment by any married woman " of any deed by which auy disposition, release, surrender, or extinguish- ment shall be made by her" under that act, " shall examine her, (/<) Although not part of the duties county courts, may be conveniently of the courts of equity, this power, added to the present chapter, expressly given to judges of the Chap. XII. ACKNOWLEDGMENT OF DEEDS BY MARRIED WOMEN. 143 apart from her husband, touching her knowledge of such deed, Part iv and shall ascertain whether she freely and voluntarily consents to such deed, and unless she freely and voluntarily consents to such deed shall not permit her to acknowledge the same ; and in such case such deed shall, so far as relates to the execution thereof by such married woman, be void" (£). When the deed is acknowledged (having been previously exe- cuted) the judge signs a memorandum "indorsed on or written at the foot or in the margin of such deed" in a form provided by the act (k) ; and also signs a certificate, "written or engrossed on a sepa- rate piece of parchment," of the taking of such acknowledgment, in a form also provided by the act (7). As this form of certificate includes a statement that the married woman was, at the time of her acknowledging the deed, "of full age and of competent understanding," the judge must satisfy him- self on this point, as a statement of mere belief is insufficient (m). " Every such certificate as aforesaid of the taking of an acknow- ledgment by a married woman of any such deed as aforesaid, together with an affidavit by some person verifying the same, and the signature thereof by the party by whom the same shall purport to be signed," is lodged with an officer of the Court of Common Pleas, appointed by the chief justice (n). The act empowered the Court of Common Pleas from time to time to make orders and regulations touching the mode of exami- nation, and "touching the particular matters to be mentioned in such memorandums and certificates as aforesaid, and the affidavits veri- fying the certificates, and the time within which any of the afore- said proceedings shall take place" (o). Rules of Hilary Term, 1834, require the affidavit of verification to "be made by some practising attorney or solicitor of one of the courts at Westminster, or of one of the Counties Palatine of Lan- caster or Durham, and that in all cases it shall be deposed, in addition to the verification of the said certificate, that the deponent knew the person or persons making such acknowledgment, and that at the time of making such acknowledgment, the person or persons making the same was or were of full age and competent understanding," and " the place or places where such acknowledg- ment shall be taken shall be set forth in such affidavit ; and that previously to such acknowledgment being taken, the deponent had inquired of such married woman whether she intended to give up her interest in the estate to be passed, and also the answer given thereto ; and where any such married woman in answer to such inquiry shall declare that she intends to give up her interest with- out any provision, the deponent shall state that he has no reasons (/) 3 & 4 Will. 4,c. 74, s. 80. (m) See Be Coventry, 8 Scott, (A) Id. s. 84. 147. (I) Id. (») 3 & 4 Will. 4, c. 74, ss. 85, 89. (o) Id.s.Sd. 144 SPECIAL EQUITABLE JURISDICTION. part iv. to doubt the truth of such declaration, and he verily believes the _H!lJ__l same to be true. And where any provision has been agreed to be made, the deponent shall state that the same has been made by deed or writing, or if not actually made before, that the terms of the intended provision have been reduced into writing, which deed or writing he verily believes has been produced to the said judge or commissioners." A rule of Trinity Term, 1834, modified the above rule by ordering that "where such parts of the affidavit verifying the certificate of acknowledgment, as state the deponent's knowledge of the party making the acknowledgment and her being of full age, cannot be deposed to by a commissioner, or by an attorney or solicitor, the same may be deposed to by some other person, whom the person before whom the affidavit shall be made shall consider competent so to do." The following is a form of affidavit of verification, to be made by the attorney or solicitor (generally the attorney acting in the matter), sworn before a commissioner of the Common Pleas : — In the Common Pleas. I, A. B., of in the county of gentleman, one of the attorneys of the court of , make oath and say : — 1. That I know H., the wife of E. F., in the certificate hereunto annexed mentioned, and that the acknowledgment therein mentioned was made by the said EL, and the certificate signed by the judge of the county court in the said certificate mentioned, on the day and year therein mentioned at in the county of in my presence. 2. That at the time of making such acknowledgment the said H. was of full age and competent understanding, and knew the said acknowledg- ment was intended to pass her estate in the premises, respecting which such acknowledgment was made. 3. That previous to the said H. making the said acknowledgment, I inquired of her, the said H., whether she intended to give up her inte- rest in the estate in respect of which such acknowledgment was taken, without having any provision made for her in lieu of or in return for or in consequence of her so giving up her interest in such estates ; and that in answer to such inquiry the said H. declared that she did intend to give up her interest in the said estates without having any provision made for her in lieu of or in return for or in consequence of her so giving up such her interest, of which declaration of the said H., I have no reason to doubt the truth, and I verily believe the same to be true (p) [or, declared that a provision was to be made for her in consequence of her giving up such her interest in the said estates]. [4. That before her acknowledgment was so taken I was satisfied, and do now verily believe, that such provision has been made by deed [or, writing, or, that the terms thereof have been reduced into writing].] 4 [or 51. That it appears by the deed acknowledged by the said H. (/») As to this statement (required 223; S. C, nom. In re Doming, 34 bv Rules of Hilary Term, 1834), see L. J. (N. S.) C. P. 173. In re Bowling, 18 C. B. Rep., N. S. ACKNOWLEDGMENT OF DEEDS BY MARRIED WOMEN. 145 that the premises wherein she is stated to be interested are described to Part iv be in the [parish] of in the county of . HAP " : Sworn at in the county of this "j day of 187 . S Before me, j Although strict compliance with the rules is in general required, yet as the rules are not iu the nature of an enactment, but only as a guide, they can and will be modified by the court in very excep- tional cases (q). The affidavit and certificate are generally transmitted through the London agents of the attorney to the officer of the Court of Common Pleas for inrolment. By Rule 6 of Hil. Term, 1834, these documents must be de- livered within one month from the making the acknowledgment. Nevertheless, where several years had elapsed between the making the acknowledgment and the taking the certificate to the office for enrolment, the court allowed it to be received by the officer for that purpose on the delay being accounted for and shown to have been unintentional, and on the court being satisfied as to bow the property had been dealt with, and the purpose for which the certi- ficate was wanted to be enrolled {?•}. The following note is appended to the County Court (Common Law) Rules, 1868 :— " It is considered to be unnecessary to give any rules with respect to taking acknowledgments of married women, as it is the duty of the attorney employed to prepare the certificate and affidavit, and swear to the latter; and the course to be followed by the judge is laid down in the act 3 & 4 Will. 4, c. 74. The only duty for the registrar to perform, besides that of swearing the attorney to the affidavit (s), is that of putting his initials against all alterations, interlineations, or erasures either in the certificate or affidavit" (<)• A treasury order (u) provides the following court fee : — For taking the acknowledgment of a married woman . .£100 (?) See In re Paclier, 39 L. J. (N. (r) Re Edge, 35 L. J. (N. S.) C. S.) C. P. 238. In that case the ac- P. 263. kuowledgment had been taken twelve («) The registrar cannot take the years before and not filed, and the affidavit qua registrar. He can only woman and the commissioners were do so if he is a commissioner to take now dead. The court allowed the affidavits in the Common Pleas, certificate to be received for enrolment (t) It seems, however, that the on an affidavit of an attorney verify- initials to the certificate should be ing the signatures under sect. 85, and those of the judge, not of the regis- an affidavit of the husband as to the trar; and, in the case of the affidavit, other matters required to be deposed the commissioner before whom it is to. See also, lie Hall, It) C. B. Rep., sworn must initial the alterations, &c. N. S. 369; Ex parte Stevens, 3 («) Order of Commissioners of her Hodges, 13. Majestv's Treasury regulating Fees, 30th December, 1867. D. VOL. II. L ( 146 ) PART V. AD MIRALTY JURISDICTION OF THE COUNTY COURTS. CHAPTER I. JURISDICTION IN MARITIME CASES BEFORE THE COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868. § 1 # — o F T he Nature and Jurisdiction of Admiralty Cases in general. § 2. — The Arrest of Foreign Ships under " The Merchant Shipping Act, 1854." § 3. — County Court Jurisdiction in Salvage Cases under the Merchant Shipping Acts, 1854 and 1862. § 1. — Of the Nature and Jurisdiction of Admiralty Cases in general. The original jurisdiction of the county courts was confined (with the exceptions of balance of partnership accounts and legacies and distributive shares) to "pleas of personal actions" (a). Those courts, therefore, had no jurisdiction over matters cognizable by the admiralty courts. Another reason, moreover, prevented county courts having jurisdiction in such matters. Admiralty cases, strictly speaking, could not arise within the precincts of any county, and therefore not within any district established under the County Courts Acts, the districts consisting only of counties and parts of counties (b). (a) See ante, Vol. I. p. 28. have divisum imperium, and alter- (V) "The main or high seas are nate jurisdiction; one upon the water, part of the realm of England, for when it is full sea ; and the other thereon our courts of admiralty have upon land, when it is an ebb." 1 Bla. jurisdiction, as will be shown here- Comm. 110; see also Constable's case, after; but they are not subject to the 5 Co. Rep. 106. Creeks and inland common law. This main sea begins seas, however, are within the body of at the low-water mark. But between the adjoining counties. Thus the the high- water mark and the low-water Bristol Channel is part of the counties mark, where the sea ebbs and flows, by the shores of which it is bounded — the common law and the admiralty namely, Somerset and Glamorganshire NATURE AND JURISDICTION OF ADMIRALTY CASES IN GENERAL. 147 In order to a clear view of this matter it is desirable to refer ? ART v - somewhat more fully to the ordinary admiralty jurisdiction. "The courts maritime, or admiralty courts," says Mr. Justice original ad- Blackstone, "have jurisdiction and power to try and determine all diitiou Juns " maritime causes ; or such injuries, which, though they are in their nature of common law cognizance, yet being committed on the high seas, out of the reach of our ordinary courts of justice, are therefore to be remedied in a peculiar court of their own. All admiralty causes must be, therefore, causes arising wholly upon the sea, and not within the precincts of any county. For the statute 13 Ric. II. c. 5, directs that the admiral and his deputy shall not meddle with any thing, but only things done upon the sea; and the statute 15 Ric. II. c. 3, declares that the court of the admiral hath no manner of cognizance of any contract, or of any other thing, done within the body of any county, either by land or by water ; nor of any wreck of the sea ; for that must be cast on land before it becomes a wreck. But it is otherwise of things flotsam, jetsam and ligan; for over them the admiral hath jurisdic- tion, as they are in and upon the sea. If part of any contract, or other cause of action, doth arise upon the sea, and part upon the land, the common law excludes the admiralty court from its juris- diction ; for, part belonging properly to one cognizance and part to another, the common or general law takes place of the par- ticular. Therefore, though pure maritime acquisitions, which are earned and become due on the high seas, as seamen's wages, are one proper object of the admiralty jurisdiction, even though the contract for them be made upon land (c) ; yet, in general, if there be a contract made in England and to be executed upon the seas, as a charterparty or covenant that a ship shall sail to Jamaica, or shall be in such a latitude by such a day ; or a contract made upon the sea to be performed in England, as a bond made on ship board to pay money in London or the like ; these kinds of mixed contracts belong not to the admiralty jurisdiction, but to the courts of com- mon law" (d). " Where the admiral's court hath not original jurisdiction of the cause, though there should arise in it a question that is proper for the cognizance of that court, yet that doth not alter nor take away the exclusive jurisdiction of the common law. And so vice versa, if it hath jurisdiction of the original, it hath also jurisdiction of all consequential questions, though properly determinable at common law" (e). respectively. TJic Queen v. Cunning- can be instituted in the admiralty or ham, 1 Bell, C. C. K. 66; 28 L. J. (N. vice-admiralty court or in any supe- S. M. C. 66. So the sea between the rior court. See 17 & 18 Vict. c. 101, Isle of Wight and Hampshire is all s. 189. within the county of Southampton. (<7) 3 Bla. Coram. 106, 107. Per Wightman, J., S. C. (e) Id. p. 108. Blackstone further (c) But now no suit or proceeding says, that "In case of prizes also in for the recovery of wages under 50/. time of war, between our own nation l2 148 JURISDICTION IN MARITIME CASES. Part V. Chap. I. Jurisdiction under 3 & 4 Viet. c. 65. Jurisdiction under " The Admiralty Court Act, 1861." The original jurisdiction of the admiralty court has been con- siderably extended by statute. The 3 & 4 Vict. c. 65, gave the court jurisdiction over claims and causes of action by mortgagees of vessels (f), and " all ques- tions as to the title to or ownership of any ship or vessel, or the proceeds thereof remaining in the registry, arising in any cause of possession, salvage, damage, wages, or bottomry, which shall be instituted in the said court" (g). And also "jurisdiction to decide all claims and demands whatsoever in the nature of salvage for services rendered to or damage received by any ship or sea-going vessel, or in the nature of towage, or for necessaries supplied to any foreign ship or sea-going vessel, and to enforce the payment thereof, whether such ship or vessel may have been within the body of a county, or upon the high seas, at the time when the services were rendered or damage received or necessaries furnished, in respect of which such claim is made" (h). The act, however, provided that " nothing herein contained shall be deemed to pre- clude any of her Majesty's courts of law or equity now having jurisdiction over the several subject-matters and causes of action hereinbefore mentioned from continuing to exercise such jurisdic- tion as fully as if this act had not been passed" (i). " The Admiralty Court Act, 1861" (24 & 25 Vict. c. 10), fur- ther extended the jurisdiction (and improved the practice) of the High Court of Admiralty. It gave the court jurisdiction over any claim for the building, equipping or repairing of ships, if under arrest of the court (k) ; and also over "any claim for necessaries supplied to any ship elsewhere than in the port to which the ship and another, or between two other nations, which are taken at sea, and brought into our ports, the courts of admiralty have an undisturbed and exclusive jurisdiction to determine the same according to the law of nations." The Court of Admiralty, however, has no original jurisdiction in prize matters ; the jurisdiction which it exercises is derived from the authority of parliament and the royal prerogative, at the outbreak of a war requiring the services of the navy, it has been customary for the crown to issue a proclamation, bestowing the proceeds of maritime captures upon the takers, and at the same time to issue a commission, requiring the Lords of the Admiralty to empower the admiralty court " to take cogni- zance of and judicially proceed in matters of prize," and " to hear and determine the same according to the course of admiralty and the law of nations." See The Banda and Kir- ivee Booty, 35 L. J. (N. S.) Adm. 17. Some permanent provisions on this subject were made by "The Naval Prize Act, 1864" (27 & 28 Vict. c. 25). The court's jurisdiction with respect to bootv commenced with the passing of the 3 & 4 Vict. c. 65, s. 22. (/) Sect. 3. See also 24 & 25 Vict. c. 10, s. 11. (ff) 3 & 4 Vict. c. 65, s. 4. (h) Id. sect. 6. See also 9 & 10 Vict. c. 99, s. 40 ; and 17 & 18 Vict. c. 104, post, p. 152. All questions relating to salvage, both as regards the amount due in respect of services and the apportionment of the amount among the different classes of salvors, are within the jurisdiction of the ad- miralty court subject to " The Mer- chant Shipping Act, 1854:," post; At- kinson v. Woodall, 31 L. J. (N. S.) M. C. 174. (i) Sect. 23. (k) 24 & 25 Vict. c. 10, s. 4. This section does not give a maritime lien. See judgment in Johnson v. Black {The Two Ellens), 41 L. J. (N. S.) Adm. 35. NATURE AND JURISDICTION OF ADMIRALTY CASES IN GENERAL. 149 belongs, unless it is shown to the satisfaction of the court that at Part v. the time of the institution of the cause any owner or part owner of Chap " l . the ship is domiciled in England or Wales : provided always, that if in any such cause the plaintiff do not recover 201. he shall not be entitled to any costs, charges or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said court" (/), also " over any claim by the owner, or consignee, or assignee of any bill of lading of any goods carried into any port of London or Wales in any ship, for damage done to the goods or any part thereof by the negligence or misconduct of or for any breach of duty or breach of contract on the part of the owner, master or crew of the ship, unless it is shown to the satis- faction of the court that at the time of the institution of the cause any owner or part owner of the ship is domiciled in England or Wales : provided always, that if in any such cause the plaintiff do not recover 20/., he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said court" (/«)> a ^ so "over any claim for damage done by any ship" (n); and also "jurisdiction to decide all questions arising between the co-owners, or any of them, touching the ownership, possession, employment, and earnings of any ship registered at any port in England or Wales, or any share thereof, and may settle all accounts outstand- ing and unsettled between the parties in relation thereto, and may direct the said ship or any share thereof to be sold, and may make such order in the premises as to it shall seem fit " (o). The act further gave the Court of Admiralty jurisdiction over any claim by a seaman of any ship " for wages earned by him on board the ship, whether the same be due under a special contract or other- wise, and also over any claim by the master of any ship for wages earned by him on board the ship, and for disbursements made by him on account of the ship: provided always, that if in any such cause the plaintiff do not recover 50/. he shall not be entitled to any costs, charges, or expenses incurred by him therein, unless the judge shall certify that the cause was a fit one to be tried in the said court" (p). It has been held that jurisdiction is given under this section to the admiralty court to entertain a claim by seamen for wrongful dismissal and the consequential damages (q). (Z) 24 & 25 Vict. c. 10, s. 5. See accounts as to earnings while he was Johnson v. Black ( TJie Two Ellens), a co-owner. TJie Lady of the Lake, 41 L. J. (N. S.) Adtn. 33. 39 L. J. (N. S.) Adra. 40. (m) Id. s. 6. (p) Id. s. 10. The act also gave O) ld.s.7. This includes claims the High Court of Admiralty extended for personal injuries caused by un- jurisdiction in respect of mortgaged skilful navigation. The Beta, 38 L. ships, and also certain powers of J. (N. S.) Adm. 50. the Court of Chancery under "The (o) Id. s. 8. One who has parted Merchant Shipping Act, 1854." with his shares in a vessel may, never- (g) The Great Eastern, 36 L. J. thelcss, sue under this section for the (N. S.) Adm. 15. 150 JURISDICTION IN MARITIME CASES. Part V. Chap. I. Claims in rem, and in personam. The Court of Admiralty was formerly held before the Lord High Admiral of England or his deputy called the judge of the court. Its proceedings are according to the method of the civil law like those of the ecclesiastical courts ; upon which account it was usually held at the same place with the superior ecclesiastical courts, at Doctors' Commons, in London. It was not a court of record (r). Now, however, it is a court of record (s), and is pre- sided over by a single judge specially appointed to that office, or by the Dean of Arches (t). Where the plaintiff's claim rests upon a true maritime lien, or even if it be a simple right of action given by statute to the admiralty court, it may be urged either against such property as is subject to the power and jurisdiction of the court, i. €., ships, cargoes, and freights, or against their owners ; in the former case, the proceeding or action is in rem ; in the latter case it is in per- sonam. The causes of action, which are also in themselves mari- time liens, are damage by collision, salvage, towage, pilotage, bottomry, and seamen's and master's wages (u). Where there is a remedy both in personam and in rem a person who has resorted to one of these remedies may, if he does not get thereby full satisfaction, resort to the other ; but if a person has resorted to one of these remedies and has recovered full compensa- tion and such compensation has been paid, no further proceeding can be taken (x). § 2. — The Arrest of Foreign Ships under " The Merchant Shipping Act, 1854." The first matter of a maritime kind in which county courts obtained jurisdiction, related to the arrest of foreign ships injuring the property of English subjects, and this jurisdiction was not given to county courts in direct terms, but to all courts of record, in which definition county courts are of course included. The provision referred to is contained in " The Merchant Shipping Act, 1854" (17 & 18 Vict. c. 104). Sect. 527 of that act enacts that — power of "Whenever any injury has, in any part of the world, been caused to judge of an y p r0 p er ty belonging to her Majesty or to any of her Majesty's sub- Kecordor jects by any foreign ship, if at any time thereafter such ship is found Admiralty to i n an y port or river of the United Kingdom or within three miles of the (r) 3 Bla. Comm. 69. 00 24 Vict. c. 10, s. 14. (0 See 3 & 4 Vict. c. 65, s. 1. («) See Coote's Admiralty Prac- tice, 2nd edit., p. 16. There is no maritime lien for necessaries, and the ship is not chargeable with them until the suit is actually instituted. John- son v. Black (The Two Ellens), 41 L. J. (N. S.) Adm. 33. The county court admiralty jurisdiction may be exercised either by proceedings in rem or by proceedings in personam. See 32 & 33 Vict. c. 51, s. 3, post, p. 161. (x) Yeo v. Tatem {The Orient), 40 L. J. (N. S.) Adm. 29. ARREST OF FOREIGN' SHIPS UNDER MERCHANT SHIPPING ACT, 1854. 151 coast thereof, it shall be lawful for the judge of any court of record in Part v. the United Kingdom, or for the judge of the High Court of Admiralty, or in Scotland the Court of Session, or the sheriff of the county within arrest foreign whose jurisdiction such ship may be, upon its being shown to him by ^Ifocca- any person applying summarily that such injury was probably caused sioncd da- by the misconduct or want of skill of the master or mariners of such **&%<*• ship, to issue an order directed to any officer of customs or other officer named by such judge, requiring him to detain such ship until such time as the owner, master or consignee thereof has made satisfaction in respect of such injury, or has given security to be approved by the judge, to abide the event of any action, suit or other legal proceeding that may be instituted in respect of such injury, and to pay all costs and damages that may be awarded thereon ; and any officer of customs or other officer to whom such order is directed, shall detain such ship accordingly." Sect. 528. " In any case where it appears that before any application p wer in can be made under the foregoing section, such foreign ship will have certain cases departed beyond the limits therein mentioned, it shall be lawful for any sn ip e t,efore commissioned officer on full pay in the military or naval service of her application Majesty, or any British officer of customs, or any British consular officer, ^ge l ° to detain such ship until such time as will allow such application to be made, and the result thereof to be communicated to him ; and no such officer shall be liable for any costs or damages in respect of such deten- tion, unless the same is proved to have been made without reasonable grounds." Sect. 529. " In any action, suit or other proceeding in relation to such who to be injurj r , the person so giving security as aforesaid shall be made defen- defendant dant or defender, and shall be stated to be the owner of the ship that 8UC h cases. has occasioned such damage ; and the production of the order of the judge made in relation to such security shall be conclusive evidence of the liability of such defendant or defender to such action, suit or other proceeding." § 3. — County Court Jurisdiction in Salvage Cases under the Merchant Shipping Acts, 1854 and 1862. "The Merchant Shipping Act Amendment Act, 1862" (25 &26 Vict. c. 63), gave a jurisdiction to county courts in salvage cases. Sect. 49 of that act, amending the provisions contained in the eighth part of the principal act (" The Merchant Shipping Act, 1854"), for giving summary jurisdiction to two justices in salvage cases, and for preventing unnecessary appeals and litigation in such cases, enacted (sub-section (6)), that it shall be competent in England, for any county court judge "to exercise the same jurisdiction in salvage cases as is given to two justices," and (sub- section (8)) "all the provisions of the principal act relating to summary proceedings in salvage cases, and to the prevention of unnecessary appeals in such cases, shall, except so far as the same are altered by this act, extend and apply to all such proceedings, whether under the principal act or this act, or both of such acts." 152 JURISDICTION IN MARITIME CASES. Part V. Chap. I. Salvage in respect of services rendered in the united kingdom. Salvage for life may be paid by Board of Trade out of Mercantile Marine Fund. Disputes as to salvage, bow to be settled. In order, therefore, to ascertain the jurisdiction of county courts under this act it is necessary to refer to the principal act. That act (17 & 18 Vict. c. 104, Part VIII.) under the head of sal- vage in the United Kingdom, enacts that — Sect. 458. " In the following cases (that is to say), " Whenever any ship or boat is stranded or otherwise in distress on the shore of any sea or tidal water situate within the limits of the United Kingdom, and services are rendered by any person, " (1) In assisting such ship or boat, " (2) In saving the lives of the persons belonging to such ship or boat (y), " (3) In saving the cargo or apparel of such ship or boat, or any portion thereof; " And whenever any wreck is saved by any person other than a receiver within the United Kingdom ; " There shall be payable by the owners of such ship or boat, cargo, apparel or wreck, to the person by whom such services or any of them are rendered or by whom such wreck is saved, a reasonable amount of salvage, together with all expenses properly incurred by him in the performance of such services or the saving of such wreck, the amount of such salvage and expenses (which expenses are hereinafter included under the term salvage) to be determined in case of dispute in manner hereinafter mentioned." Sect. 459. " Salvage in respect of the preservation of the life or lives of any person or persons belonging to any such ship or boat as aforesaid shall be payable by the owners of the ship or boat in priority to all other claims for salvage ; and in cases where such ship or boat is destroyed, or where the value thereof is insufficient, after payment of the actual expenses incurred, to pay the amount of salvage due in respect of any life or lives, the Board of Trade may in its discretion award to the salvors of such life or lives out of the Mercantile Marine Fund, such sum or sums as it deems fit, in whole or part satisfaction of any amount of salvage so left unpaid in respect of such life or lives." Sect. 460. " Disputes with respect to salvage arising within the boundaries of the Cinque Ports shall be determined in the manner in which the same have hitherto been determined (z) ; but wherever any dispute arises elsewhere in the United Kingdom between the owners of any such ship, boat, cargo, apparel or wreck as aforesaid, and the salvors, as to the amount of salvage, and the parties to the dispute cannot agree as to the settlement thereof by arbitration or otherwise. " Then, if the sum claimed does not exceed two hundred pounds (a), " Such dispute shall be referred to the arbitration of any two justices of the peace resident as follows ; (that is to say) — (?j) By "The Admiraltv Courts Act, 1861" (24 & 25 Vict, c." 10), s. 9, " All the provisions of ' The Merchant Shipping Act, 1854,' in regard to salvage of life from any ship or boat within the limits of the united king- dom shall be extended to the salvage of life from any British ship or boat, wheresoever the services may have been rendered, and from any foreign ship or boat, where the services have been rendered either wholly or in part in British waters." (z) For the limits of the jurisdic- tion of the Lord Warden of the Cinque Ports, see 1 & 2 Geo. 4, c. 76, s. 18. (a) See the extended jurisdiction under 25 & 26 Vict. c. 63, s. 49, post, p. 153. COUNTY COURT JURISDICTION IN SALVAGE CASES. 153 " In case of wreck, resident at or near the place where such Part v. wreck is found ; Chap. *• " In case of services rendered to any ship or boat, or to the persons, cargo, or apparel belonging thereto, resident at or near the place where such ship or boat is lying, or at or near the first port or place in the United Kingdom into which such ship or boat is brought after the occurrence of the accident by reason whereof the claim for salvage arises. u But if the sum claimed exceeds two hundred pounds (b), " Such dispute may, with the consent of the parties, be referred to the arbitration of such justices as aforesaid, but if they do not consent shall in England be decided by the High Court of Admiralty of England, in Ireland by the High Court of Admiralty of Ireland, and in Scotland by the Court of Session : subject to this proviso, that if the claimants in such dispute do not recover in such court of admiralty or court of session a greater sum than two hundred pounds, they shall not, unless the court certifies that the case is a fit one to be tried in a superior court, recover any costs, charges or expenses incurred by them in the prosecution of their claim : "And every dispute with respect to salvage may be heard and adjudi- cated upon on the application either of the salvor or of the owner of the property salved or of their respective agents." Sect. 461. "Whenever in pursuance of this act any dispute as to Manner in salvage is referred to the arbitration of two justices, they may either ffff ^jy * themselves determine the same, with power to call to their assistance decide dis- any person conversant with maritime affairs as assessor, or they may if putes. a difference of opinion arises between them, or without such difference, if they think fit, appoint some person conversant with maritime affairs as umpire to decide the point in dispute; and such justices or their umpire shall make an award as to the amount of salvage payable, within the following times, that is to say, the said justices within forty-eight hours after such dispute has been referred to them, and the said umpire within forty- eight hours after his appointment, with power nevertheless for such justices or umpire by writing under their or his hands or hand to extend the time within which they and he are hereby respectively directed to make their or his award." 11 The Merchant Shipping Act Amendment Act, 1862" (25 & 26 Vict. c. 63), which, as already stated, empowered a county court judge to exercise the jurisdiction thus given to two justices, at the same time enacted (s. 49, sub-s. (1)), that the provisions of the principal act for giving summary jurisdiction to two justices " shall extend to all cases in which the value of the property saved does not exceed 1,000/., as well as to the cases provided for by the principal act," and also empowered "one of her Majesty's principal secretaries of state to determine a scale of costs to be awarded in salvage cases by any such justices or court as afore- said." Other provisions applicable as well to the exercise of this juris- (£>) See the extended jurisdiction under 25 & 26 Vict. c. 63, s. 49, infra. 154 JURISDICTION IN MARITIME CASES. partv. diction by a county court judge as by justices, relate to tbe pro- duction of documents and tbe examination of witnesses on oatb (c) ; tbe valuation of tbe property (d) ; appeal to tbe Court of Ad- miralty (e), tbe payment and apportionment and manner of enforcing payment of the salvage (/"), and power to award costs (g). jurisdiction It will be convenient to state how tbe jurisdiction in salvage in salvage cases stands under the Merchant Shipping Acts. Under the cases under i r o the Merchant 460th section of " The Merchant Shipping Act, 1854, the justices Acts!" ng h a( l jurisdiction only where the salvage service was performed within the kingdom, or within three miles from shore, and where the claim did not exceed 200/. ; and that jurisdiction (except cases within the Cinque Ports) was exclusive of the High Court of Admiralty (/<). By "The Merchant Shipping Act, 1862," the justices and the county court have jurisdiction wherever the ser- vice was performed (except in the Cinque Ports), and also in all cases where either the sum claimed does not exceed 200/., or where the value of the property saved does not exceed 1,000/., and under these acts the jurisdiction so given to justices and tbe county courts was exclusive of the High Court of Admiralty (i). It has been held, however, that " The County Courts Admiralty Jurisdiction Act, 1868" (31 & 32 Vict. c. 71) (A), has made an alte- ration in this respect, and that the High Court of Admiralty has jurisdiction where the value is under 1,000/., and will exercise a discretion as to taking cognizance of salvage suits under that amount (/). As regards cases arising in the Cinque Ports, tbe High Court and the Court of Admiralty of the Cinque Ports, and the com- missioners appointed by the lord warden have concurrent jurisdic- tion in salvage cases (m) ; for the general words in sect. 49 of "The Merchant Shipping Act Amendment Act, 1862," do not refer to or affect the earlier part of sect. 460 of " The Merchant Shipping Act, 1854," which provided that disputes with respect to salvage arising within the boundaries of the Cinque Ports should be determined in the manner in which the same bad pre- viously been determined (»). The meaning in sect. 460 of " The Merchant Shipping Act, 1854," of "the sum claimed," is a claim or sum asked antecedent to any proceedings, for the section enacts that the dispute shall be (c ) 17 & ] 8 Vict. c. 104, s. 463. condemn in costs, and also in damages (d) 25 & 26 Vict. c. 63, s. 50. in case of a wrongful arrest. The (e) 17 & 18 Vict. c. 104, ss. 464, Kate, 33 L. J. (N. S.) Adm. 122. 465. (/>) See the act and especially s. 9, (/) Id. ss. 466—470. post, Chap. II. (g) Id, s. 462. (I) The Herman Wedel, 39 L. J. (h) See Atkinson v. Bell, 31 L. J. (N. S.) Adm. 30; The Empress, 41 (N. S.) M. C. 174. L. J. (N. S.) Adm. 32. (!) The William and John, Br. & (m) The Maria Luisa, Swabev, Lush. 55; 32 L. J. (N. S.) Adm. 102; 67. and see The Louisa, Br. & Lush. 58. («) TJie Jenne Paul, 36 L. J. (N. The court, however, had power to S.) 11. COUNTY COURT JURISDICTION IN SALVAGE CASES. 155 referred, and in substance that is a direction to refer to a tribunal Part v. after a claim. The claim must exist before there could be a Chap - l ' reference, and the claim could not be made in any court, for the proceedings were to follow, not precede (o). It is to be observed that under the Merchant Shipping Acts the jurisdiction of the court being determined by the value of the property, the time at which such value must be estimated is when it is brought into a place of safety by the salvors, and not at any subsequent period (p) ; and the burthen of proof as to value lies upon the party who seeks to show that the court has no jurisdic- tion (q). Although the jurisdiction given by " The Merchant Shipping Act, 1854," relates to the " reasonable amount of salvage" to be paid, the jurisdiction of the county court (and consequently of the justices also) is not ousted in cases where the quantum meruit had been already determined by a special agreement, for such an agreement is not necessarily binding on the court. If the bargain is a fair one, the court acts upon it, and will not set it aside or allow the salvors to claim upon a quantum meruit. But as a ship in distress would very likely be driven to make a hard bargain, where it is altogether extortionate, the Court of Admiralty is not bound by it, neither is the county court (r). Cases under the Merchant Shipping Acts went before the county court judge sitting not under his ordinary jurisdiction, but sitting as an arbitrator (s). Nevertheless, as the cause must be brought before the county court judge, and the parties must be made to appear before him in some manner or other, the County Court Rules (Common Law) provided that in proceedings in the county courts under the 25 & 26 Vict. c. 63, a plaint shall be entered, and a summons shall be issued thereon, and the rules and practice of the court shall be adopted with respect to such proceedings, so far as the same are applicable (t). (o) The William and John, Br. & 2007. the -whole value of the ship (a Lush. 55; 32 L. J. (N. S.) Pro. M & schooner) and cargo did not exceed Adm. 102. 1,000?., and therefore there was no ob- (p) The Stella, 36 L. J. (N. S.) jection to the jurisdiction in respect Adm. 13. of the amount. (q) Id. (s) Blackburn, J., in his judgment (r) Beadnell v. Bceson, 37 L. J. in Beadnell v. Beeson, 37 L. J. (N. S.) (X. S.) Q. B. 171; and see Tlte Q. B. 173. William and John, 32 L. J. (N. S.) {t) County Court (Common Law) Pro. M. & Adm. 102. In Beadnell Rules, 1S68, Rule 276. The Treasury v. Beeson, the agreement was in these Order of 30th December, 1867, directs words : " I, G. H., master of Tlie that in proceedings under " The Mer- Pride, the ship being on shore and in chant Shipping Act, 1854," the pound- danger of becoming a wreck, agree to age shall be estimated upon the amount pay 250Z. to a certain number of men, in dispute; see ante, Vol. I. p. 19. providing they can get the ship and See now as to the procedure in general cargo off and safely into some place in admiralty cases in the county courts, of safety." It is to be observed that, post, Chap. II. although the sum claimed exceeded 156 JURISDICTION IN MARITIME CASES. part v. The power given to a county court judge is ambiguous, so far Chap - r ' as relates to the area of his jurisdiction. In the case of wreck, jurisdiction is given to justices resident " at or near the place where such wreck is found ;" and in the case of services rendered to the ship or persons, cargo or apparel, to justices resident "at or near the place where such ship or boat is lying, or at or near the first port or place in the United Kingdom into which such ship or boat is brought after the occurrence of the accident, by reason whereof the claim for salvage arises"(w). The intention of the legislature could scarcely have been to make the jurisdiction of the county court judge depend on the position of his personal residence, but rather ou the stranding or distress of the vessel on a part of the shore within his county court district. Whether such an intention has been effectually provided for, may be doubted. This and many other questions respecting the jurisdiction of the county courts under the Merchant Shipping Acts may never now be raised, for although the general admiralty jurisdiction sub- sequently conferred on the county courts by the Act of 1868 (the subject of the next Chapter) has not expressly repealed the former jurisdiction, the provisions of the Merchant Shipping Acts, so far as they relate to the county courts, are, for most purposes at least, practically merged in the general jurisdiction. (?/) See ante, pp. 152, 153. ( 157 ) CHAPTER II. ADMIRALTY JURISDICTION UNDER "THE COUNTY COURTS ADMIRALTY JURISDICTION ACT, 1868," AND THE AMENDMENT ACT, 1869. -County Court Districts for Admiralty Purposes. -Extent of Jurisdiction. -Commencement of Suit. -Defendant's Proceedings in the Suit. -Transfer of Admiralty Causes from the County Court. -Second or Cross Suits. -Arrest and Detention of Vessel or Property pend- ing Proceedings. -Inspection and Copies of Instruments and Documents. -Trial of Admiralty Causes. -Enforcement of Decrees. -Appeal. -Fees and Costs. § 1 § 2, § 3 § 4. § 5. § 6, § 7. § 8. § 9. § 10. § 11. § 12. § 1. — County Court Districts for Admiralty Purposes. "The County Courts Admiralty Jurisdiction Act, 1868" (31 & 32 Vict. c. 71), euacted that: — Sect 2. " If at any time after the passing of this act it appears to her Appointment Majesty in council, on the representation of the lord chancellor, expe- of count y dient that any county court should have admiralty jurisdiction, it shall ^r^mlty be lawful fur her Majesty, by order in council, to appoint that court to purpose*. have admiralty jurisdiction accordingly, and to assign to that court as its district for admiralty purposes any part or parts of any one or more district or districts of county courts ; and the district so constituted for that court, with the parts of the sea (if any) adjacent to that district to a distance of three miles from the shore thereof, shall be deemed its district for admiralty purposes; and accordingly the judge and all officers of the court shall have jurisdiction and authority for those pur- poses throughout that district, as if the same was the district of the court for all purposes ; and, from a time to be specified in each such order, this act shall have effect in and throughout the district so consti- tuted ; and any such order may be from time to time varied as seems expedient ; and a county court so appointed to have admiralty jurisdic- 158 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. No county court other than that ap- pointed to have juris- diction. County court acts applied to this. Practice, &c. to be regu- lated by general orders. Authority fur making general orders. tion, and no other county court shall, for the purposes of this act, be deemed a county court having admiralty jurisdiction : provided, that no judge of a county court, except the judges of the London court, shall have jurisdiction in the city of London" {a). Sect. 5. " From and after the time specified in each order in council under this act appointing a county court to have admiralty jurisdiction within any district as the time from which this act shall have effect in and throughout that district, no county court, other than the county court so appointed, shall have jurisdiction within that district in any admiralty cause ; provided that all admiralty causes at that time pending in any county court within that district may be continued as if no such order in council had been made." Sect. 34. " This act shall be read as one act with so much of 'The County Courts Act, 1846,' and the acts amending or extending the same, as is now in force." Sect. 35. " General orders shall be from time to time made under this act for the purposes in this act directed, and for regulating the practice and procedure of the admiralty jurisdiction of the county courts, the forms of processes and proceedings therein or issuing therefrom, and the days and places of sittings for admiralty causes, the duties of the judges and officers thereof, and the fees to be taken therein." Sect. 36. " General orders under this act shall be made by the lord chancellor, with the advice and assistance of the judge of the High Court of Admiralty of England, and, as far as they relate to fees, or to the receipt and expenditure of and accounting for money, with the approval of the Commissioners of her Majesty's treasury" (b). Pursuant to the second section of the act, by an order in council of the 9th December, 1868, it was ordered and appointed that, from the 31st day of January, 1869, certain county courts should " have admiralty jurisdiction," and to those county courts so ap- pointed, the districts of specified county courts were assigned for admiralty purposes (c). The courts thus appointed to have admi- (rt) Section 25 enacted, that " the Court of Passage of the borough of Liverpool shall, upon an Order in Council being made which shall ap- point the county court of Lancashire holden at Liverpool to have admiralty jurisdiction, have the like jmisdiction, powers, and authorities as by that order are conferred on the said county court ; but nothing herein shall be deemed to enlarge the area over which the jurisdiction of the Court of Pas- sage extends, or to alter the rules and regulations for holding the said court, or to take away or restrict any juris- diction, power, or authority already vested in that court ; and fees re- ceived in that court under this act shall be dealt with as fees received in that court under its ordinary jurisdic- tion." There is now a registry court of admiralty in Liverpool, see 33 & 34 Vict. c. 45. (£>) " The assessor of the Court of Passage of the borough of Liverpool shall have power from time to time to make general rules and orders for regulating the practice and procedure of the admiralty and maritime juris- diction in the said court, and for other purposes mentioned in section thirty- five of ' The County Courts Admiralty Jurisdiction Act, 1868 ;' and any general rules and orders already made or hereafter to be made by the said assessor for any of the purposes afore- said shall be of full force and effect as if the same had been made under this or the aforesaid act." " County Courts Admiraltv Jurisdiction Amendment Act, lSt'>9"(32 & 33 Vict. c. 51, s. 8). (c) E. g., "The county court of Northumberland holden at Newcastle- on-Tyne" is the name of a court ap- EXTENT OF JURISDICTION. 159 ralty jurisdiction comprised the whole of the sea hoard of England p a »t v. from Berwick-on-Tweed to the Lands End, and again northwards Chap " h " to Carlisle. General orders were also issued pursuant to the act, and these orders, together with forms, will be found under appropriate heads in the present Chapter (d). The order provides, however, that: — Rule 77. " The rules, orders, practice and forms in actions in the common county courts shall, subject to these orders, be adopted with reference to law rules, admiralty suits, so far as they shall be respectively applicable." § 2. — Extent of Jurisdiction. "The County Courts Admiralty Jurisdiction Act, 1868," enacts : — Sect. 3. " Any county court having admiralty jurisdiction shall have Extent of jurisdiction, and all powers and authorities relating thereto, to trv and admiralty ° ' J jurisdiction pointed to have admiralty jurisdiction, and the districts which are for admi- ralty purposes, the district of that court, are " the county court of North- umberland holden at Berwick, Belford, Alnwick, Morpeth, North Shields and Newcastle-on-Tyne ; and the county court of Durham, holden at Gateshead and South Shields." (d) The orders are not dated nor do they state from what time they were to take or did take effect. The orders provide that — •* In the construction of these orders, forms and schedules, the following terms shall ( if not inconsistent with the context or subject-matter) have the respective meanings hereinafter unsigned to them, that is to say: — 1 Court' shall mean a county court appointed tohave admiralty juris- diction: ' Judge' shall mean the judge or any deputy judge of any such court : ' Registrar' shall meaja the regis- trar or any deputy registrar of any such court ; 1 Counsel' shall mean any advo- cate or barrister-at-law entitled to plead in any such court : Attorney' shall mean any proctor, attorney or solicitor entitled to practise in any such court, or the party himself if conducting his suit in person : ' Suit' shall mean any suit, cause or other proceeding instituted in the said court : ' Name' of any person shall mean both the Christian name and sur- name of such person : ' Affidavit' shall include statutable affirmations and attestations upon honour, and the word ' sworn' shall include affirmed according to statute and attested upon honour : 'Vessel' shall include every de- scription of vessel used in navi- gation not propelled by oars only." The orders are in many respects founded on the rules, orders and regu- lations of the High Court of Admi- ralty. See those rules in Coote's Admiralty Practice, 2nd edit., p. 191. Rule 74 directs, that " the forms annexed to these Rules shall be fol- lowed as nearly as the circumstances of each case will allow; and in cases where no forms are provided, these forms shall be used as guides iu fram- ing the forms required." 160 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. of county courts. Restrictions on county court juris- diction in certain cases. determine, subject and according to the provisions of this act, the follow- ing causes (in this act referred to as admiralty causes) ; (1.) As to any claim for salvage — any cause in which the value of the property saved does not exceed one thousand pounds, or in which the amount claimed does not exceed three hundred pounds (e) : (2.) As to any claim for towage, necessaries (/), or wages (g) — any cause in which the amount claimed does not exceed one hun- dred and fifty pounds : (3.) As to any claim for damage to cargo, or damage by collision (h) — any cause in which the amount claimed does not exceed three hundred pounds : (4.) Any cause in respect of any such claim or claims as aforesaid, but in which the value of the property saved or the amount claimed is beyond the amount limited as above-mentioned, when the parties agree by a memorandum signed by them or by their attorneys or agents that any county court having admiralty jurisdiction, and specified in the memorandum, shall have jurisdiction." Sect. 4. " Nothing in this act, or in any order in council under it, shall confer on a county court jurisdiction in any prize cause, or in any other matter within 'The Naval Prize Act, 1864,' (i), or in any matter arising under any of the acts for the suppression of the slave trade, or any admiralty jurisdiction by way of appeal." Consents.]— With respect to consents, the rules provide that — 38. " Any consent in writing between the attornies in a suit may, by permission of the registrar, be filed, and shall thereupon become an order of court, and such order shall be as valid as if made by the court" (k). The jurisdiction given to the county courts in respect of the matters specified, is the same jurisdiction as that exercised by the High Court of Admiralty, and, therefore, the subject-matter must be an "admiralty cause" within the jurisdiction of the high court (/). Therefore a suit for damage by one dumb barge to another (that is to say, barges propelled by oars only) is not within the county court jurisdiction, because it would not be within the jurisdiction of the High Court of Admiralty (m). So, therefore, to give the (e) As to the prior jurisdiction of county courts in salvage cases, see ante, p. 151. (/) See 24 & 25 Vict. c. 10, s. 5, ante, pp. 148, 149. As to the mean- ing of necessaries see The Riga, 41 L. J. (N. S.)Adm. 39. (#) As to the recovery of seamen's wages, in general, see " The Merchant Shipping Act, 1854" (17 & 18 Vict. c. 104), ss. 188—191; and also 24 & 25 Vict. c. 10, s. 10, ante, p. 149; and as to recovery of wages during illness see 30 & 31 Vict. c. 124, s. 8. (h) See 32 & 33 Vict. c. 51, s. 4, infra. (i) "The Naval Prize Act, 1864" (27 & 28 Vict. c. 25), gave the High Court of Admiralty jurisdiction throughout her Majesty's dominions, as a prize court. (h) Orders under "The County Courts Admiralty Jurisdiction Act, 1868," No. 38. (Z) Everard v. Kendall, 39 L. J. (N. S.) C. P. 234; The Dowse, 39 L. J. (N. S.) Adm. 46. (m) Everard v. Kendall, 39 L. J. (N. S.) C. P. 234; as to the non-juris- diction of the High Court in such a case, see The Bilbao, 1 Lushington, 149. EXTENT OF JURISDICTION. 161 county court jurisdiction for necessaries, they must have been sup- Part v. plied elsewhere than at the port to which the ship belonged, and C hap - n - at the time of the institution of the cause, no owner or part-owner of the ship was domiciled in England or Wales, for it is only under those limitations that jurisdiction for necessaries exists in the high court («). This jurisdiction was extended in the following year by the act 32 & 33 Vict. c. 51, which came into operation on the 1st September, 1869, and enacted that — Sect. 1. "This act maybe cited as 'The County Courts Admiralty Short title. Jurisdiction Amendment Act, 1869,' and shall be read and interpreted as one act with 'The County Courts Admiralty Jurisdiction Act, 1868.'" Sect. 2. " Any county court appointed or to be appointed to have Extension admiralty jurisdiction shall have jurisdiction, and all powers and autho- of J' ari »j lctton rities relating thereto, to try and determine the following causes: — and goods. (1.) As to any claim arising out of any agreement made in relation to the use or hire of any ship, or in relation to the carriage of goods in any ship, and also as to any claim in tort in respect of goods carried in any ship, provided the amount claimed does not exceed three hundred pounds : (2.) As to any cause in respect of any such claim or claims as afore- if parties said, but in which the amount claimed is beyond the amount jn^'p^t'of 8 limited as above mentioned, when the parties agree, by a memo- claims of randum signed by them or by their attorneys or agents, that hi gner any county court having admiralty jurisdiction, and specified bedelermined in the memorandum, shall have jurisdiction." bycounty Sect. 3. " The jurisdiction conferred by this act and by ' The County court • Courts Admiralty Jurisdiction Act, 1868,' may be exercised either by Procee(iin & 9 j. •> i ,.'. J „ . . J in rem or in proceedings in rem or by proceedings m personam (o). personam. Sect. 4. •' The third section of ' The County Courts Admiralty Juris- Amendment diction Act, 1868,' shall extend and apply to all claims for damage to of sect 8 of ships, whether by collision or otherwise, when the amount claimed does g 1 ^ 32 Ylct ' not exceed three hundred pounds." Concurrent Jurisdiction of the High Court of Admiralty.] — Although where a county court has jurisdiction in an admiralty cause, the High Court of Admiralty has, strictly speaking, a con- current right to entertain the suit, the county courts, have practi- cally an exclusive jurisdiction in ordinary cases by reason of the withholding of costs if the parties elect to proceed in the high court; for "The County Courts Admiralty Jurisdiction Act, 1868" (31 & 32 Vict. c. 71), enacts that — Sect. 9. " If any person shall take in the High Court of Admiralty of Restrictions England or in any superior court proceedings which he might, without ?" f^^ "lent, have taken in a county court, except by order of the judge Court of Ad. of the High Court of Admiralty, or of such superior court or of a county miraity or (n) Tlie Dowse, 39 L. J. (N. S.) for commission under a charter-party Adm. 46; see 3 & 4 Vict. c. 65; 24 stipulating for commission to them. & 25 Vict. c. 10, s. 5, ante, pp. 148,149. The Xuova liaffaelina, 41 L. J. (o) See ante, p. 150. Brokers can- (N. S.) Adm. 37. n«l sue in rem in the County Court D. VOL. II. M 162 ADMIRALTY JURISDICTION, ETC. Part v. court having admiralty jurisdiction, and shall not recover a sum exceed- Chap - lI - ing the amount to which the jurisdiction of the county court in that ad- miralty cause is limited by this act, and also if any person without agree- ment shall, except by order as aforesaid, take proceedings as to salvage in the High Court of Admiralty or in any superior court in respect of property saved, the value of which when saved does not exceed one thousand pounds (p),he shall not be entitled to costs, and shall be liable to be condemned in costs (q), unless the judge of the High Court of Admiralty or of a superior court before whom the cause is tried or heard shall certify that it was a proper admiralty cause to be tried in the High Court of Admiralty of England or in a superior court." Under this section the order to proceed in the high court must be applied for before the suit is commenced. If not so applied for, the plaintiff can only avoid being condemned in costs by obtaining a certificate at the hearing (r). The judge of the High Court of Admiralty will certify for costs if it be less expensive to try in the high court than in the county court («). It is to be observed that although the jurisdiction of the county courts, so far as regards the amount, depends in general on the amount claimed, the right to costs under sect. 9 depends on the amouut recovered, and, therefore, although a larger sum may be claimed, yet if the amount recovered in a superior court does not exceed the limit of jurisdiction, the plaintiff is not entitled to costs (<). Payment of money into court and acceptance out is a recovery within this section (m). But where the actual loss in the case of a collision was admitted to exceed 300/., but the defendant availed himself of sect. 54 of "The Merchant Shipping Act Amendment Act, 1855," limiting the liability in certain cases to a certain sum for each ton of the ship's tonnage, and that total was less than 300/., and the defendant accepted the sum, which was paid into court, it was held that the case was not one in which proceedings might have been taken in the county courts, and that, therefore, the plaintiff was entitled to costs notwithstanding sect. 9 (#). Where in a case of salvage a tender is made, the practice laid down in the High Court of Admiralty is, that it must be either stated to be a tender for salvage, reward and costs, or the grounds must be specified upon which costs are not tendered, and the question of costs referred to the consideration of the court (y). (p) See as to the prior jurisdiction (s) The Beaumaris Castle, 40 L. in salvage cases, ante, p. 151. J. (N. S.) Adm. 41. (q) The term "superior court" in (t) Hewitt v. Corry, 39 L. J. (N. this section includes the superior S.) Q. B. 279. courts of common law at Westminster, ( u) Id. notwithstanding that the provision as (x) The Young James, 39 L. J. to liability to be "condemned in (N. S.) Adm. 1. costs," is difficult of application to (y) The Hickman, 39 L. J. (N. S.) such a court. Hewitt v. Corry, 39 Adm. 7. In that case the judge cer- L. J. (N. S.) Q. B. 279. tified under sect. 9 for costs to the (r) The Loretta, 40 L. J. (N. S.) time of tender, although a tender of Adm. 50. 282Z. was held sufficient. COMMENCEMENT OF SUIT. 163 PartV. Chap. II. § 3. — Commencement of Suit. The District in which Proceedings are commenced.'] — " The County Courts Admiralty Jurisdiction Act, 1868," enacts that — Sect. 21. " Proceedings in an admiralty cause shall be commenced — Astopro- (1.) In the county court having admiralty jurisdiction within the county g court district of which the vessel or property to which the cause for com- relates is at the commencement of the proceedings : mencement (2.) If the foregoing rule be not applicable, then in the county court having admiralty jurisdiction in the district of which the owner of the vessel or property to which the cause relates, or his agent in England, resides, or if such owner or agent does not reside within any such district, then in the county court having admiralty jurisdiction the district whereof is nearest to the place where such owner or agent resides ; (3.) If for any reason the last foregoing rule is not applicable or cannot be acted on, then in such county court having admi- ralty jurisdiction as general orders direct : (4.) In any case in the county court or one of the county courts having admiralty jurisdiction in which the parties by a memo- randum, signed by them or by their attorneys or agents, agree shall have jurisdiction in the cause." Institution of Suit.~] — The following rules relate to the institu- tion of the suit : — 4. " An attorney desiring to institute a suit shall file a praecipe, and thereupon an entry of the institution of the suit shall be made in a book to be kept by the registrar, called ' The Admiralty Suits Book' " (z). (2) The following form of book is given: — " Admiralty Suits Book. Pro forma. Date. Day. Month. Year. 10 Feb. 1869 Suit for damage by collision, instituted on behalf of A. B., of against the owner or owners, unknown, of a schooner named " The Kate," lying at within the district of the court, in the sum of 2001. Attorney for the plaintiff, Mr. L. M., of 10 Feb. 1869 Application made for arrest; affidavit filed; warrant issued, the evidence being satisfactory. 11 Feb. 1869 Application for judge's permission for suit to be heard at Permission granted. 13 Feb. 1869 15 Feb. 1869 Appearance entered by C. D., of Attorney for defendant, R. S., of 18 Feb. 1869 The suit having been heard the court decreed that \licre set forth the decree~\. If any further proceedings had they should be entered in same manner." m 2 164 ADMIRALTY JURISDICTION, ETC. Part v. 5. " The praecipe shall state the nature of the suit, the name, address, Chap ' 1L and description of the party in whose behalf it is instituted, the name of the attorney, and an address within three miles of the court house at which it shall be sufficient to leave all instruments and documents in the suit required to be served upon him, and it shall also state the name of the owner or owners or other person against whom the suit is insti- tuted if known, and if not known, then it shall state that the suit is in- stituted against the owner or owners unknown of the vessel or other property to which the suit relates." 6. " Any number of persons having the same right of action may join in one and the same suit." 7. " In a suit for wages against the owners of a foreign vessel, notice of the institution of the suit shall be given to the consul or vice-consul of the state to which the vessel belongs, if there be one resident within the district of the court, and a copy of the notice shall be annexed to the praecipe " (a). No. 1. Praecipe to institute a Suit. In the county court of , holden at I, L. M., attorney, hereby institute a suit for [state the nature of the suit~\ on behalf of [state name, address, and description of plaintiff] against [if the owner or owners be not known, state the owner or owners unknown of the property to which the suit relates, describing its name and nature and where it then is ; if known, state name, address, and description of party proceeded against, the name and nature of the property to which the suit relates, and where it is], in the sum of [state sum in letters] pounds. And I consent that all instruments and documents in the said suit may be left for me at [state address required by General Order No. 5], [add, where so desired, and I require the summons to be served by the bailiff of the court]. Dated the day of , 187 . [ To be signed by the party, his at- torney, or his clerk for him.] Application may be made to the judge for special permission to have the case heard at a place in which a county court is not gene- rally held ; and in that case the plaintiff's attorney must file the following additional praecipe (b) : — No. 2. Praecipe for Permission for Suit to be heard at a Special Place. In the county court of , holden at (Title of Suit.) I, X. Z., attorney, do pray that permission may be granted for the hearing of this suit at [here state the name of the place at which and de- scription of the building in which it is desired that the sitting should be held, and if the building is not one in which the county court ordinarily sits add, (a) Orders under "The County (b) See 31 & 32 Vict. c. 71, s. 14, Courts Admiralty Jurisdiction Act, and Rules 1 & 2, post, n. 173. 1868," Nos. 4-7. COMMENCEMENT OF SUIT. 165 and I Undertake to hire the use of the said building at my expense, to Part v. be allowed as costs in the suit if the court shall allow thereof]. Chap.ii. Dated this day of , 187 . [To be signed Iry the party, his at- torney, or his clerk for him.'] Summons.] — 8. Immediately upon the filing of the praecipe the registrar shall issue a summons for service by the attorney, or if so required, by the bailiff of the court. 9. Where the vessel or property to which the suit relates is within the district, the summons may be served by delivering it to the person who is at the time of service apparently in charge of the vessel or pro- perty, or, if there is no person in charge, by affixing it on some conspi- cuous part thereof; and in other cases the summons must be served personally upon the defendant unless the judge, or, in his absence, the registrar, shall upon facts duly verified upon affidavit allow of substituted service. Seal of the Court.'] — 60. All instruments and documents issued from the court shall be signed by the registrar, and shall have the seal of the court affixed. 61. The day on which the seal is affixed to an instrument or document shall be deemed to be the date of the issue thereof. No. 3. Summons (c). In the county court of holden at [Seal] Whereas a suit for [state the nature of the suit] has been instituted in this court on behalf of A. B. of , against the owner or owners unknown of the [state description of vessel], called the [name of vessel], (whereof C. D. is now or lately was master), [where suit is against owner or owners unknown of vessel and freight add, and the freight due for the transportation of the cargo now or lately laden therein ; or where the suit is against the owner or owners unknown of vessel, cargo, and freight, add instead thereof, and the cargo now or lately laden therein, together with the freight due for the transportation thereof] in the sum of [state sum in letters] pounds. You are hereby summoned to enter an appearance in the said suit within four clear days of the service hereof. You are also warned that if you do not enter an appearance as afore- said, the judge of this court will proceed to hear and determine the said suit, or to make such orders therein as to him shall seem fit. Dated and sealed this day of , 187 . Registrar of the court. To the owner or owners of the [state description and name of vessel], and all persons who have or claim to have any right, title or interest in the said vessel. N.B. — The attorney for A. B. is of [here state the address given in the prcecipe]. (c) " .Vcm. to. he placed at foot of the registrar [place of office] from every summons, notice, decree, ten till four o'clock, except on [here order, warrant, or any other insert the day on which the ofice process of the court. will be closed?], when the office will Hours of attendance at the office of be closed at one o'clock." 166 ADMIRALTY JURISDICTION, ETC. ^** T ^ No. 4. Summons. In the county court of liolden at A. B. plaintiff [address and description"] . C. D. defendant [address and description]. [Seal.] Whereas a suit for [state nature of suit] has been instituted in this court on behalf of the plaintiff, against you in the sum of [state sum in letters] pounds. You are hereby summoned to enter an appearance in the said suit within four clear days of the service hereof. You are also warned that if you do not enter an appearance as afore- said the judge of this court will proceed to hear and determine the said suit, or to make such orders therein as to him shall seem fit. Dated and sealed this day of ,187 To the defendant Registrar of the court. N.B. — The attorney for the plaintiff is of [here state the address given in the praecipe]. § 4.— Defendant's Proceedings in the Suit. Appearance.] — The following orders relate to the defendant's proceedings in a suit : — 10. " An attorney desiring to enter an appearance in a suit shall file a praecipe, and thereupon an entry of his appearance shall be made in the Admiralty Suits Book." 11. "The praecipe shall state the name, address and description of the party on whose behalf the appearance is entered, the name of the attorney, and an address within three miles of the court house at which it shall be sufficient to leave all instruments and documents in the suit required to be served upon him." 12. " Any person claiming to have an interest in the vessel or pro- perty, whether cognizable by the court or not, may intervene for the purpose of having the case transferred to the High Court of Admiralty." 13. " Upon the arrest of any vessel or property an appearance may be entered the same as upon the service of the summons." 14. " Where an appearance has been entered the registrar shall, upon application, give to each attorney in the suit, and where no appearance has been entered, then to the plaintiff or his attorney, a notice under the seal of the court, stating the day upon which the suit has been directed by the judge to be heard." No. 10. Praecipe to enter an Appearance. In the county court of holden at (Title of Suit.) I, R. S., attorney, hereby enter an appearance on behalf [state name, address and description of party] in the suit for [state nature of suit] which has been instituted in this court on behalf of [state name, address and description of plaintiff] against [state against lohom the suit is insti- defendant's proceedings in the suit. 167 tuted]. And I consent that all instruments and documents in the Part v. suit may be left for me at [state address required by General Order Chap. II. No. 11]. Dated the day of 187 . [To be signed by the defendant, his attorney, or his clerk for him.'] Notice of Defence in Collision.'] — 49. " Where in suits for damage by collision the defendant intends to set up as a defence that the vessel was by compulsion of law in the charge of a pilot, lie should give notice thereof to the adverse attorney as soon after the service of summons as may be, and if he shall fail to give such notice the judge shall, in exercising his discretion as to costs, consider what effect the non-delivery of the notice has had in the suit." Tenders.'] — 50. " An attorney desiring to make a tender shall give a notice to the adverse attorney of the terms and amount of the tender, and shall pay the amount into court, and file a praecipe." 51. " Within forty- eight hours from the payment the adverse attorney shall file a notice stating whether he accepts or rejects the tender, and, if he shall not do so, he shall be deemed to have rejected it." No. 18. Praecipe for paying in Money. In the county court of , holden at , 187 . {Title of Suit.) I, A. B., of , do pay the sum of [state sum in letters] pounds into court in this suit at the request and by tlie authority of , he having agreed to pay [or tender] the same in settlement of the claim of the plaintiff [or as the case may be]. Dated the day of , 187 . [To be signed by the party, his attorney, or his clerk for him.] § 5. — Transfer of Admiralty Causes from the County Court. Transfer by the High Court of Admiralty.] — Sect. 6. " The High Court of Admiralty of England, on motion by any As to transfer party to an admiralty cause pending in a county court, may, if it shall fI0m c °unty think fit, with previous notice to the other party, transfer the cause to order of High the High Court of Admiralty, and may order security for costs, or impose Court of such other terms as to the court may seem fit" (d). Admiralty. Transfer by the County Court to the High Court of Admi- ralty where Amount exceeds Limit of Jurisdiction.] — Sect. 7. " If during the progress of an admiralty cause in a county court As to transfer it appears to the court that the subject-matter exceeds the limit in respect "L"^ 8 by {d) 31 & 32 Vict. c. 71, s. 6. As to security for costs, see Rule 19, post, p. 170. 168 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. of amount of the admiralty jurisdiction of the court, the validity of any order or decree theretofore made by the court shall not be thereby affected, county court but (unless the parties agree, by a memorandum signed by them or by to High Court tne j r a ttornies or agents, that the court shall retain jurisdiction) the raity. court shall by order transfer the cause to the High Court of Admi- ralty; but that court may, nevertheless, if the judge of that court in any case thinks fit, order that the cause shall be prosecuted in the county court in which it was commenced, and it shall be prosecuted accord- ingly"(e). As to transfer of causes to other county courts or court of ad- miralty. Transfer by County Court to another County Court or to High Court on the Ground of Convenience.^ — Sect. 8. " If during the progress of an admiralty cause in a county court it shall appear to the court that the cause could be more conve- niently prosecuted in some other county court, or in the High Court of Admiralty of England, the court may by order transfer it to such other county court, or to the High Court of Admiralty of England, as the case may be, and the cause shall thenceforward be so prosecuted accord- ingly'^/). The cases arising within the jurisdiction of the Cinque Ports, causes may be transferred to the court of admiralty there, instead of to the High Court of Admiralty (g). The High Court of Admiralty may, by transfer from a county court, acquire jurisdiction in a cause as to which the high court has no original jurisdiction, as for example, a suit to recover damages under a charterparty, w r hich the county court would have juris- diction over under " The County Courts Admiralty Amendment Act, 1869," as a claim arising out of an agreement made in relation to the use or hire of a ship (h). The following rules relate to the transfer of a suit : — 34. " Where a suit is transferred to the High Court of Admiralty by order thereof, the registrar of the court, upon the service of the order of transfer, shall send by post the proceedings to the registrar of the high court." 35. " Where a court orders the transfer of a suit to the High Court of Admiralty or to another court, the registrar of the court shall send by post the order, together with the proceedings, to the registrar of the high court or to the court to which it is transferred." The rule has been already given which permits any person claiming to have an interest in the vessel or property, whether cognizable by the court or not, to intervene for the purpose of having the case transferred to the High Court of Admiralty (i). (e) 31 & 32 Vict. c. 71, s. 7. (/) Id. s. 8. (g) Id. s. 33. See post, p. 183. (h) The Swan, 40 L. J. (N. S.) Adm. 8. (i) See Rule 12, ante, p. 166. TRANSFER OF ADMIRALTT CAUSES FROM COUNTY COURTS. 169 No. 12. Order of Transfer to High Court of Admiralty. £ AKT y- In the county court of , holden at (Title of Suit.) [Seal] "Whereas it appears that the subject of this suit exceeds the limit in respect of amount of the admiralty jurisdiction of this court [or state otherwise as the case may be], it is ordered that this suit be transferred to the High Court of Admiralty together with the proceedings that have been had therein in this court. Given under the seal of the court, this day of 187 . By the court, Registrar of the court. No. 13. Order of Transfer to County Court or the High Court of Admiralty. In the county court of , holden at (Title of Suit.) [Seal] Whereas it hath been made to appear that the suit could be more con- veniently prosecuted in the county court of holden at , appointed to have admiralty jurisdiction [or in the High Court of Admi- ralty], it is ordered that this suit be transferred to the said court together with the proceedings that have been had therein in this court. Given under the seal of the court this day of 187 . By the court, Registrar of the court. § 6. — Second or Cross Suits. The following rules relate to " second or cross suits :" — 36. " "Where it shall appear to the court that the plaintiff in a suit (hereafter called the second suit), was or is the defendant in a suit (here- after called the first suit), in another court arising out of the same trans- action, and that he did not propose to the plaintiff in the first suit that by agreement jurisdiction should be given to the court in which the first suit was instituted, to hear and determine the second suit, the judge may refuse the plaintiff in the second suit his costs if he shall think fit." 37. " Where a second or cross suit for damage has been instituted by a defendant in a suit for damage, and the second suit has been instituted by agreement or otherwise, in the court in which the first suit was insti- tuted, or has been transferred to the said court by order of any other court, the court may direct that both suits may be heard at the same time and upon the same evidence." Cross causes of damages heard together uuder Rule 37, are, as to the right of appeal, to be cousidered distinct ; and, therefore, where in the court below the plaintiff in the one case recovered an amount under 50/., and in the other the suit was dismissed, it was held there was no appeal in respect of the case in which the owner was 170 ADMIRALTY JURISDICTION, ETC. part v. condemned in 50/., sect. 31 of 31 & 32 Vict. c. 71, enacting that no . Chap - ]I - appeal shall be allowed unless the amount decreed or ordered to be due exceeds the sum of 50/. (k). § 7. — Arrest and Detention of Vessel or Property pending Proceedings. "The County Courts Admiralty Jurisdiction Act, 1868" (31 & 32 Vict, c 71), enacts that — Limitation Sect. 22. " In an admiralty cause in a county court if evidence be of arrest. given to the satisfaction of the judge, or in his absence the registrar of the court, that it is probable that the vessel or property to which the cause relates will be removed out of the jurisdiction of the court before the plaintiff's claim is satisfied, it shall be lawful for the said judge, or in his absence for the registrar, to issue a warrant for the arrest and de- tention of the said vessel or property, unless or until bail to the amount of the claim made in such cause, and to the reasonable costs of the plaintiff in such cause, be entered into and perfected, according to general orders, by or on behalf of the owner of the vessel or property or his agent, or other the defendant in such cause ; and, except as in this section expressly provided there shall be no arrest or detention of a vessel or property in an admiralty cause in a county court otherwise than in execution." The following rules relate to the subject of arrest and deten- tion : — Arrest.'] — 15. " Where, after the institution of a suit, it is desired to arrest any vessel or property, the attorney must file an affidavit stating the facts which render it probable that it will be removed out of the jurisdiction of the court." 16. " In a suit for necessaries or for wages the national character of the vessel shall be stated in the affidavit." 17. " Where, upon the filing of such affidavit, the registrar, in the absence of the judge, is satisfied with the evidence, he may issue a warrant for the arrest and detention of the vessel or property, and where he is not satisfied he may require further evidence to be ad- duced." 18. "A warrant of arrest may be executed on Sunday, Good Friday or Christmas Day, as well as on any other day." Security.'] — 19. " Security may be given either by bond or deposit of money as in any ordinary action in a county court." Release of Property. .] — 20. " Where the amount sued for is paid into court or the security completed, the registrar shall deliver to the attorney an order directed (k) The Elizabeth, 39 L. J. (N. S.) Adm. 53 ; see post, p. 182. ARREST, ETC. OF VESSEL OR PROPERTY PENDING PROCEEDINGS. 171 to the high bailiff of the court, authorizing and directing him, upon pay- Part v. ment of all costs, charges and expenses attending the custody of the Chap - 1L property, to release it forthwith." 21. " Notwithstanding the last order, the property, in a suit for salvage, shall not be released until its value has been ascertained either by affi- davit, by agreement or by appraisement, save by consent of the plaintiff or his attorney." No. 5. Warrant of Arrest and Detention. In the county court of , holden at {Title of Suit) [Seal.-] Whereas a suit has been instituted in this court on behalf of A. B., of , against the owner or owners of [state description and name of vessel or property} in the sum of [state sum in letters] pounds. These are therefore to require and order you to arrest the said , and to keep the same under safe arrest, until you shall receive further orders from this court. Given under the seal of the court this day of 187 . By the court, Registrar of the court. To the high bailiff of the said court and others the bailiffs thereof. No. 6. Notice of Sureties. In the county court of , holden at (Title of Suit.) Take notice that the sureties whom I propose in the above suit are [here state the names and additions of the sureties, whether housekeepers or freeholders, and their residences for the last six months, therein mentioning the county or city, ^faces, streets and numbers, if any]. Dated the day of , 187 . To A. B. [the party in whose behalf the suit is in- stituted] or C. D., the attorney of A. B. [the, &c.~] No. 7. Affidavit of Justification. In the county court of , holden at (Title of Suit.) I [state name, address and description] one of the proposed sureties in this suit, make oath and say, that I am worth more than the sum of [state (he sum in letters in which bail is to be given] pounds after the payment of all my debts. (Signature of Surety.) On the day of 187 , the said was duly sworn to the truth of this affidavit, at , Before me, Xo. 8. Bail Bond. In the county court of , holden at (Title of Suit.) "Whereas a suit for has been instituted in this court on behalf of A. B. of , against 172 ADMIRALTY JURISDICTION, ETC. Part v. Now therefore we [state names, addresses, and description of sureties'] Chap - il jointly and severally submit ourselves to the jurisdiction of the said court, and consent that if he [or they] the said shall not pay what may be adjudged against him [o?-them] in the said suit, with costs, exe- cution may issue forth against us, our heirs, executors, and administra- tors, our goods and chattels, for a sum not exceeding [state sum in letters'] pounds. (Signatures of Sureties.) The bail bond was signed by the said , and the sureties, the day of 187 . Before me, Registrar of the court [or one of his clerks']. No. 9. Order of Release. In the county court of holden at (Title of Suit.) [Seal] You are hereby authorized and directed to release the now under arrest of this court by virtue of its warrant, upon the payment of all costs, charges, and expenses attending the custody thereof. Given under the seal of the court this day of 187 . By the court, Registrar of the court. To the high bailiff of the said court and others the bailiffs thereof. § 8. — Inspection and Copies of Instruments and Documents. As the provisions of the Common Law Procedure Act with respect to the inspection and discovery of documents are applied to county courts generally, it seems clear that the provisions re- lating to the inspection of documents apply to suits under the admiralty branch of jurisdiction (/). For these provisions, see ante, Vol. I. p. 225. The following rules relate to the inspection of records in the suit : — Records of the Court.] — 55. " The attornies in a suit, their clerks, and the parties themselves, may, while the suit is pending, and for one year after its termination, inspect, free of charge, all the records in the suit." 56. " In a pending suit no person other than the attorney or his clerk (I) As to the inspection of docu- the High Court as to interrogatories ments in suits in the High Court of follows that of the courts of equity Admiralty, see 24 Vict. c. 10, s. 17, rather than that of the common law and TJie MacGregor Laird, 36 L. courts. Tlie Mary, otherwise Alex- J. (N. S.) Adm. 10. The practice of a ndra, 38 L. J. (N. S.) Adm. 29. INSPECTION AND COPIES OF INSTRUMENTS AND DOCUMENTS. 173 or the party in the suit, shall be entitled to inspect the records in the p * RT v - Chap. II. suit without the permission of the registrar." 57. " In a suit which is terminated, any person may, on filing a praecipe, and on payment of the proper fee, inspect the records in the suit." Copies.] — 58. " Any person entitled to inspect any instrument or document in a suit shall, on filing a praecipe, and on payment of the proper charges for the same, be entitled to an office copy thereof." 59. " All copies of documents shall be counted and charged for at the rate of seventy-two words per folio ; and eveiy numeral, whether con- tained in columns or otherwise written, shall be counted and charged for as a word." Filing.] — 68. " All instruments or documents directed to be filed shall be filed with the registrar of the court." § 9. — Trial of Admiralty Causes. "The County Courts Admiralty Jurisdiction Act, 1868" (31 & 32 Vict. c. 71), enacts that — Sect. 13. "The judge of every county court having admiralty jurisdic- Admiralty tion shall hear and determine admiralty causes at the usual courts held ? aus ! s l t ° be within his jurisdiction, or at special courts to be held by him, and which usual courts. he is hereby required to hold as soon as may be after he shall have had notice of an admiralty cause having arisen within the jurisdiction of his court." The following rules relate to the sittings of the court : — Sittings of the Court.'] — 1. " The place of sitting of each court shall be the place at which the county court is held in the city or town mentioned in the name of the court, or by special permission of the judge, a suit may be heard, or part heard at any place within the district of the court." 2. "Where application is made to the judge for the hearing or part hearing of a suit at a place in which a county court does not sit, the attorney shall file a praecipe undertaking to provide at his expense a place to the satisfaction of the judge in which the suit may be heard." 3. " The days of the sitting of the court shall be those appointed for the transaction of the ordinary general business of the county court held in the city or town mentioned in the name of the court, or such other days as the judge may from time to time appoint for the hearing of a suit, where from the detention of a vessel or otherwise a prompt deter- mination of the suit is desirable." No. 11. Notice of Hearing. In the county court of , holden at (Title of Suit.) [Seal.] Take notice that this suit will be heard at a court to be holden on 174 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. Powers, &c. of judges and registrars. Power to judge of county court to summon nautical as- sessors to his assistance. Appointment of assessors in county courts. Attendance of assessors. Removal of assessors. the day of at [here state ivhere court is to be held], at the hour of o'clock in the noon. Dated and sealed this day of 187 . Registrar of the court. To the plaintiff and defendant. Mode of deciding Admiralty Causes.] — " The County Courts Admiralty Jurisdiction Act, 1868" (31 & 32 Vict. c. 71), enacts that — Sect. 10. " In an admiralty cause in a county court the cause shall be heard and determined in like manner as ordinary civil causes are now heard and determined in county courts ; save and except that in any admiralty cause of salvage, towage or collision, the county court judge shall, if he think fit, or on the request of either party to such cause, be assisted by two nautical assessors in the same way as the judge of the High Court of Admiralty is now assisted by nautical assessors." Nautical Assessors.] — Sect. 11. "In any such admiralty cause as last aforesaid it shall be lawful for the judge of the county court, if he think fit, and he shall, upon request of either party, summon to his assistance in such manner as general orders shall direct two nautical assessors, and such nautical assessors shall attend and assist accordingly." Sect. 14. " The registrar of each county court having admiralty juris- diction shall from time to time frame a list, to be approved by the judge of the High Court of Admiralty, before whom the same shall be laid by the county court judge, and without whose approval it shall have no validity, of assessors, of persons of nautical skill and experience residing or having places of business within the district of the county court, to act as assessors in that court, and shall cause the list to be published in the London Gazette " (m). Sect. 15. " Every person named in the list of assessors so framed and approved shall attend the county court under such circumstances, and in such rotation, and subject to such regulations, and shall receive such fees for his attendance, as general orders shall direct, and for every wil- ful non-attendance shall be liable, at the discretion of the court, to a penalty not exceeding five pounds " (n). Sect. 16. " Every assessor named in such list shall hold his office until a new list of assessors shall have been framed and approved as aforesaid, or until he shall resign his appointment " (o). The following rules relate to assessors : — 69. " Every attorney requiring the judge to be assisted by two nautical assessors shall at the time of filing the praecipe pay to the registrar the sum of two guineas if the amount claimed does not exceed 100/., and four guineas if it does exceed that amount, and such payments shall be considered as costs in the suit, unless otherwise ordered by the judge." 70. " Where the judge requires the assistance of two nautical assessors the above fees shall be paid by the plaintiff or his attorney before the hearing, and shall be costs in the suit unless otherwise ordered by the judge." (to) 31 & 32 Vict. c. 71, s. 14. (») Id. s. 15. O) Id, s. 16. TRIAL OF ADMIRALTY CAUSES. 175 71. " Where a suit is adjourned, the plaintiff shall pay the assessor's Part v. fees for the day of adjournment forthwith after the order of adjournment Chap.ii. is made by the court." 72. " Upon the filing of the aforesaid precipe or upon the order of the judge as last aforesaid, the registrar shall select from the list of assessors the names of two persons whom he may, having reference to the nature of the suit to be heard, consider can most effectually assist the judge in hearing and determining it, and shall send to each of such persons by post a summons in the form annexed." 73. " The registrar of the court shall pay to every assessor for each day's attendance and service in every suit one guinea or two guineas, according as the amount claimed in the suit does or does not exceed 100/." (j>). Appointment of Mercantile Assessors.'} — " The County Courts Admiralty Jurisdiction Amendment Act, 1869" (32 & 33 Vict, c. 51), enacts that — Sect. 5. " In any admiralty or maritime cause the judge may, if he As to ap- think fit, or on the request of either party, be assisted by two mercantile me 04 ™?"] 1 of assessors ; and all the provisions of ' The County Courts Admiralty assessors. Jurisdiction Act, 1868,' with reference to nautical assessors, shall apply to the appointment, approval, summoning and remuneration of such mercantile assessors." No. 19. Summons to Assessors. In the county court of , holden at {Title of Suit.) [Seal.] You are hereby summoned to appear and serve as an assessor in this court at the , on the day of ,187 , at the hour of in the noon, to assist the judge of this court in the hearing and determining of this suit, and in default of attendance you will be liable to a penalty of a sum not exceeding five pounds under sect. 15 of" The County Courts Admiralty Jurisdiction Act, 1808." Dated and sealed this day of , 187 . Registrar of the court. To of No. 20. Order fining an Assessor for Non-attendance. In the county court of , holden at {Title of Suit.) [Seal,] Whereas was duly summoned to appear and serve as an assessor at a court holden at , on the day of , 187 , and whereas he has neglected, without sufficient cause shown, to appear and serve as required : It is hereby ordered that he shall forthwith [or on the day of , 187 ] pay to the registrar of this court a fine of £ for such neglect. Given under the seal of the court this day of 187 . By the court, Registrar of the court. (p) County Court Admiralty Orders and Rules, 1868. 176 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. Apportionment of Salvage.] — In salvage cases the court at the same time that it decrees salvage, will also, at the request of the plaintiffs make an order, to form part of the decree, distributing or apportioning the salvage amongst the salvors, amongst whom are included the owners of the salving vessel, according to their rating and merits (q). Interest.]— It is an invariable practice of the Admiralty Court to allow interest in the case of master's wages, bottomry and damage (?•), and interest is allowed, even in the case of a statutable limitation of liability for damage to a fixed sum (s). Power to registrars to administer oaths and take evi- dence. Evidence before regis- trar receiv- able in Admiralty Court. Evidence.] — As already stated, admiralty causes are heard and determined in the like manner as ordinary civil causes in the county courts (/), and consequently the evidence is given orally. Sect. 19. " The registrar of a county court shall have power to administer oaths in relation to any admiralty cause in a county court; and any person who shall wilfully depose or affirm falsely before the registrar in any admiralty cause shall be deemed to be guilty of perjury, and shall be liable to all the pains and penalties attaching to wilful and corrupt perjury" (u). Sect. 20. " Evidence taken in any admiralty cause before the registrar of a county court, as the judge of a county court or general orders shall direct, shall be received as evidence in any other county court, saving all just exceptions; and the registrar of any county court shall, for the purpose of the examination of any witnesses within the district of that court, have all and the like powers and authorities of an examiner of the High Court of Admiralty of England, and evidence taken by him in that capacity shall be received as evidence in the High Court of Admi- ralty of England, saving all just exceptions" (x). Oral Evidence."] — " At the request of either attorney, and at his cost in the first instance, or by order of the judge at the cost in the first instance of the plaintiff, the evidence of witnesses examined in court shall be taken down by a shorthand writer or reporter appointed by the court, and sworn in each case faithfully to report the evidence; and a transcript of the shorthand writer's or reporter's notes, certified by him to be correct, shall be admitted to prove the evidence of the witnesses" (y). (q) Coote's Admiralty Practice, 2nd edit., p. 5. See also The Wig- townshire, 36 L. J. (N. S.) Adm. 11; and 3 & 4 Vict. c. 65, s. 5 ; 17 & 18 Vict. c. 104, s. 498. (r) Coote's Admiralty Practice, 2nd edit., p. 93. (s) The Nortlmmoria, 39 L. J. (N. S. ) Adm. 3. Bv a direction of the High Court of 17* March, 1867, the interest is 51. per cent., except when the bank rate of discount exceeds 41. per cent., and then it is to be at the rate of 11. per cent, above that rate. (t) See 31 & 32 Vict. c. 71, s. 10, ante, p. 174. O) 31 & 32 Vict. c. 71, s. 19. (x) Id. s. 20. {y) CountyCourt Admiral tyOrders, No. 32. TRIAL OF ADMIRALTY CAUSES. 177 Affidavits.] — The following Rules relate to affidavits — 25. " Every affidavit shall be divided into short paragraphs, numbered consecutively, and shall be in the first person." 26. " Every affidavit shall state the deponent's age, name, address and description, and also what facts or circumstances deposed to are within his knowledge." 27. " The names of all the persons making any affidavit, and the dates when and the places where it is sworn, shall be inserted in the jurat." 28. " Affidavits not in conformity with the last three preceding orders may be rejected by the court, or the court may direct that the costs thereof shall not be allowed on taxation." 29. " An affidavit in which there is any knife erasure, or which is blotted so as to obliterate any word, or which is illegibly written, or so altered as to cause it to be illegible, or in which there is any interlinea- tion, not duly authenticated by the person before whom it was sworn, may be rejected by the court, or the court may direct that the costs thereof shall not be allowed on taxation." 30. " Where an affidavit is made by any person who is blind, or who from his signature or otherwise appears to be illiterate, the person before whom the affidavit is sworn shall state in the jurat that the affidavit was read over to the deponent, and that the deponent appeared to understand the same, and made his mark or wrote his signature thereto in the presence of the person before whom the affidavit is sworn." 31. " The reception of any affidavit as evidence may be objected to, if the affidavit has been sworn before the party on whose behalf it is offered, or before his attorney or agent, or before a partner or clerk of the same." Part V. Chap. II. Witnesses.] — 22. " On the application of either attorney, the registrar shall issue summonses for witnesses to be served by the attorney, or if so required, by the bailiff of the court." 23. " The allowance to be made to witnesses for attendance either before the court or registrar, shall in no case exceed the highest rate of the allowances mentioned in the scale hereunto annexed, unless the court shall by special order otherwise direct." 24. " Seamen necessarily detained on shore for the purpose of the suit shall be allowed such remuneration as the court may think reasonable compensation for their loss of time " (z). Scale of Allowance to Witnesses (a). Gentlemen, merchants, bankers, and professional £ s. men, per diem 10 Tradesmen, auctioneers, accountants, clerks, and yeomen, per diem 5 Artisans and journeymen, per diem 3 Labourers, and the like, per diem 2 Females, according to station in life .... 2 d. & s. d. to 1 to 10 to 5 to 3 to 10 D. (z) County Court Admiralty Orders, 18G8. (a) This scale is appended to Admiralty Forms. VOL. II. 178 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. Registration of decrees and orders. Travelling expenses, sum reasonably paid, but not more than sixpence per mile, one way. If the witnesses attend in more than one suit, they will be entitled to a proportionate part in each suit only. No. 14. Final Decree or Order. In the county court of , holden at (Title of Suit.) [Seal.] It is this day decreed that the plaintiff A. B. of do recover against the defendant [or defendants] C. D. of the sum of pounds [in a suit for salvage, for services rendered to the above vessel ; or in a suit for towage, for services rendered in towing the said vessel ; or in a suit for necessaries, for necessaries supplied to the said vessel ; or in a suit for wages, for wages in respect of services rendered on board the said vessel; or in a suit for damage to cargo, for damage caused to the cargo carried in the said vessel ; or in a suit for damage by collision, for damage caused to the said vessel by the defendant's vessel the [the description and name of the vessel which caused the damage'],'] together with the costs of this suit. And it is ordered that the defendant [or defendants] do pay the same to the plaintiff or his attorney within days [add where the name of the defendant is known, and that in default thereof the registrar shall upon the application of the plaintiff or his attorney issue a warrant of execu- tion against the vessel or property of the defendant]. Given under the seal of this court this day of 187 . By the court, Registrar of the court. Registration of Decrees and Orders.] — "The County Courts Admiralty Jurisdiction Act, 1868," enacts that — Sect. 24. " Such decrees and orders of county courts in admiralty causes as general orders shall direct shall be registered with the registrar of county court judgments in London in such manner as general orders shall direct" (h). The Orders provide that — 33. " A note of every final decree or order made in any suit shall within seven clear days from the making thereof be transmitted by the registrar to the registrar of county court judgments in London, accord- ing to the form annexed" (c). § 10. — Enforcement of Decrees. " The County Courts Admiralty Jurisdiction Act, 1868," enacts that, — Decrees in Sect. 12. " The decree of the county court in an admiralty cause shall county courts be enforced against the person or persons summoned as the defendant in admiralty * causes to (J) 31 & 32 Vict. c. 71, s. 24. final decree or order is accordingly (c) County Court Admiralty Orders, given with the rules, but it is unneces- 1868, No. 33. A form of note of sary to insert it here. ENFORCEMENT OF DECREES. 179 or defendants in the same manner as the decrees of the said court are Pakt v. enforced in ordinary civil causes, save and except as in this act otherwise Chap - u - provided." have same ■n r> 1 n ioTce M thOSe For the mode of enforcing payment and other performance of in civil orders in actions (i. e., "ordinary civil causes") see ante, Vol.1. causes - p. 74. and pp. 304—355. Sect. 23. " For the execution of any decree or order of a county court Power to in an admiralty cause the court may order, and the registrar on such lssue P rocess - Drder may seal and issue, and any officer of any county court may exe- cute, process according to general orders ; provided that where under such process a vessel or property would or might be sold, then, if the owner of the vessel or property desires that the sale should be conducted in the High Court of Admiralty instead of in the county court, he shall be entitled, on security for costs being first given, and subject and accord- ing to such other provisions as general orders direct, to obtain an order of the county court for transfer of the proceedings for sale, with or with- out (as the judge of the county court thinks fit) the transfer of the sub- sequent proceedings in the cause, to the High Court of Admiralty, which court shall have jurisdiction and all powers and authorities relating thereto accordingly" (d). The following rules relate to the enforcement of decrees : — Rules relating to the Enforcement of Decrees. ] — 39. " Where an attorney is desirous of obtaining the committal or warrant of execution against the goods of a party who has neglected to obey the order of the court to pay a sum of money, he shall file a praecipe for a summons for commitment, or for a warrant of execution against the goods, and thereupon such a summons or warrant shall be issued." 4< i. " Where a decree has been obtained against an unknown defen- dant the vessel or property to which the suit relates shall not be taken in execution, but it may be arrested and detained under the provisions of section twenty-two of ' The County Courts Admiralty Jurisdiction Act, 1868,' or kept under arrest if already arrested." 41. " Where a decree has been obtained in a suit against an unknown defendant, and the name of the defendant is subsequently ascertained, the adverse attorney may file a praecipe stating the name, address, and description of the defendant, and thereupon the registrar shall issue to the attorney, or if required to the bailiff for service, a notice of the decree stating that if the defendant does not within four clear days from the day of service file a praecipe applying for a rehearing of the suit, the vessel or property to which the suit relates will be sold in execution." 42. " The notice shall be served personally upon the defendant, unless the judge, or in his absence the registrar, shall upon facts duly verified ii]inn affidavit allow of substituted service." Execution against Vessel.^ — 43. " Where under a warrant of execution a vessel is seized, the high bailiff shall before selling the same cause an inventory to be made by an appraiser, and the vessel shall not be sold for less than the appraised value thereof, except by order of the court." (d) 31 & 32 Vict. c. 71, s.23. n2 180 ADMIRALTY JURISDICTION, ETC. Part v. 44. " On the completion of the sale the high bailiff shall pay the pro- Chap. II. ceec | s arising therefrom into court, return the warrant, and file an account of the sale signed by him, together with the certificate of appraisement signed by the appraiser." 45. " On the completion of the purchase the high bailiff shall deliver up the property to the purchaser, and if required so to do shall execute a bill of sale to him." No. 15. Precipe for a Warrant of Execution. [Admiralty Jurisdiction.'] In the county court of , holden at (Title of Suit.) [Seal] I, S. E., attorney, do require a warrant of execution to issue against the goods of C. D., of , who was ordered by decree of this court of the day of ,187 , to pay to the plaintiff or myself, as his attorney, the sum of pounds for [here insert for what the sum was ordered to be pahF], and who has not paid the said sum as so ordered. Dated the day of , 187 . (Signature of attorney.) No. 16. Warrant of Execution against the Vessel or Property of Defen- dant. [Admiralty Jurisdiction.] In the county court of , holden at (Title of Suit.) [Seed.] Whereas on the day of , 187 , the plaintiff obtained a decree in this court against the defendant for the sum of £ for and costs ; and it was thereupon ordered by the court that the defendant should pay the same to the plaintiff on the day of : And whereas default has been made in payment according to the said order : These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the defendant, wheresoever they may be found within the district of this court (except the wearing apparel and bedding of him or his family, and the tools and implements of his trade, if any, to the value of five pounds), the sum stated at the foot of this warrant, being the amount due to the plaintiff under the said order, including the costs of this execution ; and also to seize and take any money or bank notes (whether of the Bank of England or of any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties or securities for money of the defendant which may there be found, or such part or so much thereof as may be sufficient to satisfy this execution and the costs of making and executing the same, and to pay what you shall have so levied to the registrar of this court, and make return of what you have done under this warrant immediately upon the execution thereof. Given under the seal of the court, this day of , 187 . By the court, Registrar of the court. To the high bailiff of the said court, and others the bailiffs thereof. Chat. II. ENFORCEMENT OF DECREES. 181 Appraisement.'] — Part v. 54. " The registrar may, on the application of either attorney, and whether before or after judgment, order any property under arrest to be appraised " (e). Transfer of Sale.] — 46. " "Where the vessel has been arrested or has been seized under a warrant of execution, and the sale of the vessel has been ordered to be transferred, the vessel shall be retained by the high bailiff until the marshal of that court shall, by order of the High Court of Admiralty, take possession thereof." 47. "An attorney desiring that the sale of any vessel or property should be conducted in the High Court of Admiralty may at any time after judgment give security to the amount often pounds, and file with the registrar an application for an order for the transfer of the proceedings for sale to the said court." 18. " The registrar shall transmit such application to the judge for his order thereon, if the court be not sitting, and shall in any case certify on the application that the security for costs has been given" (/). No. 17. Order for Transfer of Sale to High Court of Admiralty. [Admi- ralty Jurisdiction.] In the county court of , holden at (Title of Suit.) [Seal] Whereas in a suit instituted in this court on behalf of A. B., of , against [state name of defendant], the judge of this court has ordered [here insert the terms nf the decree or order] : And whereas the plaintiff [or defendant] in the said suit is desirous that the sale of the vessel should be conducted in the High Court of Admiralty and has given security for the sum of ten pounds : Now I, A. B., attorney, pray that an order to transfer the proceedings for sale to the said High Court of Admiralty do issue. Dated the day of , 187 . Signature of attorney. I hereby certify that the security above-mentioned has been duly completed. Registrar of the court. I hereby order the transfer to be made as prayed. Judge of the court. Payment out of Court.] — 52. "Money ordered to be paid out of court may be paid to the attorney without the production of a power of attorney from the party entitled to receive the money, unless the judge shall otherwise order." 53. " Where more than one suit has been instituted against a vessel or any property, and the same has been sold, the proceeds thereof shall be retained in court, to abide the decision of the court in the various suits, unless the judge shall otherwise order" (g). (e) County Court Admiralty Orders, (/ ) County Court Admiralty Orders, 1868, No. 54. 1868. iS) Id. 182 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. Appeal to court of ad- miralty. Time for appeal. Agreement not to appeal. As to appeals to the Queen in council. Costs of appeal. No appeal unless amount ex- ceeds 50/. § 11. — Appeal. " The County Courts Admiralty Jurisdiction Act, 1868" (31 & 32 Vict. c. 71), enacts that, — Sect. 26. " An appeal may be made to the High Court of Admiralty of England from a final decree or order of a county court in an admiralty cause, and, by permission of the judge of the county court, from any interlocutory decree or order therein, on security for costs being first given, and subject to such other provisions as general orders shall direct." Sect. 27. " No appeal shall be allowed unless the instrument of appeal is lodged in the registry of the High Court of Admiralty within ten days from the date of the decree or order appealed from, but the judge of the High Court of Admiralty of England may, on sufficient cause being shown to his satisfaction for such omission, allow an appeal to be prose- cuted, notwithstanding that the instrument of appeal has not been lodged within that time." Sect. 28. " No appeal shall be allowed if, before the decree or order is made, the parties shall have agreed by a memorandum signed by them, or by their attorneys or agents, that the decree or order shall be final ; and any such agreement need not be stamped, except in respect of any fee imposed by general orders." Sect. 29. "There shall be no appeal from a decree or order of the High Court of Admiralty of England made on appeal from a county court, except by express permission of the judge of the High Court of Admiralty." Sect. 30. " On an appeal under this act, when the appellant is unsuc- cessful, he shall pay the costs of the appeal, unless the appellate court shall otherwise direct." Sect. 31. " No appeal shall be allowed unless the amount decreed or ordered to be due exceeds the sum of fifty pounds." As to the right of appeal in cross suits, see ante, pp. 169, 170. Security for costs of the appeal must be given in the county court and not in the High Court of Admiralty (h). Appeal from Decree of High Conrl.~\ — The permission under sect. 29 to appeal (to the privy council) from a decree or order of the high court, made on appeal from the county court, will not be in general given, except where the law is doubtful or novel in its application ; or where the facts are such as to leave a substantial doubt on the mind of the court whether the conclusion at which it has arrived be right, or where the pecuniary interest (a case which may happen under the provisions of the statute) is large {i). Conduct of Sect. 32. " On an appeal under this act, the judge of the High Court " a| e, &c. in f Admiralty, if it appears to him expedient that any sale decreed or miraity. ordered to be made of the vessel or property to which the cause relates should be conducted in the High Court of Admiralty instead of in the (h) The Forest Queen, 40 L. (N. S.) Adm. 17. (?) Tlie Samuel Laing, 39 L. J. (N. S.) Adm. 42. APPEAL — FEES AND COSTS. 183 county court from which the appeal is brought, may direct the transfer Part v. of the proceedings for sale, with or without the transfer of the subsequent Chap - IIj proceedings in the cause, to the High Court of Admiralty, which court shall have jurisdiction and all powers and authorities relating thereto accordingly." Sect. 33. " In all cases which shall arise within the jurisdiction of the in certain Cinque Ports as denned by the act first and second George the Fourth, ^ s £f "^ g . chapter seventy-six, section eighteen, causes may be transferred by the ferred by county court and appeals made to the Court of Admiralty of the Cinque "JS^S co ? rt Ports in lieu of the High Court of Admiralty ; and in the case of appeals made'to 6 * 1 the instrument of appeal shall be lodged in the registry of the Cinque Court of Ad- Ports, and the same discretion vested in the judge official and commis- j^T^^n,, sary of the said Cinque Ports court as is by this act vested in the judge Ports. of the High Court of Admiralty. § 12. — Fees and Costs. " The County Courts Admiralty Jurisdiction Act, 1868," enacts that, — Sect. 17. "The registrars of the county courts shall be remunerated Remuneration for their duties in admiralty causes by receiving for their own use such of registrars. fees as general orders shall direct." Sect. 18. "A scale of costs and charges in admiralty causes in the Scale of costs. county courts shall be prescribed by general orders." The rules provide with reference to Fees and Costs," that, — 75. " The fees and costs set forth in the schedules hereto annexed, Fees and marked L, II., shall be allowed on taxation." costs - 76. " Where plaintiff recovers less than the sum claimed, the scale upon which the costs are to be taxed shall be in the discretion of the court." Schedule I. Fees to be taken in County Courts having Admiralty Jurisdiction. Fees to be taken by On every institution of a suit sixpence in the pound, and registrar and ac- | on the hearing of the same an additional fee of sixpence counted for and in the pound on the amount claimed, where it does not paid over to the exceed fifty pounds ; and where it does exceed fifty treasurer. pounds, then five shillings additional on the institution, and on the hearing of the suit for every fifty or fraction of fifty pounds claimed over and above the first fifty pounds. Where the court is to be held beyond three miles from the registrar's office, then an additional fee of one shilling for each mile from the office to the place of sitting. 184 ADMIRALTY JURISDICTION, ETC. Part V. Chap. II. Fees to be taken by the Registrar for his own use. On every institution of suit and summons thereon . . „ warrant of arrest of a vessel „ release „ bail bond . . „ affidavit of j ustification .. „ subpcena „ notice of hearing . . . . each Summons for the attendance of assessor at the hearing of any suit . . . . each For every order of transfer Where a court is to be held specially for the hearing of a suit under Kule 3 Where the court is to sit for the hearing or part hearing of a suit beyond three miles from registrar's office, then in addition . . Mileage one way from office to place of sitting, for each mile When the registrar cannot return the same night . . For drawing final decree For filing an affidavit or other document, not being a document annexed to an affidavit . For every office copy of a document in the English language . . . . per folio For office copies of papers in a foreign lan- guage, or of shorthand writers' or reporters' notes, or of abstracts or translations made in the office, in addition to the above fees, the charges of the copyist, shorthand writer, reporter or translator. On a receipt for money or for papers (only one fee to be taken, however many may be the papers delivered in at one time) Poundage on monies paid out of the office in any suit for every 50Z. or fraction thereof . From a person who is not a party in the suit, nor his attorney, nor the clerk of the attorney, on examining the court books in respect of any suit For every summons of commitment For every warrant against the body or goods or order of sale of vessel For making and transmitting note of any decree or order under Rule 33 On examining the documents in a suit in which no proceedings are pending, and which has been terminated within the last two years Ditto ditto if beyond that period . . Where the Amount claimed does not exceed 20?. £ s. d. 1 1 6 5 15 15 6 110 7 6 6 4 6 2 10 16 2 6 16 1 6 2 exceeds 201. and does not exceed 100J. £ S. d. 16 10 15 15 6 1 1 10 10 4 10 5 10 3 5 2 6 2 6 3 6 exceeds 10W. £ S. d. 7 6 7 6 7 7 2 2 6 15 1 15 15 6 1 1 15 10 4 10 5 10 5 7 6 3 6 2 6 3 6 FEES AND COSTS. 185 Where the Amount claimed Fees to be taken by the Registrar for his own use. A nn „ „„* exceeds 20/. does not . . exceed 20/ a,,d docs not exceea iw. exceed i 00 , exceeds 100/. For every sitting in which the registrar is When the sitting is longer than one hour, then for every additional hour or part of an hour Where the registrar shall be required to attend elsewhere than at the court or office, in addition to the above Mileage one way from the office to place of examination for each mile. . £ s. d. £ *. d, 7 5 10 6 5 £ s. d. 10 7 1 6 7 Part V. Chap. II. Fees to be taken for the use of the High Bailiff. For service of summons or subpoena, if served within three miles of registrar's office If served beyond three miles of registrar's office, reasonable expenses for travelling and maintenance. Attendance on court if required by judge, where court is to be held specially for the hearing of a suit under Rule 3 On execution of a warrant of arrest of a vessel or property On keeping possession of a vessel or property to include the cost of a vessel keeper, if required . . . . . . per day If execution had at a greater distance than three miles from registrar's office, reason- able expenses for travelling and main- tenance. On sale of vessel or property, including in- ventory, for every 501. or. fraction thereof . For service of summons of commitment Execution of warrant against body or goods . Conveyance to gaol, per mile To the appraiser for appraisement of a vessel, including inventory. Where the Amount claimed does not exceed 20/. I exceeds 20/. :and does not exceed 100/. exceeds 100/. £ s. d. 3 6 5 10 £ *. d. 5 10 15 3 6 5 10 2 10 9 10 5 1 1 £ s. d. 5 15 1 5 10 10 1 10 1 6 Ten shillings per cent, on the appraised value of the pro- perty, with reasonable ex- penses for travelling and maintenance if the vessel is beyond three miles from re- gistrar's office. 186 Part V. Chap. 11. ADMIRALTY JURISDICTION, ETC. Schedule II. Costs and Charges to be paid to Counsel and Attorney 's-at-Law under " The County Courts Admiralty Jurisdiction Act, 1868," between Party and Party. Instructions to sue or defend .. Application for substituted service Attendance on the registrar, rilling up and leaving praecipe, and obtaining the document or instrument for which the praecipe was required, including the getting the seal of the court affixed. . Serving any notice or summons on a party or his attorney, including copy thereof If served beyond three miles of registrar's office, rea- sonable expenses for travelling and maintenance. Examining and taking minutes of evidence of each witness afterwards allowed by the judge (whether counsel employed or not) If above six folios, for every additional folio . . Drawing brief, per folio Copy brief, per folio, and necessary documents to accompany same Attending counsel therewith . . . . . . . . Fee to counsel and clerk, sum paid not exceeding . . If conference with counsel allowed, appointing it and attending counsel Fee to counsel and clerk on conference Attending court on trial, with counsel Attending court and conducting suit, where no counsel employed Where judgment is deferred, attending court to hear it . . . . . . . . . . . . . . Witnesses' expenses, according to scale in force. Occasional Costs. Lodging order of transfer Notice of application for a new trial, or to set aside proceedings, including copies or duplicate originals and service, and attending registrar of the court therewith, such notices and copies being signed by the attorney Any attendance which the registrar may think was necessary . . . . . . .... All necessary affidavits, not exceeding five folios, including filing . . . . . . . . each For every additional folio . . . . Oath (sum paid). Attending court to support or oppose any application or motion without counsel Attending in the last-mentioned cases with counsel . . Fee to counsel and clerk not exceeding Lower Scale, not exceeding & s. d. 10 4 6 8 3 6 3 4 1 1 4 3 4 3 5 6 10 1 6 13 4 1 10 6 8 10 6 8 3 4 5 10 1 1 15 1 3 6 FEES AND COSTS. 187 Attorney's travelling expenses to attend court or an examiner, where the place of sitting in cither case is beyond three miles of the registrar's office, one way .. . . .. •• . . per mile Where, in the opinion of the registrar, he cannot return the same night, in addition to the above mileage . . . . . . . . ■ • . . . . Any attendance on an examiner, which the registrar may, upon taxation, think was necessary When the attendance is longer than one hour, then for every additional hour or part of an hour Drawing all necessary documents • . per folio Flans and charts to be allowed by special order of judge, not exceeding .. .. Attending taxing costs . . All necessary copies . . . ■ . . per folio Letters and messages (to he allowed once in the suit only) . . Costs of the Day on Adjournment. Attending court where no counsel employed Attending with counsel . . Refresher fee to counsel and clerk, not exceeding . . Witnesses' expenses same as on trial. Costs on Appeal. Preparing notice of appeal, including copies and service Application to stay proceedings Transmitting case and copies, including notice to successful party Application to judge for leave to proceed on judg- ment Depositing decree or order of Court of Appeal Lower Scalp, no', exceeding 100/. £ *. d. 6 1 11 6 5 4 1 2 2 5 4 5 Higher Scale, above 100/. Part V. Chap. II. & s. d. 6 1 11 6 7 6 1 3 3 7 4 10 15 1 10 15 1 3 6 2 4 6 7 10 7 10 5 7 5 7 3 4 N.B.— The registrar is to tax the bills of costs of defendants upon the lower scale when the suit is for a sum not exceeding 100/., and upon the higher when it exceeds 100/.; and the bills of costs of plaintiffs upon the lower scale when the sum recovered does not exceed 100/., and upon the higher when it exceeds 100/., unless in either case the judge shall otherwise order. "Costs between Attorney and Client shall be allowed on the above scale, with such additions thereto as the registrar may, on consideration of special circumstances, think fit to allow." High Court of Admiralty if the attorneys shall agree in the memorandum that they shall-be so allowed, and if no such agreement shall be made, then according to the county court admiralty scale as between attorney and client." 1 00 ADMIRALTY JURISDICTION, ETC. part y Taxation of Costs J — Chap. II. J J 62. " Costs may be taxed by the registrar as well between party and party as between attorney and client." 63. " "When a bill of costs has been filed for taxation, notice shall, as- soon as conveniently may be, be sent to the respective attorneys, ap- pointing a time for the taxation." 64. " At the time appointed, if either attorney is present, the taxation shall be proceeded with." 65. " After the expiration of a week from the taxation of the bill, if there is no objection thereto, the attorney may apply for payment of the same if the amount is to be paid out of monies in court." 66. " If in a taxation between attorney and client more than one-sixth of the bill is struck off, the attorney shall pay all the costs attending the taxation." 67. " If either attorney is dissatisfied with the taxation, he may, within a week thereof, give notice to the adverse attorney that he will apply to the judge to review the same, and file a praecipe objecting to the taxation" (A). (k) County Court Admiralty Orders, 1868. ( 189 ) CHAPTER III. APPEALS TO THE COUNTY COURTS FROM THE DECISION OF SURVEYORS AS TO THE UNSEAWORTHINESS OF VESSELS UNDER "THE MERCHANT SHIPPING ACT, 1871." ♦'The Merchant Shipping Act, 1871" (34 & 35 Vict. c. 110), enacts that : — Sect. 10. " If complaint is made to the Board of Trade that any British ship is, by reason of the defective condition of her hull or equipments, unfit to proceed to sea, the board may cause such ship to be surveyed by one of the surveyors appointed by them, and if such surveyor report that the hull or equipments of such ship is or are in such a state that she could not proceed to sea -without serious clanger to human life, the Board of Trade may declare such ship to be unseaworthy, and thereupon any principal officer of customs may detain such ship. " Every such complaint shall be in writing, and shall state the name and address of the complainant, and a copy of the complaint, including the name and address of the complainant, shall, before or during such survey, be given by the Board of Trade to the master or to an owner of the ship. " If upon such survey such ship is found to be seaworthy, the expenses of the survey shall be paid to the Board of Trade by the person making the complaint, without prejudice to any right of suit or action against him by any person aggrieved by the complaint. "If upon such survey such ship is found to be unseaworthy, the expenses of the survey shall be paid to the Board of Trade by the owner of the ship. " Any shipowner who is dissatisfied with the decision of a surveyor under this section may appeal to any of the courts mentioned in this section, having jurisdiction in the place where such ship was surveyed, and such court may, if they think fit, appoint one or more competent persons to survey such ship anew, and any surveyor so appointed shall have the powers of a surveyor appointed by the Board of Trade. Upon any such appeal the court may make such order as to the detention or discharge of the ship, as to the payment of any costs and damages which may have been occasioned by her detention, and as to the payment of the expenses of the original survey and of the survey anew, as to the court seems just. " The courts to which appeal may be made shall be : — " In England, any court having jurisdiction under ' The County Court Ad- miralty Jurisdiction Act, 1868.' "In Ireland, any court having jurisdiction under 'The Court of Admi- ralty (Ireland) Act, 1867.' " In Scotland, the court of the sheriff for the county." ( 190 ) PART VI. JURISDICTION OF THE COUNTY COURTS IN QUES- TIONS AS TO THE GRANT AND REVOCATION OF PROBATE OF WILLS AND LETTERS OF AD- MINISTRATION. § 1. — Jurisdiction. § 2. — Procedure. § 3.— Fees and Costs. § 1. — Jurisdiction. " The Court of Probate Act, 1857" (20 & 21 Vict. c. 77), which vested the voluntary aud contentious jurisdiction and authority in relation to the granting or revoking probate of wills aud letters of administration of the effects of deceased persons in the crown, and established the Court of Probate for exercising that jurisdiction, with a principal registry in London, and district registries and registrars throughout England, gave the county courts in certain cases the contentious jurisdiction and authority of the Probate Court (a). The section of that act giving this jurisdiction was repealed by " The Court of Probate Act, 1858" (21 & 22 Vict. c. 97), and the following provision substituted. Where per- " Where it appears by affidavit to the satisfaction of a registrar of the timter'ow ' principal registry that the testator or intestate in respect of whose estate county court a grant or revocation of a grant of probate or letters of administration is to have juris- applied for, had at the time of his death his fixed place of abode in one of the districts specified in schedule (A) to the said ' Court of Probate Act,' and that the personal estate in respect of which such probate or letters of administration are to be or have been granted, exclusive of what the deceased may have been possessed of or entitled to as a trustee and not beneficially, but without deducting anything on account of the debts due and owing from the deceased, was at the time of his death under the value of 200Z., and that the deceased at the time of his death was not seised or entitled beneficially (b) of or to any real estate of the value of 3001. or upwards, the judge of the county court having jurisdic- (a) 20 & 21 Vict. c. 77, s. 54 ; re- points to an ownership which is not pealed by 21 & 22 Vict. c. 95, s. 11. one of trust. Lord Penzance irf (/>) The word "beneficially" here, Davies v. Brechnell, 40 L. J. (N. S.) as in the previous part of the section, 1'rob. & M. 16. JURISDICTION. 191 tion in the place in which the deceased had at the time of his or PartVI. her death a lixed place of abode, shall have the contentious jurisdic- tion (c) and authority of the Court of Probate in respect of questions as to the grant and revocation of probate of the will or letters of adminis- tration of the effects of such deceased person, in case there be any con- tention in relation thereto" (d). It is unnecessary to set out the schedule (A) specifying the districts and places of district registries throughout England and Wales, as it can be readily referred to. Three things, it is to be observed, are necessary to confer juris- diction on the judge of the county court. First, that the testator or iutestate at the time of his death should have his fixed place of abode in one of certain districts. Secondly, that the personal estate should be under the value of 200/. Thirdly, that the de- ceased at the time of his death should not be seised or beneficially entitled to any real estate of the value of 300/. or upwards (e). As regards the last poiut, if the real estate is of the value of 300/., it is immaterial that the heir at law has not been cited, and conse- quently that the probate would not affect the real estate ; for the fact of the testator being entitled to real estate to the value of 300/. takes away the jurisdiction (f). In estimating the value of the real estate, charges upon the estate cannot be taken into consideration. Therefore, if the estate be of the value of 300/., but the value of the deceased's interest in it is reduced by mortgage to less than 300/., the county court has no jurisdiction (g). (r) With respect to what con- tention as to the right thereto, in- stitutes " contentious jurisdiction," eluding the passing of probates and the rules and orders of the Court of administrations through the Court of Probate (Rule 3 of the Rules and Probate in contentious cases when Orders of July, 1862) provide, that the contest is terminated, and all " all proceedings in the Court of Pro- business of a non-contentious nature bate or in the registries thereof in re- to be taken in the court in matters of spectof business not included in ' The testacy and intestacy, not being pro- Court of Probate Act, 1857,' under the ceediugs in any suit, and also the expression ' common form business,' business of lodging caveats against except the warning of caveats, shall the grant of probate or administra- te deemed to be contentious business." tion." The interpretation clause (sect. 2) of (d) 21 & 22 Vict. c. 97, s. 10. " The Court of Probate Act, 1857" (20 (e) Thomas v. Nurse, 39 L. J. (N. & 2 1 Vict. c. 77), enacts " that ' com- S.) Prob. & M. 80. mon form business' shall mean the (/) Ibid. business of obtaining probate and [g) Davie* v. Brechnell, 40 L. J. administration where there is no con- (N. S.) Prob. & M. 15. 192 PROBATE OF WILLS AND LETTERS OF ADMINISTRATION. Part VI. Registrar of county court to transmit certificate of decree for grant or re- vocation of probate. The judge of the county court to de- cide causes and enforce judgments as in other cases. Affidavit of the facts giving the county court jurisdiction to be con- clusive, un- less disproved ■while the matter is pending. As to appeals from county court. § 2. — Procedure. The following provisions of " The Court of Probate Act, 1857" (20 & 21 Vict. c. 77), apply to the jurisdiction of the county courts as settled by the Act of 1858 : — Sect. 55. " On a decree being made by a judge of a county court for the grant or revocation of a probate or administration, in any such cause the registrar of the county court shall transmit to the district registrar of the district in which it shall have been sworn that the deceased had, at the time of his decease, his fixed place of abode, a certificate under the seal of the county court of such decree having been made, and there- upon, on the application of the party or parties in favour of whom such decree shall have been made, a probate or administration in compliance with such decree shall be issued from such district registry ; or, as the case may require, the probate or letters of administration theretofore granted shall be recalled or varied by the district registrar according to the effect of such decree." Sect. 5G. " The judge of any county court before whom any disputed question shall be raised relating to matters and causes testamentary under this act shall, subject to the rules and orders under this act, have all the jurisdiction, power and authority to decide the same and enforce judgment therein, and to enforce orders in relation thereto, as if the same had been an ordinary action in the county court." Sect. 57. " The affidavit as to the place of abode and state of the pro- perty of a testator or intestate which is to give contentious jurisdiction to the judge of a county court under the previous provisions shall, except as hereinafter provided, be conclusive for the purpose of authorizing the exercise of such jurisdiction, and the grant or revocation of probate or administration in compliance with the decree of such judge; and no such grant of probate or administration shall be liable to be recalled, revoked or otherwise impeached by reason that the testator or intestate had no fixed place of abode within the jurisdiction of such judge, or within any of the said districts at the time of his death, or by reason that the per- sonal estate, sworn to be under the value of 200/., did in fact amount to or exceed that value, or that the value of the real estate, of or to which the deceased was seised or entitled beneficially at the time of his death, amounted to or exceeded 300/. Provided, that where it shall be shown to the judge of a county court before whom any matter is pending under this act, that the place of abode or state of the property of the testator or intestate, in respect of whose will or estate he may have been applied to for grant or revocation of probate or administration, has not been cor- rectly stated in the affidavit, and if correctly stated would not have au- thorized him to exercise such contentious jurisdiction, he shall stay all further proceedings in his court in the matter, leaving any party to apply to the Court of Probate for such grant or revocation, and making such order as to the costs of the proceedings before him, as he may think just." Sect. 58. " Any party who shall be dissatisfied with the determination of the judge of the county court in point of law, or upon the admission or rejection of any evidence in any matter or cause under this act, may appeal from the same to the Court of Probate, in such manner, and sub- ject to such regulations as may be provided by the rules and orders to be made under this act, and the decision of the Court of Probate on such appeal shall be final." PROCEDURE. 198 The only mode in which the decision of the county court judge p*rt vi- can be reviewed is by appeal under the above section upon points of law and evidence. Upon questions of fact, the decision of the county court is final (h). Sect. 59. " It shall not be obligatory on any person to apply for pro- Kot obiiga- bate or administration to any district registry or through any county J^roiSe? 7 court, but in every case such application may be made through the prin- &c. to district cipal registry of the Court of Probate, wherever the testator or intestate re ^ s ^^ or t may, at the time of his death, have had his fixed place of abode : Pro- but may in ' viiK'il, that where in any contentious matter arising out of any such every case application it is shown to the Court of Probate that the state of the pro- court of '° perty and place of abode of the deceased were such as to give contentious Probate. jurisdiction to the judge of a county court, the Court of Probate may send the cause to such county court, and the judge thereof shall proceed therein as if such application and cause had been made to and arisen in his court in the first instance" (»). For the particular procedure and practice of the county courts, so Court of Pro- far as the above provisions or the County Court Rules {post, fouo^a^-). p. 194) do not extend, the Probate Acts must be referred to, and also the Rules of the Court of Probate must be followed (j). Where a cause is sent to the county court, the Court of Probate which sends it cannot give any directions as to the mode in which the cause shall be tried. Application for a trial by jury, for example, must be made to the judge of the county court (k) ; and the decision of the county court can only be reviewed by appeal under sect. 58, for there is no distinction, under that section, be- tween cases originally instituted in the county court, and causes sent to that court under sect. 59. The Court of Probate, therefore, cannot inquire whether the verdict in the county court was against evidence, or order a re-investigation of a question of fact already decided (I); nor can the Probate Court, after the decree in the county court, make any order confirming it ; or order the payment by the unsuccessful party of costs incurred in the Probate Court before the transfer (?«). Any application as to such costs must be made, therefore, to the Probate Court before the transfer. (h) Lealley v. Veryard, 35 L. J. cases taken in or sent to the county (N. S.) Prob. & M. 127; S. C. nom. courts, it is out of the question at- Zealley v. Veryard, Law Rep., 1 tempting to give a complete practice Prob. & Div. 195. here, as the bulk of the volume would (/) "The Court of Probate Act, be increased to a great extent without 1858" (21 & 22 Vict. c. 95), s. 12, any corresponding advantage, enacts, that "The Court of Probate {It,) Karris v. Allen, 2 S. & Tr. Act, 1857," section 59, " shall, so far 601; 32 L. J. (N. S.) Prob. & M. 3. as the county courts or a judge (Z) Lealley v. Veryard, 35 L. J. (N. thereof are concerned, apply to an S.) Prob. & M. 127; Thomas v. application for the revocation of a Croivther, 2 S\v. & Tr. 5G1, cannot grant of probate or administration as be relied upon on this point, well as to an application for any such (to) Mm-leur v. Maeleur, Law grant." Rep., 1 Prob. & Div. 604; 37 L. J. (J) Considering the few probate (N. S.) Prob. & M, 68. D. VOL. II. O 194 PROBATE OF WILLS AND LETTERS OF ADMINISTRATION. Part VI. Rules and orders for regulating the procedure of county courts under the acts to be made by the judges now having authority for the like pur- pose. Power to make rules and orders and frame scale of fees for the county courts. Rules and Orders. "The Court of Probate Act, 1857," enacts that— Sect. 60. " For regulating the procedure and practice of the county courts, and the judges, registrars, and officers thereof, in relation to their jurisdiction and proceedings under this act, rules and orders may be from time to time framed, amended and certified by the county court judges appointed for the time being to frame rules and orders for regulat- ing the practice of the county courts under the act 19 & 20 Vict. c. 108, and shall be subject to be allowed, or disallowed or altered, and shall be in force from the day named for that purpose by the Lord Chancellor, as in the said act is provided in relation to other rules and orders regulat- ing the practice of the same courts (n) ; and for establishing rules and orders to be in force when this act comes into operation, the power given by this enactment shall be exercised as soon as conveniently may be after the passing of this act." " The Court of Probate Act, 1858" (21 & 22 Vict. c. 95), enacts that— Sect. 13. " The power and authority to make rules and orders for regulating the proceedings of the county courts shall extend and be applicable to all proceedings in the county courts under this act, and also to framing a scale of costs and charges to be paid to counsel, proctors, solicitors and attorneys, in respect of proceedings in county courts, under the said Court of Probate Act or this act." Under the powers given for that purpose as above mentioned the following rules and orders for regulating the practice of the county courts came into force on the 4th of February, 1858 : — " 1. Any person desirous of takingproceedings in any county court under the statute 20 & 21 Vict. c. 77, for amending the law relating to probates and letters of administration in England, shall lodge with the registrar of the court having jurisdiction in the matter an application in writing according to form (A) annexed, duly stamped with the proper duty thereon. " 2. "Where any person shall have lodged a caveat against the grant of probate or letters of administration, and proceedings are proposed to be taken in a county court, the person who shall have applied for the probate or letters of administration shall be deemed the plaintiff in the proceedings, and the person who shall have lodged the caveat shall be deemed the defendant. " 3. The party making application to a county court for the revocation of probate or letters of administration shall be deemed the plaintiff in the proceedings, and the party against whom the application is made shall be deemed the defendant. " 4. "Where an application shall be made to a county court for the grant or revocation of probate or letters of administration, the person making the application shall produce to the registrar a certified copy of the affidavit made by the party who shall have applied for or obtained the probate or letters of administration : and thereupon, if, according to the statements in the affidavit, the deceased had, at the time of his death, (n) For the general power to frame rules and orders under the 19 & 20 Vict. c. 108, see ante, Vol. I. p. 58. PROCEDURE. 195 his fixed place of abode within the district of such court, and the state of P * RT vi. the property of the testator or intestate was such as to give jurisdiction to the judge of the county court, the registrar shall issue a notice to the defendant according to form (B) annexed, and deliver a notice, accord- ing to such form, then and there to the plaintiff or his agent. " 5. The above-mentioned notice shall be issued ten clear days before the day on which the judge shall proceed to make a decree in the matter. " G. Notices shall be served by a bailiff of the court, by his delivering the same to some person at the respective places of residence of the parties, as mentioned in the application for proceedings to be taken. " 7. The registrar of the county court, at the time that he issues the notices in proceedings for the revocation of the grant of probate or letters of administration, shall give notice by post, according to form (C) annexed, to the district registrar by whom the probate or letters of administration has been granted, to produce the original will or other necessary documents at the county court at which the matter of the application will be considered. " 8. The certificate to be given by the registrar of a county court under sect, 55 of 20 & 21 Vict. c. 77, shall be according to form (D) annexed; and on or before the day mentioned in the notice the plaintiff shall deliver to the registrar such form, stamped with the proper duty thereon, and the cause shall not proceed until such form duly stamped is mi delivered; provided, that the defendant may procure and deliver such form duly stamped if the plaintiff shall have neglected to deliver such form so stamped. " 9. Upon the day mentioned in the notice the judge, whether both parties are then before him or not, may proceed to consider the matter of the application, and to make a decree thereon, or he may adjourn the proceedings, from time to time, as he may think fit. " 10. The decree shall be according to form (E) annexed, and a copy of such decree shall be sent by post to the plaintiff and defendant. "11. Where application for probate or letters of administration has been made at the principal registry, and any contentious matter shall arise out of such application, and the judge of the Court of Probate shall send the cause to a county court, the registrar, upon the receipt of such cause, shall forthwith issue a notice, according to form (B) in the schedule both to the plaintiff and defendant, without any application being made to the court by the plaintiff. " 12. In proceedings for which rules and orders are not hereby pro- vided, the rules and practice of the Court of Probate shall be followed so far as they are applicable. " 13. The enactments, practice and forms in force and used in the county courts shall, subject to the foregoing'rules and orders, be adopted with reference to proceedings in the county courts in matters of probate or letters of administration, so far as the same are applicable mutatis mutandis." Form A. Application to a Count;/ Court for Proceedings to be taken under the Act 20 & 21 Vict. c. 77, for amending the, Law relating to Probates and Letters of Administration in England. I, A. B., of [or C. D. proctor, solicitor or attorney of A. B. of ], do hereby apply to the judge of the above court for a decree o2 196 PROBATE OP WILLS AND LETTERS OP ADMINISTRATION. Part vr. to be made by him, according to the provisions of the above act, for the ~ grant [or revocation] of probate of the will [or letters of administration in the goods] of [here insert name and address of testator or intestate} : and I hereby state that the person who has applied for probate or letters of administration [or who has obtained probate or letters of administration, or is the party against whom this application is made] is E. F., of A. B. [or C. D. proctor, solicitor or attorney of A. B. of ]. Form B. (Seal.) In the county court of holden at Between A. B., plaintiff, [address] and C. D., defendant. [address"] . Take notice that at a county court to be holden at on the day of , at the hour of in the noon, the judge of this court will proceed to make a decree for the grant [or revocation] of probate of the will for letters of administration in the goods] of [here insert name and address of testator or intestate^], unless cause be then shown to the contrary : and you are hereby informed, that if you do not attend on that day, the judge may proceed to make such decree in your absence. Dated this day of 187 . To the plaintiff [or defendant]. Registrar of the court. Hours of attendance at the office of the registrar [place of office] from ten till four, except on , when the office will be closed at one. Form C. (Seal.) In the county court of holden at Between A. B., plaintiff, and C. D., defendant. Whereas an application has been made to this court to revoke the grant of probate of the will [or letters of administration granted by you in the goods] of [here insert the name and address of the testator or intes- tate] ; and whereas the matter of such application will be considered by the judge of this court on the day of at the hour of in the noon : I, therefore, request that you will cause to be pro- duced before the judge on that day [the will (n) and] all documents which are in your possession relating to the matter. Dated this day of 187 . Registrar of the court. Hours of attendance at the office of the registrar [place of office] from ten till four, except on , when the office will be closed at one. (n) To be left out where administration without will annexed has been granted. PROCEDURE. 197 Form D. PartVL Certificate of a Registrar of a County Court, under Sect. 55 of 20 & 21 Vict. c. 77. (Seal.) In the county court of holden at Between A. B., plaintiff, [address] and C. D., defendant. [address']. I, A. B., registrar of the above court, do hereby certify, that the following decree was made in the above cause. [Here set out the decree."] Certified under the seal of the court, this day of 187 . Registrar of the court. Form E. (Seal.) In the county court of , holden at Between A. B., plaintiff, and C. D., defendant. Upon the hearing of the application in this cause, at a court holden this day, it is decreed as follows : — [Here set out the decree.] And it is ordered that the do pay the sura of for the 's costs ; and that the same be paid to the registrar of this court on the day of 187 . Given under the seal of this court, this day of ,187 . By order of the court. Registrar. Hours of attendance at the office of the registrar [place of office] from ten till four, except on , when the office will be closed at one. [As the above forms will seldom be required, they are not to be printed, but are to be icritkn on foolscap -paper. § 3. — Fees and Costs. Fees.] — The fees to be taken by officers of the county courts in respect of business under the probate acts are the same fees as in the case of a plaint for a sum of 201. (o). See the Table of Fees, ante, Vol. I. p. 18, ct sec/. A fee of Is. is expressly provided, by the table of Probate Court fees, to be taken for " Filing certificate of county court judge" O). (o) This direction as to county {p) See table of " Fees to be taken court fees does not appear to be in- in court and contentious business in eluded in the general repeal iu 18G2 the Court of Probate," dated 3Uth of previous tables of fees. July, 18C2. 198 TROBATE OF "WILLS AND LETTERS OF ADMINISTRATION. part vi. The other fees payable in the principal court must be collected from the table of general fees (. 20."), as to enforcing warrants in Scotland and Ireland. Every court has jurisdiction throughout England, s. 80, subs. (6), ante, p. 203. GENERAL POWERS AND JURISDICTION OF COURTS AND JUDGES. 205 other officer of his court such of the powers vested in him by this act as PartVii. it may be expedient for the judge to delegate to him." Chap - I- - "The Bankruptcy Kules, 1870," provide that— 2. "The chief judge in bankruptcy may delegate to the registrars of Sect, c-. his court such of the powers vested in him by the act as such judge may deem expedient to delegate, except the power to make an order to commit a person for contempt." 3. " The judge of a local court of bankruptcy may delegate to a regis- Sect. C7. trar of his court, but to no other officer, such of the powers vested in him by the act as such judge may deem expedient to delegate, except the power to make an order to commit a person for contempt." 4. " Every order made by a registrar while acting under any delegated power, shall have the same force and validity, and be subject to the same appeal, as an order made by the judge, but the registrar may adjourn any matter for the opinion of the judge if he shall think fit." Questions of novelty and importance ought not to be heard by the registrar (n) ; and where the registrar has to report to the court, he ought not to receive his own report (o). Enforcement of Orders and Warrants of Court.'} — Under the head of " Orders and Warrants of Court" " The Bankruptcy Act, 1869," contains the following provisions : — Sect. 73. " Any order made by a court having jurisdiction in bankruptcy Enforcement in England under this act shall be enforced in Scotland and Ireland in of T" r 5 ant the courts having jurisdiction in bankruptcy in such countries respec- courts, tively, in the same manner in all respects as if such order had been made by the courts which are hereby required to enforce the same; and in like manner any order made by the court in Scotland having jurisdiction in bankruptcy shall be enforced in England and Ireland, and any order made by the court having jurisdiction in bankruptcy in Ireland shall be enforced in England and Scotland by the courts respectively having jurisdiction in bankruptcy in the division of the United Kingdom where the orders made require to be enforced, and in the same manner in all respects as if such order had been made by the court required to enforce the same in a case of bankruptcy within its own jurisdiction" (/<). Sect. 75. "Any court having jurisdiction in bankruptcy in England Examination under this act may, if it thinks tit, order that a person named in the order in I ' c '^ la j d being in Scotland or in Ireland shall be examined there." Sect. 76. " Any warrant of a court having jurisdiction in bankruptcy Warrants of in England under this act may be enforced in Scotland, Ireland, the llil ^™ptcy Isle of Man, the Channel Islands and elsewhere in her Majesty's do- minions, in the same manner and subject to the same privileges in and subject to which a warrant issued by any justice of the peace against a person for an indictable offence against the laws of England may be exe- cuted in such countries respectively in pursuance of the acts of parlia- ment in that behalf; and any search warrant issued by a court having jurisdiction in bankruptcy under this act for the discovery of any property of a bankrupt may be executed in manner prescribed, or in the same («) Per James, L. J., E» parte L. J. (N. S.) Bank. 43. O'Loghlen, 40 L.J. (N. S.) Bank, SL (/>) Sect. 74 will be found ante. (o) See lie Fin/uy, Ess parte p. 204. Englith Joint Stock Company, 40 206 CONSTITUTION AND GENERAL POWERS IN BANKRUPTCY. Part VII. Ciiap. 1. Commitment to prison. manner and subject to the same privileges in and subject to which a search warrant for property supposed to be stolen may be executed ac- cording to law." Sect. 77. "Where any court having jurisdiction in bankruptcy under this act commits any person to prison, the commitment may be to such convenient prison as the court thinks expedient, and if the gaoler of any prison refuses to receive any prisoner so committed he shall be liable for every such refusal to a penalty not exceeding one hundred pounds." General rules to be made by Lord Chan- cellor, with advice of chief judge. § 4. — rules for regulating the practice and procedure in Bankruptcy. Under the head of " General Rules" " The Bankruptcy Act, 1869," enacts that— Sect. 78. " The Lord Chancellor, with the advice of the chief judge in bankruptcy, may from time to time make, and may from time to time revoke and alter, general rules, in this act described as rules of court, for the effectual execution of this act, and of the objects thereof, and the regulation of the practice and procedure of bankruptcy petitions and the proceedings thereon. "Any general rules made as aforesaid may prescribe regulations as to the service of bankruptcy petitions, including provisions for substituted service ; as to the valuing of any debts provable in a bankruptcy ; as to the valuation of securities held by creditors ; as to the giving or with- holding interest or discount on or in respect of debts or dividends ; as to the funds out of which costs are to be paid, the order of payment, and the amount and taxation thereof; and as to any other matter or thing, whether similar or not to those above enumerated, in respect to which it may be expedient to make rules for carrying into effect the objects of this act ; and any rules so made shall be deemed to be within the powers conferred by this act, and shall be of the same force as if they were enacted in the body of this act. " Any rules made in pursuance of the section shall be laid before parliament within three weeks after they are made, if parliament be then sitting ; and if parliament be not then sitting, within three weeks after the beginning of the then next session of parliament, and any rules so made shall be judicially noticed. " Until rules have been made in pursuance of this act, and so far as such rules do not extend, the principles, practice, and rules on which courts having jurisdiction in bankruptcy have heretofore acted in dealing with bankruptcy proceedings shall be observed by any court having jurisdiction in bankruptcy cases under this act." General Rules dated 1st January, 1870, were made under the above provision, and are cited as " The Bankruptcy Rules, 1870," and subsequent Rules dated 7th July, 1871, are cited as " The Bankruptcy Rules, 1871." These Rules are to be read together. They will be found under the subjects to which they refer (y). (?) Sec the Table of " Rules," pre- fixed to this volume. Rule 1 of "the Bankruptcy Rules, 1870," contains the following definition of terms: — " 1. In the construction of these rules and forms, words importing the singular number shall include the plural, and words importing the RECORD AND FORM OF PROCEEDINGS. 207 S 5. — Record and Form of Proceedings. pakt vii. Chap I Seal of Court.']—" The Bankruptcy Act, 1869," enacts that— — Sect. 109. " Every court having jurisdiction in bankruptcy under this Bankruptcy act shall have a seal describing such court in such manner as may be ^"T 1 '^ directed by order of the lord chancellor, and judicial notice shall be taken of such seal, and of the signature of the judge or registrar of any such court, in all legal proceedings." By order dated 1st January, 1870, "every county court shall have a seal describing such court, as it is now described by the seal hitherto used in every such court respectively." Record of Proceedings.'] — " The Bankruptcy Rules, 1870," direct that — Rule 9. " All proceedings of the court shall remain of record in the court, so as to form a complete record of each matter, and they shall not be removed for any purpose, except for the use of the officers of the court or by special direction of the judge or registrar, but they may at all reasonable times be inspected by the trustee, the bankrupt, and any creditor who has proved, or any person on their behalf." plural number shall include the sin- gular number, and words importing the masculine {render shall include females, and the following terms 6hall (if not inconsistent with the con- text or Bubject-matter) have the re- spective meanings hereinafter as- signed to them, that is to say — ' The Act' shall mean the Bank- ruptcy Act, 18G'.t : ' Court ' shall mean the court having jurisdiction in the matter : ' Judge' shall mean the judge or a lawfully appointed deputy judge of any such court : ' Registrar' shall mean a registrar or any deputy registrar of any such court : ' Creditor' shall include a firm of creditors in partnership : ' Debtor' shall include a firm of debtors in partnership : ' Attorney' shall mean any attor- ney or solicitor entitled to prac- tise in any such court: ' Name' of any person shall mean both the christian name or the initial letter or contraction of the christian name and the sur- name of such person : ' Affidavit' shall include statutory declarations, affirmations, and attestations upon honour, and the word ' sworn' shall include declaring aud affirmed accord- ing to statute and attested upon honour : ' District' shall, when used with reference to a county court, mean the district of such court for purposes of bankruptcy juris- diction : ' Gazetted' shall mean that the no- tice or thing is to be published in the London Gazette: 'Local paper' shall mean a paper circulating in the locality of the court : ' Sealed' shall mean sealed with the seal of the court : And, unless there be something in the context inconsistent therewith, the provisions of sects. 4 and 114 of the act shall apply to these rules." (See s. 4, ante, p. 201, and s. 114, post, p. 210.) Rule 319 provides that "the fore- going rules shall apply, in exclusion of all other rules and orders hereto- fore made, to all proceedings com- menced under the act." " The Bankruptcy Rules, 1871," by Rule 1, order that — " 1. The general rules in bank- ruptcy made on the 1st day of January, 1870, may lie cited for all purposes as 'the Bankruptcy Rales, 1870;' aud these rules as'tbc Bank- ruptcy Boles, L871,' and such rules shall be read and construed together." officer. 208 CONSTITUTION AND GENERAL POWERS IN BANKRUPTCY. Part vii. Rule 10. "All summonses, petitions, notices, orders, -warrants, and Chap - t - other process issued by the court shall be sealed." Rule 240. " The chief registrar of the London Bankruptcy Court, and every registrar of a county court having jurisdiction in bankruptcy, shall keep books according to the forms in the schedule, and the particulars given under the different heads in such books shall be entered forthwith after the proceeding shall be had." Rule 241. "The registrars shall make and transmit such extracts from such books as the comptroller may from time to time require to be made and transmitted to him." Besides the record of proceedings in the local courts, returns are made to an officer in London appointed by the Lord Chancellor, called " The Comptroller in Bankruptcy," and mentioned in the preceding rule (q). " The Bankruptcy Act, 1869," enacts that— Returns by Sect. 115. " The registrars and other officers of the courts acting in }!f»w U1)tcy bankruptcy shall make to the comptroller in bankruptcy such returns of the business of their respective courts and offices, at such times and in such manner and form as may be prescribed by the rules of court, and from such returns the comptroller shall, in manner prescribed by the rules of court, frame books (which shall be, under the regulations of the rules of court, open for public information and searches), and also a general annual report to the Lord Chancellor, judicial and financial, respecting all matters within this act, which report shall be laid before both houses of parliament." " The Bankruptcy Rules, 1871," provide that — Rule 11. "The registrars shall in all cases of bankruptcy forward to the comptroller an office copy of the minutes of proceedings at first meeting of creditors, a memorandum of order of discharge, and of order annulling adjudication, or of closing bankruptcy, and shall supply the comptroller with such special information, or statistical returns, as he may from time to time require." Forms of Proceeding s.~\ — "The Bankruptcy Rules, 1870," pro- vide that — Rule 7. " In matters under the act the proceedings may be in the several forms set forth in the schedule attached to these rules, or as near thereto as possible, and where forms for any proceeding in such matters are not provided in the schedule, the forms required may be framed by the parties, using as guides those so provided, so far as they are applicable" (r). Rule 8. " All proceedings in the court (except notices to creditors) shall be written or printed, or partly written or partly printed, on parch- ment or paper of the size hitherto used in bankruptcy, that is to sav, on sheets of sixteen inches in length and ten inches in breadth, or there- abouts; but no objection shall be allowed to any proof of debt, affidavit, or proxy on account of its being written or printed on other sized paper." ((/) Sec further, as to the office and of register of bankruptcies in the duties of the comptroller, ss. 55 — 58, county courts is not given, hnt n and rules 237 — 251, post, Chap. VI 11., similar form is directed to be used to § 7. thai given for the London Bankruptcy (/•) Most of the forms will he found Court. See Form X". 1 01 , appendix classed under various heads. A form to Bankruptcy Rules, 1870. RECORD AND FORM OF PROCEEDINGS. 209 Office Copies of Proceedings to be provided by the Registrar.] Part vii. —"The Bankruptcy Rules, 1870," provide that— chap.i. Role 12. "All office copies of petitions,proceedings, books, papers, and writings, or any parts thereof required by any trustee, or by any person being a bankrupt or debtor who lias instituted proceedings under sections \'1'> or 126 of the act, or by any creditor of any such person, or attorney of any Buch person, or creditor, shall be provided by the registrar, and shall, except as to figures, be fairly written at length, and be scaled with the seal of the court, and delivered out without any unnecessary delay, and in the order in which they shall have been bespoken, and be charged and paid for at the rate of twopence per folio of seventy-two words." Advertisements in London Gazette. .] — Hide 13. " In lieu of attaching a copy of the London Gazette to the proceedings in each bankruptcy or other matter, the registrar shall file with the proceedings the page of the gazette in which the advertisement occurs, and in case of an advertisement in a local paper, he shall file the advertisement with a memorandum of the name of the paper and date of its publication ; and for this purpose one copy of every London Gazette and of each local newspaper in which any notice in any matter of bank- ruptcy in such court is inserted shall be left with the registrar by the person inserting the notice." Validity of Proceedings.] — " The Bankruptcy Act, 1869," enacts that — Sect. 82. "No proceeding in bankruptcy shall be invalidated by any Formal de- formal defect or by any irregularity, unless the court before which an f 6 " 8 ,^ 01 / objection is made to such proceeding is of opinion that substantial proceeding?, injustice has been caused by such defect or irregularity, and that such injustice cannot be remedied by any order of such court." Amendments.'] — "The Bankruptcy Rules, 1870," provide that— Rule 20#. " In any proceeding before the court, the court may allow any amendments which in the judgment of the court or registrar ought to be allowed on such terms as may be ordered." I'.u mpt ion from Stamp Duty.] — " The Bankruptcy Act, 1869," enacts that — ;. 113. " Kvery deed, conveyance, assignment, surrender, admission, Exemption or other assurance relating solely to freehold, leasehold, copyhold, or of deeds, ic. customary property, or to any mortgage, charge, or other incumbrance d ™ t "). stami> on, or any estate, right, or interest in any real or personal property which is part of the estate of any bankrupt, and which after the execution of inch deed, conveyance, assignment, surrender, admission, or other assur- ance, either at law or in equity, is or remains the estate of the bankrupt or of the trustee under the bankruptcy, and every power of attorney, proxy paper, writ, order, certificate, affidavit, bond, or other instrument or writing relating solely to the property of any bankrupt, or to any pro- ceeding under any bankruptcy, shall be exempt from stamp duty (except in respect of fees under this act)" (a), (.«) As to fees in bankruptcy, seejwrt, Chap. XVI I. D. VOL. IX. P ( 210 ) CHAPTER II. GENERAL PROVISIONS AND RULES RELATING TO THE PRACTICE IN BANKRUPTCY. § 1. — Computation of Time. § 2. — Sittings of the Court. § 3. — Appearance of Parties by Attorney or Agent. § 4. — Mode of applying to the Court. § o. — Affidavits. § 6. — Mode of giving Security when required. § 7. — Service and Execution of Process. § 8. — Evidence. § 9. — Witnesses. Before proceeding to treat of the various steps in bankruptcy, it is desirable to bring together a variety of provisions and rules relating to the practice in bankruptcy, of general application, and not peculiar merely to one stage. § 1 . — Computation of Time. With respect to the computation of time, " The Bankruptcy Act, 1869," enacts that — Sect. 114. "Where by this act any limited time from or after any date or event is appointed or allowed for the doing of any act or the taking of any proceeding, then in the computation of such limited time the same shall be taken as exclusive of the day of such date or of the happening of such event, and as commencing at the beginning of the next following day ; and the act or proceeding shall be done or taken at latest on the last day of such limited time according to such computation, unless such last day is a Sunday, Christmas Day, Good Friday, or Monday or Tuesday in Easter Week, or a day appointed for public fast, humilia- tion, or thanksgiving, or a day on which, in pursuance of a notification by the lord chancellor under this act, the court does not sit, in which case any act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being one of the days in this section specified. " Where by this act any act or proceeding is directed to be done or taken on a certain day, then if that day happens to be one of the days SITTINGS OK THE COURT. 211 in this section specified, such act or proceeding shall be considered as PartVii. done or taken in due time if it is done or taken on the next day after- Chap - h - wards, not being one of the days in this section specified." § 2. — Sittings of the Court. Under the head of " Sittings of a County Court," "The Bank- ruptcy Rules, 1870," provide that — Rule 204. " The place of sitting of each county court in matters of bankruptcy shall be the town in which the court now holds or may here- after hold its sittings for the common law business of the court, under the provisions of 'The County Courts Act, 1846'" (a). Rule 205. " The times of the sitting of each county court in matters of bankruptcy, shall be those appointed for the transaction of the general business of the court, unless the judge of any such court shall otherwise order, and shall appoint a special day or days for a sitting of the court in matters of bankruptcy" (b). Sittings in Chambers.] — " The Bankruptcy Rules, 1870," provide that — Rule 5. " Any matter may be heard and disposed of in chambers by a judge or registrar, except the public examination of the bankrupt under section 19 of the act, and the granting an order of discharge." Rule 6. " Where the judge or registrar shall be of opinion that any matter ought to be heard and disposed of in open court, or all the con- tending parties shall require any matter to be so heard and disposed of, such matter shall be so heard and disposed of, or if part heard shall be adjourned for the purpose of being further heard and disposed of in open court." § 3.— Appearance of Parties by Attorney or Agent. Right to appear by Attorney without Cou?isel.] — " The Bank- ruptcy Act, 1869," enacts that — Sect. 70. " Every attorney and solicitor of the superior courts shall be, solicitors of and may practise as a solicitor of, and in the Court of Bankruptcy, and Court of in matters before the chief judge or registrars, in the London Court ^"practise of Bankruptcy, in court or in chambers, may appear and be heard in Bauk- without being required to employ counsel ; and if any person not being ru P tc y Court - such attorney or solicitor practises in the Court of Bankruptcy as attorney or solicitor, he shall be deemed guilty of a contempt of the court." Although parties are not compelled to employ counsel, motions by the bar have precedence over those by attorneys (c). Agents of Corporations.] — A corporation may prove a debt, (a) See ante, Vol. I. pp. 10—13. (c) See Rule 57, post, p. 213. (J) Ibid. p2 212 GENERAL PROVISIONS AND RULES IN BANKRUPTCY. Part vii. vote, and otherwise act in bankruptcy, by an agent duly authorized , Chap - 11 - under the seal of the corporation (d). Re-presentation of Creditors.'] — "A creditor may in the pre- scribed manner, by instrument in writing, appoint a person to represent him in all matters relating to any debtor or his affairs in which a creditor is concerned in pursuance of this act, and such representative shall thereupon, for all the purposes of this act, stand in the same position as the creditor who appointed him" (e). Voting by Proxy.] — Votes at meetings of creditors may be given by proxy (/). § 4. — Mode of applying to the Court. "The Bankruptcy Rules, 1870," contain the following rules under the general head of " Motions and Practice" : — Applications to be by Motion supported by Affidavit.] — Rule 50. " All applications to the court in the exercise of its primary jurisdiction by virtue of the act, shall (unless otherwise provided or the court shall in any particular case otherwise permit) be by way of motion, supported by affidavit, upon hearing which the court shall make such order therein as shall be just ; but in cases in which any other party or parties than the applicant are to be affected by such order, no such order shall be made, unless upon the consent of such person or persons duly shown to the court ; or upon proof that notice of the intended motion and copy of the affidavit in support thereof has been served upon the party or parties to be affected thereby four clear days at least before the day named in such notice as the day when the motion is to be made : provided, however, that the court may, if it shall think fit, in any case where the party or parties to be affected by the order, or any of them, shall not have been duly served with a notice of the motion for such order, make an order calling upon the party or parties to be affected thereby to show cause, at a day to be named by the court in such order, why such order should not be made." Service of Orders to show Cause and Notices of Motion.] — ■ Rule 51. " Every order to show cause shall be served upon the party or parties to be affected thereby four clear days at the least before the day appointed for showing cause." 52. " In cases in which personal service of any notice of motion, or of any rule or order of the court, is required, the same shall be effected, in the ease of a notice of motion, by delivering at any time to the party or parties to be served, and each of them, a duplicate of the notice of motion ; and in the case of a rule or order by delivering to the party (d) 32 & 33 Vict. c. 71, s. 80, (8). See the entire section, post, subs. (7). See the entire section, p. 244, note. post, p. 244, note. (/ ) 32 & 33 Vict. c. 71, s. 16. See 0) 32 & 33 Vict. c. 71, s. 80, subs, post, Chap. VII. MODE OF APPLYING TO THE COURT. 213 or parties to be served, and each of them, a sealed copy of the order or Paktvii. rule." CHAf - "■ 53. " Notices of which substituted service may be made (otherwise than by post or advertisement) shall be served between the hours of eight o'clock in the forenoon and nine o'clock in the afternoon." Filing Affida v its . ] — Rule 54. "Every affidavit to be used in obtaining, supporting, or opposing any motion or order for showing cause for or against any order or rule of court, shall be filed with the registrar two days before the day appointed for the hearing ; and no affidavit in reply or in rejoinder is to be used except by leave of the court." 55. " The registrar, upon any affidavit being left with him to be filed, shall indorse the same with the day of the month and year when the same was so left, and forthwith file the same, with the proceedings to which the same relates, and any affidavit left with a registrar to be filed, shall on no account be delivered to any person whatever, except by order of the court." Notes of Motions.] — Rule 56. " A short note of every motion shall be delivered to the registrar previous to the public sitting of the court, specifying the bank- ruptcy or other matter to which the same relates, the name of the party on whose behalf the same is made, the name and residence of the attorney of such party and of the counsel, if the same be made by counsel, and the name of any party, and the name and residence of his attorney, on whom any notice of such motion has been served." Order in which Motions are heard.] — Rule 57. " Except in cases of emergency all motions shall be made and heard in the order in which they are set down, at the sitting of the court, but motions by the bar shall be heard in precedence to those by attorneys." — ♦ — § 5. — Affidavits. The rules requiring applications to the court to be supported by affidavit has been given under the preceding head (§4). "The Bankruptcy Rules, 1870," comprise the following rules under the head of "Affidavits." Form of Affidavits.] — Rule 151. "All affidavits to be used in evidence on motions to the court shall be divided into short paragraphs, numbered consecutively, and shall be in the first person." 1 52. •• Every such affidavit shall state the deponent's name, address, and description, and also what facts or circumstances deposed to are within his knowledge." 153. " Where any such affidavit is made by more than one person, the names of all the persons making the affidavit, and the dates when and the places where it is sworn shall be inserted in the jurat." 214 GENERAL PROVISIONS AND RULES IN BANKRUPTCY. Part vii. 154. " Any such affidavit not in conformity with the last three pre- Chap - ]I - ceding rules may be rejected by the court." 155. "An affidavit in which there is any erasure, or which is blotted so as to obliterate any word, or which is illegibly written, or so altered as to cause it to be illegible, or in which there is any interlineation, not duly authenticated by the person before whom it was sworn, may be rejected by the court." 156. "Where an affidavit is made by any person who is blind, or who from his signature or otherwise appears to be illiterate, the person before whom the affidavit is sworn shall state in the jurat that the affidavit was read over to the deponent, and that the deponent appeared to understand the same, and made his mark or wrote his signature thereto in the presence of the person before whom the affidavit is sworn." Before whom Affidavits to be sioorn.~\ — Rule 157. " Any affidavit used in any matter of bankruptcy may be sworn as follows : — (1.) In the United Kingdom, before a court having jurisdiction in bankruptcy or a judge thereof or an officer thereof authorized to administer oaths in that court, or before a person authorized to administer oaths in any of the superior courts of law or equity, or before a justice of the peace for the county or place where it is sworn or made, and in case of proof of debts, before the trustee of the property of the bankrupt. (2.) In any place in the British dominions out of the United Kingdom, before any court, judge, or justice of the peace, or any person authorized to administer oaths there in any court. (3.) In any place out of the British dominions, before a British minister, consul, vice-consul, or notary public, or before a judge or magistrate, his signature being authenticated by the official seal of the court to which such judge or magistrate is attached." It is to be observed that " affidavit" includes statutory declara- tions, affirmations, &c. ; see rule, ante, p. 207 (note). § 6. — Mode of giving Security when required. Security to be by Bond.~\ — "The Bankruptcy Rules, 1870," give the following rules under the head of " Security." Rule 158. " Where a person is required to give security, such security shall be in the form of a bond with one or more surety or sureties to the person proposed to be secured." 159. " The bond of any person other than a trustee shall be taken in a penal sum to the amount of double the sum in question up to the sum of 1,000Z. ; and where the sum in question exceeds 1,000Z. in the sum of l,000f. beyond such sum, unless, in either case, the opposite party con- sents to it being taken for a less sum." Deposit in lieu of Bond.~\ — Rule 160. "Where a person is required to give security he may, ia lieu thereof, deposit with the registrar a sum equal to the sum in ques- MODE OF GIVING SECURITY WHEN REQUIRED. 21. tion in respect of which security is to be given, and the probable costs Part vir. of the trial of the question, together with a memorandum to be approved Chap ' of by the registrar, and to be signed by such person, his attorney, or agent, setting forth the conditions on which the money is deposited." 161. " The security of a guarantee association or society may be given in lieu of a bond or a deposit." Notice of proposed Sureties. "\ — Role 162. "In all cases where a person proposes to give a bond by wav of security, he shall serve, by post or otherwise, on the opposite party, and on the registrar, at his office, notice of the proposed sureties, according to the form set forth in the schedule ; and the registrar shall forthwith give notice to both parties of the time and place at which he proposes that the bond shall be executed, and shall state in the notice, that should the proposed obligee have any valid objection to make to the sureties, or either of them, it must then be made." Justification J] — Rule 163. "The sureties shall make an affidavit of their sufficiency according to the form in the schedule, unless the opposite party shall dispense with such affidavit, and such sureties shall attend the court to be cross-examined if required." Execution of Bond '.] — Rule 164. "The bond shall be executed and attested in the presence of the registrar, or before a justice of the peace, or an attorney." Notice of Deposit.~\ — Rule 165. "Where a person makes a deposit of money in lieu of giving a bond, the registrar shall forthwith give notice to the person to whom the security is to be given of such deposit having been made." § 7.— Service and Execution of Process. Service in general.'] — " The Bankruptcy Rules, 1870," com- prise the following provisions: — Rule 58. " Unless otherwise directed or permitted by these rules, it shall be the duty of a high bailiff to serve all orders, summonses, peti- tions and notices ; to execute all warrants and processes ; to attend all sittings of the court (except sittings in chambers); to prepare and cause to be inserted in the London Gazette and newspapers, all advertisements and notices, and to do and perform all such things as may be required of him by the court or trustee." 14. "AH notices and other proceedings, for the delivery of which no special mode is prescribed, may be sent by prepaid post letter to the last known address of the person, to be served therewith." Arrests, Commitments.] — Rule 176. "A warrant of seizure, or a search warrant, or any other Sect 99. 216 GENERAL PROVISIONS AND RULES IN BANKRUPTCY. Part VII. Chap. II. warrant issued under the provisions of the act, shall be addressed to such officer of the London Court of Bankruptcy, or to such high bailiff of any county court, whether such county court has jurisdiction in bank- ruptcy or not, as the court may in each case direct " (g). Committal for Contempt."] — Rule 178. "An application to the court to commit any person for contempt of court shall be supported by affidavit, and be filed in the court in which the proceedings are." 179. " Upon the filing of such application the registrar shall fix a time and place for the court to hear the application, and shall issue a notice to be served by an officer or high bailiff of the court personally on the person sought to be committed, three days at the least before the day of hearing the application, unless the court shall, by order upon good cause shown, direct service of the notice to be made in some other manner, in which case it shall be served together with a copy of the order in the manner so directed." Evidence of proceedings in bank- ruptcy. Death of witness. § 8. — Evidence. " The Bankruptcy Act, 1869," enacts that— Sect. 107. " Any petition or copy of a petition in bankruptcy, any order or copy of an order made by any court having jurisdiction in bank- ruptcy, any certificate or copy of a certificate made by any court having jurisdiction in bankruptcy, any deed or copy of a deed of arrangement in bankruptcy, and any other instrument or copy of an instrument, affi- davit, or document made or used in the course of any bankruptcy pro- ceedings, or other proceedings had under this act, may, if any such instrument as aforesaid or copy of an instrument appears to be sealed with the seal of any court having jurisdiction (/<), or purports to be signed by any judge having jurisdiction in bankruptcy under this act, be receivable in evidence in all legal proceedings whatever." Sect. 108. " In case of the death of the bankrupt or his wife, or of a witness whose evidence has been received by any court in any proceed- ing under this act, the deposition of the person so deceased, purporting to be sealed with the seal of the court, or a copy thereof purporting to be so sealed, shall be admitted as evidence of the matters therein de- posed to." Mode of taking Evide?ice.] — " The Bankruptcy Rules, 1870," provide that — Rule 49. " The court may in any matter take the whole or any part of the evidence either viva voce, or by interrogatories, or upon affidavit, or by commission abroad." See also s. 75 of " The Bankruptcy Act, 1869," ante, p. 205. (ff) As to enforcing orders and •warrants out of England, see ss. 73 & 76 of " The Bankruptcy Act, 1869," ante, p. 205. (/i) See as to the seal of the court, sect. 109, ante, p. 207. .» witnesses. 217 § 9.— Witnesses. oJX.7l "The Bankruptcy Rules, 1870," contain the following provisions under the head of " Witnesses" : — Rule 166. "A subpoena for the attendance of a witness capable of Sects. 65, 66 giving evidence concerning any matter in the court, before or after a,ld96 - adjudication, shall be issued by the court at the instance of a trustee, a creditor, a debtor, or any respondent in any matter, with or without a clause requiring the production of books, deeds, papers and writings in his possession or control, and in such subpoena the name of only one witness shall lie inserted. A subpoena may be issued in blank as at common law." 1G7. "A sealed copy of the subpoena shall be served personally on the witness by the person at whose instance the same is issued, or by his attorney, or by an officer of the court, within a reasonable time before the time of the return thereof." 168. l> Service of the subpoena shall, where required, be proved by affidavit." 169. " The court may in any matter limit the number of witnesses to be allowed on taxation of costs, and their allowance for attendance shall in no case exceed the highest rate of the allowances mentioned in the scale in the schedule" (/). 170. "The costs of witnesses, whether they have been examined or not, may, in the discretion of the court, be allowed." The following form of summons to a witness, is provided in the schedule to the rules : — No. 75. Subpama or Summons to Witness in County Court. " The Bankruptcy Act, 1869." In the County Court of , holden at In the matter of a bankruptcy petition against A. B., of [or in the matter of A. B., of" , a bankrupt]. To A r . F., of You are hereby required to attend at the court house in on the day of , in the noon to give evidence in the above matter [add where issued at instance of petitioning creditor on be- half of C. D., of , by whom the said petition has been presented], and then and there to have and produce [state any particular documents required] ; hereof fail not at your peril. Dated this day of , 187 . Registrar. (0 Seejfost, Chap. XVIII. ( 218 ) CHAPTER III. OF THE CIRCUMSTANCES UNDER WHICH A PERSON IS LIABLE TO BE MADE A BANKRUPT. § 1. — The Principles of the Law in reference to Persons liable to be adjudged bankrupts. § 2. — The general Circumstances under which Bankruptcy can be enforced. § 3.— Of Traders. § 4. — Who mat be adjudicated Bankrupt. § 5. — Who may petition. § 6. — The Petitioning Creditor's Debt. § 1. — The Principles of the Law in reference to Persons liable to be adjudged Bankrupt. Formerly a bankrupt was defined to be " a trader who secretes himself, or does certain other acts, tending to defraud his cre- ditors" (a). Blackstone says, that the laws of bankruptcy were considered as laws calculated for the benefit of trade, and founded on the principles of humanity as well as justice, and to that end they conferred some privileges, not only on the creditors, but also on the bankrupt or debtor himself. " On the creditors, by compelling the bankrupt to give up all his effects to their use, without any fraudulent concealment; on the debtor, by exempting him from the rigor of the general law, whereby his person might be confined at the discretion of his creditor, though in reality he lias nothing to satisfy the debt ; whereas the law of bankrupts, taking into consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they sur- render up their whole estate to be divided among their cre- ditors" (i). And further the same writer says, that in order that prodigality and extravagance should not be encouraged by that indulgence to debtors, the benefit of the laws of bankruptcy was not allowed to any but actual traders, because trade cannot be carried on without mutual credit, and the contracting of debts in (a) 2 Bla. Comm. 285, 471. (jb) Id. 472. PRINCIPLES OF TIIE LAW. 219 trade is, therefore, not only justifiable but necessary ; "and if by acci- Part vii. dental calamities, as by the loss of a ship in a tempest, the failure C " AP ' IH ' of brother traders, or by the non-payment of persons out of trade, a merchant or trader becomes incapable of discharging his own debts, it is his misfortune and not his fault" (c). This statement, however applicable to the theory of the bank- ruptcy laws in the days of Black-tone, does not represent the original legislation. The statute 34 & 35 lien. 8, c. 4, which is the real foundation of the whole system of the bankrupt law ()• Married lVomcn.~\ — Married women are not in general liable to be adjudged bankrupt, but a wife who is a sole trader, accord- ing to the custom of London, is liable (q). Privilege.] — " The Bankruptcy Act, 1869," enacts that — Sect. 120. " If a person having privilege of parliament commits an act of bankruptcy he may be dealt with under this act in like manner as if he had not such privilege" (r). Part VII. Cbap. III. 0>) 2 Bla.Comm. 477, citing R. v. Cole, Ld. Raym. 443; 12 Mod. 243; Holt, 360; Ex parte Sydcbotham, 1 Atk. 146. (q) See Christian's Bankrupt Law, vol. 1, 2nd edition, pp. 69 — 74, and cases there cited. See the Married "Women's Property Act, ante, Vol. I. pp. 509, 890. (r) It was held under the now repealed " Bankruptcy Act, 1861," that a peer of the realm enjoying the privilege of parliament and a non- trader, was subject to an adjudica- tion in bankruptcy, Duke of Niero- castle v. Morris (House of Lords), 40 L. J. (N. S.) Bank. 4. The fol- lowing sections of the " Bankruptcy Act, 1869," relate to the effect of bankruptcy on members of the House of Commons. 121. " If a person, being a member of the Commons House of Parliament, is adjudged bankrupt, he shall be and remain during one year from the date of the order of adjudication in- capable of sitting and voting in that house, unless within that time either the order is annulled or the creditors who prove debts under the bank- ruptcy are fully paid or satisfied. " Provided that such debts (if any) as arc disputed by the bankrupt shall ■be considered, for the purpose of this section, as paid or satisfied if within the time aforesaid he enters into a bond, in such sum and with such sureties as the court approves, to pay the amount to be recovered in any proceeding for the recovery of or concerning such debts, together with any costs to be given in such pro- ceedings." 122. "If within the time aforesaid the order of adjudication is not an- nulled, and the debts of the bankrupt are not fully paid or satisfied as aforesaid, then the court shall, im- mediately after the expiration of that time, certify the same to the speaker of the House of Commons, and there- upon the seat of such member shall be vacant." 123. "Where the seat of a member so becomes vacant the speaker during a recess of the house, whether by prorogation or by adjournment, shall forthwith, after receiving such certi- ficate, cause notice thereof to be pub- lished in the London Gazette; and after the expiration of six days after such publication shall (unless the House has met before that day, or will meet on the day of the issue) issue his warrant to the clerk of the crown to make out a new writ for electing another member in the room of the member whose seat has so be- come vacant." 124. "The powers of the Act of the twenty-fourth year of the reign of King George the Third, chapter twenty-six, ' to repeal so much of two art- made in the tenth and fifteenth years of the reign of his present majesty as authorise! the speaker of the House of Commons to issue his warrant to the clerk of the crown for making out writs for the election of members to serve in parliament in the manner therein mentioned; and for substituting other provisions for the like purposes,' so far as such powers enable the speaker to nominate and appoint other persons, beinp members of the House of Commons, to issue Privilege of parliament not to pre- vent adjudi- cation in bankruptcy. 224 CIRCUMSTANCES UNDER WHICH PERSON MADE A BANKRUPT. Part VII. c r ur Chap. III. § 5. WHO MAY PETITION. As a general rule any creditor to whom a debt of the requisite amount and quality is due may present a petition for adjudication against the debtor. As has been already stated, the debtor cannot now apply to be adjudicated a bankrupt (s). § 6. — The Petitioning Creditor's Debt. The Amount of the Petitioning Creditor's Debt .] — " The Bankruptcy Act, 1869," enacts, that "a single creditor, or two or more creditors, if the debt due to such single creditor, or the aggregate amount of debts due to such several creditors from any debtor, amount to a sum of not less than fifty pounds, may present a petition to the court" (t). The Nature of the Petitioning Creditor's DebtJ] — " The Bankruptcy Act, 1869," enacts, that " the debt of the petitioning creditor must be a liquidated sum due at kuv or in equity" (u). It must be a debt presently recoverable, for which an action or bill in equity would then lie ; and if not recoverable by reason of the stipulated credit not having expired at the time of the petition being filed, it is not a debt upon which to found the petition (#). Secured Debt.~\ — The petitioning creditor's debt "must not be a secured debt, unless the petitioner state in his petition that he will be ready to give up such security for the benefit of the cre- ditors, in the event of the debtor being adjudicated a bankrupt, or unless the petitioner is willing to give an estimate of the value of his security, in which latter case lie may be admitted as a petition- ing creditor to the extent of the balance of the debt due to him after deducting the value so estimated, but he shall, on an applica- tion being made by the trustee within the prescribed time after the date of adjudication, give up his security to such trustee for the benefit of the creditors, upon payment of such estimated value" (y). warrants for the making out of new speaker of the House of Commons writs during the vacancy of the office under sect. 122," but it is unnecessary of speaker, or during his absence out to encumber this work with it for the of the realm, shall extend to enable sake of the rare cases in which it can him to make the like nomination and be required in the county courts, appointment for issuing warrants, (s) See ante, p. 219. under the like circumstances and con- (t) See sect. 6, ante, p. 220. ditions, for the election of a member («) Id. p. 221. in the room of any bankrupt member (x) Ex parte Shirt, In re whose seat becomes vacant under this Pearcey, 41 L. J. (N. S.), Bankr. 12. act." (ij) " The Bankruptcy Act, 1869," The Bankruptcy Rules, 1870, give s. 6. See the entire section, ante, p. a form (No. 97) of "certificate to 220; see also rule 117, 2>ost, Chap. XII. THE PETITIONING CREDITORS DEBT. 225 The Date of the Petitioning Creditor's Debt.] — It has always PartVH. been the law in bankruptcy, that the petitioning creditor's debt Cm * p " hi " must have an existence at the time of the commission of the act of bankruptcy, and "The Bankruptcy Act, 1869," made no altera- tion in the law in this respect (z). This doctrine is founded upon the manifest injustice and absurdity that would follow if a man who did any one of the acts which are called acts of bankruptcy, and who subsequently satisfied all his then creditors, should, on account of that act, be made a bankrupt by a subsequent creditor (a). In the case of a debt consisting of a bill of exchange or pro- Biiisotex- missory note, it must be proved that the acceptance, or the issue in promusory fact of the instrument, took place before the act of bankruptcy, notes. and the instruments themselves do not show the period of indorse- ment or acceptance (b). Where a bill was accepted by the bankrupt before the act of bankruptcy, but the drawer's name was in blank, and no name of a drawer was inserted or value given for the bill until after the act of bankruptcy; it was held, that there was no debt in existence capable of supporting the adjudication (c). "The Bankruptcy Act, 1869," enacts that — Sect. 118. " No person, not being a trader, shall be adjudged a bank- Saving as to runt in respect of a debt contracted before the date of the passing of debts con- 'The Bankruptcy Act, 1861.'" (r) Ex parte Hay war A <$' Batten, In re J lay ward, 40 L. J. ( N. S.) Bankr. 19. Although always the law, there was a clear misappre- hension of it for some time, the House of Lords (acting, however, on the opinion of the judges), having erroneously decided in the teeth of it, in De Gols v. Ward, 4 Brown's Par. Ca. 327; but the law was set right in Beardmore v. Shaw, 1 N. R. 266, and other cases ; a statement that De Gols v. Ward was decided in reference to repealed statutes, being seized hold of to avoid the necessity for regarding it as an authority. Mr. Christian says, " The case of De Gols v. Ward has many a day perplexed me when a student, as I was not then so presumptuous as to conclude that to August, 1861. the eleven judges could have fallen into such an error." See Christian's Bankrupt Laws, 2nd edition, Vol. I. pp. 403—415. (a) Judgment of Mellish, L. J., in Ex parte Hay ward, supra. (b) Judgment of James, L. J., in Ex parte J/ai/ward ) 1 Smith's Leading Cases, note (»i) This rule was first laid down by to Tmyne's Case. Although these Lord Mansfield in Worsley v. .De- rules were laid down in reference to mattos,l Burr. 4G7 (Law v. Shi nner, a former Bankruptcy Act, they are 2 W. Bla. DDG, is erroneously stated in equally applicable to the present, see 12 C. B. Rep. 1)4, to be the first case, the text, ante, p. 227. See judgment of Willes, J., in Lo- (/') See this statute, ante, Vol. 1, max v. Fisher, 40 L. J. (N. S.) p. 891. C. P. 152, and the note to Tn-yne's (It) See Doe d. Grimsby v. Ball, Case, 1 Smith's L. C, 5th edit., 11 M. & \V. 5151; and the judgment pp. 11), 20). As late cases on the of Lord Wenslcvdale in Billiter v. rule in the text, see Lindon v. Sharp, Young, 6 B. & B. 17. 6 M. & G. 895 ; 7 Scott, N. R. 730 ; (7) Although the particular act of Button v. Cruttn-ell, IE. & B. 15 ; bankruptcy under consideration, as 22 L. J. (N. S.) Q. B. 78; Young v. defined by sect. G of the act, subs. Waud, 8 Ex. Rep. 221; Bittlestone (2), is not confined to traders, yet v. Cooke, G E. & B. 29(! ; Hale v. because (as stated in the text) the Allnntt, 18 C. B. Rep. 505 ; Belly. fraud is not confined to actual fraud, Simpson, 2 H. & N. 410; Harris V. it is not safe to leave out the element Jtickctt, lll.&N. 1. of trade altogether, as constructive (n) Smith v. Cannan, 2 E. & B. fraud may to some extent be said to 35. FRAUDULENT CONVEYANCE. 229 such a case the party seeking to make it an act of bankruptcy must Pa » t y iJ- prove some other fact besides the mere deed, which would satisfy Chap - iv - , a jury that the deed was intended to be a fraud on the creditors. Further: inasmuch as money is the measure of all things, or, as it may be put in other words, inasmuch as a person having money can purchase with it other things, when a trader assigns all his property, not for a past debt but for a present advance of money which he can apply to his own use, it has been considered that the transaction stands on the same footing as if there were a substantial exception of property from the assignment, and, therefore, it is not necessarily an act of bankruptcy (o). A conveyance of all a man's property for a past debt to one creditor has, however, always been held to be a fraudulent con- veyance within the bankruptcy laws, and is so still, even although pressed by the particular creditor to make the transfer, and there is no distinction in this respect between a trader and a non- trader (p). But a bill of sale of all the debtor's property, with a substantial exception of some farming stock, in consideration partly of a past debt, and partly of a fresh advance to pay off an importunate credi- tor (no part of the money reaching the debtor's hands), was held not to be an act of bankruptcy (q). § 3. — Absenting and beginning to keep House. The third class of acts constituting acts of bankruptcy is thus described in sect. 6, sub-sect. (3). " That the debtor has, with in- tent to defeat or delay his creditors, done any of the following things, namely, departed out of .England, or being out of England remained out of England ; or, being a trader (r), departed from his dwelling-house, or otherwise absented himself; or begun to keep house ; or suffered himself to be outlawed" (s). (o) Judgment of Willes, J., Lomax it was held that it was clearly an act v. Jiuxton, 40 L. J. (N. S.) C. P. 151, of bankruptcy. 162. (y) Lomax v. Jiuxton, 40 L. J. (/;) Ex parte Liioiee, Jn re Wood, (X. S.) C. P. 150. The principle of 41 L. J. (N. S) Bankr. 21; see also J/utton v. Cruttivell, 1 E. & B. 15; Ex parte Oaken, Re Sparhe, 41 L. 22 L. J. (N. S.) Q.B. 78, acted upon, J. (N. S.) Bankr. 17; where James, and Graham v. Chapman, 12 C. B. L. J., and Mellish, L. J., treated a Rep. 85; 21 L. J. (X. S.) C. P. 173, bill of sale, which was clearly invalid impugned. under sect. 91, as an act of bankruptcy. (r) For the definition of " trader," See sects. 91 and 92, poxt, Chap. XI. see ante, p. 221. § 7 & § 8. See also Jones v. Harper, (g) See sect. 6, ante, p. 220. These 40 L. J. (X. S.) Q. B. 59, which, acts of bankruptcy were those com- although decided under the former prised in the 84 & 35 Hen. 8, c. 4, the acts, was considered as applicable to earliest statute of bankruptcy, and sect. 6, subsect. (2 ) of the present act, have been continued in every act since, and where, although the transaction see ante, p. 219. was not void as against the assignees, 230 OF THE ACTS OF BANKRUPTCY. Part vii. As the departing or remaining out of England, or departing or Chap " iv " being absent from a dwelling-house, are in themselves perfectly innocent matters, it is necessary, in order to make them acts of bankruptcy, to prove by other evidence beyond the acts themselves, that they were done with an actual iutent to defeat or delay creditors ; so that if a case were tried by a jury as to whether a trader had committed an act of bankruptcy or not, the judge would leave to the jury, first — Had he done the acts ? Had he de- parted from his dwelling-house ? Had he remained abroad, or had he begun to keep house ? And secondly, had he done the act with intent to defeat or delay his creditors ? And if the jury found that he had not done the act to defeat or delay his creditors, then there was no act of bankruptcy. This class of cases, therefore, differs from the conveyance or transfer of property falling within the first and second classes of acts of bankruptcy, where the act involves or assumes the intent to defeat or delay the creditors (t). § 4. — Filing a Declaration of Inability to pay. The fourth act of bankruptcy specified is, " That the debtor has filed in the prescribed manner in the court a declaration admitting his inability to pay his debts" («). The following rule of the "Bankruptcy Rules, 1870," prescribes the manner : — Sect. 6. Rule 16. "A declaration by a debtor admitting his inability to pay his debts shall be dated, -signed, and witnessed according to the form in the schedule, and shall be filed in the London Bankruptcy Court, if the debtor shall reside or carry on business within the district of that court; Sect. 59. and where the debtor neither resides nor carries on business within the district of that court, it shall be filed in the court within the district of which the debtor resides or carries on business." The following is the form of declaration of inability to pay : — No. 1. " The Bankruptcy Act, 1869." Sect. 6. In the London Bankruptcy Court [or the county court of holden at ]. Rule 16. I, the undersigned A. B. of , do hereby declare that I reside [or carry on business] within the district of the above-mentioned court [or nilicri' filed in a cnunl)/ courts that I do not reside or carry on business within the district of the London Bankruptcy Court, but that I reside (0 See the judgment of Mellish, Wood, 41 L. J. (N. S.) Bankr. 23. L. J., in Ex 'parte Liichcs, In rt («) Sec sect. 6, ante, p. 220. EXECUTION AGAINST A TRADER. 231 [or carry on business] within the district of the above-mentioned court], £ ART VI ?• and that I admit that I am unable to pay my debts. HAP " — — Dated this day of 187 . Wita (Signed) A. B. (i. II., Registrar of the court, or L. M., attorney [adding addreu]. It is to be observed that filing a petition for arrangement by liquidation under section 12.5, the petition involving a declaration of inability to pay (x), is an act of bankruptcy withiu this fourth definition \y). — ♦— § 5. — Execution against a Trader. The fifth act of bankruptcy specified is "That execution issued against the debtor or any legal process for the purpose of obtaining payment of not less thau fifty pounds has in the case of a trader (z) been levied by seizure and sale of his goods" (a). See sect. 87, and its bearing on this act of bankruptcy, post, Chap. XL § 10. § 6. — Debtor's Summons. The following is the sixth and last of the acts of bankruptcy specified in the statute : — "That the creditor presenting the petition has served in the prescribed manner on the debtor a debtor's summons requiring the debtor to pay a sum due of an amount of not less than fifty pounds, and the debtor being a trader has for the space of seven days, or not being a trader has for the space of three weeks, succeeding the service of such summons, neglected to pay such sum, or to secure or compound for the same" (b). In respect of this act of bankruptcy "The Bankruptcy Act, 1869," enacts that— Sect. 7. "A debtor's summons may be granted by the court on a Proceedings creditor proving to its satisfaction that a debt sufficient to support a lu rt ; lati, ,' n * .•••II i . 1 • e xi • i_ xl a debtors petition in bankruptcy is due to him from the person against whom the gummons. summons is sought, ami that the creditor has failed to obtain payment of his debt, after using reasonable efforts to do so. The summons shall be in the prescribed form, resembling, as nearly as circumstances admit, a writ issued by one of' her Majesty's superior courts. It shall state that in the event of the debtor failing to pay the sum specified in the sum- fa-) See the form, post, Chap. XVI. (b) See "The Bankruptcy Act, § 5. 1 969," s. 6, ante, p. 220. The act of (y) Ex parte Duignan, lie J{is- bankruptcy dates from the expiration tell, 40 L. J. (N. S.) Bankr. 33; of the seven days or three weeks. affirmed on appeal. /ums] claimed of you by him [or them], according to the particulars hereunto annexed, for [state consideration], or shall compound for the same to his [or their] satisfaction, you will have committed an debtor's scmx- act of bankruptcy, in respect of which too may be adjudged a bankrupt. P*ar til on a bankruptcy petition being presented by the sai c«*». ir. unless you shall hare, within the time aforesaid, applied to the court to i this summons, on the ground that you are not indebted to him [or them] in the sum claimed, or that you are indebted to him [or them] in a sum less than fifty pounds. .-n under the seal of the court this da; 18 . .". .-'--..-I.-. /TE, That the consequences which will follow any neglect to comply with the requisitions contained in the summons, are that you may be adjudged a bankrupt on the petition of C. D. [and r should you not pay ompound with him [or them] for the sum claimed within seven r three weeks, at tht cane mag be] from the service of this sum- mons on you. . owever. you are not indebted to the said C- D. [and F. K-, «rc.j in the sum claimed, or are only indebted to him [or them] in a sum less than fifty pour, la, yon must make application to the court within the like numb-.- 1 mmons. by filing with the registrar an affidavit stating that yon are not so indebted, or only so to a less amount than fifty pounds, who will thereupon fix a day for the hearing r application. L. M.. attoraev suing oat this summons, e ar t hin g on business ■■>- l at This summons is sued out by C. D. [and F. rL. <£•<_•." in person. e Bankruptcy Re - ~ ' provide a form of debtors' sum- mons book to be kept by the registrar of a county court - -ice of Debtor s Summon4.~l — The following "Bnnknr - elate to the service of a debtor's summons or a bankruptcy petition : — Rul immons shall be personally served within twenty-one day, from the date of the summons, by delivering to the debtor a sealed copy of the summ i Rui bankruptcy petition shall be personally served seven days before the day of its hearing by delivering to the debtor a sealed copy of the filed pet:' Rule 61. " A debtor's summons or a petition shall be served upon the Sects. debtor by an officer or a bailiff of the court or by the creditor or his attorney : but ir" personal service cannot be effected, the court may _ extension of the time for service, or if the court is satisfied by affidavit that the debtor is keeping out of the way to avoid such service, h may order service to be made by delivery of the —■— *■»« or petition to some adult inmate at his usual or last known place of residence or business, or it may order, in the case of a summons, that a notice of the grar* _ summons, according to the form in the schedule, be gazetted, and that the publication of such notice in the Gazette shall be deemed to be vice on the debtor on the seventh day after such publication ; or in the (d) Form, Xo. 103. 236 OF THE ACTS OF BANKRUPTCY. Part vii. case of a petition, the court may order that a notice, according to the Chap, iv. f orm ; n the schedule, he gazetted, requiring the debtor to appear at the hearing of the petition on the day named, being not less than fourteen days after the publication of the notice, and that such notice shall be deemed to be served on the debtor." Rule 62. " Notice of the publication in the Gazette of the order of the court shall be given in one local paper according to the form in the schedule." Rule 63. " Service of the summons or petition shall be proved by affidavit with a sealed copy of summons or petition attached and filed in court forthwith after the service." Rule 64. " An application for extension of time for service of a debtor's summons or a petition shall be in writing, and need not be supported by affidavit, unless in any case the court shall otherwise require." Service out of the Jurisdictio?i of the Local District Court.~\ — Service out of the jurisdiction of the local court issuing the sum- mons is not expressly provided for. Nevertheless, the act con- tains the following regulation with respect to proceedings in bank- ruptcy: " Subject to the provisions of this act every court having original jurisdiction in bankruptcy shall be deemed to be the same court, and to have jurisdiction throughout England" (e). Service must be in England.^ — Neither the act nor the rules have expressly or by necessary implication enabled service to be made out of England either by the London or local courts ; and, therefore, the true construction is they were only intended to authorize service within it. Service, therefore, cannot be made in Ireland. No great injustice can result from this construction, for if a debtor, with intent to defeat or delay his creditors, has departed from England, or being out of England has remained out of Eng- land, that is an act of bankruptcy, and there is no occasion to resort to a debtor's summons. But if, on the other hand, the debtor's residence is out of England, the act intends to except such a case from its operation, as being one which ought to be dealt with by the courts of the country where the debtor resides (f). Questions of this kind, however, are not likely to arise often in local bankruptcy courts. No. 5. Affidavit of Sovice of Debtor's Summons. " The Bankruptcy Act, 1869." nuie 63. In the London Bankruptcy Court [or the county court of holden at j. In the matter of a debtor's summons by C. D. of [and F. K. of , &c] against A. B. of I, L. M. of , make oath and say: — 1. That I did, on the day of 187 , serve the above- mentioned A. B. with a copy of the above-mentioned summons, (r) See sect. 80, post, p. 244, note, 0' Loglden, 40 L. J. (N. S.) Bankr. and ante, p. 203. 28. (/) Ex parte O'Lnghlen, In re debtor's summons. 237 duly sealed with the seal of the court, by delivering the same personally PartVH. to the said A. B. CuAr - lv - Sworn at, &c. L. M. No. 6. Substituted Service of Debtor's Summons. Notice in Gazette. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Sect. 7. holden at ]. To A. B. of In the matter of a debtor's summons issued against you by C. D. Rule 61. of [and P. K. of , &c] Take notice, that a debtor's summons having been granted against you by this court, the court has ordered that the publication of this notice in the London Gazette shall be deemed to be service of such summons on you on the seventh day after such publication. The summons can be inspected by you on application to this court. Dated this day of 187 . Registrar. No. 7. Substituted Service of Debtor's Summons. Notice in Local Paper. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Sect. 7. holden at ]. To A. B. of In the matter of a debtor's summons issued against you by C. D. Rule 61. of [and F. K. of , &c] Take notice, that a debtor's summons having been granted against you by this court, the court lias ordered that the publication of a notice of the granting of the summons in the London Gazette shall be deemed to be service on you of such summons on the seventh day after such publication. The summons can be inspected by vou on application to this court. Dated this day of 187 . Registrar. Application to dismiss the Summons.^ — It will be seen that the debtor may apply to the court to have the summons dismissed on two grounds, and those only, viz., that he is not indebted at all, or that he is not indebted to the amount required. On such appli- cation the court, however, may allow the debtor to ask (hat, on his giving security, the proceedings maybe stayed pending the trial of the question whether the debt is really due. I* nder the above provisions, therefore, proceedings cannot be Stayed on any other ground, as that there is some supposed equity interfering with the creditors setting up the debt ; although any such equity, if existing, may bo available when the application for an adjudication comes to be considered {g). (j) Ex parte Ellis, Re Kuin, 40 L. J. (N. S.) Bankr. 77. 238 OF THE ACTS OF BANKRUPTCY. Part vii. No. 8. Affidavit on Application to dismiss Debtor's Summons. In the matter of a debtor's summons by C. D. [F. K., &c] against Sect. 7. A. B. I, A. B. of , make oath and say : — Rule 19. That I am not indebted to C. D. [and F. K., &c] in the [aggregate] amount of the sum claimed in the summons [or that I am only indebted to C. D. [or F. K. or G. H.] in the sum of being part of the sum claimed in the summons, or that I am not indebted to C. D. [and P. K., &c] in such an [aggregate] amount as will justify him [or them] in presenting a bankruptcy petition against me]. Sworn, &c. (Signed) A. B. No. 9. Order on Application to dismiss Debtor's Summons. " The Bankruptcy Act, 1869." Sect. 7. In the London Bankruptcy Court [or the county court of holden at j. In the matter of a debtor summons by C. D. against A. B. Upon the application of A. B. to dismiss this summons and upon read- ing the affidavit of A. B., and upon hearing C. D. (if present), it is ordered that this summons be dismissed [and that the said C. D. (or as the case may be) shall pay to the said A. B. the sum of for costs], \or that the said A. B. enter into a bond in the penal sum of [double the alleged debt] with such two sufficient sureties as the court shall approve of to pay [or deposit with the registrar the sum of as security for the payment of] such sum or sums as shall be recovered by C. D. [or as the case may be~\ against the said A. B. in any proceedings taken or continued against him for the recovery of the demand mentioned in such summons, together with such costs as shall be given by the court in which such proceedings are had. And it is further ordered that all proceedings on this summons shall be stayed until the court in which the proceedings shall be taken shall have come to a decision thereon]. Given under the seal of the court this day of 187 . By the court, Registrar. When the debt is paid although after the seven days or three Weeks, the act of bankruptcy committed at the expiration of the time mentioned in the debtor's summons, ceases to be an act of bankruptcy on which the debtor can be adjudicated a bankrupt, and therefore the creditor may safely receive payment of his debt, for although he necessarily had notice of the act of bankruptcy committed by nonpayment, the consequence of 1'eceiviug the amount afterwards, does not place him in the dilemma of receiving the amount, and having to refund it in the event of a subsequent adjudication by another creditor (on the ground that the title of the trustee relates back to the prior act of bankruptcy) ; for on the dehi ceasing by the act of payment, the act of bankruptcy also ceases (h). (h) See judgment of Mdlish, L. J., Ex parte Weir, In re Weir, 41 L. J. (N. S.) Bonkr. 14. fbockedingfi dndbb tiik absconding debtobs act, 1870. 239 § 7. — Pkockkdings under "The Absconding Debtors Act, chTp iv 1870." ~ The provisions of "The Absconding Debtors Act, 1870" (33 & 34 Yici. c. 76), although intimately and essentially connected with the act of bankruptcy by debtors summons, require to be noticed under ■ distinct head. That act reciting that ' 4 the laws now in force for the arrest of debtors absconding from England ait.- insufficient for that purpose, and w hereas frauds may be perpetrated upon creditors by insol- vent debtors departing for distant countries before the necessary proceedings can be taken to make them bankrupt," enacts — Sect. 1. u That the provisions of the 'Bankruptcy Act, 1869,' be ex- Provisions of tended in manner following : the court may, by warrant addressed to ^ a ? k , r £P,! cy ii • > 7 /*• -l -ii i Act, loby, any constable or prescribed officer ot the court, cause a debtor to be extended, arrested and safely kept as prescribed until such time as the court may order, if, after a debtor's summons lias been granted in the manner pre- scribed by the said act. and before a petition of bankruptcy can be pre- sented against him, it appears to the court that there is probable reason for believing that he is about to go abroad, with a view of avoiding payment of the debt tor which the summons has been granted, or of avoiding service of a petition of bankruptcy, or of avoiding appearing to such petition, or of avoiding examination in respect of his affairs, or otherwise avoiding, delaying, or embarrassing proceedings in bank- ruptcy: provided alwavs, that nothing herein contained shall be con- strued to alter or qualify the right of the debtor to apply to the court in the prescribed manner to dismiss the said summons as in the said act is provided, or to pay, secure or compound for the said debt within the time by the said act provided without being deemed to have committed an act of bankruptcy ; and provided also, that upon any such payment or composition being made for such security offered as the court shall think reasonable, the said debtor shall be discharged out of custody, unless the court shall otherwise order." Sect. 2. "No arrest shall be valid or protected under this act unless When arrest the debtor before or at the time of his arrest shall be served with the uotvalid - debtor's summons." Beet •"-. " No payment or composition of a debt made or security for security f..r the same given after an arrest made under the provisions ot' this act 'J u ^Vtm'-.'t shall lie exempted from the provisions of the said act, relating to fraudulent preferences." Sect. 4. "The terms used in this act shall have the same meaning as Construction they have in the said recited act, and this act shall be read and construed of lerm3 - therewith.*' Elect 5. "The costs and fees to be charged in respect of anv proceed- Costs and iiiL r s authorized shall be prescribed in the like manner in which costs ^*" and fee- to lie charged in respect of proceedings under the 'Bankruptcy Act, 1869,' are respectively directed by that act to be prescribed."' 240 OF THE ACTS OF BANKRUPTCY. Part VII Chap. IV.' § 8. THE I IME WITHIN WHICH ACTS OF BANKRUPTCY MUST BE COMMITTED. "The Bankruptcy Act, 1869," s. 6, enacts, that no person shall be adjudged a bankrupt on any of the grounds mentioned in the act " unless the act of bankruptcy on which the adjudication is grounded has occurred within six months before the presentation of the petition for adjudication" (/). Where the alleged act of bankruptcy is a debtor's summons and neglect to pay under sub-sect. (6) of sect. 6 of the act, the act of bankruptcy dates from the expiration of the time (seven days or three weeks as the case may be), although proceedings on the summons have been stayed under sect. 7, beyond that time (k). (i) See the section, ante, p. 220. the computation of time, see ante, (k) Ex parte Weir, In re Weir, p. 210. 41 L. J. (N. S.) Bankr. 14. As to ( 241 ) CHAPTER V. THE PETITION IN BANKRUPTCY. § 1. — The Presentation of the Petition. § 2. — Verification of Petition. § 3. — Service of Petition. § 4. — Notice by Debtor of Intention to dispute Petition. § o. — Restraint of Actions and Legal Proceedings after Petition'. § 6. — Appointment of Receiver or Manager after Petition. § 1. — The Presentation of the Petition. The mode of proceeding to obtain an adjudication of bankruptcy is by presenting a petition to tbe court, praying that the debtor be adjudged a bankrupt, and alleging one or more "acts of bank- ruptcy" as the ground for such adjudication (a). Cost of Proceedings in the first instance.'] — "The Bankruptcy Rules, 1870," direct that— Rule 31. " The petitioning creditor shall, at his own costs, file and prosecute his petition and the proceedings under any order of adjudica- tion made thereon, until the appointment of a creditors' trustee ; and the court shall make order for the payment of such costs out of the first net proceeds of the estate of the bankrupt." Where to be filed.] — "The Bankruptcy Rules, 1870," direct that— Rule 2G. "A bankruptcy petition shall be filed in the London Bank- ruptcy Court if the debtor resides or carries on business within the dis- trict of that court, and where the debtor neither resides nor carries on business within the district of that court, it shall be riled in the court within the district of which the debtor resides or carries on business." This rule is in accordance with sect. 59 of the act, which enacts, with respect to the court having jurisdiction in bankruptcy, that " if the person sought to be adjudged a bankrupt, being resident in England, do not reside or carry on business within the London Bankruptcy District Court, 'the court' shall, subject to the provi- O) See "The Bankruptcy Act, 18G9," s. G, ante, p. 220. D. VOL. II. B 242 THE PETITION IX BAXKIUF-TCY. Paktvii. sions hereinafter contained for removing the proceedings, mean CHAr - Y the county court of the district in which such person resides or carries ou business, hereinafter referred to as the local bankruptcy court " {/>). As to what constitutes a residence or carrying on business, see ante, Vol. I., p. 131. The Time for Presentation.] — The petition must be presented within six months of the occurrence of the act of bankruptcy, on which it is grounded (e). Presentation in the case of Partnerships.] — " The Bankruptcy Act. 1869," enacts that — Pwwrl - L 100. "Any creditor whose debt is sufficient to entitle him to V present a bankruptcy petition against all the partners of a firm may ooepamier! present such petition against any one or more partners of such firm without including the or - - :. 10'2. "Where one member of a partnership has been adjudicated • :obe a bankrupt, any other petition for adjudication against a member of the same partnership shall be tiled in or transferred to the court in which the first-mentioned petition is in course of prosecution, and. unless the court otherwise directs, the property of such last-mentioned member shall vest in the trustee appointed in respect of the property of the first- mentioned member of the partnership, and the court may give such directions for amalgamating the proceedings in respect of the properties of the members of the same partnership as it thinks just.*' By Company or Co-partnership.] — '"The Bankruptcy Bales. 1870," direct that— Rule 15. "A bankruptcy petition or debtor's summons, against any debtor to any copartnership duly authorized to sue and be sued in the name of a public officer or agent of such co-partnership, may be presented bv or sued out by such public officer or agent as the nominal petitioner or plaintiff for and on behalf of such co-partnership, on such public officer or agent filing an affidavit, according to the form in the sche- dule ('I), stating that he is such public officer or agent, and that he is authorized to present or sue out such petition or debtor's summons. Where a - titioner or plaintiff 1 , any affidavit in support of such petition or debtor's summons may be made by a director or other officer on its behalf." Identification of Petitioner.] — " The Bankruptcy Boles, 1870," provide that — Rub 28. •• Where a petitioning creditor is not known to the registrar of the court, or the petition shall not be attested by an attorney, the petition .-hall not be filed until the petitioner shall be identified to the n of the regL-trar." (ft) See sect. E 801 (rf) No form of affidavit is given (c) St ' "The Bankruptcy expressly for this purpose. Act, 1869," ante, p. 22 . THE PRESENTATION OP THE PETTTI 243 Appointment of Time and Place for hearing the Petition.'^ — '**- Rale ?A. - The registrar shall appoint the time and place on which ' the petition will be heard, and notice thereof shall be written on the petition and sealed copies, and where the petition has not been served the registrar may from time to time alter the first day so appointed, and appoint another da j and hour." Form of Petition."] — Sale 27. ■ Every petition shall be fairly written or printed, or partly sect. ». written and partly printed, on parchment or paper according to the form permitted without leave of the registrar, except so far as the same may be necessary in order to adapt the printed form to the circumstances of the particular ease ; and erery petition must be lodged, with two copies to be sealed and issued to the petitioner."' The rules provide a form of bankruptcy petition book, to be kept by the registrars of county courts (e). 10. Petition. "The B^.v-:;v A::. 188BL" To the London Bankruptcy Court [or the county court of :. . -:. .: ]. The humble petition of C D. of j* "... That A- B- lor where petition filed in other court than the London Court, That A. B. does not reside or carry on business within the dis- trict of the London Bankruptcy Court, but] resides [or carries on busi- ness] within the district of this court, that is to say, at [uuert the name of the place]. That the said A. B. is indebted to your petitioner [or petitioners hi the aggregate] in the sum of [tet out the amount of medebt[or debts] a : : • ' ' \- That your petitioner doth not nor doth any person or persons in his behalf hold any security on the bankrupt's estate, or on any part thereof I..- : .-. ] :.;■:.. :.: :':'-• - - '.'. • ::. ' -. T:. r. y _.- ; -:\\. :.-: :. '. ".- -, „:.:y for the payment of [or part of] toe said sum, or that C D_ one of your petitioners, holds security for the payment of the sum of , and E. F„ another of your petitioners, holds security for the payment of the sum of ], but that he [or they] will give up such* securiry [or securities] for the benefit of the creditors of A. B^ in the event of his being adjudged a bankrupt. [Or That your petitioner holds security for the payment of [or part of] :•" --..-!--: ::: .: :. -::.:-: -v.. . ; :-_.-- ;—:y~i: :- £ of : '.-/ That the said A. B. has committed an act [or acts] of bankruptcy within six months before the presentation of this petition, That the act [or net*] of bankruptcy committed by hiss was or were that [here tet out mparamb/ the oca of bankruptcy >]. (O * Bankruptcy Roles, 1870," Form, So. 102. : . .•: 244 THE PETITION IN BANKRUPTCY. Part VII. Chap. V. Rule 33. Your petitioner therefore humbly prays that on proof of the requi- sites in that behalf, on the hearing of this petition, the said A. B. may be adjudicated a bankrupt. And your petitioner shall ever pray, eic. CD. Signed on the day of , 187 , in the presence of Or. H., Registrar of the court, or L. M. attorney, &c. N.B. — Where necessary add an allegation that debtor is a trader. Where the petitioners are partners, one may sign it on behalf of himself and co -partners. The above petition having been presented to this court, on the day of , 187 , it is ordered that this petition shall be heard at on the day of , 187 , at o'clock in the noon. And you the said A. B. are to take notice, that should you intend to dispute the truth of any of the statements contained in the petition, you must file with the registrar of this court a notice, showing the grounds upon which you intend to dispute the same, and send by post a copy of the affidavit to the petitioner three days before the day fixed for the hearing. § 2. — Verification of Petition. " The Bankruptcy Act, 1869," euacts that every bankruptcy petition shall be accompanied by an affidavit of the petitioner in the prescribed form, verifying the statements contained in such petition {/). (/ ) 32 & 33 Vict. c. 71, s. 80. The section which relates to various matters is given here in its entirety: Sect. 80. "The following regula- tions shall be made with respect to proceedings in bankruptcy; namely, (1.) Every bankruptcy petition shall be accompanied by an affi- davit of the petitioner in the prescribed form, verifying the statements contained in such petition: (2.) Where two or more bank- ruptcy petitions are presented against the same debtor or againsl debtors being mem- bers <>!' the same partnership, the court may consolidate the proceedings, or any of them, upon Boch terms as the court thinks tit : (3.) 'Where proceedings against the debt"]' are instituted in more courts than one the London Court of Bankruptcy may, on the application of any creditor, direct the transfer of such proceedings to the London Court of Bank- ruptcy, or to any local bank- ruptcy court: (4.) "Where the petitioner does not proceed with due diligence on his petition the court may substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this act in the case of a petition- ing creditor: (5.) "Where the creditors resolve by a special resolution that it will be more convenient that the proceedings in any local bankruptcy court should be transferred to the London court or to some other local court, or where the judge of VERIFICATION OF PETITION'. 245 "The Bankruptcy Rules, 1870," direct that— Rule 32. " After the presentation of the petition, and before sealing tlir copies of the petition for service, the statements in the petition shall be carefully investigated, and where some of the statement- in the petition cannot be sworn to, witnesses may he summoned to prove the same." Rule 29. " When the petitioning creditor cannot himself verify all the statements contained in the petition, he must file in support of the petition the affidavit of any person who can depose to them." Rule ."'i'. "Where a petition is presented by two or more creditors not in partnership, each creditor must depose to the truth of such of the statements in the petition as are within his own knowledge, either in a joint or separate affidavit." No. 11. Affidavit of Truth of Statements in Petition. "The Bankruptcy Act, 18G9." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of a bankruptcy petition against A. B. of I, the petitioner named in the petition hereunto annexed, make oath [if the petitioner declare or affirm, alter the form accordingly] and say, Paiit vii. Chap. V. Sect. 8. a local court certifies that in his opinion the bankruptcy would be more advanta- geously conducted in the London court or in some other local court, and the creditors do not by resolution object to the transfer, the petition shall be transferred to and all subsequent pro- ceedings thereon had in the London court or such other local court: (6.) Subject to the provisions of this act, every court baring original j urisdiction in bank- ruptcy shall be deemed to be the same court, and to have jurisdiction throughout Eng- land; and cases may be trans- ferred from one court to an- other in such manner as may be prescribed: (7.) A coqmration may prove a debt, vote, and otherwise act in bankruptcj , by an agent duly authorised under the seal of the corporation : (8.) A creditor may, in the pre- scribed manner, by inurn- ment in writing, appoint a person to repr ese nt him in all matters relating to any debtor or his affairs in w Inch Sect. 80. a creditor is concerned in pursuance of this act, and such representative shall thereupon, for all the pur- poses of this act, stand in the same position as the creditor who appointed him: (0.) When a debtor who has been adjudicated a bankrupt dies, the conrt may order that the proceedings in the matter he continued as if he were alive : (10.) The court may, at any time, on proof to its satisfaction that proceedings in bank- ruptcy ought to be stayed, by reason that negotiations are pending for the liquida- tion of the affairs of the bankrupt by arrangement or for the acceptance of a composition by the creditors in pursuance of the provi- sions hereinafter contained, or on proof to its satisfac- tion of any other sufficient reason fur staying the same, make an order for staying the same, either altogether or for a limited time, on such terms and subject to such conditions as the court may think just 246 THE PETITION IN BANKRUPTCY. Part vii. 1. That the several statements in the said petition are within my own Chap a - knowledge true. Sworn at, &c. C. D. Note. — If the petitioner cannot depose that the truth of all the several statements in the petition is within his oxen knowledge he must set forth the statements the truth of which he can depose to, and fie a further affidavit by some person or persons who can depose to the truth of the remaining statements. No. 12. Affidavit of Truth of Statements in Petition. "The Bankruptcy Act, 1869." sect. so. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of a bankruptcy petition against A. B..of We, C. D., E. F., G. H., &c, the petitioners named in the petition hereunto annexed, severally make oath and say, And first I the said C. D. for myself say, 1. That A. B. is justly and truly indebted to me in the sum of pounds, as stated in the said before-mentioned petition. 2. That the said A. B. committed the act of bankruptcy stated to have been committed by him in the said before-mentioned petition. And I the said E. F. for myself say, 3. That A. B. is justly and truly indebted to me in the sum of pounds, as stated in the said before-mentioned petition. And I the said G. H. for myself say, 4. That A. B. is, &c. . C. D. Sworn by the deponents C. D., E. F., and G. II., &c. See note to last form. E. F. G. H. § 3.— Service of Petition. A petition praying that a debtor may be adjudged a bankrupt must be served in the prescribed manner (g). The rules prescribe that "a bankruptcy petition shall be per- sonally served seven days before the day of its hearing by deliver- ing to the debtor a sealed copy of the riled petition" (/<). It may be served upon the debtor by an officer or a bailiff of the court, or by the creditor or his attorney. If personal service cannot be effected, the court may grant extension of the time for service, or if the court is satisfied by affidavit that the debtor is keeping out of the way to avoid service, it may order service to be made by delivery of the petition to some adult inmate at hie usual or last known place of residence or business, or it may order that a notice {i) be gazetted requiring the debtor to appear at the bearing (g) "The Bankruptcy Act, 1869," (A) " The Bankruptcy Rules, s. 8. See the entire section, post, p. 1870," Rule 60, ante, p. 235. 254; as to computation of time, see (i) See the Form, post, No. 15. ante, p. 210. SERVICE OF PETITION. 247 Part VII. ( H LP. V. of the petition on the day named, being not less than fourteen days after the publication of the notice, and that such notice shall be deemed to be served on the debtor (k). .Nutiee of the publication in the u r a/.ctte of the order of the court must be given in one local paper (/). Service of the petition is proved by affidavit, with a sealed copy of the petition attached and filed in court forthwith after the Bummons i //> ■ An application for extension of time for service of a petition niu-t be in writing, but need not be supported by affidavit, unless in any case the court requires otherwise (?i). " The Bankruptcy Rules, 1870," provide that — Rule Go. " Where the act of bankruptcy alleged in a petition to have been committed by the debtor is that the debtor, being a trader, has departed from his dwelling-house, or otherwise absented himself, the petition may be heard forthwith on a scaled copy of the petition being left at the usual or last known place of residence or business of the debtor." Rule 66. ""Where a debtor petitioned against is not in England, the court upon such evidence as shall satisfy it that the service will be effectual or sufficient, may order service to be made within such time and in such manner and form as it shall deem fit." Rale 36. "Where there are more respondents than one to a petition the rules as to service shall be observed with respect to each respondent, but where all the respondents have not been served, the petition maybe heard separately or collectively as to the respondent or such of the re- spondents as has or have been served, and separately or collectivelv as to the respondents not then served according as service upon them is effected." No. 14. Affidavit of Service of Petition. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Kuie 63. holden at ]. In the matter of a bankruptcy petition against A. B. I, L. M. of , make oath and say — 1. That I did, on the day of 187 , serve the above- mentioned A. 15. with a copy of the above-mentioned petition, duly sealed with the seal of the court, by delivering the same personally to the said A. B. Sworn at, &c. L. M., bailiff, creditor, attorney or his clerk. No. 15. Substituted Service of P< titiov. Notice in Gazd(<:. "The bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Rule 61. holden at ]. To A. B. Take notice, that a bankruptcy petition has been presented against (k) "The Bankruptcy Rules, (m) 7J. Bole 63, ante, p. 236. 1870," Rale 61, ante, p. •-':!•". (,<) Id, Role 01, ante,p. 286. (/) Id. Rule G2, ante, p. 23G. 248 THE PETITION IN BANKRUPTCY. Part vii. you to this court, by C. D., of , and the court has ordered that Chap, v. the publication of this notice in the London Gazette shall be deemed to be service of the petition upon you ; and further take notice, that the said petition will be heard at this court on the day of at o'clock in the noon, on which day you are required to appear, and if you do not appear the court may adjudge you bankrupt in your absence. The petition can be inspected by you on application at this court. Dated this day of 187 . Registrar. No. 16. Substituted Service of Petition. Notice in Local Paper. " The Bankruptcy Act, 1869." Rule 61. In the London Bankruptcy Court [or the county court of holden at ]. To A. B. of Take notice, that a bankruptcy petition has been presented to this court by C. D. of and the court has ordered that the publication of a notice of the petition in the London Gazette shall be deemed to be service of the petition upon you. The petition will be heard at this court on the day of at o'clock in the noon, on which day you are required to appear ; and if you do not the court may adjudge you bankrupt in your absence. The petition can be inspected by you on application at this court. Dated this day of 187 . Registrar. § 4. — Notice by Debtor of Intention to dispute Petition. " The Bankruptcy Rules, 1870," direct that— Sect. 9. Rule 36. " Where a debtor intends to show cause against a petition he shall file a notice with the registrar showing the statements in the petition which he intends to deny or dispute, and transmit by post to the petitioning creditor a copy of the notice three days before the day on which the petition is to be heard." No. 17. Notice by Debtor disputing the Truth of Statements on Petition. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden ;tt J. In the matter of a bankruptcy petition presented against me on the day of 18*7 , by C. D. of [or and E. F. of Gh II. of &c] Rule 36. I, the above A. B., do hereby give you notice that I intend to dispute that adjudication should be made as prayed on the hearing of the peti- tion, at which time I intend to dispute tlie petitioning creditor's debt [or the trading or the act of bankruptcy]. Dated this day of 187 . ToC. I)., of , and to , A. B. Registrar of the said court. RESTRAINT OF ACTIONS, ETC. 249 § o. — Restraint of Actions and Legal Process, after n^Vv' Presentation of Petition. '- — — "The Bankruptcy Act, 18G9," enacts that— Sect. 13. " The court may, at any time after the presentation of a rower of bankruptcy petition against the debtor, restrain further proceedings in co,irtaf,<> i r '.•'., °. ii i i • A r .i j i x • presentation any action, suit, execution, or other legal process against the debtor in of petition, to respect of any debt proveable in bankruptcy, or it may allow such pro- remain suits, ceedings, whether in progress at the commencement of the bankruptcy JSntiSL**" or commenced during its continuance, to proceed upon such terms as ceiver. the court may think just. The court may also, at any time after the presentation of such petition, appoint a receiver or manager of the pro- perty or business of the debtor against whom the petition is presented, or of any part thereof, and may direct immediate possession to be taken of such property or business, or any part thereof." It i>! scarcely necessary to observe that there is a judicial dis- cretion in exercising the power given by this section (o). The object of this section is to preserve the property pending the petition. It in fact gives the Court of Bankruptcy power to intervene, although there may not be before it a person who could, in the ordinary sense of the term, be plaintiff in an action at law or in a suit in equity. Further, its object is, that the moment the petition is presented there may be, if desirable, a receiver or manager at the instance of the creditor or bankrupt presenting the petition, so that there may be some interim management under which the property may be preserved down to the time when there shall be an adjudication in bankruptcy ; and the section does not cut down the extent of jurisdiction given by other sections (p). It has been subsequently said that " The true meaning of the 13th section was probably this, that as there might be all sorts of questions to be tried between various judgment creditors as to whether the property should be sold or not, it was intended to give the judge a discretion to stay the sale in order to the better ad- ministration of the estate and the protection of the property, but it was not intended to alter any rights of the creditors inter sc, and still less to give the judge a discretion to alter them " (q). (o) See Em parte Mills, Re Man- before or after adjudication. By the nine, 40 L. J. (X. S.) Bankr. 89, construction put upon other provi- wherc it was held that parties should sions of the statute, in ordinary cases apply promptly, and the injunction (i. e. except in the case of judgments *;h consequently only granted in a above 660 against trailers* seizure limited form. As to Staying the bank- before the act of bankruptcy on ruptcy proceedings, sees. 80, subs. (10), which the petition is founded is' pro- ante, p. 245, note, and pott, p. '2~>6. tected, but seizure after is not, but it (p) Giffard, L. J., In re Andcr- is impossible to say whether either son, 39 L. J. (N. S.) Bankr. 63. rale applies in any particular case until (q) Lord Chancellor Ilatherley, in all the facts are ascertained; for in— /> parte Roche, In re Hall, 40 stance, there may he a prior act of L. .1. (N. S.) Bankr. 72. Was net, bankruptcy within the terms of sect. -nine such power as i> conferred by 1 1, so that the bankruptcy may have s. 13 necessary lor other reasons? relation back to an earlier period, OJ Properly may he taken in execution the judgment debt maybe impeached 250 THE PETITION IN BANKRUPTCY. p«rtV[t. It is to be observed that the power given is to restrain proceed- riiAP - v " iogs against the debtor. It lias been held, that there is no power under sect. 13 to restrain proceedings in a joint action against the debtor and another, even his partner, although there might be power to restrain execution being sued out against the debtor (r) ; but in another case it was said that an injunction might be properly granted to restrain the action, because by sect. 112 (post), -pro- ceedings at law may be taken against a joint contractor without the joinder of the bankrupt (s), and clearly an injunction will lie in such a case to restrain execution against the bankrupt (t). A writ of sequestration issued to enforce an order in a chancery suit for payment of money, is " legal process " within sect. 13 (u). A landlord's distress for rent is not an " execution or other legal process," capable of being restrained under sect. 13 (x). No. 31. Restraining Action, dr., after Banhruptcy. " The Bankruptcy Act, 1869." Sect. 13. In the London Bankruptcy Court [or the county court of liolden at ]. In the matter of a bankruptcy petition against A. B. of Upon the application of and upon reading his affidavit it is ordered that L. M. of shall be restrained from taking any further proceedings in the action [or suit] brought by him [or upon the judg- ment [or decree] recovered or obtained by him] against the said A. B. in [here state the court in which proceedings are] [or it is ordered that the proceedings in the action [or suit] brought by him against the said A. B. in [here state the court in which, proceedings are] may be proceeded with on [here insert the terms fix d by the court]]. Given under the seal of the court this day of 187 . By the court, Registrar. as a fraudulent preference. On the (s) James, L. J., fix parte Mills, other hand, a seizure after the act of lie Manning, 40 L. J. (N. S.) Bankr. bankruptcy alleged in the petition 89. Semble there is such a power may eventually prove to be valid, for under sects. 66 and 72, if a case is the petition may be dismissed on the made out for its exercise. See the ground of failure to prove the act of judgment of Giffard, L. J., In re bankruptcy or the petitioning credi- Anderson, 39 L. J. (N. S.) Bankr. 49. tor's debt. So that it is most de- (£) fix parte Mills, supra, sirablc, if not essential, that the court (n) In re Browne, 40 L. J. (N. S.) should have power to regulate all Bankr. 4G. This case is still an proceedings, so that the best course authority on this point, but it may be may be adopted to meet any state of doubted whether after Slater v. circumstances and the rights of the Binder, and fix parte lloehe, Re parties as they may be eventually Hall, post, Chap. VII., it can be re- established or disproved as the case lied ou as an authority that the may be. It will lie seen, therefore, trustee was entitled to the property, that the power may be exercised, as the seizure having been apparently observed by Lord Justice Giffard, at, before the act of bankruptcy, any time after the petition is presented (./•) fix parte Birmingham a ml and before even an adjudication is Staffordshire (ins Light Co., Re certain. Fansham, 40 L. J. (N. S.) Bankr. 52. (r) In re De Veochj, fir, parte As to distress for rent, sec sect. 34, Isaac, 40 L. J. (N. S.) Bankr. 19. post, Chap. XL, § 13. appointment of receiver and manager after petition. 251 § 6. — Appointment of Receiver and Manager after Pawyii. Petition. rK * r - v - "The Bankruptcy Act, 1869," empowers the court at any time after the presentation of the petition to appoint a receiver and manager of the property or business of the debtor, and to direct immediate possession to be taken of such property or business (y). "The Bankruptcy Rules, 1870," provide that — Rule 33. " After the presentation of a petition, upon the application Sect. 13. of a creditor and upon proof by affidavit of sufficient grounds for the appointment of a receiver or manager of the property, or business of the debtor, or any part thereof, the court may, if he think fit, make such appointment ; and where the petition is dismissed the creditor shall pay such costs of the receiver or manager as the court may direct, and the court shall, if required, adjudicate with respect to any damages, or claim thereto arising out of his appointment, or make such order thereon as it thinks fit, and such order shall be final and conclusive between the parties, and between them or either of them and the receiver or manager, unless the decision be appealed from." " The Bankruptcy Rules, 1871," provide that — Rule 2. " Where a receiver or manager of the property or business of a bankrupt shall have been appointed, he shall, upon the appointment of a trustee, deliver to such trustee all money and property which may have come to his hands, unless the court shall otherwise order." Rule 3. " A receiver or manager, in cases either of bankruptcy or liquidation, shall not have any lien whatever for his remuneration on any money or property which may have come into his hands." No. 13. Application for Appointment of a Receiver, or Manager, and Order thereon. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Sect. is. hidden at ]. In the matter of a bankruptcy petition against A. B. of . Rule 3i. I, C D. of , the petitioner in this matter, do, on the grounds set forth in the annexed affidavit, apply to the court for the appointment of a receiver of the property of the said A. B. [or the appointment of a manager of the business of carried on by the said A. B. at ], and that such receiver [or manager] be directed to take immediate possession thereof. CD. Order thereon. Upon reading this application and the affidavit therein referred to, it is ordered that L. If. of be appointed to collect, get in, and receive the property [and [or or] to manage the business] of the said A. B. And it is ordered that the said do take immediate possession of such property [or business], and that he do pass his accounts at such times as may be directed by the registrar of this court. <.'i ven under the seal of the court this day of 187 . By the court, Registrar. (y) Sec sect. 13, ante, p. L'l'J. 252 THE PETITION IN BANKRUPTCY. Part VII. £ 7, — ARREST OF BANKRUPT AFTER THE PRESENTATION OF THE Chap. V. 3 -r, Petition. " The Bankruptcy Act, 1869," enacts that — Arrest of Sect. 86. " The court may, by warrant addressed to any constable or bankrupt prescribed officer of the court, cause a debtor to be arrested, and any clrcum- a books, papers, monies, goods, and chattels in his possession to be seized, stances. and him and them to be safely kept as prescribed until such time as the court may order, under the following circumstances : (1.) If, after a petition of bankruptcy is presented against such debtor, it appear to the court that there is probable reason for believing that he is about to go abroad or to quit his place of residence with a view of avoiding service of the petition, or of avoiding appearing to the petition, or of avoiding examination in respect of his affairs, or otherwise delaying or embarrassing the proceedings in bankruptcy : (2). If, after a petition in bankruptcy has been presented against such debtor, it appear to the court that there is probable cause for believing that he is about to remove his goods or chattels with a view of preventing or delaying such goods or chattels being taken possession of by the trustee, or that there is probable ground for believing that he has concealed or is about to conceal or destroy any of his goods or chattels, or any books, documents, or writings which might be of use to his creditors in the course of his bankruptcy : (3). Tf after the service of the petition on such debtor, or after an adjudication in bankruptcy against him, he remove any goods or chattels in his possession above the value of five pounds, without the leave of the trustee ; or if, without good cause shown, he fails to attend any examination ordered by the court." " The Bankruptcy Rules, 1870," provide that— Sect. 86. Rule 177. "Where a bankrupt is arrested under a warrant issued under section 86 of the act, he shall be safely kept by being lodged within the prison, to the keeper of which the warrant is, amongst others, addressed ; and any books, papers, monies, goods, and chattels in the possession of the bankrupt, which may be seized, shall be lodged with the trustee of the property of the bankrupt forthwith." No. 73. Warrant against Debtor about to quit England, &c. " The Bankruptcy Act, 1869." Sect. 86. I n the London Bankruptcy Court [or the county court of , holden at J. Rule 177. I' 1 the matter of a bankruptcy petition against A. B. of [or in the matter of A. B. of , a bankrupt]. To the X. Y. officer of this court [or where warrant issues from a, cov/nty court, To the high bailiff and others the bailiffs of the said court] and all peace officers within the jurisdiction of the said court, and to the governor or keeper of the (heir insert the 2>rison). Whereas, by evidence taken upon oath, it hath been made to appear to the satisfaction of the court, that there is probable reason to suspect ARREST OF BANKRUPT AFTER PRESENTATION OF TETITION. 253 and believe that the said A. B is about to go abroad [or quit his place PartVU. of residence] with a view of avoiding service of this petition [or of °"* r - v - avoiding appearing to this petition], [or of avoiding examination in respect of his affairs, or otherwise delaying or embarrassing the proceed- ings in bankruptcy]. [Or that there is probable cause to suspect and believe that the said A. II. is about to remove his goods or chattels with a view of prevent- ing or delaying such goods or chattels being taken possession of by the trustee of the property of the bankrupt [or that the said A. B. has con- cealed [or is about to conceal or destroy his goods or chattels, or some . of them, or his books, documents or writings, or some or one of them, which books, documents or writings, or some or one of them, may be of use to the creditors in the course of the bankruptcy of the said A. B. [Or whereas by evidence taken upon oath it hath been made to appear to the satisfaction of this court that the said A. B. has removed certain of his goods and chattels in his possession, above the value of five pounds, without the leave of the trustees, that is to say [here describe th, lved (e). No. 18. Order to stay Proceedings on Petition. u The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Seci - 9 - holden at ]. In the matter of a bankruptcy petition against A. B. of Upon the hearing of this petition this day, and the said A. B. appear- ing and denying that he is indebted to the petitioner [where petition presented />>/ more than one creditor, add the name of the creditor whose debt is dented] in the sum stated in the petition [or that he is indebted to the petitioner in a sum of a less amount than fifty pounds], [or that he is indebted to C. D. one of the petitioners, in a sum less than the sum stated to be due from him in the petition], it is ordered that the said A. B. shall within days enter into a bond in the penal sum of [double the alleged debt] with such two sufficient sureties as the court shall approve of to pay [or deposit with the registrar the sum of as security for the payment of] such sum or sums as shall be recovered against the said A. B. by C. D. the petitioner [or one of the petitioners] in any proceeding taken or continued by him against the said A. B., together with such costs as shall be given by the court in which the proceedings are had. And it is further ordered, that upon the said A. B. entering into the bond aforesaid, all proceedings on this petition shall be stayed until after the court in which the proceedings shall be taken shall have come to a decision thereon. Given under the seal of the court this day of 187 . By the court, Registrar. No. 19. Bond on stay of Proceedings. " The Bankruptcy Act, 1869." Know all men by these presents, that Ave, A. B. of, &c, and C. D. of, sects. 7 and 9. &c, and E. F. of, &c, are jointly and severally held and firmly bound to L. M. of, &c, in pounds to be paid to the said L. M., or his certain attorney, executors, administrators or assigns. For which pay- ment to be made we bind ourselves and each and every of us, our and each of our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of one thousand eight hundred and Whereas a bankruptcy petition against the said A. B. having been sect. 9. presented to the London Court of Bankruptcy [or county court], he did appear at the hearing of the said petition and deny that he was indebted to the petitioner [or to one or more of the petitioners], [or allege that he was indebted to the petitioner in the sum of pounds only]. (r) In re Williams, K.r parte Divwnd, .°>9 L. J. (N. S.) Bankr. 47. V. VOL. II. S 258 THE HEARING AND ADJUDICATION. Part vii. [ or Whereas the said A. B. having been duly served with a debtor's — ^^ — '- summons by L. M. of in accordance with provisions of the Bank- Sect. 7. ruptcy Act, 1869, issued out of the London Bankruptcy Court [or the county court of holden at ], applied to the said court to dismiss such summons on the ground that he was not indebted to the said L. M. [or that he was not indebted to him to such an amount as would support a petition in bankruptcy]. Now, therefore, the condition of this obligation is such that if the above-bounden A. B., or the said C. D. or E. F., shall on demand well and truly pay or cause to be paid to L. M., his attorney or agent, such sum or sums as shall be recovered against the said A. B. by any pro- ceedings taken or continued within twenty-one days from the date hereof in any competent court by the said L. M. for the payment of the debt claimed by him in the said petition or debtor's summons, together with such costs as shall be given to the said L. M. by such court, this obligation shall be void, otherwise shall remain in full force. A. B. (l.s.) C. D. (l.s.) E. F. (l.s.) Signed, sealed, and delivered by the above-bounden in the presence of Note. — If a deposit of money he made the memorandum should folloio the terms of the conditions of the bond. No. 20. Notice of Sureties. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of a bankruptcy petition against A. B. of [or In the matter of a debtor's summons bv C. D. of , against A.B. of ]. ' 8 Take notice, that the sureties whom I propose as my security in the above matter [here state the proceeding lohicli has rendered the sureties necessary'] are [here state the full names and additions of the sureties, and their residences for the last six months, therein mentioning the county or city, places, streets, and numbers, if any~\. Dated this day of 187 . A. B. To the registrar of the court and L. M. of No. 21. — Affidavit of Justification. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of a bankruptcy petition against A. B. of [or In the matter of a debtor's .summons by L. M. against A. B. of ]. I, E. F. of , one of the sureties for make oath and say : — 1. That I am a housekeeper [or as the case may be], residing [describing particularly the county or city, the street or place, and the number of the house, ifany], 2. That I am worth property to the amount of £ [the amount required] over and above what will pay my just debts [if security in STAYING PROCEEDINGS ON THE PETITION. 259 any other action or for any other purpose, add, and every other sum for ■which I am now security]. 3. That I am DOl bail or Becurity in any other matter, action, or pro- ceeding, or for any other person [or if security in amy other action or actions, add, except for ('. I>., at the suit of E. P., in the court of in the sum ni g ; for G. II., at the suit of 1. K., in the court of in the sum of £ , specifying the several actions with tin courts in which tin a nrc brought and the stuns in which lie has become bound]. 4. That my property, to the amount of the said sum of U [and if security in amy other action, etc., over and above all other sums for which I am now security as aforesaid] consists, of [here apt -eit)/ the until re uml vol in of tin property in respect of which the d, jionrnt pT( to become bondsman as follows, stock in trade, in my business of carried on by rae at of the value of £ , of good book debts owing to me to the amount of 1! , of furniture in my boose at of the value of £ , of a freehold [or leasehold] farm of the value of £ situate at , occupied by , or of a dwelling- house of the value of £ situate at , occupied by , or of other property, particularizing each description of property, with the value thereof]. 5. That I have for the last six months resided at [describing the place of such residence, or if he has hud more than one residence timing that period, state it in the same manner as above directed]. Sworn at, &c. E. F. Part VII. Cfiai-. VI. § 3. — Adjudication of Bankruptcy. On the hearing (original or adjournment), the court may either adjudge the debtor to be bankrupt or dismiss it (y )- Immediately upon the order of adjudication being made, the property of the bankrupt vests in the registrar, who, until a trustee is appointed by the creditors, is the trustee for the purposes of the act(^). "The Bankruptcy Rules, 1870," provide that — Rule 103. " After adjudication and before the appointment of a trustee by the creditors, the registrar in his capacity of trustee may, on the application of the petitioning creditor, sell or otherwise dispose of any property of the bankrupt which shall be of a perishable nature." The following is the form of adjudication: — No. 26. Adjudication. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of hidden at ]. In the matter of a bankruptcy petition against A. B. of Upon the hearing of this petition this day, and upon proof, satisfactory to the court, of the debt of the petitioner [and of the trading], and of (/) See sect. 8, ante, p. 2.^4. S2 (ff) See sect. 17, post, ]>. 274. S„-cts. 8, 10. 260 THE HEARING AND ADJUDICATION. Part vii. the act or acts of the bankruptcy alleged to have been committed by the Chap - vi - said A. B. having been given, it is ordered that the said A. B. be arid he is hereby adjudged bankrupt. Given under the seal of the court this day of 187 . By the court, Kegistrar. [To be added for publication in Gazette."] The first general meeting of the creditors of the said A. B. is hereby summoned to be held at this [or at the office of the] court on the day of 187 . at o'clock of the noon, and that the court has ordered the bankrupt to attend thereat for examination, and to produce thereat a statement of his affairs as required by the statute. Until the appointment of a trustee all persons having in their posses- sion any of the effects of the bankrupt must deliver them, and all debts due to the bankrupt must be paid, to the registrar. Creditors must forward their proofs of debts to the registrar. Publication of Adjudication.'] — " The Bankruptcy Act, 1869," enacts that — Advertise- Sect. 10. " A copy of an order of the court adjudging the debtor to be Sadiudi° rder bankrupt shall be published in the London Gazette, and be advertised tion.' locally in such manner (if any) as may be prescribed, and the date of such order shall be the date of the adjudication for the purposes of this act, and the production of a copy of the Gazette containing such order as aforesaid shall be conclusive evidence in all legal proceedings of the debtor having been duly adjudged a bankrupt, and of the date of the adjudication. " The Bankruptcy Rules, 1870," provide that— Sect. io. Rule 45. " Xotice of the making an order of adjudication shall be advertised in one local paper according to the form in the schedule." The following is the form of notice of the order of adjudication and also of the first meeting of the creditors (A) : — Xo. 27. Notice of First Mating in Local Paper. In the London Bankruptcy Court [or the county court of holden at ]. A. B. of was adjudged a bankrupt on the dav of 187 . The first meeting of creditors will be held at , on the day of 187 . Until the appointment of a trustee, all persons having in their posses- sion any of the effects of the bankrupt, must deliver them, and all debts due to the bankrupt must be paid to the registrar. Creditors must forward their proofs of debts to the registrar. Certificate that Registrar Trustee.]— 1 ' The Bankruptcy Act, 1869," enacts that when the registrar holds the office of trustee, a (Ji) See post, Chap. VII. ADJUDICATION OF BAN'KRUPTCT. 261 certificate of the court mav be made declaring him trusteed). p*»t vn. " The Bankruptcy Rules, 187V provide that— " cb*i>.vi. Rule 46. '• Upon adjudication being made, a certificate declaring the ar to be the trustee must be put on the file of the proceedings in accordance with sect. 18 of the act'' (')• N >. 28. Certificate declaring Registrar Trustee. " The Bankruptcy Act. 1 - In the London Bankruptcy Court [or the county court of holden Sect 18. at ]• In the matter of A. B. of , a bankrupt. Until such time u the appointment of a trustee by the creditors shall Rule 43. have been certified by this court, it is hereby certified and declared that the registrar [or L. M., one of the registrars] of this court is the trustee of the propertv of the said bankrupt [add where so ordered, and the said ;ir is hereby ordered to take possession of the said property forthwith]. Given under the seal of the court this day of 187 . By the court, Registrar. Appeal from Adjudication of Bankruptcy.~\ — The bankrupt or petitioner may appeal from the adjudication of bankruptcy (A). Where the debtor appealed from the adjudication, on the ground that he was not resident in Englnnd, but in Ireland, and that the service of the debtor-summons (the alleged act of bankruptcy) made under a special order, was void for want of jurisdiction, the adjudication was annulled; and it was held, that the debtor was not precluded from raising the question on the adjudication by reason of his having previously made an unsuccessful application to dismiss the summons, and by not then appealing (/). § 4. — Dismissal of the Petition. The court " may dismiss the petition, with or without costs, as the court thinks just" (/«). Dismissal udtar Adjudication on another Petition.'] — "Where See Rule 33 proceedings are stayed, the court may, if by reason of the delay caused by such stay of proceedings or for any other cause it thinks (i) See sect. \B,post, p. 274. usual security for costs in the form (A) See the general power of ap- of a deposit. Ex parte Jones, lit re peal given by sect. 71 and rules, post, Hayrrard, 40 L. J. ( X. S.) Bankr. 4'.'. pp. 303, 304*. When on a joint ad- (/) Ex parte O'Loghhn, In re judication of bankruptcy against O'Loghlen, 40 L. J. (X". S.) Bankr. three partners, two appealed within the twentv-one days allowed by Rule (m) See sect. 8, ante. p. 21 143 {post, pp. 303, 304), it was held an action for falsely and malic: that the third partner might and causing an adjudication of bunk- ought to be let in to appeal after- ruptcy, see Farhy v. Uunks, 4 & .v wards, on terms, such as giving the B. I 262 THE HEARING AND ADJUDICATION. Part vii. j us t 5 adjudge the debtor a bankrupt on the petition of some other Chap ' vi " creditor, and shall thereupon dismiss, upon such terms as it thinks just, the petition proceedings in which have been stayed as afore- said (n). Costs of Receiver or Manager on Dismissal.'] — Where a re- ceiver or manager has been appointed on the application of a creditor (o), and the petition is dismissed, the creditor shall pay such costs of the receiver or manager, as the court may direct (p). "The Bankruptcy Act, 1869," enacts that — rower to Sect. 101. "Where there are more respondents than one to a petition, tittOTLMabwt tne court ma y dismiss the petition as to one or more of them, without some reswm- prejudice to the effect of the petition as against the other or others of dents only. them." No. 23. Dismissal of Petition. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. Sect. 9. In the matter of a bankruptcy petition against A. B. of Upon the hearing of this petition this day, the court being satisfied that the debt [or debts] of the petitioning creditor [or creditors] is [or are] not sufficient to support a petition in bankruptcy [or that the debtor did not commit the act of bankruptcy stated to have been committed] , it is ordered that this petition be dismissed [and that the petitioner do pay to the said A. B. the taxed costs thereof]. Given under the seal of the court this day of 187 . By the court, Registrar. No. 24. Dismissal of Petition upon which Proceedings are stayed where Adjudication made on a subsequent Petition. " The Bankruptcy Act, 1869." Sect. o. In the London Court of Bankruptcy [or the county court of holden at ]. In the matter of a bankruptcy petition against A. B. of , presented by C. D. of Whereas A. B. has been adjudged a bankrupt upon a petition pre- sented to this court by O. P. of , it is ordered that the bankruptcy petition against the said A. B., presented to this court by C. D. of , the proceedings in which were stayed by order of court of the day of ,187 , be dismissed [add terms if any~\. Given under the seal of the court this day of ,187 . By the court, Registrar. Appeal from Dismissal.'] — It is clear there may be on appeal from the dismissal of a petition as well as from an adjudication of bankruptcy (7). (»,) See sect. 9, ante, pp. 25.",, 266. (p) See Rule 33, ante, p. 251. {0) See ante, p. 251. (g) See Appeal, post, p. 303. ( 263 ) CHAPTER VII. THE FIRST MEETING OF CREDITORS. § 1.— General Provisions. § 2. — Proceedings preliminary to the Meeting. § 3.— The Proceedings at the Meeting. § 4.— The Attendance of the Bankrupt. § 5. — TnE Right and Mode op Voting. § 6. — Minutes and Report of Proceedings. § 1.— General Provisions. A debtor having been adjudged bankrupt, the next step is a general meeting of his creditors for the purpose of effecting a divi- sion of his property. Section 14 of " The Bankruptcy Act, 1869," contains the follow- ing general provisions on the subject : — Sect. 1-4. " When an order lias been made adjudging a debtor bankrupt, Meeting of herein referred to as an order of adjudication, the property of the bank- 2StaS>mi rapt shall become divisible amongst his creditors in proportion to the of persons to debts proved by them in the bankruptcy ; and for the purpose of effect- af ditors, shall be held in the prescribed manner and subject to the pre- ^ait'ors!" scribed regulations as to the quorum, adjournment of meeting, and all other matters relating to the conduct of the meeting or the proceedings thereat. Provided that, — 1. The meeting shall be presided over by the registrar, or, in the event of his being unable to ittend through illness or any unavoidable cause, by such chairman as the meeting may elect : (/;) See sect. 86, ante, p. 262. 266 THE FIRST MEETING OF CREDITORS. Part vii. 2. A person shall not be entitled to vote as a creditor unless at or pre- Chap. vii. viously to the meeting he has in the prescribed manner proved a debt proveable under the bankruptcy to be due to him : 3. A creditor shall not vote at the said meeting in respect of any un- liquidated or contingent debt, or any debt the value of which is not ascertained : 4. A secured creditor shall, for the purpose of voting, be deemed to be a creditor only in respect of the balance (if any) due to him after deducting the value of his security ; and the amount of such balance shall, until the security be realized, be determined in the prescribed manner. He may, however*, at or previously to the meeting of creditors, give up the security to the trustee, and thereupon he shall rank as a creditor in respect of the whole sum due to him : A " secured creditor " shall in this act mean any creditor holding any mortgage, charge or lien on the bankrupt's estate, or any part thereof, as security for a debt due to him : 6. Votes may be given either personally or by proxy : 7. An ordinary resolution shall be decided by a majority in value of the creditors present personally or by proxy at the meeting and voting on such resolution (c) : 8. A special resolution shall be decided by a majority in number, and three-fourths in value, of the creditors present personally or by proxy at the meeting and voting on such resolution." The Business to be transacted at the First Meeting.] — It will be noticed that sect. 14 of " The Bankruptcy Act, 1869," requires the creditors at the first meeting to appoint a trustee, and also a committee of selection, and they may give directions as to the manner in which the property is to be administered by the trus- tee (d). "The Bankruptcy Rules, 1870," provide that the time and place for the bankrupt's examination may be appointed at the first meeting (e). The rules also provide that — Rule 127. " A creditor shall bear the cost of making proof of his debt, unless the court shall otherwise specially order, and no part of the expense of any competition for the office of trustee shall be paid out of the estate." Adjournment.'] — "The Bankruptcy Act, 1869," enacts that — rower of Sect. 84. " The registrar may adjourn the first meeting of creditors from f li'iTi'r.c'.f *' nie *° *' me an< ^ fr° m P' ace to place, subject to the directions of the creditors, to court, but if, at such first meeting of creditors or at some adjournment appoint thereof, no trustee Lfl appointed by reason of the prescribed quorum not (c) The various rules relating to In re ITorsley, 40 L. J. (N. S.) resolutions and voting in reference to Bankr. 60. liquidation by arrangement under (>/) Sec more "fully as fo these Beet. L25, post, lire not inconsistent matters, post, Chapter VHX with this provision. Ex parte Urde, (e) See Kule 96, post, p. 292. THE PROCEEDINGS AT THE MEETING. 267 being present, or for any other reason whatever, the court may annul the Part yu. adjudication, unless it deems it expedient to carry on the bankruptcy ClitpY11, With the aid of the registrar as trustee. Moreover, if at any time during the bankruptcy no new trustee is appointed to fill a vacancy in that office, the court may either carry on the bankruptcy with the aid of the regis- trar as trustee or annul the order of adjudication, as it thinks just. The Bankruptcy Rules carry the first part of this provision out with greater precision. Rule 94. "Where within half an hour from the time appointed for the sect. 16. first meeting a quorum of creditors is not present or represented, the meeting shall be adjourned to the same day in the following week at the same time and place, or to such other day as the registrar or chairman may appoint, not being less than seven or more than twenty-one days ; and if the meeting adjourned is the first meeting of creditors, or a meet- ing called to fill up a vacancy in the office of trustee, and a quorum is not present or represented at the adjourned meeting, the registrar shall report the fact to the court for its decision under section 84 of the act." Adjournment of Meetings by Creditors.^ — A resolution to ad- journ is an ordinary resolution, to be decided by a majority in value of the creditors present personally or by proxy at the meeting and voting on such resolution (/). § 4.— The Attendance of the Bankrupt. In accordance with the order of the court the bankrupt must attend the meeting (hall be publicly examined thereon on a day to be named by the court and subject to such adjourned public examination as the court may direct" (/<). " The Bankruptcy Rules, 1870," direct that— Rule 91. '• In cases of partnership the bankrupts shall produce a Statement of their partnership affairs, and each bankrupt shall produce a statement of his separate affairs." Rule 92. "At the first meeting of the creditors the bankrupt shall sect. S4. produce in duplicate a statement of his affairs according to the form in the schedule, but the non-production of the statement shall not delav the appointment of a trustee or necessitate the adjournment of the meeting. - ' (/) See /.'./• parte Orde, In re (h) Sect. 19; see the section oon- Horslcy, 40 L. J. (N. s. ) Bankr. 80. mining other duties of the bankrupt) (f V6ting.~\ — It will be observed, that sect. 16 of "The Bankruptcy Act, 1869" (ante, pp. 265, 266), requires proof previously to or at the meeting, of a debt due ; and further, that it is not every kind of debt which can be proved for the purpose of receiving a dividend that confers the right of voting, for no cre- ditor can vote "in respect of any unliquidated or contingent debt, (>!• any debt the value of which is not ascertained," and the same section contains special provisions as to secured creditors. The mode of proof is, at the meeting or before, by affidavit sent to the registrar (j). Proxy.] —Votes may be given either personally or by proxy (k\ and "a corporation may prove a debt, vote, and otherwise act in bankruptcy, by an agent duly authorized under the seal of the corporation" (/). Further, "a creditor may, in the prescribed manner, by instrument in writing, appoint a person to represent him in all matters relating to any debtor or his affairs in which a creditor is concerned in pursuance of this act, and such representa- tive shall thereupon, for all the purposes of this act, stand in the same position as the creditor who appointed him" (m). " The Bankruptcy Rules, 1870," direct that— Rule 85. " The instrument appointing a proxy shall be in writing Sects. 16 and under the hand of the creditor, or if such creditor is a corporation or ^'P* 11 - 8 - company under the hand of an agent, stating that lie is duly authorized on its behalf; and such instrument shall be according to the form in the schedule (n), and shall, unless it is expressly stated otherwise therein, be deemed and allowed as an authority to the appointee of the creditor to vote for him and on his behalf at all meetings of creditors in the matter, or adjournments thereof, and generally to act for the creditor in all other matters under the act, of whatsoever kind, as fully as the cre- ditor himself could act." Rule 86. " The instrument must be produced at the first meeting at which the proxy attends and be filed." How Votes are estimated.] — "An ordinary resolution shall be decided by a majority in value of the creditors present personally or by proxy at the meeting and voting on such resolution" (o). " A special resolution shall be decided by a majority in number, and three-fourths in value, of the creditors present personally or by proxy at the meeting and voting on such resolution" ( p). (j) See more fa\\y post, Chap. XIII., p. 245, note. Proof of Debts. And as to right (m) Id. subs. (8), ante, p. 246, to prove for purpose of voting in the note. case of the bankrupt'-v of lone partner, (n) See the form, post, Chap, see sect. 103, post, Chap. XIII., § 16. XIII. {k) See sect. 1G, subs. ((5), ante, (o) Sect. 16, subs. (7), ante, p. p. 266. 266. (0 See sect. 80, subs. (7), ante, (p) Id. subs. (8), ante, p. 266. 270 Part VII. Chap. VII. THE FIRST MEETING OF CREDITORS. Quorum.^ — " The Bankruptcy Rules, 1870," provide that — Rule 93. " A meeting of creditors shall not be competent to act for any purpose under the act (except the election of a chairman, the proving of debts, and the adjournment of the meeting), unless there are present or represented thereat a quorum of at least three, or all the creditors if their number does not exceed three." Evidence of proceedings at meeting of creditors. Sect 14. § 6. — Minutes and Report of Proceedings. " The Bankruptcy Act, 1869," enacts that — Sect. 106. "The registrar, or any other person presiding at a meeting of creditors under this act, shall cause minutes to be kept and duly entered in a book of all resolutions and proceedings of such meeting, and any such minute as aforesaid, if purporting to be signed by the chairman of the meeting at which such resolutions were passed or pro- ceedings had, shall be received as evidence in all legal proceedings ; and, until the contrary is proved, every general meeting of the creditors in respect of the proceedings of which minutes have been so made shall be deemed to have been duly held and convened, and all resolutions passed thereat or proceedings had to have been duly passed and had." Sect. 18 directs that the appointment of a trustee shall be reported to the court (q). No. 35. Minutes of Proceedings at First Meeting. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the coimty court of holden at ]. In the matter of A. B., of , a bankrupt. Minutes of resolutions come to and proceedings had at the first meet- ing of creditors held at this day of 187 , chairman, the registrar of the court [or the registrar of the court being absent, F. K. of was elected chairman]. We the undersigned creditors, being a majority in value of the cre- ditors present, personally or by proxy, at this meeting, and voting on this resolution, do hereby resolve as follows: — That G. H. of (residence and occupation) shall be the trustee of the property of the bankrupt at (here state remuneration^) [or such remunera- tion as the creditors may from time to time determine] [or that the appointment of a trustee in this bankruptcy be made by the committee of inspection]. That I. K., L. M., N. 0., P. Q., and R. S. be appointed the committee of inspection in this bankruptcy, for the purpose of superintending the administration of the property of the bankrupt by the trustee. [Where security is requirnl add as follows; that the trustee do give security by bond to in the amount of pounds himself and two sufficient sureties [or that P. M. and K. L. be his sureties], [or by depositing the sum of pounds with the registrar [or by giving (q) See sect. IS, post, p. 274. MINTTES AM) REPORT OF PROCEEDINGS. 271 the security of {here insert the guarantee association or company resolved Part vir. on) in the sum of pounds]. Chap, vir. (Here add any other resolutions th7. "Where, at the first meeting or any adjournment thereof, sect. 14. the creditors shall resolve that one or more named persons shall be ac- cepted as the sureties of the trustee, it shall not be necessary for the said persons to justify their sufficiency." The creditors may, if they think fit, appoint more persons than one to the office of trustee, and also may appoint persons to act as (a) Sec sect. 14, sub-sect. 1, ante, (c) Sub-sect. 3 (ante, p. 2G3) re- p. 2G3. latcs to the appointment of the com- (b) Id. sub-sect. 2, ante, p. 2G3. mittee of inspection; sec post, p. 275. D. VOL. IX, T 274 OF THE TRUSTEE IN BANKRUPTCY. Part VII. Chap. VIII. Devolution of property on trustee. Evidence of appointment of trustee. Sect. 11. trustees in succession in the event of oue or more declining to accept the office (d). " The Bankruptcy Act, 1869," enacts that— Sect. 17. " Until a trustee is appointed the registrar shall be the trus- tee for the purposes of this act, and immediately upon the order of adjudication being made the property of the bankrupt shall vest in the registrar. On the appointment of a trustee the property shall forthwith pass to and vest in the trustee appointed. The expression ' trustee,' when used in this act, shall include the person for the time being filling the office of trustee, whether he be the registrar or not; but when the registrar holds the office of trustee he shall, unless the court otherwise orders, in the administration of the property of the bankrupt, apply to the court for directions as to the mode of administering such property, and shall not take possession thereof unless directed by the court." Sect. 18. " The appointment of a trustee shall be reported to the court, and the court, upon being satisfied that the requisite security has been entered into by him, shall give a certificate declaring him to be trustee of the bankruptcy named in the certificate, and such certificate shall be conclusive evidence of the appointment of the trustee, and such appointment shall date from the date of the certificate. When the re- gistrar holds the office of trustee, or when the trustee is changed, a like certificate of the court may be made declaring the person therein named to be trustee, and such certificate shall be conclusive evidence of the person therein named being trustee." "The Bankruptcy Rules, 1870," provide that — Rule 104. " Upon the appointment of a creditor's trustee, any receiver or manager of the property or business of the bankrupt shall submit his accounts for examination to such trustee, and for that purpose attend on the trustee, at such reasonable times as he may require." Rule 105. " Immediately upon the appointment of a trustee being re- ported, the court shall give to the trustee a certificate declaring him to be the trustee, provided he has given such security, if any, as may have been required by the creditors." No. 40. Bond of Trustee. Know all men by these presents, that we, G. II. of, &c, and C. D. of, &c, and E. P. of, &c, are jointly anil severally held and firmly bound to James Bacon, the Chief Judge in Bankruptcy, in !& to be paid to the said James Bacon, or his certain attorney, executors, adminis- trators, or assigns. For which payment to be made we bind ourselves and each and every of us, in the whole, our and each of our heirs, exe- Ctltors, and administrators, jointly and severally, firmly by these pre- sents. Sealed with our seals, and dated this day of , one thousand eight hundred and Whereas mi the day of 187 , A. B. of , was adjudged bankrupt; and whereas at the first meeting of creditors under the said bankruptcy the said G. II. was appointed trustee of the property (>/) See sect. 83, sub-sect. (l),^05f, p. 27C. APPOINTMENT OF TRUSTEE. 275 of the bankrupt; and whereas it was resolved that the said trustee PabtYII. should give security by bond to [here state to whom] in the sum of , CnkT - _ with two sufficient sureties thereto. Now, therefore, the condition of this bond or obligation is such that if the said (i. II. shall and do from time to time well and sufficiently perform and execute all and singular the duties required of him as trustee of "The Bankruptcy Act, 1 8G'J," or any rule of court made or hereafter to be made under such act, this obligation shall be void or Otherwise shall remain in full force and virtue. Signed, sealed, and delivered by } G. H. (l.s.) the above bounden £ C. D. (l.s.) in the presence of 3 E. F. (l.s.) Note. — If a deposit of money be made, the memorandum thereof should follow the terms qf the condition of the bond. No. 41. Certificate of Appointment of Trustee. " The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or the county court of holden at ]. This is to certify that Q-. II. of has been duly appointed trustee of the property of A. 15. of , adjudicated bankrupt on the day of 187 . Given under the seal of the court this day of 187 . Registrar. § 2. — Committee of Inspection to superintend the Trustee. The creditors are required by resolution to appoint some fit persona (other than the trustee) not exceeding five, and being cre- ditors qualified, or authorized by creditors, to vote, to form a com- mittee of inspection for the purpose of superintending the adminis- tration by the trustee of the bankrupt's property (e). The omission, however, to pass this resolution does not invalidate the appointment of a trustee (f). " The Bankruptcy Rules, 1870," direct that— • Rule 120. " Where the creditors neglect by resolution to fix the quorum required to be preiexri at a meeting of the committee of inspec- tion, the quorum shall be three; or if the number of the committee be less than three, t lie quorum shall be the whole number." Rule 130. U A resolution of the committee of inspection shall be passed unanimously or by a majority in number of the members present at the meeting." (e) Sec sect. 14, sub-sect.:!, mite. accounts of the trustee, sec post, p. 263, As to the duty <>f the com- p. 283. mittee of inspection to audit the (/) See Rule 106, ante, p. -73. T 2 276 OF THE TRUSTEE IN BANKRUPTCY. Part VII. § 3. — REGULATIONS AS TO TRUSTEES AND COMMITTEE OF Chap. VIII. INSPECTION. "The Bankruptcy Act, 1869" contains the following provisions as to trustees and committee of inspection : — Reflations Sect. 83. " The following regulations shall be made "with respect to n> tntrus- ^he trustee and committee of inspection: — (1.) The creditors may, if they think lit, appoint more persons than one to the office of trustee, and where more than one are ap- pointed they shall declare whether any act required or autho- rized to be done by the trustee is to be done by all or any one or more of such persons, but all such persons are in this act included under the term ' trustee,' and shall be joint tenants of the property of the bankrupt. The creditors may also ap- point persons to act as trustees in succession in the event of one or more of the persons first named declining to accept the office of trustee : (2.) If any vacancy occur in the office of trustee by death, resigna- tion, or otherwise, the creditors in general meeting shall fill up such vacancy, and a general meeting for the purpose of filling up such vacancy may be convened by the continuing trustee, if there be more than one, or by the registrar on the requisition of any creditor : (3.) If through any cause whatever, there is no trustee acting during the continuance of a bankruptcy, the registrar of the court for the time being having jurisdiction in the bankruptcy shall act as such trustee (g) : (4.) The court may, upon cause shown, remove any trustee. The creditors may, by special resolution at a meeting specially called for that purpose, of which seven days' notice has been given, remove the trustee and appoint another person to fill his office, and the court shall give a certificate declaring him to be the trustee : (5.) If a trustee be adjudged bankrupt, he shall cease to be trustee, and the registrar shall, if there be no other trustee, call a meeting of creditors for the appointment of another trustee in his place : (6.) The property of the bankrupt shall pass from trustee to trustee, including under that term the registrar when lie fills the office of trustee, and shall vest in the trustee for the time being during his continuance in office, without any conveyance, assignment, or transfer whatever : (7.) The trustee of a bankrupt may sue and be sued by the official name of ' the trustee of the property of a bankrupt,' inserting the name of the bankrupt, and by that name may hold property of every description, make contracts, sue and be Sect. 83. (ff) By Rule 1 28 of " The Bank- there be no committee of inspection, raptor Bales, 1870," "where the regis- be audited by the comptroller or trar is trustee of the property <>f a treasurer of the court or other person bankrupt by reason of there being no acting as treasurer, according as the trustee noting daring the bankruptcy, proceeding is in the London Bank- he shall not lie required to give ruptcy Court or the county court." security, but his accounts shall, if REGULATIONS AS TO TRUSTEES AND COMMITTEE OF INSPECTION. 277 sued, enter into any engagements binding upon himself and bis Pa*tvii. successors in office, ami do all other acts necessary or expedient to be done in the execution of his office : (8.) The certificate of appointment of a trustee shall, for all purposes nf any law in force in any part of the British dominions re- quiring registration, enrolment, or recording of conveyances or assignments of property, be deemed to be a conveyance or assignment of property, and may be registered, enrolled, and recorded accordingly : (9.) All acts and things by this act authorized or required to be done by or to the registrar may be done within the district of each court having jurisdiction in bankruptcy by or to the registrar of that court : (10.) Any member of the committee of inspection may resign his office by notice in writing signed by him, and delivered to the trustee: (11.) The creditors may by resolution fix the quorum required to be present at a meeting of the committee of inspection : (12.) Any member of the committee of inspection may also be re- moved by a special resolution at any meeting of creditors of which the prescribed notice lias been given, stating the object of the meeting : (13.) On any vacancy occurring in the office of a member of the com- mittee of inspection by removal, death, resignation, or other- wise, the trustees shall convene a meeting of creditors for the purpose of rilling up such vacancy : (14.) The continuing members of the committee of inspection mav act, notwithstanding any vacancy in their body ; and where the number of members of the committee of inspection is for the time being less than five, the creditors may increase that number so that it do not exceed five: (15.) No defect or irregularity in the election of a trustee or of a mem- ber of the committee of inspection shall vitiate any act bona fide done by him ; and no act or proceeding of the trustee or of the creditors shall be invalid by reason of any failure of the creditors to elect all or any members of the committee of inspection : (10.) If a member of the committee of inspection become a bankrupt his office shall thereupon become vacant : (17.) Where there is no committee of inspection, any act or thing or any direction or consent by this act authorized or required to be done or given by such committee may be done or given by the court on the application of the trustee" (h). § 4. — Deatii, Resignation or Removal of Trustee. The regulations, forming the preceding division of the present chapter, provide for the filling up any vacancy in the office of (It) "The Bankruptcy Unlcs. 1 "-71," 17 of sect. S: 1 , shall moan the judpe provide (Rule lo> that "where a of such court, and shall not include registrar of a comity court having the registrar acting as judge under jurisdiction in bankruptcy acts as a powers delegated bj the judge." trustee, the word 'court' in sub-sect. 278 OF THE TRUSTEE IN BANKRUPTCY. part vii. trustee by death, resignation or otherwise (i). The regulations Chap, viii. a | go em p 0wer the court upon cause shown, and the creditors by special resolution, to remove the trustee and appoint another (k). " The Bankruptcy Rules, 1870," provide that— Rule 115. "Where in consequence of a bankruptcy being closed, or of a vacancy in the office of trustee, the registrar becomes trustee, the attorney (if any) who has theretofore acted in the matter of the bank- ruptcy shall not be changed unless the court shall by order, setting forth the reasons for the change, otherwise direct." Sect. 83, Rule 120. " Where a creditor desires a meeting of creditors to be held par - 4 - to remove a trustee or a member of the committee ef inspection, he shall apply to some member of the committee of inspection to specially summon a meeting for that purpose, and for the purpose of appointing another person to fill the office, by sending a notice to each creditor seven days before the meeting is to be held ; and where such member refuses to summon a meeting, or there is no committee of inspection, the creditor may apply to the court upon an affidavit stating specifically the facts which would appear to justify the removal of such trustee or a member of the committee of inspection, and the court may direct the ' registrar to summon a meeting accordingly, or if it think fit may direct notice to be given to the trustee to show cause why the court should not remove him." Rule 121. " Where a trustee resigns, dies, or is removed prior to obtaining his release, the creditors shall determine what, if any, remune- ration shall be paid for the services which he may have rendered." Rule 126. " Where a trustee shall resign, or be removed from his office, he shall, within four days thereafter, render to the registrar, to be filed with the proceedings, an account in writing showing what he has done while trustee, and shall duly account for all monies or pro- perty of the bankrupt. If he do not comply with these requisitions within the prescribed time the court shall enforce obedience thereto." No. 46. Notice of Meeting to be held on Resignation of Trustee. "The Bankruptcy Act, 1869." Sect. 83. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B. of , a bankrupt. The committee of inspection hereby give you notice that a meeting of creditors will be held at on the day of 187 , at o'clock in the noon, for the purpose of appointing a trustee in the place of the late trustee, who has resigned the office [or who has died or has become bankrupt]. For the committee, E. P., To X. Y. One of the said committee. (?) Sec sect. 83, sub-sect. ('-'), ante, (?:) Id. sub-sects. (3) & (4), ante, p. 'J76. T- -'70. DEATH, RESIGNATION OR REMOVAL OF TRUSTEE. 279 No. 47. Minutes at Meeting for receiving Resignation of Trustee, &c. Part vii. " The Bankruptcy Act, 18G9." In the London Bankruptcy Court [or the county court of Sect. 83. bolden at ]. In the matter of A. B. of , a bankrupt. M mates of proceedings had at a meeting of creditors of the said bank- rupt, held at on the day of , 187 . Chairman of the meeting, E. F. of We the undersigned (here should follow similar resolutions to those appointing the late trustee, <('•<•., at tin' first meeting). B. F., chairman of this meeting. No. 48. Report and Certificate of Appointment of Trustee to fill a Vacancy caused by a Resignation. "The Bankruptcy Act, 18G9." In the London Bankruptcy Court [or the county court of holden at ]. Tn the matter of A. B. of , a bankrupt. It is reported to the court as follows : — 1. That a meeting of creditors in this bankruptcy was held at on the day of , at o'clock in the noon, for the purpose of receiving of G. II. his resignation of the office of trustee and of appointing a person to fill such office [or for the purpose of appointing a trustee, who is dead, or who has been adjudged bank- rupt]. 2. That the said G. II. resigned the office of trustee, and by resolu- tion at such meeting N. O., of was appointed to fill the office of trustee of the property of the bankrupt. 3. That by another resolution it was declared that the said N. 0. should give security for the due performance of the said office, by enter- ing into a bond in the sum of with two sufficient securities [or as the case may be]. F. K., chairman. § 5. — Duty of the Trustee. "The Bankruptcy Act, 1869," enacts that— Sect. 20. "The trustee shall, in the administration of the property of conduct of the bankrupt anil in the distribution thereof amongst his creditors, have trustee, an.i regard to any directions that may lie given by resolution of the creditors court* against at anv general meeting, or by the committee of inspection, and any trustee, directions so given by the creditors at any general meeting shall be deemed to override any directions given by the committee of inspection ; the trustee shall call a meeting of the committee of inspection once at least every three monthl, when they shall audit his accounts, and deter- mine whether any or what dividend is to be paid; he may also call special meetings of the said committee as he thinks necessary. Subject to the provisions of this act, and to such directions as afore- said, the trustee shall exercise his own discretion in the management of 280 OF THE TRUSTEE IN BANKRUPTCY. Part vti. the estate, and its distribution amongst the creditors. The trustee may Chap, viii. f rom time to time summon general meetings of the creditors for the purpose of ascertaining their wishes ; he may also apply to the court, in ■ manner prescribed, for directions in relation to any particular matter arising under the bankruptcy. The bankrupt, or any creditor, debtor, or other person aggrieved by any act of the trustee, may apply to the court, and the court may con- firm, reverse, or modify the act complained of, and make 'such order in the premises as it thinks just. The court may from time to time, during the continuance of a bankruptcy, summon general meetings of the cre- ditors for the purpose of ascertaining their wishes, and may, if the court thinks fit, direct the registrar to preside at such meetings. The trustee shall, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, be in the same position in all respects as if he were a receiver of such property ap- pointed by the Court of Chancery, and the court may, on his application, enforce such acquisition or retention of property accordingly." "The Bankruptcy Rules, 1870," provide that — Sect. 20. Eule 112. " Where a trustee desires to apply to the court for directions in relation to any particular matter arising under the bankruptcy, he shall file his application, according to the form in the schedule, and the court shall then hear the application, or fix a day for its hearing, and direct the trustee to apply by motion." No. 53. Application for Directions by Trustee. « The Bankruptcy Act, 1869." sect. 20. In the London Bankruptcy Court [or the county court of holden at J. Eule 112. In the matter of A. B. of , a bankrupt. I desire to make application to the court for its directions [here state the particular matter in relation to which they are sought]. Trustee. Let this application be heard on the day of at o'clock in the noon [and let the trustee give notice to [here insert the persons to whom it is to he given]. Dated this day of 18 . Registrar. No. 54. Order on Application of Trustee for Directions. "The Bankruptcy Act, 1869." Sect. 20. In the London Bankruptcy Court [or the county court of holden at ]. Eule 112. In the matter of A. B. of , a bankrupt. "Whereas at a court held this day the trustee of the property of the bankrupt applied to this court for its directions [here state the particular matter in relation to which they are sought]. Now upon hearing of C. D. of , on the matter, it is ordered [here set out the order], and that the trustee do pay out of his own monies [or out of the property of the bankrupt] the sum of , the costs of this order, and the sum of to C. D. for his costs [or that C. D. do pay the sum of DUTY OF THE TRUSTEE. 281 . , the costs of this order, and also the sum of to C. D. Partvif. for his costs"]. Chap.vih. Given under the seal of the court this day of , 187 . By the court, Registrar. "The Bankruptcy Act, 1869," further enacts that— Sect. 29. "A trustee shall not, without the consent of the committee Thntee,lfa of inspection, employ a solicitor or other agent, but where the trustee is t^'p^fo"'^ himself a solicitor, he may contract to be paid a certain sum by way of services. per centage or otherwise as a remuneration for his services as trustee, including all professional services, and any such contract shall, notwith- standing any law to the contrary, be lawful." Sect. 30. " The trustee shall pay all sums from time to time received Trnstee§to by him into such bank as the majority of the creditors in number and f^,™™ 1 ^ value at any general meeting shall appoint, and failing such appoint- ment into the Bank of England ; and if he at any time keep in his hands any sum exceeding fifty pounds for more than ten days he shall be sub- ject to the following liabilities; that is to say, (1.) He shall pay interest at the rate of twenty pounds per centum per annum on the excess of such sum above fifty pounds as he may retain in his hands: (2.) Unless he can prove to the satisfaction of the court that his reason for retaining the money was sufficient, he shall, on the applica- tion of any creditor, be dismissed from his office by the court, and shall have no claim for remuneration, and be liable to any expenses to which the creditors may be put by or in conse- quence of his dismissal." " The Bankruptcy Rules, 1870," direct that— Rule 109. "Where the creditors shall have failed to appoint the bank Sect. so. into which the trustee is to pay all monies received by him, he shall pay them into such bank as the committee of inspection, or, where there is no committee, the court shall appoint." Duty of the Trustee to keep Books.~] — " The Bankruptcy Rules, 1870," direct that— Rule 242. " The trustee shall keep a book to be entitled ' The Record,' according to the form in the schedule, in which he shall re- cord all minutes, all proceedings had, and resolutions passed at any meeting of creditors, or of the committee of inspection, statement of bankrupt's affairs, reports and all proceedings necessaiy to give a correct view of the management of the bankrupt's property, but he shall not be bound to insert in the record any document of a confidential nature (such as the opinion of counsel on any matter affecting the in- terest of the creditors), nor need he exhibit such document to any person other than the members of the committee of inspection." Rule 243. " The trustee shall also keep a book to be entitled the 'Estate Book,' according to the form in the schedule, in which he shall enter from day to day the receipts and payments made by him" (/). Kale 244. " The record and the estate book may be inspected by the committee of inspection and the creditors or their agents." Rule 245. " The trustee shall submit the record and estate book, to- (0 " The Bankruptcy Rules, 1871," hook referred to in Rule 2t.'l of ' The provide (Rule 13) thut "the estate Bankruptcy Rules, 1870,' may be kept 282 OF THE TRUSTEE IN BANKRUPTCY. Part VIT. Chap. Vlll. gether with a copy of the latter, to the committee of inspection at the quarterly meeting required by section twenty of the act." Rule 249. " Upon a trustee resigning, or being released or removed from, his office, he shall deliver over to the registrar of the court all books kept by him and all other books, documents, papers and accounts in his possession in any way relating to the office of trustee." Tower of trustee to deal with property. Port. i:> p.ir. 6. § 6. — Power of the Trustee. Having in the preceding division of this chapter treated of the duties of the trustee, his powers for the most part of a discre- tionary kind, to be exercised as occasion arises, may be con- veniently noticed separately and as dealt with by the Bankruptcy Act, 1869. "The Bankruptcy Act, 1869," enacts that— Sect. 25. " Subject to the provisions of this act, the trustee shall have power to do the following things : (1.) To receive and decide upon proof of debts in the prescribed manner, and for such purpose to administer oaths : (2.) To carry on the business of the bankrupt so far as may be neces- sary for the beneficial winding-up of the same : (3.) To bring or defend any action, suit or other legal proceeding re- lating to the property of the bankrupt : (4.) To deal with any property to which the bankrupt is beneficially entitled as tenant in tail in the same manner as the bankrupt might have dealt with the same; and the sections fifty-six to seventy-three (both inclusive) of the act of the session of the third and fourth years of the reign of King William the Fourth (chapter seventy-four), ' for the abolition of fines and re- coveries, and for the substitution of more simple modes of assurance,' shall extend and apply to proceedings in bank- ruptcy under this act as if those sections were here re-enacted and made applicable in terms to such proceedings : (5.) To exercise any powers the capacity to exercise which is vested in him under this act, and to execute all powers of attorney, deeds, and other instruments expedient or necessary for the purpose of carrying into effect the provisions of this act: (6.) To sell all the property of the bankrupt (including the goodwill of the business, if any, and the book debt due or growing due to the bankrupt) by public auction or private contract, with power, if he thinks tit, to transfer the whole thereof to any person or company, or to sell the same in parcels (m): (7.) To give receipts for any money received by him, which receipt shall effectually discharge the person paying such monies from all responsibility in respect of the application thereof: (8.) To prove, rank, claim, and draw a dividend in the matter of the bankruptcy or sequestration of any debtor of the bankrupt." in the form of an ordinary debtor and creditor account in lien of the form prescribed by sucli rule." The form, therefore, is not given in this work. (m) By Rule 119 of "the Bank- ruptcy Rules, 1870," " where the trus- any toe is an auctioneer he shall not by himself or any partner act as such in the sale of any of the property vested in him, except with the consent of the committee of inspection, and upon such terms as it may think fit." POWER OF THE TRUSTEE. 283 Sect. 27. "The truster may, with the sanction of the committee of in- partvii. spection, do all or any of the following things: chap, vui. (1.) Mortgage or pledge any pari of the property of the bankrupt fur Power oi the purpose of raising money for the payment of his debts: '"'''^ lo (2.) Refer any dispute to arbitration, compromise all debts, claims, and J^ liabilities, whether present or future, certain or contingent, liquidated or unliquidated, subsisting or supposed to subsist between the bankrupt and any debtor or person who may have incurred any liability to the bankrupt, upon the receipt ofsuch sums, payable at such times, and generally upon such terms as may be agreed upon : (3.) Make suoh compromise or other arrangement as may be thought expedient with creditors, or persons claiming to be creditors in respect of any debts proveable under the bankruptcy: (4.) Make such compromise or other arrangement as may be thought expedient with respect to any claim arising out of or incidental to the property of the bankrupt, made or capable of being made on the trustee by any person or by the trustee on any person : (5.) To divide in its existing form amongst the creditors, according to its estimated value, any property which from its peculiar nature or other special circumstances cannot advantageously be realized by sale. The sanction given for the purposes of this section may be a general permission to do all or any of the above-mentioned things, or a permis- sion to do all or any of them in any specified case or cases." It is to be observed that, subject to the provisions of the act and to the direction of the creditors or committee of inspection, the trustee may exercise his own discretion in the management of the estate, and it- distribution amongst the creditors (see sect. 20, aut< . pp. 279, 280). By sect. 93 of "The Bankruptcy Act, 1869," any treasurer or Delivery of other officer, or any banker, attorney or agent of the bankrupt i- required to pay and deliver to the trustee all monies and the trustee. securities in his possession or power if he is not entitled by law to retain them, and the non-compliauce is a contempt of court («). " The Bankruptcy Rules, 1870," provide that— Rule 110. "No person shall be entitled as against the trustee to with- Rook* of hold possession of the books of account of the bankrupt, or to claim any acc0U1,t - lien thereon." § 7. — Accounts of tite Trustee. The trustee is required to call a meeting of the committee of in- spection once at least every three months when they shall audit his accounts (o). (;0 See the section and forms as to the trustee's books and their under it, pott, Chap. XII. production, see ante, pp. 181, '->'-'• (o) Sec Beet. L'U, *ntt , p 279. Aud 284 OF THE TRUSTEE IN BANKRUPTCY. part vii. Audit.'] — " The Bankruptcy Act, 1869," enacts that — chap.vih. J r J Sect. 55. "The trustee having had his quarterly statement of accounts ■Appointment audited by the committee of inspection, shall, within the prescribed troiier. time, forward the certified statement in the prescribed form to an officer to be called the comptroller in bankruptcy, and if he fail to do so he shall be deemed guilty of a contempt of court to be punishable accord- ingly. The first and any subsequent comptroller shall be appointed by the lord chancellor, and hold office during his pleasure, and shall be paid such salary as the lord chancellor may, with the sanction of the treasury, direct. The comptroller shall be provided with such office in London, and with such officers, clerks, and servants, as may be directed by the lord chancellor, with the approval of the treasury. The officers, clerks, and servants in the office of the comptroller shall be appointed and dismissible by the comptroller, and there shall be allowed and paid to him such sum as the treasury may from time to time direct for the expenses of his office, and of such clerks and other persons as may be deemed necessary by the treasury" (jj). " The Bankruptcy Rules, 1870," provide that — Sect. 25. Rule 246. " The committee of inspection shall audit the estate book, and certify therein under their hands the day on which the said book was audited, and shall in like manner certify the copy of the said book." Rule 247. " The trustee shall, forthwith after the said audit shall have been held, transmit to the comptroller in bankruptcy the copy so certified, adding thereto his certificate that it is the copy certified by the committee. He shall also forward therewith an office copy of the statement of affairs filed by the bankrupt, showing thereon in red ink the difference between the sums stated by the bankrupt and the sums realized or estimated by the trustee to be realized, and shall also state the reasons why any property not realized has not been realized." " The Bankruptcy Rules, 1871," provide that — Rule 14. " The trustee shall submit to the committee of inspection his bank pass book at the quarterly meeting required to be held by section 20 of the act. and shall forward to the comptroller a copy duly certified by the committee of all entries made therein since the previous audit." Rule 15. "Where the trustee has not since the date of his appointment, or since the last audit of his accounts, received or paid any sum of money O) " The Bankruptcy "Rules, 1870," contain the following rules: — Rale 237. "The comptroller shall keep a book entitled ' The Register of Bankruptcies in the London Court,' according to the form in the schedule, and another book entitled 'The Re- gister of Bankruptcies in the County Courts,' according to the form in the schedule, with such additional head- ings as lie may find necessary." Rule 238. "The comptroller shall cause an entry to be made in the proper register of every gazetted notice appli- cable or defined by the headings, and shall cause such registers to be exa- mined on every Monday and Thurs- day with the then last published Gazette, so as to insure that all the notices published therein have been duly entered in such registers." Rule 239. " The registers shall be open for searches by the public at all hours that the office of the comp- troller is open, upon a request in writing with a search stamp affixed thereon being lodged." ACCOUNTS OF THE TRUSTEE. 285 on account of the bankrupt's estate, he shall at the quarterly meeting Partvii. required by section 20 lay before the committee of inspection a state- CwAr - Vllt - nicut to tli.it effect, according to the form in the schedule ; and such statement shall, if approved, be signed by the committee, and forthwith forwarded by the trustee to the comptroller." Bole 16. " Where there is no committee of inspection, and the trustee has nnt for s period of three months from the date of his appointment or from the last audit of hie accounts, received or paid any sum of money 00 account Of the bankrupt's estate, he shall file with the registrar of the court an affidavit to that effect, according to the form in the schedule, and shall forthwith forward an office copy of such affidavit to the comp- troller. "Where the registrar is trustee he shall forward to the comp- troller a certificate to the like effect." The same rules also provide that — Rule 12. " Where a receiver or manager has been appointed in a bankruptcy, the accounts of such receiver or manager shall be forwarded to the comptroller in bankruptcy by the trustee, with the first accounts rendered by him to the comptroller." 6. Certificate of no Receipts or Payments by Trustee. "The Bankruptcy Act, 18G9." In the London Bankruptcy Court [or county court of , holden at ]. In the matter of , of , a bankrupt. I, of , the trustee of the property of the above-named "the date of bankrupt, certifv that since as trustee I "have not, nor has any my ■W otat - i * i .- • i • i c J ment or person by my order or lor my use, received or paid any sum of money "the last on account of the bankrupt's estate. " au.iit of my And I further certify that the reason why I have not received any sum j/^','!', of monev on account of the said estate since the time aforesaid, is [here te. Kenan state reason]. Itaud' l ' orUy Examined and approved this day of , 187 . Trustee. £ Committee of inspection. 7. Affidavit of no Receipts or Payments by Trustee in cases where there is no Committee of Inspection. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of , hidden at ]. In the matter of , of , a bankrupt. I, of , the trustee of the property of the above-named "the .late of bankrupt make oath and say, "'■ r ■•'!.'i H,i " t * 1 ri-i . • J T 1 l l mt ' nt or 1. 1 hat since as trustee I have not, nor has any person by •n.. Ian in v order or for my use, received or paid any sum of monev'on account "wHtofinjr o/the bankrupt's estate. ' * ££ ' 2. That the reason why I have not received any sum of monev on '*•• >'■ ncc .unt of the said estate since the time aforesaid is [here state reason]. luted'' "'* Sworn at, <£c. 286 OF THE TRUSTEE IN BANKRUPTCY. Part VII. Chap. VIII. Return of accounts to comptroller. Duty of comptroller. Power? of comptroller. Sect. 56. "The Bankruptcy Act, 1869," enacts that— Sect. 5G. " Every trustee of a bankrupt shall from time to time, as may be prescribed, and not less than once in every year during the bank- ruptcy, transmit to the comptroller a statement showing the proceedings in such bankruptcy up to the date of the statement containing the pre- scribed particulars, and made out in the prescribed form ; and any trus- tee failing to transmit accounts in compliance with this section shall be deemed guilty of a contempt of court, and be punishable accordingly." Sect. 57. " The comptroller shall examine the statements transmitted to him, and shall call the trustee to account for any misfeasance, neglect, or omission which may appear on such statements, and may re- quire the trustee to make good any loss the estate of the bankrupt may have sustained by such misfeasance, neglect, or omission. If the trustee fail to comply with such requisition of the comptroller, the comptroller may report the same to the court ; and the court, after hearing the ex- planation, if any, of the trustee, shall make such order in the premises as it thinks just." Sect. 58. "The comptroller may at any time require any trustee to answer any inquiry made by him in relation to any bankruptcy in which such trustee is engaged, and may, if he think fit, apply to the court to examine on oath such trustee or any other person concerning such bank- ruptcy ; he may also direct a local investigation to be made of the books and vouchers of the trustees." "The Bankruptcy Rules, 1870," provide that — Rule 250. " Each trustee shall, within fourteen days after the 31st day of December in each year, transmit to the comptroller a statement according to the form in the schedule (q) of every bankruptcy in which he is a trustee, and the comptroller shall cause the returns so made to be regularly bound up and preserved, according to alphabetical order of the courts in which the proceedings were had, in volumes to be kept at all times in his office, with an index thereto framed by him, and which volumes may be searched by the public ; and any trustee w r ho shall fail to make such return may be removed from his office by the court at the instance of any one creditor, or of the comptroller, or be subject to such order and to such costs as the court may think proper to make." Rule 251. "The comptroller shall take cognizance of the conduct of trustees, and in the event of any trustee not faithfullyperforming his duties, and duly observing all the requirements imposed on him by statute, rules, or otherwise, relative to the performance of his duties, or in the event of any complaint being made to the comptroller by any creditor in regard thereto, he shall inquire into the same, and, if not satisfied with the ex- planation given, he shall report thereon to the court, which after hearing the trustee may remove him from his office, or otherwise make such order in the matter as the justice of the case may require." "The Bankruptcy Rules, 1871," further provide that — Rule 9. " Where the comptroller in bankruptcy shall report to a county court the failure of a trustee to comply with any requisition which may have been made on him by the comptroller under the provisions of sec- (rj) It is not deemed necessary to insert this form (No. lOo). It can be obtained through the registrar throuL'li a law stationer. ACCOUNTS OF THE TRUSTEE. 287 tion 57 of the act, the registrar of the court shall appoint a day for the Part vir. trustee to attend the court, four days' notice whereof, according to the CgtF - Vllt - form in the Bchedule, shall he sent by post or otherwise by the registrar to the trustee, together with a copy of the comptroller's report, which copy shall be forwarded by the comptroller to the court with the original report." 1. Notice to Trustee at instance of Comptroller (r). " The Bankruptcy Act, 18G9." In the county court of holden at In the matter of A. B. of , a bankrupt. Sect 57. Take notice, that you are required to attend at this court on the day of , at o'clock in the noon, to explain why you have failed to comply with the requisition of the comptroller in bankruptcy, mentioned in a report of that officer to this court, a copy of which is hereto annexed. Take further notice that, should you not attend on that day, the court will, in your absence, make such order in the premises, as it may think just. Dated this day of 187 . Registrar. § 8. — Costs of Trustee. "The Bankruptcy Rules, 1870," provide that — Rule 108. " Where no remuneration has been voted to a trustee, he shall be allowed out of the bankrupt's estate such proper costs and ex- BS may be incurred by him in or about the proceedings of the bankruptcy as the taxing master or registrar shall allow." When legal proceedings are taken by appeal and the trustees uuieios. are successful, but their costs are not ordered to be paid by the opposite party, the trustees will in general be entitled to the costs out of the estate without any order of the court, for it is unneces- sary and improper for the court, in such a case, to say or for the order to be drawn up that the costs are to be paid out of the estate (s). "The Bankruptcy Rules, 1870," direct that— Rule 113. " In case any joint estate of any bankrupts shall be insuffi- cient to pay any costs or charges necessarily incurred in respect of the same, the court on application of the trustee may order such costs to be paid out of the separate estates of such bankrupts, orone or any of them : and vice vend may order COBts necessarily incurred for any separate (r) "The Bankruptcy Rules, 1871," (s) Ex parte Laches, In re Form N ». 1. Wood, 41 L. J. (N. S ) Bankr. 21. 288 OF THE TRUSTEE IN BANKRUPTCY. Part vit. estate, if the same were incurred with reasonable probability of benefit Chap, viii. ^ Q ^ Q j ; n j. es tate, to be paid out of such joint estate." sect. 25, Rule 114. "A trustee shall not be allowed in his accounts any sum par. 3. paid by him to his attorney for his bill of costs, unless the same shall have been duly taxed as between attorney and client." Sects. 55 & Rule 116. " The taxing officer shall not allow to a trustee any charges for attorney or counsel in attending the court to make any application unless the sanction in writing of the committee of inspection to their being or having been employed is produced to him, or unless the same has been allowed by the court as necessary." ( 289 ) CHAPTER IX. DUTY OF THE BANKRUPT ON ADJUDICATION. § 1. — The Bankrupt's Duty in general. § 2. — The Bankrupt's Examination. § 3. — Miscellaneous Provisions relating to the Bankrupt s Duty in administering the Property. § 1. — The Duty of the Bankrupt in general. " The Bankruptcy Act, 1869," enacts that — Sect. 19. " The bankrupt shall, to the utmost of his power, aid in the Conductor realization of his property, and the distribution of the proceeds amongst bankrupt, his creditors. He shall produce a statement of his affairs to the first meeting of creditors, and shall be publicly examined thereon on a day to be named by the court, and subject to such adjourned public examina- tion as the court may direct. He shall give such inventory of his pro- perty, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors, attend such meetings of his creditors, wait at such times on the trustee, execute such powers of attorney, conveyances, deeds and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as may be reasonably required by the trustee, or may be prescribed by rules of court, or be directed by the court by any special order or orders made in reference to any particular bankruptcy, or made on the occasion of any special application by the trustee or any creditor. •■ 1 f the bankrupt wilfully fail to perform the duties imposed on him by this section, or if he fail to deliver up possession to the trustee of any part of his property, which is divisible amongst his creditors under this act, and which may for the time being be in the possession or under the control of such bankrupt, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of court, and may be punished accordingly.'' No. 87. Notice of Application for Committal under Sect. 19. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden Sect. 19. at ]. In the matter of A. B., of , a bankrupt* To the said bankrupt. Take notice that the trustee of the property of the said bankrupt will on the day of 187 , at o'clock in the noon, apply to D. VOL. II. U 290 DUTY OF THE BANKRUPT ON ADJUDICATION. Part VII. Chap. IX. this court for an order for your committal to prison for contempt of this court, you having failed to perform the duty imposed on you by the nineteenth section of the said act [here set out the duty he has failed to perform}. And further take notice that you are required to attend the court on such day at the hour before stated, to show cause why an order for your committal should not be made. Dated this day of , 187 . Registrar. No. 83. Application by Trustee for Committal of Bankrupt or other Person. "The Bankruptcy Act, 1869." Sect. 19. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. I, the trustee of the property of the said bankrupt [or as the case may be - ], do apply to this court for an order of committal for contempt of this court against the said bankrupt [or L. M., ], on the ground set forth in the annexed affidavit. Dated this day of ,187 . G. H., trustee. Sect. 19. Where bank- rupt fails to prod uce state- ment of affairs. Where bank- rupt dues OOt submit to ex- amination. Where bank- rupt fails to attend n meeting other than the first. Where bank- rupt fails to execute a deed. where bank- rupt fails to No. 84. Affidavit in support of Application for Committal of Bankrupt for Contempt under Sect. 19. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. I, Gr. H., the trustee of the property of the said bankrupt, make oath, and say : — 1. That the said bankrupt did wilfully fail to produce to the first meeting of his creditors, held on the day of 187 , at , the statement of his affairs, the production of such statement being a duty imposed upon him by the nineteenth section of the said act, and by the rules of court. [or 1. That the said bankrupt did attend at the first meeting of his creditors held on the day of , 187 , at , and wilfully refused to submit to be examined at such meeting in respect of his property [or his creditors], the submitting to examination being a duty imposed upon him by the nineteenth section of the said act.] [1. That the said bankrupt did wilfully fail to attend a meeting of his creditors held on the day of , 187 , at [or to wait on me at my office on the day of , 187 ], the attending such meeting [or waiting on me] being a duty imposed upon him by the nineteenth section of the said act. [or 1. That the said bankrupt has wilfully failed to execute [here describe tin-, deed, &c. that he has failed to execute'], the execution of such deed when required by me being a duty imposed upon him by the nine- teenth section of the said act. 2. [That the said bankrupt was on the day of , 187 , duly served with a notice, a copy of which is hereunto annexed, by leaving THE BANKRUPT'S DUTY IN GENERAL. 291 the same at his usual place of residence, requiring him to attend the PAm-vir. eaid meeting], [or to execute the above-mentioned deed, etc.] Chap, ix. [or 1. Thai the Baid bankrupt has wilfully failed to perform the duty attend a imposed upon him by the nineteenth section of the said act of [here meeting other hut ri (tin/ net In 1 has been retjuired to do by any xjje<:i"l ordi r of the court, Qjgf dr to statiny the day on which tin' order was made"]. "tea 2. That the said bankrupt was duly served with a copy of such order y whom the notice to show cause was st rved] and upon reading the affidavit of [< nft r i oidence'], the court being of opinion that the bankrupt has been guilty of a con- tempt of this court by having failed to [In re follow the notice], it is ordered that the said bankrupt do stand committed to [here insert prison] for his said contempt. Given under the seal of the court this day of , 187 . By the court, Registrar. No. 93. Warrant of Committal for Contempt. In the London Bankruptcy Court [or the county court of holden Sects. 19, 28, at ]. 93 > 126 - In the matter of A. B., of , a bankrupt. To X. Y., officer of this court [or where warrant issues from a county court, to the high bailiff and others the bailiffs of the said court] and to the governor or keeper of the [here insert the prison]. Whereas by an order of this court bearing date the day of 187 , it was ordered that the said bankrupt [or L. M. of ] should stand committed for contempt of this court. These arc therefore to require you the said X. Y. [or high bailiffs, bailiffs], and others, to take the said A. 1!. [or L. M.] and to deliver him to the governor or keeper of the above-named prison, and you the said governor or keeper to receive the said A. B., and him safely to keep in the said prison until such time as this court shall order. Given under the seal of the court this day of , 187 . By the court, Registrar. u2 292 DUTY OF THE BANKRUPT ON ADJUDICATION. Part vii. No. 94. Order for Discharge from Custody on Contempt. — — — - " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. Upon application made this day of for A. B. who was committed to prison for contempt by order of this court, dated the day of 187 , and upon reading his affidavit showing that he has cleared [or is desirous of clearing] his contempt and has paid the costs occasioned thereby, and upon hearing the trustee [or C. D. of ], it is ordered that the governor or keeper of [here insert name of prison], do discharge the said A. B. out of his custody, as to the said contempt. Given under the seal of the court this day of 187 - By the court, Registrar. § 2. — The Bankrupt's Examination. The bankrupt having attended and produced a statement of his affairs at the first meeting or an adjournment (a), is next required to attend and be publicly examined on a subsequent day and any adjournments on such statement of his affairs and generally in respect of his property or his creditors (b). " The Bankruptcy Rules, 1870," provide that — Rule 96. " At the first meeting, or some time thereafter, the registrar shall appoint the time and place for the bankrupt to attend for his public examination by the court, such time not being later than forty days from such first meeting, unless otherwise directed by the registrar." Rule 111. " Notice of the appointment of the trustee, and of the day for the public examination of the bankrupt, shall be gazetted forthwith, and be inserted in one local paper by the trustee, and he shall send a copy of the notice to each creditor." No. 42. Notice in Gazette of the Appointment of Trustee and of Day for Public Examination of Bankrupt. Rule 70. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. G. II. of , lias been appointed trustee of the property of the bankrupt. The court has appointed the public examination of the bankrupt to take place at on the day of at o'clock in tin: noon. All persons having in their possession any of the effects of the bank- rupt must deliver them to the trustee, and all debts due to the bankrupt must be paid to the trustee. (o) See ante, p. 266. (i) Sect 19, ante, p. 289. THE BANKRUPT'S EXAMINATION. 293 Creditors who have not yet proved their debts must forward their Pas* TIL proofs of debts to the trustee. Chap, ix. Dated this day of 187 . Registrar. Examination of Bankrupt or Witness.'] — "The Bankruptcy Rules, 1870," provide that — Rule 207. "If the court shall in any case be of opinion that it would Sect. 19. be desirable that a person should be appointed to take down the evidence of the bankrupt, or of any witness examined at any public sitting or private meeting under the act, in shorthand or otherwise, it shall be competent for the court to make such an appointment ; and everv person so appointed shall be paid a sum not exceeding one guinea per day, and where the court appoints a shorthand writer a sum not exceeding eight- pence per folio of ninety words of any transcript of the evidence that may be required, and such sums shall be paid by the party at whose in- stance the appointment was made, or out of the estate, as may be directed by the court." No. 45. Memorandum of Public Examination of Bankrupt. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B. of , a bankrupt. Memorandum. — That I the above-named bankrupt being sworn and examined, upon my oath say, that the statement of accounts filed on the day of 187 , with the proceedings in the above matter containing sheets of paper, the first sheet whereof is marked with the letter A, is true, and that the said statement of accounts do contain and is a full and true disclosure and discovery of all my estate and effects both real and personal whatsoever and wheresoever. And I further say, that at the time of this my examination, I have delivered up to the trustee of my property, all such parts of my goods, wares, and merchandizes, money, estate and effects, and all books, papers, and writings relating thereto, as are now in my custody, possession, or power. And I further say that I have not removed, concealed, embezzled, or destroyed any part of my estate, real or personal, nor any books of ac- counts, papers or writings relating thereto, with an intent to defraud m^ creditors. [Here insert any special matter.'} A. B. § 3.— Miscellaneous Provisions relating to the Bankrupt's Duty in administering the Property. Superintendence of the Property, <$-c.] — " The Bankruptcy Act, 1869," enacts that — Sect. 26. "The trustee may appoint the bankrupt himself to superin- Power to tend the management of the property or of any part thereof, or to carry all,,w tank- 294 DUTY OF THE BANKRUPT ON ADJUDICATION. Part VII. Chap. IX. manage pro- perty- Tost letters addressed to bankrupt. Allowance to bankrupt for mainte- nance or service. on the trade of the bankrupt (if any) for the benefit of the creditors, and in any other respect to aid in administering the property in such manner and on such terms as the creditors direct." Letters addressed to the Bankrupt.'] — " The Bankruptcy Act, 1869," enacts that — Sect. 85. " The court, upon the application of the trustee, may from time to time order that, for such time as the court thinks fit, not exceed- ing three months from the date of the order of adjudication, post letters addressed to the bankrupt at any place or any of the places mentioned in the order, shall be re-directed, sent, or delivered by the postmaster- general or the officers acting under him, to the trustee or otherwise as the court directs, and the same shall be done accordingly." No. 96. Order to Postmaster- General. "The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B. of , a bankrupt. Upon the application of G. H. of , the trustee of the property of the above bankrupt, it is ordered that for a period of three months from [here insert the date of the order of adjudication'] all post letters directed or addressed to the said bankrupt at [here insert only the place or places of which the bankrupt is described in such order of adjudication] shall be re-directed, sent or delivered by the postmaster-general or officers acting under him to the said trustee at , and that a sealed duplicate of this order be forthwith transmitted by the trustee to the postmaster-general, or officers acting under him. Given under the seal of the court this day of 187 . By the court, Registrar. Allowance to Bankrupt for Maintenance or for his Services.] — " The Bankruptcy Act, 1869," enacts that — Sect. 38. " The trustee, with the consent of the creditors, testified by a resolution passed in general meeting, may from time to time, during the continuance of the bankruptcy, make such allowance as may be ap- proved by the creditors to the bankrupt out of his property for the sup- port of the bankrupt and his family, or in consideration of his services if he is engaged in winding up his estate." Offences by Bankrupt?] — As to offences by and criminal pro- ceedings against a bankrupt, see post, Chapter XIX. ; as to absconding debtor, see ante, p. 239 ; and as to warrants aud com- mittal for contempt, see ante, pp. 205, 214. ( 295 ) CHAPTER X. VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. § 1. — Meetings of Creditors subsequent to the first. § 2. — Acceptance of Composition or Settlement. § 3. — Transfer of Proceedings. § 4.— Trial of Questions of Fact by a Jury. § 5. — Appeal in Bankruptcy. § 6. — Death of the Bankrupt. § 7.— Annulling the Adjudication. Having in previous chapters treated of the essential stages in bankruptcy proceedings from their commencement to the examina- tion of the bankrupt, and also of the general duties of the trustee, and also those of the bankrupt, it will be convenient, before pro- ceeding to treat in detail of the effect of bankruptcy on the property and its mode of distribution, to dispose of several matters, all of which may, and some frequently do, occur in the course of a bank- ruptcy between adjudication and the termination of the proceedings, but none of which are nevertheless absolutely necessary accompani- ments. This chapter, therefore, will be devoted to these various incidental steps. § 1. — Meetings of Creditors subsequent to the first. The directions of the act with respect to the first meeting of creditors have been already mentioned. Besides this first meeting provision is made for other meetings. The trustee is expressly authorized to summon from time to time general meetings of the creditors for the purpose of ascertaining their wishes. So also the court may from time to time during the continuance of a bank- ruptcy summon general meetings of the creditors for the purpose of ascertaining their wishes, and may, if the court thinks fit, direct the registrar to preside at such meetings (a). (a) " The Bankruptcy Act, 1S69," s. 20, ante, pp. 270, 280. 296 VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. Part VII. Chap. X. Sect. 20. With respect to such last-mentioned meeting, " The Bankruptcy Rules, 1870," provide that : — Rule 11. "Where the court orders a general meeting of creditors to be summoned under section 20 of the act, it shall be summoned as the court directs, and in default of any direction the registrar shall transmit a sealed copy of the order to the trustee fourteen days at least before the time appointed for the meeting to take place, and the trustee shall ten days before such meeting, send a copy of the order to each creditor, at the address given in his proof, or when he shall not have proved, the address given in the list of creditors by the bankrupt, or such other address as mav be known to the trustee." Sect. 20. Regulations as to general meetings of creditors subsequent to first meet- ing. No. 30. Order of Court for General Meeting of Creditors. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B. of .a bankrupt. Whereas upon the application of C. D. of [leave out these words if court order meeting without an application, and begin, At a court holden this day], it is ordered that the trustee of the property of the bankrupt do summon a meeting of the creditors of the bankrupt, to be held at on the day of 187 , at o'clock in the noon [here state the purpose for which meeting called], [and that the registrar [or E. F., one of the registrars] of this court do preside at such meeting]. Given under the seal of the court this day of 187 . By the court, Registrar. " The Bankruptcy Act, 1869," enacts that— Sect. 21. "The provisions of this act with respect to the first general meeting of creditors shall apply to any subsequent general meeting of creditors in a bankruptcy, with this exception, that subsequent meetings of creditors may be summoned by the trustee, or by a member of the committee of inspection, and that such meetings may, unless otherwise directed by the court in the case of meetings summoned by the court, be presided over by any person chosen by the creditors assembled at such meeting, and that any creditor whose debt has been proved, or the Miluc of whose debt has been ascertained at or subsequently to such first meeting, shall be allowed to be present and to vote thereat." " The Bankruptcy Rules, 1870," provide that— Rule 05. " Where a meeting of creditors is summoned by a trustee it shall be summoned by the trustee transmitting to each creditor at the address given in his proof, or when he shall not have proved, the address given in the list of creditors by the bankrupt, or such other address as may be known to the trustee, seven days before the meeting is to be held, a notice setting forth the time and place at which it is to be held and the purpose for which it is summoned." Rule 97. " Wherever a meeting of creditors is called by notice, the proceedings had, and resolutions come to at such meeting, shall be valid, notwithstanding that some creditors shall not have received the notice sent to them, unless otherwise ordered by the court." MEETINGS OK CREDITORS SUBSEQUENT TO THE FIRST. 297 Rule 98. "An affidavit by a trustee, or an officer of the court, or by Part vn. any clerk of either, that letters have been put into a post office, shall be Chap x " sufficient evidence of such notices having been duly sent to the persons to whom the same purport to have been addressed." Rule 102. u The costs of summoning a meeting of creditors by any person other than the trustee shall be paid by the person at whose instance it is summoned, to be repaid to him out of the estate if the trustee, or the committee of inspection, or the court shall so direct." " The Bankruptcy Act, 1869," enacts that— Sect. 110. "Where a registrar under the authority of this act attends Expenses of at any place for the purpose of presiding at a meeting of creditors, or of re * £*?* receiving proofs, or of otherwise acting under this act, his travelling meetings, &c and incidental expenses incurred in so doing, and those of any clerk or officer attending him, shall, after being settled by the court, be paid out of the bankrupt's property, if sufficient, and otherwise shall be deemed part of the expenses of the court." § 2. — Acceptance of Composition or Settlement. " The Bankruptcy Act, 1869," enacts that — Sect. 28. "The trustee may, with the sanction of a special resolution Power of of the creditors assembled at any meeting of which notice has been t™»tee to given specifying the object of such meeting, accept any composition ^itk>n°or* offered by the bankrupt, or assent to any general scheme of settlement general of the affairs of the bankrupt upon such "terms as may be thought expe- 8 <* emeof , -,. , . xl .,, * J ,. . . . , ^ „ ,. -.v . * arrangement. dient, and with or without a condition that the order of adjudication is to be annulled, subject nevertheless to the approval of the court, to be testified by the judge of the court signing the instrument containing the terms of such composition or scheme, or embodying such terms in an order of the court. ■ Where the annulling the order of adjudication is made a condition of any composition with the bankrupt or of any general scheme for the liquidation of his affairs, the court, if it approves of such composition or general scheme, shall annul the adjudication on an application made by or on behalf of any person interested, and the adjudication shall be annulled from and after the date of the order annulling the same. " The provisions of any composition or general scheme made in pur- suance of this act may be enforced by the court on a motion made in a summary manner by any person interested, and any disobedience of the order of the court made on such motion shall be deemed to be a contempt of court. The approval of the court shall be conclusive as to the validity of any such composition or scheme, and it shall be binding on all the creditors so far as relates to any debts due to them and provable under the bankruptcy." No. 55. Notice in Gazette of Meeting to authorize the Trustee to accept a Composition, In the London Bankruptcy Court [or the county court of g^, 28- holden at ]. A meeting of the creditors of A. B., of , adjudicated a bank- rupt on the day of , 187 , will beheld at 298 VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. Part vii. on the day of , 187 , at o'clock in the Chap. x. noon, for the purpose of considering the propriety of sanctioning the acceptance by the trustee of a composition offered by the bankrupt of [or the assent by the trustee to a scheme of settlement of the affairs of the bankrupt], [and for the annulling thereafter of the order of adjudication made against the bankrupt]. G. H., trustee. No. 57. Application to annul Adjudication under Sect. 28. " The Bankruptcy Act, 1869." Sect. 28. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. I, R. S., of , being interested in this matter do hereby make application to the court that the order of adjudication against the said bankrupt be annulled in accordance with the terms of a composition, the acceptance of which by the trustee of the property of the bankrupt was sactioned by special resolution at a meeting of creditors held on the day of at Dated this day of R. S. No. 58. Order annulling Adjudication under Sect. 28. " The Bankruptcy Act, 1869." Sect. 28. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. Whereas at a meeting of creditors held under this bankruptcy on the day of , pursuant to notice given in the Gazette, it was resolved by a majority in number, and three-fourths in value of the creditors then present or duly represented at the said meeting, that a composition offered by the bankrupt for payment of the debts owing by him was calculated to benefit the general body of the creditors under the estate, and should be accepted by the trustee of the property of the bankrupt. And whereas the court approving of the composition offered did testify such approval by the judge of this court signing the instrument containing the terms of the composition. And whereas it was made a condition of the composition that the order oi* adjudication should be annulled ; and whereas hath applied to tins court to annul the adjudication accordingly. It is hereby ordered that the adjudication made against the said bankrupt be and the same is hereby annulled. [Add any directions as to ■ceding the property of the bankrupt.'] Given under the seal of the court this day of 187 . By the court, Registrar. ACCEPTANCE OF COMPOSITION OR SETTLEMENT. 299 No. 8G. Affidavit of Person interested in a Composition for Committal. Part vii. Chap. X. " The Bankruptcy Act, 18G9." In the London Bankruptcy Court [or the county court of Sect. 28. holden at ]. In the matter of a composition made by A. B., of I, F. M., of , make oath and say : — 1. That was by an order of this court made on the day of , 187 , ordered to [here set out tlie order']. 2. That a copy of the said order was duly served on the said .">. That the said has failed to obey such order. Sworn at, &c. F. M. No. 89. Notice of Application for Committal under Sects. 28, 126. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Sect*. 28, 126. holden at ]. In the matter of a composition made by A. B., of To Take notice that C. D., of , will on the day of 187 , at o'clock in the noon, apply to this court for an order for your committal to prison for contempt of this court, you having disobeyed the order of this court made on the day of 187 , [here set out order]. And further take notice that von are required to attend the court on such day at the hour before stated, to show cause why an order for your committal should not be made. Dated this day of 187 . Registrar. No. 92. Order of Committal tinder Sect. 28 or 126. "The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Sects. J8, 12c. holden at ]. In the matter of A. B., of , a bankrupt [or where bankruptcy o >t mil led or proceeding under sect. 126, In the matter of a composition made by A. B., of ]. Whereas by an order of this court made on the day of 187 {here recite the order]. Now upon the application of C. D., of , and upon hearing A. B. (or as the case may be), [or if he does not appear] reading the affidavit of [here insert name and description of person by whom the order was served on A. B.], and upon reading the affidavit of [enter evidence], the court being of opinion that the said A. B. has been guilty of a contempt of this court by his disobedience of the 6aid order, it is ordered that the said A. B. do stand committed to [here insert prison] for his said contempt. Given under the seal of the court this dav of 187 . By the court, Registrar. 300 VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. Part vii. No. 80. Application for Enforcement of Provision in a Composition. ChapX - " The Bankruptcy Act, 1869." Sects. 28, 126. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of a composition made by A. B., of I, F. M., of , do apply to this court for an order for the enforce- ment of the provisions of the said composition against , on the grounds set forth in the annexed affidavit. Dated this day of 187 . F. M. No. 81. Affidavit in support of Application for Enforcement of Provisions of a Composition under Sect. 28 or 126. " The Bankruptcy Act, 1869." Sects. 28, 126. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of a composition made by A. B., of I, F. M., of , make oath and say : — 1. That I am interested in the said composition, having proved my debt as a creditor of the said A. B, [or as the case may be], 2. That [one of] the provisions of the said composition is [or are] that [here set it or them out]. 3. That has failed to comply with the said provisions [or as the case may be]. Sworn at, &c. F. M. No. 82. Order for Enforcement of Provisions in a Composition. " The Bankruptcy Act, 1869." Sects. 28, 126. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of a composition made by A. B., of Upon hearing the application of F. M., of , a person interested in the said composition, and reading the affidavit of [here insert evidence], the court being of opinion that the provisions of the said composition mentioned in the said affidavit should be enforced, it is ordered that [here insert order]. Given under the seal of the court this day of 187 . By the court, To Registrar. Take notice that unless you obey the directions contained in this order, you will be deemed to have committed a contempt of court. § 3. — Transfer of Proceedings. "The Bankruptcy Act, 1869," enacts, sect. 80, sub-s. (3), that " where proceedings against the debtor are instituted in more courts than one, the London Court of Bankruptcy may, on the application of any creditor, direct the transfer of such proceedings to the London Court of Bankruptcy or to any local bankruptcy TRANSFER OF PROCEEDINGS. 301 court" (b). And sub-sect. (5) of the same section further enacts, Partvif. that " where the creditors resolve by a special resolution that it — ^^ — — will be more convenient that the proceedings in any local bank- ruptcy court should be transferred to the London court or to some other local court, or where the judge of a local court certifies that in his opinion the bankruptcy would be more advantageously con- ducted in the London court or in some other local court, and the creditors do not by resolution object to the transfer, the petition shall be transferred to, and all subsequent proceedings thereon had in the London court or such other local court." "The Bankruptcy Rules, 1870," provide that— Rule 82. " Where the judge of a county court certifies that in his Sect, so, opinion the bankruptcy would he more advantageously conducted in the par 5 " London Bankruptcy Court or some other county court, the registrar shall, if the opinion is certified before the first meeting of creditors, lay the same before such meeting, and if it has been certified after such meeting, he shall transmit a copy of such certified opinion to the trustee, who shall thereupon summon a meeting of creditors to consider the same." Rule 83. " If within fourteen days after transmitting such notice to the trustee, no resolution of the creditors objecting to such transfer shall be received by the court through the registrar, the transfer may be made accordingly." Rule 84. " Where the proceedings in any bankruptcy are transferred from the court to which the petition ■was presented to any other court, the registrar of the first court shall send by book-poet all the proceedings to the registrar of the court to which the proceedings are transferred ; and the receipt of such proceedings shall be considered to authorize the latter court to continue such proceedings, without any further order for transferring them than is contained in the proceedings." No. 37. Certificate of Judge for Transfer of Proceedings. In the London Bankruptcy Court [or the county court of Sect. 80, holden at ]. P". 8. In the matter of A. B., of , a bankrupt. I hereby certify for the following reasons that proceedings in this bankruptcy would in ray opinion be more advantageously conducted in the London Bankruptcy Court [or the county court of holden at ]. (Here set out reasons.) Dated this day of , 187 . F. H., judge. — ♦ — § 4. — Trial of Questions of Fact by a Jury. "The Bankruptcy Act, 1869," enacts, sect. 72, that "if in any proceeding in bankruptcy there arises any question of fact which the parties desire to be tried before a jury instead of by the court (b) See the section, ante, p. 244 n. power given by subs. 3 applied to In Ex parte Wieland, 39 L. J. (N. proceedings under the former law. S.) Bankr. 46, it was held that the 302 VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. Part vii. itself, or wliicli the court thinks ought to he tried by a jury, the '■ — '— court may direct such trial to be had, and such trial may be had accordingly in the London Court of Bankruptcy, in the same manner as if it were the trial of an issue in one of the superior courts of common law, and in the county court in the manner in which jury trials in ordinary cases are by law held in such court" (c). As to the trial by jury in ordinary cases in the county courts, see ante, Vol. I. pp. 257—262. " The Bankruptcy Rules, 1870," contain various provisions re- specting trial by jury. The following are such of those Rules as relate to trials by jury in the county courts — Sect. 72. Rule 190. "Where upon any application to the court for its decision on any question, the court, either on its own motion or on the application of any person, shall have directed that a question of fact be tried by a jury, such question of fact shall be reduced into writing and submitted to the judge for his approval, and shall, when approved, be signed by the judge and tiled, and shall be called the record for trial ; but the court shall have power to allow any amendment thereof at anytime upon such terms as it may think fit." Rule 191. " Upon filing the record with the registrar within three days after the above approval has been given, the registrar shall fix the time and place at which the trial shall be had " (d). Ride 202. " Where the jury retire from the court to consider their verdict, they shall be taken charge of by an officer of the court ; but previously thereto the registrar of the court shall swear such officer according to the form in the schedule." (c) See sect. 72, ante, pp. 203, 204. tention to adduce evidence, to address There is no appeal from an order by the jury a second time at the close of a county court for trial of questions such case, for the purpose of summing of fact under this section, tlx parte up the evidence; and the party on the Anderson, Re Anderson, 39 L. J. other side, or his counsel, shall be (N.S.)Bankr. 32. The word "parties," allowed to open the case, and also to in the section, is not confined to parties sum up the evidence (if any); and to the bankruptcy, but includes parties the right to reply shall be the same to the litigation; per Giffard, L. J., as at present in force in the superior Id. p. 54. courts of common law at Westminster (d) Rules 192 to 201 relate to on trials at Nisi Prius." trials in the London Bankruptcy The following " Form of Oath to be Court, and, except No. 201, are in- taken by the usher of the court on applicable to county courts. Rule jury retiring to consider their verdict" 201, although on its face confined to (Form No. 100), will be a guide for the London court, will be' a guide to the registrar or high bailiff who ad- the practice in the county courts, and ministers the oath in the county is therefore given here. court. "You sb all well and truly Rule 201. "Upon every such trial keep this jury in some private and in the London Bankruptcy Court the convenient place, without meat, drink, addresses to the jurj or to the court, or fire (candle-light excepted). You as the case may be, shall be regulated shall not suffer any person to speak as follows:— The party who begins, to them, neither shall you speak to or his counsel or attorney, shall be them yourself, without leave of the allowed, in the event of his opponent court, except to ask them if they are not announcing at the close of the agreed on their verdict." case of the party wbo begins, his in- APPEAL IN' BANKRUPTCY. 303 Rule 203. " The verdict or finding of the jury, as the ca*c may be, shall Part vii. be endorsed by the registrar on the record for trial, and with the jurv CnAP - X- panel and the names of the jurors, who were sworn, endorsed thereon." § 5. — Appeal in Bankruptcy. " The Bankruptcy Act, 1869," enacts that— Sect. 71. " Every court having jurisdiction in bankruptcy under this Appeal from act may review, rescind, or vary any order made by it in pursuance of courts - this act. Any person aggrieved by any order of a local bankruptcy court in respect of a matter of fact, or of law made in pursuance of this act, may appeal to the chief judge in bankruptcy, and it shall be lawful for such judge to alter, reverse, or confirm such order as lie thinks just. Any order made by the chief judge in bankruptcy, whether in respect of a matter brought before him on appeal or not, shall he subject to an appeal to the Court of Appeal in Chancery (which court, for the purposes of this act, shall be and form a court of record, and shall have all the jurisdiction, powers and authorities of the court of bankruptcy, to be exerciseable either originally or on appeal, and shall have all the powers and authorities of the Court of Chancery relative to the trial of questions of fact, by jury, issue or otherwise), and also, with the leave of the Court of Appeal, to the House of Lords, but no appeal shall be entertained under this act except in conformity to such rules of court as may for the time being be in force in relation to such appeal." Sect. 72 enacts that no appeal shall lie from the decisions of any court, except in manner directed by the act (e). An order made by a county court for the trial of issues of fact by a jury in that court is not an order in respect of " a matter of fact or of law" subject to appeal, or which the chief judge has any j lower to alter or reverse. It is a matter on which the county court has complete jurisdiction under sect. 72 (f). Costs of Appeal.'] — A successful appellant is not in general entitled to the costs of appeal. The exception is when the respon- dent has been guilty of misconduct (g). Rules relating to Appeals.] — The following "Bankruptcy Rules, 1870," relate to appeal. Rule 143. "An appeal against a decision or order of the chief judge Secta. 71,78. (e) See sect. 72, ante, pp. 203, 204. ance of the questions, and that it was (/) Bacon. C. J., Ex parte Ander- impossible to obtain a fair trial in ton. Re Anderson, .">'.» L J. (N. S.) the local court. Bankr. 32, citing the judgment of (g) la re Cherry, Est parte Giffard, L. J., in Ex parte . I nderton, Mathem$, 40 L. J. ( U.S.) Bankr. 90, subsequently reported in ."5!» L. J. where Bacon, C. J., held that he was (N. S.) Bankr. 64. In the case bound by the practice of the Court of before the chief judge in bankruptcy Chancery as laid down in Denny v. the object of the application was to get Haneook, Law Rep., 6 Chanel::- ; a trial by a special jury in the London 40 L. J. (X. S.) Ch. 1 93, court, on the ground of the import- 304 VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. Part vii. ill bankruptcy, er a judge of a county court, shall be entered with the Chap, x. registrar of appeals within and not later than twenty-one days from the said decision or order, by leaving with him a copy of the appeal notice of motion." Rule 144. "Upon entering an appeal, a copy of the appeal notice shall be sent forthwith by the appellant to the registrar of the court appealed from, who shall forthwith tile the same with the proceedings, and a similar notice shall be delivered by the appellant to each respondent four days before the day on which he intends to move." Rule 145. " At or before the time of entering an appeal, the party in- tending to appeal shall deposit with the registrar of appeals such sum, not being less than ten pounds and not exceeding forty pounds, as the court appealed from shall direct, to satisfy, so far as the same may ex- tend, any costs that the appellant may be ordered to pay, and in the absence of any such direction, the sum deposited shall be twenty pounds." Rule 14G. " Where there are several respondents in separate interests, the court may, if it shall think fit, direct a separate deposit to be made as to every such respondent." Rule 14*7. " All appeals shall be brought on by motion, and no new evidence shall be received on any appeal unless the court of appeal shall so direct ; but any of the parties shall be at liberty to bring before the court of appeal, by affidavit, the circumstances under which the decision or order appealed from was made." Rule 148. " Every affidavit intended to be used upon the hearing of any appeal shall be filed with the registrar of appeals, and a copy thereof sent by the appellant to the respondent four clear days before the day appointed for hearing." Rule 149. " The registrar of the court appealed from shall, upon the application of the registrar of appeals, transmit to him the file of pro- ceedings in the matter under appeal." Rule 150. " The office for entering bankruptcy appeals to be heard by the Court of Appe.nl in Chancery shall be closed during the ordinary vacations of the Court of Chancery, and the time during which such office shall be closed shall not be reckoned in the number of days ordered for the entering of appeals to be heard by such Court of Appeal in Chancery." § 6. — Death of the Bankrupt. " The Bankruptcy Act, 1869," enacts, that " when a debtor who has been adjudicated a bankrupt dies, the court may order that the proceedings in the matter be continued as if he were alive" (A). § 7. — Annulling the Adjudication. Annulling Adjudication where no Trustee appointed^] — If at the first meeting of creditors (or an adjournment of it) " no trustee is appointed by reason of the prescribed quorum not being present, (h) See sect. 80, sub-sect. (9), ante, deceased bankrupt, see s. 108, ante p. 245 n; as to the deposition of a p. 216. ANNULLING THE ADJUDICATION'. 305 or for any other reason whatever, the court may annul the adjudi- Paktvii. cation, unless it deems it expedient to carry on the bankruptcy Chap, x. with the aid of the registrar as trustee. Moreover, if at any time during the bankruptcy no new trustee is appointed to fill a vacancy in that office, the court may either carry on the bankruptcy with the aid of the registrar as trustee, or annul the order of adjudica- tion, as it thinks just" (i). Where there was a principal creditor of a large amount and only two other unsecured creditors of small amount, it was held that it was not a proper case to annul the bankruptcy under the above section, for one creditor may be properly entitled to have the affairs wound up in bankruptcy (k). Annulling Adjudication on Acceptance of Composition or Arrangement.'] — The annulling the order of adjudication may be made a condition of any composition with the bankrupt or of any general scheme for the liquidation of his affairs (/), and where it is made a condition, the adjudication is "annulled from and after the date of the order annulling the same" (?«). Effect of annulling the Adjudication.] — " The Bankruptcy Act, 1869," enacts that — Sect. 81. "Whenever any adjudication in bankruptcy is annulled, all Consequences sales and dispositions of property and payments duly made, and all acts °f annulling theretofore done by the trustee or any person acting under his authority, tion. or by the court, shall be valid, but the property of the debtor who was adjudged a bankrupt shall, in such case, vest in such person as the court may appoint, or, in default of any such appointment, revert to the bank- rupt for all his estate or interest therein upon such terms and subject to such conditions, if any, as the court may declare by order. A copy of the order of the court annulling the adjudication of a debtor as a bank- rupt shall he forthwith published in the London Gazette, and advertised locally, in the prescribed manner, and the production of a copy of the Gazette containing such order shall be conclusive evidence of the fact of the adjudication having been annulled, and of the terms of the order annulling the same." Sect. 81 was passed to provide for many possible cases, where, notwithstanding the annulling of the bankruptcy, various interests in the bankrupt's effects might have arisen; a portion of those effects might have been distributed and a portion not. In such cases it would be necessary to provide that the Court of Bank- ruptcy should have power to order possession to be taken of the bankrupt's estate. l>ut where no such order is made, sect. 81 almost of necessity provides that the property shall revert to the bankrupt (»). (i) See sect. 84, ante, pp. 2GC, 267. (Z) See sect. 28, ante, p. 297. (k) In re Finney, Ex parte (») hi. English Joint Stock Bank, -10 L. J. («) Kelly, 0. B., Bailey v. Juhn- (N. S.) Bankr. 18. son, 40 L J. (N. S.) Exch. L92. D. VOL. II. X 306 VARIOUS PROCEEDINGS INCIDENTAL TO BANKRUPTCY. Part vii. No. 59. Notice in Gazette and Paper of Bankruptcy having been annulled. : " The Bankruptcy Act, 1869." Sect. 81. I n the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. Whereas under a bankruptcy petition presented to this court against the said A. B., an order of adjudication was made on the day of 187 . This is to give notice, that the said adjudication was by order of this court annulled on the day of 187 . Dated this day of 187 . Registrar. ( 307 ) CHAPTER XL THE EFFECT OF ADJUDICATION ON THE BANKRUPT'S PROPERTY AND RIGHTS. § 1. — The Vesting of the Property. § 2. — Time of Commencement of the Bankruptcy. § 3. — Description of the Property divisible amongst Creditors. § 4. — Goods of which the Bankrupt is reputed Owner. § 5. — Effect of Adjudication on Claims against the Bankrupt. -Stoppage in Transitu. -Avoidance of Voluntary Conveyances and Trans- fers. -Avoidance of Fraudulent Preferences. -Protection of certain Transactions. -Effect of Bankruptcy on Property taken in Execu- tion. -Disclaimer of onerous Property. -Property Defeasible on Bankruptcy. -Effect of Bankruptcy in Miscellaneous Matters. § 6. § 7. 5 8. § 9, § 10. 5 11, § 12, § 13, § 1. — TnE Vesting of the Property. Immediately on an order of adjudication being made, the pro- perty of the bankrupt vests in the registrar (who is trustee until another is appointed) (a), and it becomes divisible amongst his creditors in proportion to the debts proved by them in the bank- ruptcy (b). Property means and includes " money, goods, things in action, land and every description of property, whether real or personal ; also, obligations, easements, and every description of estate, in- terest and profit, present or future, vested or contingent, arising out of or incident to property as above defined" (c). (a) See sect. 17, ante, p. 274, ami (&) See sect. 11, ante, p. 268. see certificate of registrar being trus- (<•) See sect. 4, ante, \>. -"1 (note); tee, ante, p. 261. see also sect. 15, post, pp. 308, 309. x 2 308 ADJUDICATION ON BANKRUPT S PROPERTY AND RIGHTS. Part VII. Chap XI. Relation back. Definition of commence- ment or bunk- ruptcy. § 2. — Time of Commencement of the Bankruptcy. It is a clear principle in bankrupt law that, upon the commission of an act of bankruptcy, the title of the assignee (now "trustee") has relation back to the time of the act of bankruptcy, and the goods of the bankrupt become the goods of the assignee from that time (d). "The Bankruptcy Act, 1869," recognizes and adopts the principle. That act enacts that — Sect. 11. "The bankruptcy of a debtor shall be deemed to have relation back to and to commence at the time of the act of bankruptcy being completed on which the order is made adjudging him to be bank- rupt; or it* the bankrupt is proved to have committed more acts of bank- ruptcy than one, to have relation back to and to commence at the time of the first of the acts of bankruptcy that may be proved to have been committed by the bankrupt within twelve months next preceding the order of adjudication; but the bankruptcy shall not relate to any prior act of bankruptcy, unless it be that at the tirr.e of committing such prior act the bankrupt was indebted to some creditor or creditors in a sum or sums sufficient to support a petition in bankruptcy, and unless such debt or debts are still remaining due at the time of the adjudication." Although the doctrine of relation, as already stated, is not new, it is now put upon a plain and intelligible footing. It commences, in ordinary cases, at the time of the act of bankruptcy being com- pleted, in which the order is made adjudging the debtor to be a bankrupt (e). Prior Act of Bankruptcy. ~\ — In the case of an act of bankruptcy committed under sect. 6, sub-sect. 6, ante, p. 220, by nonpayment of a debt after summons, if such debt is paid, the act of bank- ruptcy ceases, and therefore, on an adjudication on a subsequent petition of another creditor, such prior act of bankruptcy could not be applied under sect. 11 by way of relation back (/). § 3. — Description of the Property divisible amongst Creditors. " The Bankruptcy Act, 1869," enacts that— Descriptions Sect. 15. " The property of the bankrupt divisible amongst his cre- of bankrupt's ditors, and in this act referred to as the property of the bankrupt, shall c'lTvisuIfe n °t comprise the following particulars: (1.) Property held by the bankrupt , Effect of voluntarily resigning or not ) if it ap- BAHKBUPTCT OS Property taken pears to the court expedient to do so, in Execution. and all provisions of that act, ami of (/) See ante, p. 201 (note), anv other act relative thereto, shall (k) Ex parte ])eirhurst. In re have effect accordingly." Yanlohe, 41 L. J. (N. S.) Bankr. 18. 310 ADJUDICATION ON BANKRUPT'S PROPERTY AND RIGHTS. Part vii. of his situation), it was held that the trustee could not compel the chap, xi. ] anc ]i 0V( j ^t^q k ne w of the bankruptcy) to refund the money (I), possibly if the trustee had taken any steps to intercept the money, had gone to the bankrupt's employer or given him notice not to part with the money, the case might have been different, but as it stood, it was the case of a person in the ordinai'y course of business paying his landlord his rent in advance. If such a payment could be upset because the person who made it was an undischarged bankrupt, a payment under similar circumstances to a baker or a butcher might be upset, and the baker or butcher ordered to re- fund (?«). Bankin? Property held hi Trust.'] — With regard to banking accounts, accounts. « jf an accoun t; } s m plaiu terms headed in such a way that a banker cannot fail to know it is a trust account, the monies of that account, if a failure of the person occurs, will belong to the trust" (»). § 4. — Goods of which the Bankrupt is reputed Oavner. The effect of sub-section 5 of sect. 15 requires to be separately considered. It is confined to traders, and applies, as will be seen at once, to goods and chattels of third persons, being at the commence- ment of the bankruptcy "in the possession, order or disposition of the bankrupt," " by the consent and permission of the true owner." Something further, however, is necessary in order that the pro- perty should be divisible among the creditors. The bankrupt must either be the "reputed owner," or he must have "taken upon himself the sale or disposition as owner." The questions raised under this clause are to a great extent questions of fact only, and therefore questions for a jury, if the assistance of a jury is obtained. Nevertheless the section and the corresponding provisions of former acts have been the subject of numerous decisions in the courts of law (o). {V) Ex parte Dcwhurst, In, re duce a single case where the conrt Vanlohe, 41 L. J. (N. S.) Bankr. 18. had held that money paid, owing by an Affirming judgment of Bacon, C. J., uncertificated bankrupt, could be fol- and discharging an order of the county lowed in the hands of the person who court judge for payment. received it." (»i) Id. Judgmentof James, L. J. («) Mellish, L. J., Ex parte In the course of the argument, Mel- Kingston, lie Gross, 40 L. J. (N. S.) lish, L. J., put this question to the Bankr, 97. See the facts of that counsel, "Is there any case which case noticed, post, Chap. XIII. shows that the law will follow money (o) The earliest decisions were paid in dischar^ of a legal debt?" under the statute 21 Jac. 1, c. 1!>, And James, L. .1., in his judgment s. 1 1, which corresponded closely with said, "The learned counsel with all the present clause. Most of the casea bis research had been unable to pro- will be found collected and discussed GOODS OF WHICH TIIE BANKRUPT IS REPUTED OWNER. 311 In cases where the property in question once belonged to the £ artV 'J' bankrupt and has been transferred to another person, but has been '■ — - allowed to remain in the ostensible ownership of the bankrupt, the statute applies ; but there is another class of cases in which the bankrupt, although in the possession of the property, is not deemed to be the reputed owner, as where there is a custom or usage of trade or business under which the goods of one person arc notoriously continued in the possession of another, and then the statute does not apply. For example, in a leading case on this subject, where it was held that vats and utensils (part of the fittings of a distillery) which were not fixed to the freehold, passed to assignees as being left by the true owner in the possession and apparent disposition of the bankrupts as reputed owners, it was said that the case would have admitted of a different consideration if there had been a usage in the trade for the utensils of it to be let out to the traders, as that might have rebutted the presumption of ownership arising from the possession and apparent order and disposition of them (p). Books left in the hands of a bookseller, to be sold by him in the ordinary course of trade, are not in his possession as reputed owner, it being notorious that books are left with publishers or others in large quantities to be sold on account of the person who leaves them (q). This notice of custom or usage has been recently carried very far, and applied to the custom of letting and hiring furniture. Where a trader bankrupt, tenant of an unfurnished private house, having no furniture of his own, hired furniture from a furniture dealer at a weekly rent, the bankrupt undertaking to insure it and not to remove it, and stipulating that in the event of non-payment of the rent or of bankruptcy, the owner should be at liberty to re- take it, it was held that the section did not apply (r). This case conflicts with one much earlier, where the distinction was laid down between a person renting furniture without the house, and where he is in possession of a ready-furnished house ; in the former case the assignees being entitled, in the latter not (*). Goods arid Chattels.'] — Besides the question whether property of another person is in the possession of the bankrupt as reputed with the usual ability in the notes to possession, order and disposition were Horn v. linker, 2 Smith's leading allessentialreqnisites,insteadof being Cases, f»th edition, pp. 17s L'i)7. in the disjunctive. ( y) Horn v. Baker, 9 Bast, 815; (*) Linghamx. Biggs, 1 B. & P. L' Smith's Leading Cases, 5th edition, 82. The arguments in Fx parte p. 178. Emerson, snpra, are not reported, but (7; 24 L. J. in ire especially as it places the case of (N. S.) Q. P. 301 ) lays down the law Trappes v. Harper, 2 Cr. & M. 153; very clearly." 314 ADJUDICATION ON BANKRUPT'S PROPERTY AND RIGHTS. part vii. did all in his power to take possession, short of a forcible entry, it Chap, xi. wag j^j^ t i iere wag no CO nsent and permission within sub-sect. (5), and that, therefore, the creditor and not the bankruptcy trustee was entitled to the goods (e). Things in Action.] — Under previous acts, choses in action passed to the assignees under the order and disposition clause (f ). The exception of "things in action," does not include everything not capable of manual delivery. Shares in a registered joint stock company are goods and chattels and not " things in action," and a mere deposit of them by a debtor as security for a debt constitutes the mortgagee "the true owner," but they are "in the order and disposition" of the debtor, "by the consent and permission of the true owner," unless the latter has given notice to the company or otherwise taken some step to perfect his title (g). Bills of Sale Act.'] — Reference may be here made to " The Bills of Sale Act, 1854" (17 & 18 Vict. c. 36), the provisions of which will be found ante, Vol. L, pp. 891 — 893. The act in sub- stance, so far as relates to bankruptcy, is that if the owner of a bill of sale of personal chattels do not comply with the provisions of the act respecting registration, his security shall be void against assignees (for whom trustee is noAV to be read) in bankruptcy, with respect to chattels left in the apparent ownership of one who becomes bankrupt. The creditor is at liberty, under his bill of sale, whether registered or not to take possession of that which has been assigned to him, and to remove or deal with it as the owner. If, instead of exercising his right, he thinks fit to leave the goods which have been assigned to him, and which have thereby become his, in the house or on the premises of his debtor, the bill of sale not having been duly registered, he leaves them in that debtor's apparent ownership, and he cannot be relieved from the consequences by proving that he took even more than formal possession of them \h). (e) Ex parte Cohen, Re Sparhe, the mortgagee prevailed." ante, p. 314. (h) Sec judgment of Bacon, C. J., (/) See 2 Smith's Leading Cases, Ex parte Momann, lie Vining, 39 5th edition, p. 207. L. J. (N. S.) Bankr. 47, where it was (<7) In re Jackson, Ex parte held that the creditor having a man Union Bank of Manchester, 40 L. J. on the premises to watch the goods, (N. S.) Bankr. 57, Bacon, C. J., was not sufficient possession to oust observed, that " the case of Ex parte the title of the bankruptcy trustee, Stewart, lie Shelley, 35 L. J. (N. S.) the bill of sale not being duly regis- Bankr. G, is valuable; it establishes tered. In Stamjield v. Oubitt, 27 two propositions— first, that a deposit L. J. (N. S.) Ch. 266, Turner, L. J., of shares constituted a ^ood equitable expressed an opinion that the Bills of assignment; secondly, that notice is Sale Act in no degree affected the necessary, and that in that case, doctrine of reputed ownership, notice having been given, the title of ADJUDICATION ON CLAIMS AGAINST THE BANKRUPT. 315 S 5. — Effect of Adjudication on Claims against the J ART v '|- 3 -r, Chap. XI. Bankrupt. "The Bankruptcy Act, 1869," enacts that— Sect. 12. " Where a debtor shall be adjudicated a bankrupt, no creditors creditor to whom the bankrupt is indebted in respect of any debt bound b - v proveable in the bankruptcy shall have any remedy against the property feeding*, or person of the bankrupt in respect of such debt except in manner directed by this act. But this section shall not affect the power of any creditor holding a security (7) upon the property of the bankrupt to realize or otherwise deal with such security in the same manner as he would have been entitled to realize or deal with the same if this section had not been passed." As to restraining proceedings in actions as against debtors, see sect. 13, ante, p. 249, and cases on that section. The rights of creditors inter se, however, under sect. 12, are not taken away, although they may be held in abeyance by sect. 13 (A). § 6. — Stoppage in Transitu. The doctrine of stoppage in transitu does not appear to be taken away or affected either by sect. 12, or by any other provision of "The Bankruptcy Act, 1869." "Stoppage in transitu," is the right of an unpaid vendor, in case of the vendee's insolvency, to stop the goods sold, in transitu. This right of a vendor to stop in transitu, is bestowed upon him in order to prevent the injustice which would take place, if, in consequence of the vendee's insolvency, while the price of the goods was yet unpaid, they were to be seized upon in satisfaction of his liabilities, and so the property of one man were to be disposed of in payment of the debts of another (I). Therefore, if goods are (0 In Slater v. Finder, 40 L. J. (k) Ex parte Itvchc, In re Hall, (N. S.) Ex. 151, Martin, B., expressed 40 L. J. (N. S.) Bankr. 70. an opinion that " holding a security " (Z) See Lichbarrow v. Maxon, and would include an interest in an exe- Maxon v. Lickbarrow, 2 T. R. 63; 1 cution under which a sheriff has H. Bl. 357; 6 East, 21, and the notes seized and is in possession of goods, to this case, 1 Smith's Leading Cases, and that the interest of such an exe- 5th edition, p. 729. This doctrine cation creditor is expressly protected was first introduced in equity by tlio by this section, subject of course to cases of Wiseman v. ranaeput, 2 circumstances where the execution is Vern. 203; Snee v. Present, 1 Atk. after notice of an act of bankruptcy, 246; and D'Aguila v. Lambert, 2 (sec9cct.'J5,/>r>.tr,p. 321), and Mcllish, Eden, 75; Amb. 39. In Straierr. L. .T., seems to have expressed a Hiring, 34 Bear. 147, it was laid that similar opinion in Ex parte Roohe, stoppage in transitu is an ordinary In re Hall, 40 L. J. (N. S.) Bankr. legal right, as to which the Court of 7;!. The definition of a "secured Chancery, unless by reason of some creditor" in sect. 16, anfe, pp. 866, unusual circumstances, will not intcr- 266, does not appear to include a fere, seizure under an execution. 316 ADJUDICATION ON BANKRUPT'S PROPERTY AND RIGHTS. Part vii. sold on credit, and nothing is agreed on as to the time of delivering ' ' the goods, the vendee, although he is immediately entitled to the possession and the right of possession, and the right of property vest in him, has not an absolute right of possession, hut a right of possession liable to be defeated if he become insolvent before he obtains possession. The seller, although he may have dispatched the goods to the buyer, has in that case a right in virtue of his origiual ownership to stop them in transitu (m). The right to stop means the right not only to countermand delivery to the vendee, but to order delivery to the vendor (n). When the Transit ends. - ] — Stoppage in transitu, as its name imports, can only take place while the goods are on their way ; if they once arrive at the termination of their journey, and come into the actual or constructive possession of the consignee, there is an end of the vendor's right over them. And, therefore, in most of the cases the dispute has been whether the goods had or had not arrived at the termination of their journey. The rule to be collected from all the cases is, that they are in transitu so long as they are in the hands of the carrier as such, whether he was or was not appointed by the consignee, and also so long as they remain in any place of deposit connected with their transmission ; but that, if after their arrival at their place of destination they be ware- housed with the carrier, whose store the vendee uses as his own, or even if they be warehoused with the vendor himself, and rent be paid to him for them, that puts an end to the right to stop in transitu (o). "A right to stop in transitu upon bankruptcy, even where credit has not expired, remains till the goods are delivered to the buyer or his agent for custody, or for sending the goods upon a new journey or destination, or for a purpose other than carriage upon the original transit. Until one or the other happens, the seller has a right of stoppage in transitu; the right exists unless it be lost by acceptance of the goods by the purchaser or his agent for custody, or a new purpose other than that of carriage. But it is besides to be observed, that the arrival, in order to do away with the right of stoppage in transitu, must be such a one that the buyer has actual or constructive possession, and this cannot be whilst the buyer repudiates the goods. These are the elements of the law of stoppage in transitu" {p). (w) Sec the judgment of Baylcy, son, 9 M. & W. 518. J., iu liloxa-m v. Sanders, 4 B. & C. (o) 1 Smith's Leading Cases, 5th 948, and cases there cited. edition, p. 733, citing Nioholls v. (/t) See judgment of Dr. Lushing- Lefevre, '2 Bing. N. C. 83; James v. ton, The Tigress, 32 L. J. (N. S.) Griffin, 1 M. & W. 20; 2 Id. 623; J'rob. Mat. and Admiralty Cases, 102. Edwards*. Bremer, 2 M. & W. 875; As to what is a sufficient authority per Lord Campbell, C. J., Nicholson from the vendor to enable another v. Bower, 1 K. & E. 17l'. person on his behalf to stop goods in, {p) Judgment of WilleB, J., Bolton transitu, see Whitehead v. Andcr- v. Lancashire and Yorkshire Rail- avoidance of voluntary conveyances and transfers. 3t, § 7. — Avoidance of Voluntary Conveyances and Transfers. chIVxi' " The Bankruptcy Act, 1869," enacts that — Sect. 91. "Any settlement of property made by a trader (7), not Avoidance of being a settlement made before and in consideration of marriage, or volullta, 'y made in favour of B purchaser or incumbrancer in good faith and for seltemeuU - valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife, shall, if the settlor becomes bankrupt within two years after the date of such settlement, be void as against the trustee of the bankrupt appointed under this act, and shall, if the settlor becomes bankrupt at any subsequent time within ten years after the date of such settlement unless the parties claiming under such settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in such settlements, be void against such trustee. Any covenant or contract made by a trader, in consideration of marriage for the future settlement upon or for his wife or children of any money or property wherein he had not at the date of his marriage any estate or interest, whether vested or contingent, in possession or remainder, and not being money or property of or in right of his wife, shall, upon his becoming bankrupt before such property or money has been actually transferred or paid pursuant to such contract or covenant, be void against his trustee appointed under this act. M Settlement shall for the purposes of this section include any convey- ance or transfer of property." It has been long an established principle in bankruptcy, that an assignment of all the goods of a debtor as a security for a past debt is invalid, and this principle seems to be clearly included iu this section. There are cases, however, where a bill of sale is, upon an advance being made, agreed to be given, and afterwards is given, in which cases the bill of sale has been held to have a considera- tion relating back to the time of the advance (r). Where the debtor gave a bill of sale of all his property, worth about 700/., to a creditor for securing 55/. borrowed, and, in pursuance of an agreement, gave successive bills of sale every twenty-one days, to avoid registration under the Bills of Sale Act, may Co., 35 L. J. (X. S.) C. P. 137. Cohen, Re Sparke, 41 L. J. (X. S.) For the various cases on the subject Bankr. 18; commenting on Bittletton 6f Stoppage in transitu, see 1 Smith's v. Coohr, 6 E. & B. 296 ; 25 L. J. Leading Cases, 5th edition, pp. 729— (X. S.) Q. B. 281 ; Harris v. Rieketts, 747. As to how far a reliance on the 4 II. & N. 1; 28 L. J. (N. S.) Ex. right to atop m transit a may operate 197 j Button v. Qruttmett, 1 E. & B. as an affirmance of a fraudulent con- 15 ; 82 L. J, (X. S.) Q. B. 78 ; Pen- tract, see Cloiujh v. London and nrll v. Reynolds, 11 C. B. Rep. North Western Railway, 41 L. J. (X. S.) 707. " In all those cases the ( N. S.) Ex. 17. agreement to give the hills of sale was (y) As to who are traders, see binding on the debtor and was for the ante, ]>. 221. benefit of the creditor." (/•) Mellisb, L. J., Ex jnirte 318 ADJUDICATION ON BANKRUPT'S PROPERTY AND RIGHTS. Part vii. but the last bill of sale was registered, and a petition for liquida- HApXr - tion was shortly afterwards filed, it was held, that the bill of sale was void, as a device for the benefit of the debtor, it being obvious that the debtor did not agree to give a fresh bill of sale for the benefit of the creditor (s). ♦ § 8. — Avoidance op Fraudulent Preferences. " The Bankruptcy Act, 1869," enacts that — Avoidance of Sect. 92. " Every conveyance or transfer of property or charge fraudulent thereon made, every payment made, every obligation incurred, and every judicial proceeding taken or suffered by any person unable to pay his debts as they become due from his own monies in favour of any creditor, or any person in trust for any creditor, with a view of giving such creditor a preference over the other creditors, shall if the person making, taking, paying, or suffering the same become bankrupt within three months after the date of making, taking, paying, or suffering the same, be deemed fraudulent and void as against the trustee of the bank- rupt appointed under this act ; but this section shall not affect the rights of a purchaser, payee, or incumbrancer in good faith and for valuable consideration." Although the preceding section is new, " The Bankruptcy Act, 1869," being the first statute containing any enactment as to fraudu- lent preference, it introduced no new principle into the law. Long before the passing of that act there had been rules relating to fraudulent preference clearly laid down ; and those rules were not in any substantial degree modified or altered by the act. Before the act it had been laid down that in order to constitute fraudulent preference it was essential that two things should concur. First, there must be a voluntary payment ; secondly, the payment must be made in contemplation of bankruptcy. As to the first point, it had been decided that an earnest bona fide threat would deprive a payment made under it of that voluntary character which made it impeachable. With regard to the second point, it had been held that when the payment had been made by a person in a hopeless state of insolvency, it had been made in contemplation of bank- ruptcy. There were numerous instances of cases in which payment, in the ordinary course, of a bill of exchange which had been pre- sented at maturity, or the payment of debts which had become due in a particular manner or time, had been held not to be open to objection on the ground that they were voluntary payments. To hold them to be otherwise would impede and embarrass the ordi- nary transactions of commerce. If sect. 92 had merely enacted that " every payment made to a creditor shall, if the person making the same become bankrupt within three months after making the same, be deemed fraudulent and void," it would have put an end to any question that could be raised as to contemplation of bank- 0) Ex parte Cohen, lie Sparke, 41 L. J. (N. S.) Bankr. 17. AVOIDANCE OF FRAUDULENT PREFERENCES. 319 ruptcy. But a qualification has been added, namely, that in order Partvji. to be fraudulent, the payment must have been made " with a view of ChapX ' giving such creditor a preference over the other creditors." These words are the very life and essence of the provision, and, therefore, unless it is made clear that the object of the payment was the preference of one creditor over another, the payment cannot be impeached. If the act of the debtor can be referred to any other motive than that of giving one creditor preference above another, the payment would not be fraudulent or void. That this is the meaning of the act is made clearer by the proviso at the end of the section, to the effect that the section shall not affect the rights of a purchaser, payee, or incumbrancer " in good faith and for valuable consideration." As a matter of construction, it may be doubtful to what persons the words " for valuable consideration" were meant to apply ; but the payee must clearly act iu good faith (t). Therefore to bring a case within the new section it must be within the old law (u). The law is thus stated by Lord Mansfield in the earliest case on the subject : " If a man about to become bankrupt, and knowing that the law intends that the creditors shall share equally in the property, voluntarily, and not upon pressure, does an act which contravenes the spirit of those bank- rupt laws, the goods, or the money delivered or paid over, can be recovered back from the person to whom he may have only paid •a just debt" (x). The law, as thus defined, was recognized and adopted in the latest case previous to " The Bankruptcy Act, 1869" (y). (t) See judgment of Bacon, C. J., prive the debtors' act of that spon- I/i re Cheeselroiigh, Ex parte taneity which is requisite in order to Hitcheoeh, 40 L. J. (N. S.) Bankr. set aside the transaction, it is no less 81; see also judgments of the Lords true that in later cases it has been Justices, In re Craven, Ex parte held that a demand or request made Tempt xt, 40 L. J. (N. S.) Bankr. 22. by a creditor although not accom- (m) James, L. J., In re Craven, panied by any threat or expressed in Ex parte Temped, 40 L. J. (N. S.) angry, or even any urgent terms, is Bankr. 24. still sufficient to deprive the act of a (x) Alderson v. Temple, 4 Burr. voluntary character. In Hurst v. 2235. Mortimer (10 B. & C. 44), Lord (y) Marls v. Fchlnuni, in the Ex- Tentcrden said that some of the pre- chequer Chamber, Law Rep., 5 Q. B. vious cases had gone too far as against 283; 39 L. J. (N. S.) Q. B. 107. " In the creditor; and in Edwards v. Glyn some of the cases exception has been (2 E. & E. 29; 28 L. J. (N. S.) Q. B. taken to the direction given to the 350) two of the judges referring to jury by the judge; in others it has the same point, and contrasting the been contended that the inference more recent with the former decisions, drawn by the jury was not justified observed that the tide had turned." by the evidence. But the courts in Bacon, C. J., Ex parte (Yaven, 39 dealing with these questions seem L. J. (N. S.) Bankr. 35 (affirmed on never to have departed from the rules appeal, 40 Id. Bankr. 22), where originally established, and although it most of the authorities will be found, is true that in some of the earlier See the law applied to the mortgage cases a stronger case, or rather a of ships, The Heart of Oak, 39 stronger degree of pressure, appears L. J. (N. S.) Adm. 15. to have been required in order to de- 320 ADJUDICATION ON BANKRUPT'S PROPERTY AND RIGHTS. Part vii. The following; cases have been expressly decided under sect. Chap. X I. gr> . ° r J A mortgage to secure a previous debt, executed upon a demand for security and considerable pressure, although accompanied by a desire on the part of the debtor to make the creditor, who was a personal friend, secure, was upheld, as well on the ground that it was not voluntary as that it came within the proviso as being exe- cuted in good faith and for a valuable consideration (z). Where traders in a hopeless state of insolvency, three days before they suspended payment, paid in the ordinary course of business, and without any motive for favouring the payee, a con- siderable sum to a creditor, who received it bona fide, the payment was upheld (a), factor" ° f "^ * s to ^ e observed, that the question whether what is alleged jury. to have been a preference, was voluntary or not, is one of fact, and has been at all times so stated and considered. It is for a jury, if the question arises before them, to say whether or not the just inference from the evidence is that the act done was voluntary on the part of the debtor ; and if the like duty is to be discharged by the judge, the same rules must guide his judgment as ought to influence a jury in pronouncing their verdict {b). § 9. — Protection op certain Transactions. " The Bankruptcy Act, 1869," enacts that— Protection of Sect. 94. " Nothing in this act contained shall render invalid — certain trans- (\ ) Any payment made in good faith and for value received to any bankrupt. bankrupt before the date of the order of adjudication by a per- son not having at the time of such payment notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication: (2.) Any payment or delivery of money or goods belonging to a bank- rupt, made to such bankrupt by a depositary of such money or goods before the date of the order of adjudication, who had not at the time of sucli payment or delivery notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication : (;) In re Craven, Ex parte Tern- (N. S.) Bankr. 37. The former rule pest, 40 L. J. (N. S.) Bankr. 22 in bankruptcy that if a bankrupt (Lords Justices), affirming judgment fraudulently deliver goods to one of of Bacon, C. J., 39 L. J. (N. S.) his creditors, the assignees may dis- Bankr. 83. In this case the ruling affirm the contract and recover the under the former Act, in Brown v. value of the goods in trover, but that Kempton, 19 L. J. (N. S.) C. P. 169; if they affirm the contract, then the was cited approvingly. creditor may set oft' the debt, still (a) In re Cheesebrough, Ex parte holds good. See the rule in the notes Hitchcock, 40 L. J. (N. S.) Bankr. to Smith v. Hodwn, 2 Smith's Lead- 79. ing Cases, 5th edition, pp. 118-123, (b) Judgment of Bacon, C. J., Ex and post, Chap. XIII. parte Craven, Re Craven, 39 L. J. PROTECTION OF CERTAIN TRANSACTIONS. 321 (3.) Any contract or dealing with any bankrupt, made in good faith PaetVII. and for valuable consideration before the date of the order C " AP - XI - of adjudication, by a person not having, at the time of making such contract or dealing, notice of any act of bankruptcy com- mitted by the bankrupt, and available against him for ad- judication." Sect. 95. "Subject and without prejudice to the provisions of this act Protection relating to the proceeds of the sale and seizure of goods of a trader (y or in re- certain conveyances, charges, payments, and judicial proceedings (/), property of' the following "transactions by and in relation to the property of a bank- the bankrupt. rupt shall be valid, notwithstanding any prior act of bankruptcy, — (1.) Any disposition or contract with respect to the disposition of property by conveyance, transfer, charge, delivery of goods, payment of money, or otherwise howsoever made by any bank- rupt in good faith and for valuable consideration, before the date of the order of adjudication, with any person not having at the time of the making of such disposition of property notice of any act of bankruptcy committed by the bankrupt, and avail- able against him for adjudication : (2.) Any execution or attachment against the land of the bankrupt, executed in good faith by seizure before the date of the order of adjudication, if the person on whose account such execution or attachment was issued had not at the time of the same being so executed by seizure notice of any act of bankruptcy committed by the bankrupt, and available against him for ad- judication : (3.) Any execution or attachment against the goods of any bankrupt, executed in good faith by seizure and sale before the date of the order of adjudication, if the person on whose account such execution or attachment was issued had not at the time of the same being executed by seizure and sale notice of any act of bankruptcy committed by the bankrupt, and available against him for adjudication" (g). The provision of sect. 95, which declares the validity of convey- ances, &c. made in good faith and for valuable consideration before tin' date of the order of adjudication, is subject to, and not in con- travention of, the existing law (//). There is, for example, nothing inconsistent between it and the provision of the Partnership Act, 28 & 29 Vict. c. 86 (•). (d) See sect. 87, post, p. 324. pp. 436—449. (e) See sect. 91, ante, p. 317. (/t) Ex parte Macarthur, In re (/) See sect. 92, ante, p. 31S. Iiamsden, 40 L. J. (N. S.) Bankr. (g) As to the corresponding pro- 86. visions of former bankrupt acts, see (/.) Id. And see as to this act, the notes to Conjwr v. Chitty, 1 pott, Chap. XIV., § 2. Smith's Leading Cases, oth edition, D. VOL. II. 322 EFFECT OF ADJUDICATION ON PROFERTY AND RIGHTS. Part VTI X 1 (). — EFFECT OF BANKRUPTCY ON PROPERTY TAKEN IN Chap. XI. 3 ^, Execution. The effect of bankruptcy on property taken in execution, and where the process has been partially or wholly executed, has been a fruitful source of litigation (k). Sub-sects. (2) and (3) of sect. 95 (ante, p. 321) relate to cases where the seizure is after the act of bankruptcy. A consequence of the doctrine that the title of the trustee has relation back to the time of the act of bankruptcy, was, that if a sheriff levied after the act of bankruptcy under au execution against the bankrupt, he levied, not upon the goods of the bankrupt, but upon the goods of the assignee, and was a wrongdoer as against him and liable to an action for the value of the goods. Provisions were introduced into the bankrupt acts to meet the injustice resulting from the liability of the sheriff for levying an execution when he was ignorant of the circumstance rendering him liable to an action ; and sect. 95 of the present act accordingly gives protection to the seizure and sale, before the order of adjudi- cation, but after an act of bankruptcy of which the creditor had no notice (/). This special protection does not apply to where the seizure is before the act of bankruptcy, for no protection is required in that case, as the act of bankruptcy could not have any effect on the execution ; and notice of an act of bankruptcy after the seizure could have no more effect than the act of bankruptcy itself (m). (7i) The seizure of goods by the Ex parte Todhunter, Law Kep., 10 sheriff does not vest any property Eq. 429; 39 L. J. (N. S.) Bankr. 17; whatsoever in the creditor under Slater v. Plnder, 40 L. J. (N. S. ) whose writ the seizure is made. The Ex. 146; affirmed on error, 41 Id. 6G; property which is vested in the sheriff Ex parte Roche, Be Hall, 40 L. J. by seizure is merely that which results (N. S.) Bank. 70; Ex parte Bailey, from his being appointed officer of In re Jecks, 41 L. J. (N. S.) Bankr. the law, and to enable him to sell the 1. A former bankrupt act, 12 & 13 goods and raise the money, not that Vict. c. 10(5, s. 184, enacted that no thereby the property is taken out of creditor having security for his debt the debtor. The goods are, in sub- of the goods and chattels of the stance, in eustodid legist ; the seizure bankrupt, should receive upon such by the officer is for the benefit of security more than a rateable part of those who are by law entitled ; it is such debt, except in respect of an made against the will of the debtor, execution levied by seizure and sale and no property is transferred by any before the date of the fiat or the filing act of his to the sheriff. Giles v. of the petition. Upon this section Orover (House of Lords), 1 CI. & F. the Court of Queen's Bench held in 72; 9 Bing. 128; 6 Bligh, N. 8. Edwards v. Searsbrooh, 3 B. & S. 277; sec judgment of Bacon, C. J., 280; 32 L. J. (N. S.) Q. B. 45, that Ex parte Rayner, In re Johnson, when the order of things was — (1) 41 L. J. (N. S.) Bankr. 26. Seizure; (2) Act of bankruptcy and (I) See judgment of Martin, B., in notice; (3) Sale; and (4) Adjudica- Slater v. Pinder, 40 L. J. (N. S.) tion; the execution creditor was en- Ex. 14G. titled to the proceeds of the goods; (m) Edwards v. Scargbrook, 3 B. and the Court of Exchequer held in & S. 280; 32 L. J. (N. S.) Q. B. 45; Youny v. Roebuck, 2 11. & C. 296; PROPEKTY TAKEN IN EXECUTION. 323 Executed in Good Faitfi.] — The words "good faith" in the PartVji. section, .so far as executions are concerned, mean "really intended — ^^ — - to be executed for a bond fide debt («), and they refer to the con- duct of the execution creditor, not that of the bankrupt" (o). Notice of Act of Bankruptcy^ — In order to constitute notice of an act of bankruptcy there ought to be a notice of the happening of facts which amount to an act of bankruptcy, and which turn out to be so(/>). When between the seizure and sale the bankrupt's attorney wrote to the execution creditors' attorney " B. (the bankrupt) made an assignment of what goods he had, and it was arranged that his daughter should raise the money, but this we find was never finally arrived at," it was held that this was not notice of an act of bankruptcy, although, in fact, the assignment referred to in the letter did amount to an act of bankruptcy (the assignment being for the benefit of creditors, and, consequently, an act of bankruptcy under sect. 6, sub-sect. 1); for the letter did not dis- close the fact that it was for the benefit of creditors (q). To whom Notice of Act of Bankruptcy may be given.] — Notioe to the attorney of the execution creditor, acting in the execution, is the same as notice to the creditor himself (r). But notice to the attorney's clerk, though at the office of the principal, is not sufficient, at least not unless he has full discretion 83 L. J. (X. S.) Ex. 200, that where Cases, 5th edition, p. 438. the adjudication preceded the sale, («) Belcher v. Magnay, 12 ML & the assignee was the party entitled W. 102; Bee Stansfield v. Oubitt, 2 under sect. 184. This section was, G. & J. 222; 27 L. J. (N. S.) Ch. B66. however, repealed, and has not been Although the dicta in these cases re-enacted; see judgment of Martin, were expressed in reference to the B., Slater t. Binder, 40 L. J. (N. &) words "bona fide" in a previous Ex. 150. Bacon, ('. J., in hank- bankrupt act, they are clearly applic- rnptcy, had held that although the able to the present act. section was not in terms re-enacted, (p) Blackburn, J., Eransv. Hal- the effect and spirit and meaning lam, 40 L. J. (X. S.) Q. B. 232. A were preserved for the purpose of general notice, however, that J. S. effecting that equal distribution of has committed an act of bankruptcy the bankrupt's estate which it has is sufficient. Udall v. Walton, 14 always been the policy of the bank- M. & \V. 264. rapt laws to effectuate; but although (y) Evant v. IFallam, supra. See Bramwell, B., also appears to have the various cases under former acts Conned a similar opinion (see Sinter collected in 1 Smith's Leading Cases, v. Finder, supra), the law must now 5tb edition, pp. 440,441; the notes to be taken as stated in the text. See Cooper v. ( kitty, 1 Burr. 417. judgment of Bacon, C. J., Em parte (/•) Cockbum, C. J., Evans v. Ji'ui/nir, Me Johnson, 41 L. J. (N. S.) Ballon, supra; Rothnoell \. Tim- Bankr. 26. Well, 1 Dowl., X. S. 778; and see («) Parke, B., Edward* y. Cooper, Ztretein v. Briscoe, 28 L. J. (X. S.) Nisi Prias, cited in 1 Smith's Leading <-2- B, 329. 324 EFFECT OF ADJUDICATION ON PROPERTY AND RIGHTS. Part vii. as to issuing or countermanding the execution (s). Nor is notice Chap XI ® ' — - to the sheriff or his officer sufficient (t). In reference to the question as to the person who must have notice it has been laid down that " the knowledge or ignorance of the person who actually, not constructively, deals with the bank- rupt, as to any prior act of bankruptcy is the material ques- tion" (u). Sub-sects. 2 and 3 of sect. 95 are to be read subject to the fol- lowing provision, which requires the retention for fourteen days of the proceeds of the sale of goods of a trader taken in execution on a judgment exceeding 50/., and, moreover, such an execution is itself an act of bankruptcy (x). "The Bankruptcy Act, 1869," enacts that — Sect. 87. " Where the goods of any trader (y) have been taken in execution in respect of a judgment for a sum exceeding fifty pounds and sold, the sheriff, or in the case of a sale under the direction of the county court, the high bailiff, or other officer of the county court, shall retain the proceeds of such sale in his hands for a period of fourteen days, and upon notice being served on him within that period of a bankruptcy petition (z) having been presented against such trader, shall hold the proceeds of such sale, after deducting expenses, on trust to pay the same to the trustee ; but if no notice of such petition having been presented be served on him within such period of fourteen days, or if, such notice having been served, the trader against whom the petition has been pre- sented is not adjudged a bankrupt on such petition, or on any other peti- tion of which the sheriff*, high bailiff or other officer has notice, he may deal with the proceeds of such sale in the same manner as he would have done had no notice of the presentation of a bankruptcy petition been served on him." The sixth section of the act having made an execution against a debtor, a trader, to obtain payment of not less than fifty pounds, levied by seizure and sale, an act of bankruptcy (a), the sheriff, except for the 87th section, would have been bound to pay the execution creditor the amount of the levy immediately upon its realization, and at the same time, upon the adjudication of the execution debtor to be bankrupt, would have been liable to pay the (*) Pike t. Stephens, 12 Q. B. Rep. (x) Ex parte Keys, 39 L. J. 405; Pennell v. Stephens, 7 C. 13. (N. S.) Bankr. 28; and see Ew parte Hep. 987. Jiayner, In re Johnson, 41 L. J. (t ) Ramsey v. Eaton, 10 M. & W. (N. S.) Bankr. 26, noticed ante, p. 22. 323. (u) Green v. Steer, 1 Q. B. Rep. (y) That is to say, a trader at the 710; Bee 1 Smith's Leading Cases, 5th time of the proceedings in bank- edition, p. 439 (where Fawcett v. ruptey, and not merely when the debt Frame, G Q. B. Hep. 20, so far as it was contracted. Ex" parte Bailey, does not accord with the proposition In re Jechs, 41 L. J. (N. S.) Bankr. 1. in the text, is impugned). Although (z) "Or petition for liquidation," Green, v. Steer was decided under a as the case may be. See Ex 2>arte former act, it seems equally applicable Keys, 89 L. J. (N. S.) Bankr. 28. to the present act. (a) Sec ante, p. 231. PROPERTY TAKEN IN EXECUTION. 325 value of the goods seized, to the trustee, hy the operation of the partvji. doctrine of relation hack as provided for hy sect. 1 1 (b). This section CHAP ' — - (87) is enacted for the avoidance of this injustice, and also, it may be, to put such a creditor in the same position as the general cre- ditors (c). Its immediate ohject is plainly to prevent the execu- tion creditor, even after the sheriff has sold, from receiving the proceeds of such sale(rf) ; and, although the act of bankruptcy is not complete under sect. 6, until sale as well as seizure, yet where goods of a trader are seized in execution on a judgment debt exceeding 50/., before bankruptcy, and bankruptcy supervenes, the trustee may obtain an order restraining the sale ; for as a sheriff who has sold, having notice of bankruptcy, is under sect. 87 to hold the proceeds upon trust to pay to the bankruptcy trus- tee, the latter is entitled in equity (and the bankruptcy court is a court of law and equity) to restrain the sale. It would be strange if the bankruptcy trustee could not exercise an option whether he will or will not incur the expense of a sale which might not only be burthensome to the estate, but which might be positively disadvantageous. A sale by auction of the fixtures in the shop or manufactory of a bankrupt trader might be mere waste or destruction, and a multiplicity of cases might be suggested in which it would be obviously to the interests of the creditors that a sale should be prevented. As an order, therefore, restraining the Bale may be obtained, so, also, an order may be made that posses- sion of the goods be given up (e). Although sect. 87 refers, in terms, to the case of a bankruptcy petition against a trader, it clearly includes the case of a petition by the trader for liquidation hy arrangement (y*). As to interpleader by sheriff on claims made in cases of bank- ruptcy *ee the Interpleader Act, 1 & 2 Will. 4, c. 58 (g), and as to staying proceedings, see sect. 13 of " The Bankruptcy Act, 1869," ante, p. 249. § 11. — Disclaimer of Onerous Property. " The Bankruptcy Act, 1869," enacts that— Sect. 23. " When any property of the bankrupt acquired by the Disclaimer as trustee under this act consists of land of any tenure burdened with ,(1 "" cr,,M property. (b) See ante, p. 308. case of Ex parte Rayner, In re (c) Martin, B., Slater v. Pinder, Johnson, supra, was the case of a 40 L. J. (N. S.) Ex. 151. petition for liquidation by arrange- {(1) Bacon, C. J., Ex parte Hay- nient. ner, In re Johnson, 41 L. J. (N. S.) (q) See the cases on this statute, 1 Bankr. 29. Smith's Leading Cases, 5th edition, (f) Ex parte Rayner, In re John- p. 449, notes to Cooper v. Chitty. As son, 41 L. J. (N. S.) Bankr. 2(5. to interpleader in the county court, (/) See post, Chap. XVI. The sec ante, Vol. I. p. 356. 326 EFFECT OF ADJUDICATION ON PROPERTY AND RIGHTS. Part vir. onerous covenants, of unmarketable shares in companies, of unprofitable Chap, xi. contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the perform- ance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding he has endeavoured to sell, or has taken pos- session of such property or exercised any act of ownership in relation thereto, may, by writing under his hand, disclaim such property, and upon the execution of such disclaimer the property disclaimed shall, if the same is a contract, be deemed to be determined from the date of the order of adjudication, and if the same is a lease be deemed to have been surrendered on the same date, and if the same be shares in any company be deemed to be forfeited from that date, and if any other species of property it shall revert to the person entitled on the determination of the estate or interest of the bankrupt, but if there shall be no person in existence so entitled, then in no case shall any estate or interest therein remain in the bankrupt. Any person interested in any disclaimed pro- perty may apply to the court, and the court may, upon such applica- tion, order possession of the disclaimed property to be delivered up to him, or make such other order as to the possession thereof as may be just. "Any person injured by the operation of this section shall be deemed a creditor of the bankrupt to the extent of such injury, and may accord- ingly prove the same as a debt under the bankruptcy" (h). Limitation Sect. 24. " The trustee shall not be entitled to disclaim any property of time for ; n pursuance of this act in cases where an application in writing has been made to him by any person interested in such property, requiring such trustee to decide whether he will disclaim or not, and the trustee has for a period of not less than twenty-eight days after the receipt of such application or such further time as may be allowed by the court declined or neglected to give notice whether he disclaims the same or not." The above provisions, coupled with sect. 15 (ante, p. 308) and the interpretation clause as to property (s. 4, ante, p. 201 ), render obsolete a previously important branch of the law of bankruptcy, relating to the title of the assignees to land under leases (J,). "The Bankruptcy Rules, 1871," provide with respect to dis- claimer of leasehold interest, that — Rule 28. " Where any property of a bankrupt acquired by a trustee under 'The Bankruptcy Act, 1869,' shall consist of a leasehold interest, the trustee shall not execute a disclaimer of the same without the leave of the court being first obtained for that purpose ; and upon any appli- cation to the court for such leave, notice of the desire of the trustee to disclaim such interest shall be given to such person or persons as the court shall direct, and such order shall be made thereon as the court shall think fit." Section 23, however, is not free from difficulty in its construc- (/i) As to the amount of proof under Smith's Leading Cases, 5th edition, this section, see post, Chap. XIII., § 5. pp. 709 — 775; and Smith's Landlord (?) See the notes to Mills v. and Tenant, by Maude, pp. 302 — 306. Auriol, and Auriol v. Mills, 1 PROPERTY DEFEASIBLE ON BANKRUPTCY. 327 tion. It has been held by the Court of Exchequer, that, although Part vn. upou the execution of a disclaimer, a lease is to bo deemed to C " AP X1, have been surrendered on the date of the order of adjudication, nevertheless the liability for rent accruing due before the dis- claimer, but after the adjudication, is not taken away. The court differed in opinion without giving any formal decision as to whether the section is confined to cases (so far as regards leases) between lessor and lessee, or whether the lease is to be deemed to be surrendered as respects all persons, so that on the bankruptcy of an assignee the assignor would be released from liability to the original lessor (A). § 12. — Property defeasible on Bankruptcy. An interest in property may be limited so as to cease or be for- feited on bankruptcy. Unless, however, the gift over or the cesser of the interest is either expressly or by necessary inference made to take effect on bankruptcy, the right of the bankruptcy trustee will not be excluded. Thus, if the instrument creating the interest appears to contemplate alienation as the sole ground of forfeiture, this will be construed to mean a voluntary act of alienation, and not a proceeding which operates in invitum, like bankruptcy (/;, but otherwise in the case of liquidation by arrangement (m). In- terests defeasible upon bankruptcy can only be limited in property belonging to some person other than the party to whom the inte- rest is given. It is contrary to the policy of the law to allow a man to settle his own estate so as to give himself an interest to cease on his bankruptcy ; and it is immaterial in a case of this sort that the provision for the cesser of the interest is followed by a limitation over in favour of the settlor's wife and children, or of any other person (n). Still a limitation over is valid, even where the settlor is himself the person to whom such defeasible interest is limited, provided the settlement is founded on a valuable consideration, such as marriage (o). And if a man receives a portion with his wife, a settlement of his own property, or a contract by him to pay a sum of money to trustees, to take effect on his bankruptcy, will be good to the extent of the fortune received from the wife (p). And there is nothing to prevent the property of a woman on her marriage (/.■) Smyth v. North, H L. J. (N. S.) («) Kobson's Bankruptcy Law, p. Ex. 103. See as to the former bank- 320, citing Higinbotham v. Holme, roptcy law, bearing on this paint, 19 Ves. 88; Phipps t. Ennismore, 4 Mn iin'tni/ v. Flight, 8 B. ft Ad. I'll; Kuss. 131; Whitmore v. Jfason, 2 J. Taylor v. Towng, 3 B. & A. 521. & H. 204; Ex parte Boddam, 2 D. (/) Dor v. Jin-ail, 3 M. & S. 353; F. & J. 427. She* v. Hale, 13 Yes. 104; Lear v. (o) Brooke v. Pearson, 27 Beav. loggett, 2 Sim. 479; Whitfield v. 181. Prickett, 2 Keen, G08. (/>) Ex parte Cooke, 8 Ves. 353; (m) Lady Amherst's Trusts, 41 L. Ex parte Hodgson, 19 Ves. 200. J. (N. S.) Ch. 222. 328 EFFECT OF ADJUDICATION ON PROPERTY AND RIGHTS. Part vii. being settled so as to give an interest in it to her husband, deter- : — - minable upon his bankruptcy (r/), and a legacy acquired by the wife after marriage may, by virtue of her equity to a settlement, be settled in the same way (r). Where the intention of the settlor is clear to limit an interest for life, determinable on bankruptcy, effect will be given to such inten- tion, although the donee may have become bankrupt before the execution of the settlement, and the latter apparently contemplated a future bankruptcy (s). If, before the property is dealt with in the bankruptcy, the latter is annulled, no forfeiture will ensue (t), but a forfeiture will be caused by a past bankruptcy which remains unannulled at the time at which the first payment under the gift for life becomes due, although the bankruptcy is afterwards annulled, and before any claim is made by the persons entitled under the gift, for the reten- tion by the trustee on the bankruptcy in accordance with the trust causes a forfeiture just as much as a payment to another person (u). Leases determinable on Bankruptcy. ~\ — Cases where leases or terms cease on bankruptcy by express agreement, constitute a distinct class. When a term ceased, by proviso, on the tenant's bankruptcy, it was held that the assignees could not justify the removal of a trade fixture after the expiration of a reasonable time for that purpose. Whether they might have removed it within such reasonable time was not decided (#). § 13. — Effect of Bankruptcy in Miscellaneous Matters. Apprentices and Articled Clerks.~] — "The Bankruptcy Act, 1869," enacts that — Preferential Sect. 33. lC Where at the time of the presentation of the petition for ciMm in case adjudication any person is apprenticed or is an articled clerk to the bank- s'hip!? Pren 1CC * rapt, the order of adjudication shall, if either the bankrupt or apprentice or clerk give notice in writing to the trustee to that effect, be a complete discharge of the indenture of apprenticeship or articles of agreement ; and if any money has been paid by or on behalf of such apprentice or clerk to the bankrupt as a fee, the trustee may on the application of the apprentice or clerk, or of some person on his behalf, pay such sum as such trustee, subject to an appeal to the court, thinks reasonable, out of the bankrupt's property to or for the use of the apprentice or clerk, (<7) LocUyer v. Savage, Str. 947. Eq.; 35 L. J. (N. S.) Ch. 343; see (r) Monte fi ore v. Behrens, Law Tra/ppes v. Meredith, 41 L. J. (N. S.) Rep., 1 Eq. 171. Ch. 237. («) Manning v. Chambers, 1 D. & (?/) lie Pamham's Trusts, 41 L. S. 282; Seymour v. Lvcas, 1 D. & S. J. (N. S.) Ch. 292. 177; Re Muggcridge's Trust, 1 (x) Weetoti v. Woodcock, 7 M. & John. (i25; Sharp v. Cosscrat, 20 W. 14; see also Stansfield v. Mayor Bcav. 470; Lloyd v. Lloyd, Law of Portsmouth, 4 C. B. Rep., N. S. Rep., 2 Eq. 722; cited in Robson'a 120; Dumcrque v. Itumsey (in error), B. L., p. 323. 2 Hurls. & C. 777; 33 L. J. (N. S.) (t) Smallcombe v. Olivier, 13 M. Ex. 88. & W. 77; White v. Chitty, L. R., 1 EFFECT OF BANKRUPTCY IN MISCELLANEOUS MATTERS. 329 regard being had to the amount paid by liiin or on his behalf, and to the Part vir. time during which be served with the bankrupt under the indenture or ' " A F - **• articles before the commencement of the bankruptcy, and to the other circumstances of the case. " Where it appears expedient to a trustee he may, on the application of any apprentice or articled clerk to the bankrupt, or any person acting 00 behalf of such apprentice or articled clerk, instead of acting under the preceding provisions of this section, transfer the indenture of apprenticeship or articles of agreement to some other person" (y). />' i /it/]— A discharge in bankruptcy did not take away the right to distrain (z). "The Bankruptcy Act, 1869," enacts that — Sect. 34. "The landlord or other person to whom any rent is due from rower for the bankrupt may at any time, either before or after the commencement Ji^"""" 1 / of the bankruptcy, distrain upon the goods or effects of the bankrupt for rent, the rent due to him from the bankrupt, with this limitation, that if such distress for rent be levied after the commencement of the bankruptcy it shall be available only for one year's rent accrued due prior to the date of the order of adjudication, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the overplus clue for which the distress may not have been available." Sect. 34 has been held to be applicable to cases where, by agree- ment or act of parliament, the relation of landlord and tenant and a right of distress exists ; as a distress for gas rent under a local statute (a). Right to Farm Crops.]— In the case of the bankruptcy of any person engaged or employed in husbandry ou any lands let to farm, "any bay, straw, grass or glasses, turnips, or other roots, or any other produce of such lands, or any manure, compost, ashes, seaweed or other dressings intended for such land, aud being thereon," cannot be taken, used or disposed of in any other manner or for any other purpose than such bankrupt ought to have taken, used or disposed of the same (b). Convicts.] — The bankruptcy of a convict has the effect of making him thenceforth cease to be subject to the operation of certain provisions of the act 33 & 34 Vict. c. 23, abolishing for- feitures for treason and felony, and otherwise amending the law relating thereto (c). It is unnecessary, however, to do more than refer to the act, which, so far as it afreets bankrupts, can be but of rare application* (g) Bankruptcy docs not of itself (a) Ex parte Birmingham ami operate as a dissolution of contracts Staffordshire Gaslight Co., R of service; see Thomas v. Williams, Funthaw, to L. J. (N. S.) Bankr. 52. 1 A. ft K. 686. As to the payment (/>) 50 Geo. 3, c, 60, a 11. This of wages in fall, see pott, Chap. XIV., provision is of general application § -'• (see WUmot v. Rote, 8 E, & 15. 563), (z) Briggs v. Sowry, 8 M. ft W. bat is onlv noticed here in reference 729; Newton v. Seott, 9 M. ft W. to bankrupts. 434; 10 Id. 471; Phillips v. Shcr- ( c ) See sect. 7 of that act. rill, 6 Q. B. Iicp. ou. ( 330 ) CHAPTER XII. OF GETTING IN THE BANKRUPT'S PROPERTY. § 1. —Taking Possession of Property in general. § 2. — Dealings with Property of a particular Kind. § 3. — Delivery of Money and Securities by Agents. § 4. — Appropriation of Pension or Salary. § 5.— Actions and Suits in respect of the Property. § 6. — Discovery of Property. § 7. — Seizure of Property by Warrant. § 8. — Sale and Mortgage of Property. § 9. — Taking Accounts of Property mortgaged or pledged, and of the sale thereof. § 1. — Taking Possession of the Property in general. "The Bankruptcy Act. 1869," makes ample provision for secur- ing the debtor's property for his creditors. Even before adju- dication and at any time after presentation of the petition, the court may appoint a receiver or manager of the property or business of the debtor or of any part thereof, " and may direct immediate possession to be taken of such property or business or any part thereof" (a). On adjudication the property vests first in the registrar as trustee and then in the person appointed trustee by the cre- ditors (b), and the trustee, in relation to and for the purpose of acquiring or retaining possession of the property of the bankrupt, is in the same position in all respects as if lie were a receiver of such property appointed by the Court of Chancery, and the court may, on his application, enforce such acquisition or reten- tion of property accordingly (c). On the other hand the bank- rupt is bound to give an inventory of it (d) ; and further, he is punishable if he fails to deliver up possession to the trustee of any part of it (e). (a) Sec sect. 1.1, ante, p. 249. and 24, ante, pp. 325, 32G. (/;) [Sec ante, p. 307. And as to (c) Sect. 20, ante, p. 279. what is included in property, see (d) See sect. 19, ante, p. 289. As ante, ]>. 201, n. And as to what pro- to delivery of property to trustee by perty is divisible amongst the credi- receiver or manager, see "The Bank- tors, see sect. 15, ante, p. 308. As to ruptcy Rules, 1871," r. 2, ante, p. 251. disclaimer of property, see sects. 23 (<;) Id. DEALINGS WITH PROPERTY OF PARTICULAR KIM). 331 § 2. — Dealings with Property of particular Kind. cilr.xi'i. Stock and Shares, Copyholds, Choscs in Action, Deeds and Books.] — "The Bankruptcy Act, 1869," enacts that — Sect. '22. " Wliere any portion of the property of the hankrupt con- Pwearion of sists of stock, shares in ships, shares, or any other property transferable J^SSf by in the hooks of any company, office, or person, the right to transfer such property shall he absolutely vested in the trustee to the same extent as the bankrupt might have exercised the same if he had not become bank- rupt. "Wliere any portion of such estate consists of copyhold or cus- tomary property, or any like property passing by surrender and admittance or in any similar manner, the trustee shall not be compellable to be ad- mitted to such property, but may deal with the same in the same manner as if such property had been capable of being and had been duly sur- rendered or otherwise conveyed to such uses as the trustee may appoint ; and any appointee of the trustee shall be admitted or otherwise invested with the property accordingly." '• "Where any portion of the property of the bankrupt consists of things in action, any action, suit, or other proceeding for the recovery of such things instituted by the trustee, shall be instituted in his official name, as in this act provided ; and such things shall, for the purpose of such action, suit, or other proceeding, be deemed to be assignable in law, and to have been duly assigned to the trustee in his official capacity" (/). " The trustee shall, as soon as may be, take possession of the deeds, books, and documents of the bankrupt, and all other property capable of manual delivery. The trustee shall keep, in such manner as rules of court shall direct, proper books, in which he shall from time to time make, or cause to be marie, entries or minutes of proceedings at meetings, and of such other matters as rules of court shall direct, and any creditor of the bankrupt may, subject to the control of the court, personally or by his agent inspect such books."' Delivery of Securities.] — "The Bankruptcy Rules, 1870," provide that — Kule 117. ""Where an order of adjudication has been made upon the Sect. 6. petition of a secured creditor, who has been admitted as the petitioning creditor to the extent of the balance of the debt due to him after deduct- ing the amount estimated by the creditor, as the value of his security, he shall upon the application of the trustee, made within two months after the date of the order of adjudication, give up the security to the trustee upon the payment to him of the value so estimated, and where the trustee does not so apply within such term he shall be considered to have waived Ms right to redeem the security by payment of such estimated value." Sequestration.]— " The Bankruptcy Act, 1869," enacts that — Sect. 88. ""Where a bankrupt is a beneficed clergyman, the trustee Se^icstm- mav applv for a sequestration of the profits of the benefice, and the cer- ti..in>reo- tificate of the appointment of the trustee shall be sufficient authority fur J,^','^ the granting of sequestration, without any writ or other proceeding, and (/) Sec sect. Ill of the act, post, p. 336. 332 GETTING IN THE BANKRUPT S PROPERTY. Part VII. Chap. XII. the same shall accordingly be issued as on a writ of levari facias founded on a judgment against the bankrupt, and shall have priority over any other sequestration issued after the commencement of the bankruptcy, except a sequestration issued before the date of the order of adjudication by or on behalf of a person who at the time of the issue thereof had not notice of an act of bankruptcy committed by the bankrupt, and available against him for adjudication ; but the sequestrator shall allow out of the profits of the benefice to the bankrupt, while he performs the duties of the parish or place, such an annual sum, payable quarterly, as the bishop of the diocese in which the benefice is situate directs ; and the bishop may appoint to the bankrupt such or the like stipend as he might by law have appointed to a curate duly licensed to serve the benefice in case the bankrupt had been non-resident." Payment, of money by agents to trustee. Seel. 93. § 3. — Delivery of Money and Securities by Agents. "The Bankruptcy Act, 1869," enacts that — Sect. 93. " Any treasurer or other officer, or any banker, attorney, or agent of a bankrupt, shall pay and deliver to the trustee all moneys and securities in his possession or power, as such officer or agent, if he be not by law entitled to retain as against the bankrupt or the trustee; if he do not he shall be guilty of a contempt of court, and may be punished accordingly on the application of the trustee." No. 85. Affidavit of Trustee under Sect. 93. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. T, G. H., the trustee of the property of the said bankrupt, make oath and say : — 1. That I believe that L. M., of , hath in his possession or power as [here set out the capacity in which the person stands to the bank- rupt] certain monies [and securities] belonging to the bankrupt, that is to say [here set out and describe Vie particular monies and securities']. 2. That on the day of 187 , I did apply personally to the said L. M., to pay and deliver to me the said monies and securities, and that he did not then, nor has he since paid or delivered to me the same [or That I, on the day of , posted a letter to the said L. M., addressed to him at , calling upon him to, &c, and that on the day of 187 , I posted another letter, by which I again called upon him to, &c, and that he lias failed to pay and deliver the same]. 3. That I firmly believe that the said L. M. is not entitled by law to retain such monies [and securities] as against the bankrupt or against me as the trustee of the property of the bankrupt. Sworn at, &c. G. H. DELIVERY OF MONEY AND SECURITIES BY AGENTS. 333 No. 88. Notice of Application for Committal under Sect. 93. Part vir. " The Bankruptcy Act, 1869." ciup. xii. In the London Bankruptcy Court [or the county court of Sect. 93. holden at ]. In the matter of A. B., of , a bankrupt. To [here insert name, address, and description of the person to whom the notice is to be sent]. Take notice that the trustee of the property of the said bankrupt will on the day of 187 , at o'clock in the noon, apply to this court for an order for your committal to prison for contempt of this court, you having failed to pay and deliver to him certain monies [and securities] belonging to the bankrupt in your possession or power as [here state whether as treasurer, banker, <&c] that is to say [here set out and describe the particular monies and securities]. And further take notice that you are required to attend the court on such day at the hour before stated to show cause why an order for your committal should not be made. Dated this day of 187 . Registrar. No. 91. Order of Committal under Sect. 93. "The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. Upon the application of the trustee of the property of the bankrupt, and upon hearing L. M. [or if Jj.il. does not appear, reading the affidavit of] [In re insert name ana description of person by whom the notice to shew cause was sen-id] and upon reading the affidavit of [enter evidence'} the court being of opinion that L. M. has been guilty of a contempt of this court by having failed to pay and deliver to the said trustee certain monies [and securities] [here follow the notice], and that the said L. M. do stand committed to [here insert prison] for his said contempt. Given under the seal of the court this day of 187 . By the court, Registrar. § 4. — Appropriation of Pension or Salary. "The Bankruptcy Act, 1869," enacts that— Sect. 89. " Where a bankrupt is or has been an officer of the army or Approprin- navy, or an officer or clerk or otherwise employed or engaged in the ufp°r- civil service of the crown, or IB in the enjoyment of any pension or com- o/offlcere^o pensation granted by the treasury, the trustee during the bankruptcy, creditors. and the registrar, after the close of the bankruptcy, shall receive for dis- tribution amongst the creditors so much of the bankrupt's pay, halt-pay, salary, emolument, or pension as the court, upon the application of the trustee, thinks just and reasonable, to be paid in such manner and at such tines as the court, with the consent in writing of the chief officer uf the 334 GETTING IN THE BANKRUPT'S PROPERTY. Part vit. department under which the pay, half-pay, salary, emolument, pension Chap, xii. or compensation is enjoyed, directs." Appropria- Sect. 90. "Where a bankrupt is in the receipt of a salary or income tion of por- other than as aforesaid, the court, upon the application of the trustee, tion of salary s ] ia n from time to time make such order as it thinks just for the payment of such salary or income, or of any part thereof, to the trustee during the bankruptcy, and to the registrar, if necessary, after the close of the bankruptcy, to be applied by him in such manner as the court may direct." " The Bankruptcy Rules, 1870," contain the following Rules on this subject — Sect. 89. Rule 180. " Where an order of court is made under section 89 of the act, the registrar shall give to the trustee a sealed copy of the order, who shall submit the same to the chief of the department under which the pay, half-pay, salary, emolument, pension, or compensation is en- joyed, for the purpose of his consent to the order being written thereon." Sect. 90. Rule 181. " Where a trustee intends to apply to the court for an order for payment by a bankrupt of a portion of his salary or income under section 90 of the act, he shall give notice to the bankrupt of his inten- tion of the time and place fixed for the hearing of his application, and that the bankrupt is at liberty to attend and show cause against an order being made on the application." Sect. 90. Rule 182. " Where an order has been made for the payment by a bankrupt, or by his employer for the time being, of a portion of his in- come or salary, the bankrupt may, upon his ceasing to receive a salary or income of the amount he received when the order was made, apply to the court to rescind the order, or to reduce the amount ordered to be paid by him to the trustee." No. 77. Order setting aside Pay, Pension, &c. under Sect. 89. " The Bankruptcy Act, 1869." Sect. 89. In the London Bankruptcy Court [or the county court of holden at ]. Rule 180. In the matter of A. B., of , a bankrupt. Whereas it appears to the court that the said bankrupt is [or has been, here state wliat the bankrupt is or lias been], and as such is in the enjoy- ment of the annual pay [or half-pay or salary or emoluments] of pounds [or pension or compensation of pounds, granted by the commissioners of her Majesty's treasury] ; and whereas upon the appli- cation of Gr. II., of the trustee of the property of the bankrupt, it appears to the court just and reasonable that the annual sum of pounds, portion of the said pay [or, as the case may be\ ought to be paid to the said trustee during the bankruptcy, and after the close of the bankruptcy, to the registrar of this court, in order that the same may he applied in payment of the, debts of the said bankrupt, and that such pay- ment ought to be paid out of the first monies which shall be due after the day of 187 , and be continued until this court shall make order to the contrary : it is ordered, subject to the consent of [hire insert the official title of the chief officer of the department under which the 2> circumstances under which the salary or income is received]'. And whereas upon the application of the trustee of the property of the bankrupt, and upon hearing the bankrupt, it appears to the court just and reasonable that the annual sum of pounds, portion of the said salary [or income] ought to be paid by the bankrupt by monthly [or quarterly] payment [aeeordbtg as the bankrupt receives Jus salary or income'] to the trustee during the bankruptcy, and after the close of the bankruptcy to the registrar of this court, in order that the same may be applied in payment of the debts of the said bankrupt, and that the tirst of such payments ought to be made by the bankrupt on the day of 187 , and be continued monthly [or quar- terly] until this court shall make order to the contrary: it is ordered that the said sum shall be paid by the bankrupt in manner aforesaid out ot'liis said salary [or income]. Given under the seal of the court this day of 187 . By the court. Registrar. 336 GETTING IN THE BANKRUPT S PROPERTY. Part VII. Chaf. XII. Power of assignee to sue. Arbitration and com- promise. Bulls by trustee and bankrupt's partners. Saving as to joint contracts. § 5. — Actions and Suits in respect of the Property. The property of the bankrupt divisible amongst his creditors comprises {inter alia) "the capacity to exercise and to take pro- ceedings for exercising all such powers in or over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or during its continuance, except the right of nomination to a vacant eccle- siastical benefice (e). The trustee is expressly empowered " to bring or defend any action, suit or other legal proceeding relating to the property of the bankrupt" (f). The trustee "may sue and be sued by the official name of the trustee of the property of a bankrupt," inserting the name of the bankrupt, and by that name may hold property of every description, make contracts, sue and be sued, enter into any engagements binding upon himself and his succes- sors in office, and do all other acts necessary or expedient to be done in the execution of his office (g). Choses in Action.~\ — Sect. 111. "Any person to whom anything in action belonging to the bankrupt is assigned in pursuance of this act may bring or defend any action or suit relating to such thing in action in his own name" (A). As to actions by the trustee for choses in action, see sect. 22, ante, p. 331. As to the power of the trustee to refer disputes to arbitration and make compromises and arrangements, see sect. 27, ante, p. 283. Actions in the case of Partnership.^ — Sect. 105. "Where a member of a partnership is adjudged bankrupt, the court may authorize the trustee, with consent of the creditors, certi- fied by a special resolution, to commence and prosecute any action or suit in the names of the trustee and of the bankrupt's partner ; and any release by such partner of the debt or demand to which the action or suit relates shall be void ; but notice of the application for authority to commence the action or suit shall be given to such partner, and he may show cause, against it, and on his application the court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action or suit, and if he does not claim any benefit therefrom he shall he indemnified against costs in respect thereof as the court directs." Where the Bankrupt is a joint Contractor. ~\ — Sect. 112. "Where a bankrupt is a contractor in respect of any con- tract jointly with any other person or persons, such person or persons may sue or be sued in respect of such contract, without the joinder of the bankrupt." (e) Sec sect. 15, ante, p. 808. ( f ) See sect. 25, sub-sect. (3), ante, p. 282. {g) Sec sect. 83, sub-sect. (7), ante, p. 27G. (h) As to choses in action, sec sect. 16, sub-scot. (5), ante, p. 309; and ante, p. 311. DISCOVERT OF rROFERTY. 337 As to actions in general by and against the trustee in bank- PartVU. ruptcy, see ante, Vol. I., pp. 628, 811. Cap, xu. § 6. — Discovery of Property. " The Bankruptcy Act, 1869," enacts that— Sect. 9G. " The court may, on the application of the trustee, at any Powerof time after an order of adjudication has been made against a bankrupt, co " rt '" i r ., ., , • i , l • ••• i rami • pep- summon before it the bankrupt or his wife, or any person whatever tona before it known or suspected to have in his possession any of the estate or KMpectedol effects belonging to the bankrupt, or supposed to be indebted to the pjSy * bankrupt, or any person whom the court may deem capable of giving bankrupt. information respecting the bankrupt, his trade dealings or property, and the court may require any such person to produce any documents in his custody or power relating to the bankrupt, his dealings or property ; and if any person so summoned, after having been tendered a reasonable sum, refuses to come before the court at the time appointed, or refuses to produce such documents, having no lawful impediment made known to the court at the time of its sitting and allowed by it, the court may, by warrant addressed as aforesaid, cause such person to be apprehended and brought up for examination." Beet. 97. " The court may examine upon oath, either by word of Examination mouth or by written interrogatories, any person so brought before it in of parties by manner aforesaid concerning the bankrupt, his dealings or property." "The Bankruptcy Rules, 1870," provide that— Rule 171. "Every application to the court under section 90 of the Sect. 96. Bankruptcy Act, 18G9, shall be in writing, and shall state shortly the grounds upon which the application is made and where the application IS not made on behalf of the trustee, the grounds upon which the appli- cation is made shall be verified by affidavit" (/). No. 7G. Summons under Sect. 9G (tn a County Court). " The Bankruptcy Act, 1869." In the county court of holden at . Sect. 9C. In the matter of A. B., of , a bankrupt. To X. Y. of You are hereby required to attend at the court house in on Rule icg. the day of , in the noon to give evidence in the above matter [add where issued at instance of petitioning creditor on behalf of C. D. of , by whom the said petition has been pre- sented], and then and there to have and produce [state any particular document* required]: hereof if yon fail, having no lawful impediment t" be then made known to the court and allowed by it, the court may by warrant cause you to be apprehended and brought up for examination. Dated the " day of 187 . Registrar. (/) See Rule ICG, ante, ]\ 1'17, as to witnesses. D. VOL. II. Z 338 GETTING IN THE BANKRUPT S PROPERTY. Part VII. Chap. XII. No. 95. Warrant to apprehend a Person summoned under Sect. 96. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. To X. Y., and his assistants of this court [or where, warrant issues from a county court, to the high bailiff and others the bailiffs of the said court]. Whereas by summons or subpoena dated the day of 187 , and directed to the said A. B. [or to F. M. of ], he was required personally to be and appear on the day of instant, at o'clock in the noon at this court, to be examined ; and which said summons or subpoena was afterwards, on the day of 187 , as hath been proved upon oath, duly served upon the said , and a reasonable sum was tendered him for his expenses. And whereas the said having no lawful impediment made known to or allowed by this court hath not appeared before me as by the said summons or subpoena he was required, but therein has wholly made default. These are therefore to will, require, and authorize you and every of you to whom tins warrant is directed, immediately upon receipt hereof, to take the said and bring him before this court on the day of in order to his being examined as aforesaid, and for your so doing this shall be your sufficient warrant. Given under the seal of the court this day of 187 . By the court, Registrar. Order of court for payment of amount admitted on examination. " The Bankruptcy Act, 1869," enacts that — Sect. 98. " If any person on examination before the court admit he is indebted to the bankrupt, the court may, on the application of the trustee, order him to pay to the trustee, at such time and in such manner as to the court seems expedient, the amount admitted, or any part thereof, either in full discharge of the whole amount in question or not, as the court thinks fit, with or without costs of the examination." No. 43. Admission of Debt by Debtor of Bankrupt. " The Bankruptcy Act, 1869." Sect. £8. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. I, the undersigned J. K. of , do hereby admit that I am indebted to the said bankrupt in the sum of pounds, upon the balance of accounts between myself and the said bankrupt. Witness, J. K. C. D., Registrar. DISCOVERY OF PROPERTY. 339 No. 44. Order to pay admitted Debt. Part vii Chap. XII. " The Bankruptcy Act, 18G9." In the London Bankruptcy Court [or the county court of Sect. 98. holden at ]. In the matter of A. B., of , a bankrupt. Whereas J. K. of , in his examination taken this day, and signed and subscribed by him, has admitted that lie is indebted to the said bankrupt in the sum of pounds, on the balance of accounts between him and the bankrupt ; it is ordered that the said J. K. do pay to the trustee of the property of the bankrupt, in full discharge of the sum so admitted, the sum of pounds forthwith [or if otherwise, xtate the time and manner of payment}, and do further pay to the said trustee the sum of pounds for costs. Given under the seal of the court this day of 187 . By the court, Registrar. § 7. — Seizure of Property by Warrant. "The Bankruptcy Act, 1869," enacts that— Sect. 99. " Any person acting under warrant of the court may seize Seizure of any property of the bankrupt divisible amongst his creditors under this P ro 'if rty ol act, and in the bankrupt's custody or possession, or in that of any other *" p " person, and with a view to such seizure may break open any house, building, or room of the bankrupt where the bankrupt is supposed to be, or any building or receptacle of the bankrupt where any of his property is supposed to be ; and where the court is satisfied that there is reason to believe that property of the bankrupt is concealed in a house or place not belonging to him, the court may, if it thinks fit, grant a search war- rant to any constable or prescribed officer of the court, who may execute the same according to the tenor thereof." No. 71. Search Warrant. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of , sect?. 76 am holden at ]. 79. In the matter of A. B., of , a bankrupt. Kuie 176. Whereas by evidence duly taken upon oath it hath been made to ap- pear to the court that there is reason to suspect and believe that propertv of the said bankrupt is concealed in the house [or other place, describing it as the case may be~\ of one X. M. of in the county of such house [or place] not belonging to the said bankrupt. These are therefore to require you to enter in the daytime into the house [or other place, describing it] of the said X. M. situate at aforesaid, and there diligently to March for the said property, and if any property of the said bankrupt shall be there found bv you on such search, z 2 340 GETTING IN THE BANKRUPT'S PROPERTY. Part vii. that you seize the same, to be disposed of and dealt with according to Chap, xii. j.j ie p rov isions of the said act. Given under the seal of the court this day of 187 To the X. Y. officer of this court and his assistants [or high bailiff and others the bailiffs of this court]. Registrar. No. 72. Warrant of Seizure. " The Bankruptcy Act, 1869." Sect. 96. In the London Bankruptcy Court [or the county court of holden at ]. Rule 166. In the matter of A. B., of , a bankrupt. Whereas on the day of 187 , an order of adjudica- tion was made against the said bankrupt : — These are therefore to require you, forthwith to enter into and upon the house and houses, and other the premises of the said bankrupt, and also in all other place and places belonging to the said bankrupt where any of his goods and monies are or are reputed to be ; and there seize all the ready money, jewels, plate, household stuff, goods, merchandise, books of accounts, and all other things whatsoever, belonging to the said bankrupt except his necessary wearing apparel, bedding and tools, as excepted by the said statute in that behalf. And that which you shall so seize you shall safely detain and keep in your possession until you shall receive other orders in writing for the disposal thereof from the trustee ; and in case of resistance or of not having the key or keys of any door or lock of any premises belonging to the said bankrupt where any of his goods are or are suspected to be, you shall break open, or cause the same to be broken open for the better execution of this warrant. Given under the seal of the court this day of 187 . Registrar. To the X. Y. officer of this court, and to his assistants [or to the high bailiff and others the bailiffs of this court]. § 8. — Sale and Mortgage of Property. The trustee has express power " to sell all the property of the bankrupt (including the goodwill of the business, if any, and the book debts due or growing due to the bankrupt) by public auction (k), or private contract, with power, if he thinks fit, to transfer the whole thereof to any person or company or to sell the same in parcels" (/), and with the sanction of the committee of in- spection he may mortgage or pledge any part of the property of the bankrupt for the purpose of raising money for the payment of his debts (m). (k) As to when the trustee is an (w) Sect. 27, sub-sect. (1); ante, auctioneer, see ante, p. 282, note. p. 283. See also the same section as (£) Sect. 25, sub-sect. (G), ante, p. to reference of disputes to arbitration 282. and to make compromises. TAKING ACCOUNTS OF PROPERTY MORTGAGED OR PLEDGED, ETC. 341 § 9. — Taking Accounts of Property Mortgaged or Pledged, ch " xVf. and of the Sale thereof. "The Bankruptcy Rules, 1870," contain the following provisions relating to " Taking accounts of property mortgaged or pledged, and of the sale thereof:" — Rule 78. " Upon application by motion by any person claiming to be a mortgagee of, or to have security over any part of the bankrupt's estate or effects, real or personal, and whether such mortgage or security shall be by deed or otherwise, and whether the same shall be of a legal or equitable nature, the court will proceed to inquire whether such person is such mortgagee, or is entitled to such security, and for what considera- tion and under what circumstances ; and if it shall be found that such person is such mortgagee, or is entitled to such security, and no suffi- cient objection shall appear to the title of such person to the sum claimed by him, under such mortgage or security, the court will then proceed to take an account of the principal, interest, and costs due upon such mortgage or security, and of the rents and profits, or dividends, interest, or other proceeds received by such person, or by any other person by his order or for his use, in case he shall have been in possession of the pro- perty over which the mortgage or security shall extend, or any part thereof, and the court will then direct notice to be given in such public papers as it shall think fit, when and where, and by whom and in what way the said premises or property, or the interest therein so mortgaged, or over which the security shall so extend, are to be sold, and that such sale be made accordingly, and that the trustee (unless it be otherwise ordered) shall have the conduct of such sale ; but it shall not be impe- rative on any such mortgagee to make such application." Rule 79. " All proper parties shall join in the conveyance to the pur- chaser, where necessary, as the court shall direct." Rale 80. " The monies to arise from such sale shall be applied in the first place in payment of the costs, charges, and expenses of the trustee, of and occasioned by the application to the court, and of and attending such sale, and then in payment and satisfaction so far as the same shall extend of what shall be found due to such mortgagee, or person so having security, for principal, interest, and costs, and that the surplus of the said monies (if any) be paid to the trustee. But in case the monies to arise from such sale shall be insufficient to pay and satisfy what .shall be so found due to such mortgagee or person so having security, then lie shall be entitled to prove as a creditor for such deficiency, anil receive dividend thereon rateably with the other creditors, but so as not to dis- turb any dividend or dividends then already made." Rule 81. " For the better making such inquiry and taking such account, and making a title to the purchaser, all parties may be examined by the court upon interrogatories or otherwise as it shall think fit, and shall produce before the court upon oath all deeds, papers, and writings in their respective custody or power, relating to the estate or effects of the bankrupt, as the court shall direct." ( 342 ) CHAPTER XIII. PROOF OF DEBTS. § 1. — Description of Debts proveable. § 2. — Proof in Case of Mutual Credits, Debts and Dealings. § 3. — Proof by Secured Creditors. § 4.— Proof in the Case of Rent and Payments due at stated Periods. § 5. — Proof where Persons injured by Disclaimer of one- rous Property. § 6. — Proof against Separate Estates. § 7. — Rules relating to Proof of Debts. Description of debts proveable in bankruptcy. § 1. — Description of Debts proveable. " The Bankruptcy Act, 1869," enacts that — Sect. 31. " Demands in the nature of unliquidated damages arising otherwise than by reason of a contract or promise shall not be proveable in bankruptcy, and no person having notice of any act of bankruptcy available for adjudication against the bankrupt shall prove for any debt or liability contracted by the bankrupt subsequently to the date of his so having notice. " Save as aforesaid, all debts and liabilities, present or future, certain or contingent, to which the bankrupt is subject at the date of the order of adjudication, or to which he may become subject during the continu- ance of the bankruptcy by reason of any obligation incurred previously to the date of the order of adjudication, shall be deemed to be debts proveable in bankruptcy, and may be proved in the prescribed manner before the trustee in the bankruptcy. "An estimate shall be made according to the rules of the court for the time being in force, so far as the same may be applicable, and where they are not applicable at the discretion of the trustee, of the value of any debt or liability proveable as aforesaid, which by reason of its being subject to any contingency or contingencies, or for any other reason, does not bear a certain value. "Any person aggrieved by any estimate made by the trustee as afore- said may appeal to the court, and the court may, if it think the value of the debt or liability incapable of being fairly estimated, make an order to that effect, and upon such order being made such debt or liability shall, for the purposes of this act, be deemed to be a debt not proveable in bankruptcy, but if the court think that the value of the debt or liabi- lity is capable of being fairly estimated it may direct such value to be DESCRIPTION OF DEBTS TROVEABLE. 343 assessed with the consent of all the parties interested before the court Part vii. itself without the intervention of a jury, or if such parties do not consent CuApXllf ' by a jury, either ln-ture the court itself or some other competent court, and may give all necessary directions for such purpose, and the amount of such value when assessed shall be proveable as a debt under the bankruptcy. "'Liability' shall for the purposes of this act include any compensa- tion for work or labour done, any obligation or possibility of an obliga- tion to pay monev or monev's worth on the breach of any express or im- plied covenant, contract, agreement, or undertaking, whether such breach does or does not occur, or is or is not likely to occur or capable of occur- ring before the close of the bankruptcy, and generally it shall include any express or implied engagement, agreement, or undertaking, to pay, or capable of resulting in the payment of money or money's worth, whether such payment be as respects amount fixed or unliquidated ; as respects time present or future, certain or dependent on any one contin- gency or on two or more contingencies ; as to mode of valuation capable of being ascertained by fixed rules, or assessable only by a jury, or as matter of opinion." As to effect of bankruptcy on indentures of apprenticeship or articles of clerkship, see ante, p. 328 ; and as to payment of certain debts in full, see post, p. 357 ; as to mutual credits see post, p. 344; and as to secured creditors, see post, p. 346. With reference to the preceding section (s. 31), it is to be ob- served that the legislature, in act after act, had been trying to relieve bankrupts from their present and their future liabilities upon contracts ; but down to the passing of this last act that object had been but very incompletely accomplished ; and by the construc- tion which the courts had put on previous acts, it was found that, notwithstanding the language used by the legislature, a bank- rupt did still remain liable upon a variety of contracts which he had previously eutered into. The object of the present section is that the bankrupt shall be absolutely relieved from every liability under every contract which he has ever entered into (a). The determination of questions whether there is a "liability" entitling a person to prove, may, and often does, involve various branches of law and intricate points wholly beyond the province of this work to investigate. A recent case, although under a former Bankruptcy Act, will illustrate this. N., a partner in a mercantile firm, received goods on his own account from T., and resold them, and paid in the pro- ceeds to an account of his own with the firm, who acted in that respect as his bankers. On the bankruptcy of the partnership, with a balance at the time in N.'s favour on his account, T. claimed to prove for the amount of that balance, a larger sum being due to him from N., the claim to prove being made on the contention that the balance belonged to T., being trust money held by N. as (a) See judgment of Melliab, Lord Iron Co., in re Bide, 11 L. J. Justice, Ex parte Lhjnri Coal and (N. S.) Bankr. 7. 344 PROOF OF DEBTS. Part VII. CHAB.XI1I. Liability of shareholders in companies wound up. his trustee and received by the bankrupts with notice of the trusts. This question of whether T. was in the position of a cestu que trust turned ultimately on the nature of the relationship between himself and N. ; that is to say, whether N. was his del credere agent for the sale of the goods, or whether N. was a purchaser on his own account. On the special facts the Lords Justices, reversing the decision of the Chief Judge in Bankruptcy, held that the relation- ship between T. and N. was not that of principal and agent but of vendor and purchaser, so that there was no constructive trust between the bankrupt and T., and consequently no liability on which to found a proof (b). As to proof by liquidators in respect of the liability of share- holders on the winding-up of companies, see Re Land Credit Company of Ireland, M'Ewen's case, 40 L. J. (N. S.) Ch. 341. Married Women.~\ — A married woman is entitled to prove against her husband for a sum settled to her separate use (c), and she was allowed to do so in a case where the husband was trustee (d). § 2. — Proof in Case of Mutual Credits, Debts and Dealings. " The Bankruptcy Act, 1869," enacts that— set-off. Sect. 39. " Where there have been mutual credits, mutual debts, or other mutual dealings between the bankrupt and any other person proving or claiming to prove a debt under his bankruptcy, an account shall be taken of what is due from the one party to the other in respect of such mutual dealings, and the sum due from the one party shall be set off against any sum due from the other party, and the balance of such ac- count, and no more, shall be claimed or paid on either side respectively; but a person shall not be entitled under this section to claim the benefit of any set-off against the property of a bankrupt in any case where he had at the time of giving credit to the bankrupt notice of an act of bankruptcy committed by such bankrupt and available against him for adjudication." The rule of mutual credit is not at all dependent upon the sta- tute of set-off (e). The equitable principle was adopted very early in bankruptcy, and existed long before any statute of set-off, that cross accounts should be set off one against the other, and that the balance only should be proved. (b) Ex parte White, TnreNevill, 40 L. J. (N. S.) Bankr. 7::. (c) Scit Ex parte Melbourn, In re Mrlboum, 41) L. J. (N. S.) Bankr. 25. (7/) Ex parte Wells, 2 M. D. & D. 504. (je) 2 Geo. 2, c. 22, s. 13, made perpetual by 8 Geo. 2, c. 34, s. 4. Aa to set-off, see ante, Vol. I. p. 550. MUTUAL CREDITS, DEBTS AND DEALINGS. 345 This practice was introduced into the statute 4 Anne, c. 17, s. 1 1, part vn. afld was continued afterwards in other statutes down to the present HAP ' Xlir ' time (f\ The rights as hetweeu the trustee in bankruptcy and the claim- ants against or the debtors to the estate must depend upon the facts at the time of the bankruptcy (g). Notice of Act of Bankruptcy, taking away the right of Set-off l\ — Notice of an act of bankruptcy is the dividing point at which the right of set-otf terminates ; and consequently it has been held, that a person who, after bankers had actually stopped payment, industriously collected their notes for the express purpose of setting them off' against a debt due from himself to the firm, should be allowed to do so, as he had no notice of any act of bankruptcy actually committed by either of the partners (h). Equitable Claims.'] — The court, in settling the debts of a bank- rupt will take into account equitable claims, and equity as well as law (i), for it would be unjust and contrary to law to say that cross debts which, though legally due between the bankrupt and another, in truth belonged to different persons, might be set off one against the other (k). Where I. was indebted to a bank and became bankrupt, and his trustee paid the proceeds of his estate into the bank, and the bank- ruptcy was afterwards annulled, it was held that I. might, under sect. 39, set off' the money so paid in against a claim by the trus- tee of the bankers (who had in the meantime become bankrupt), against I. in respect of his original debt (/). The mere existence, however, of an equitable lien over a par- ticular fund, where the person having the lien does not in the slightest degree benefit or lose by the fund, does not prevent the (/) See judgment of Blackburn, J., J. (N. S.) Ex. 192. Bailey v. Finch, 41 L. J. (N. S.) (A) Dickson v. Cass, 1 B. & Ad. Q. B. 83. Sect. 39 is not in the 343 (accord. Han-kins v. Whittcn, 10 exact words of sect. 171 of the Bank- B. & C. 217). But it was held in the nipt Act, 1849, but in substance it same case that he could not set off is the same. Martin, B., liaileij v. notes which he had taken after he Johnson, 40 L. J. (N. S.) Ex. 192, knew that some of the partners had ted qiucre? Eor the law and cases committed acts of bankruptcy. See under the former acts see Hose v. 2 Smith's Leading Cases, 5th edition, Hart, 8 Taunt. 449, 2 Smith's Lead- p. 269. ing Cases, ">th edition, p, 261, and (/') Forster v. Wilson, 12 M. & notes. Hose v. Hart is the leading W. 191; 13 L. J. (N. S.) Kx. 209; case on the subject of mutual credit, cited by Blackburn J., in Bailey v. and decided that mutual credits Finch, 41 L. J., Q. B. 87, as stating within the meaning of the bankrupt this principle, laws an credits which moat in their (/■■) Blackburn, J., in Bailey w, nature terminate in debts. Finch, supra. («7) Blackburn, J., Bailey v. (/) Bailey v. Johnson, 40 L J. Finrh, 41 L. J. (N. BO Q- B. B6; (N. S.) Ex. 189. Martin, B., Bailey v. Johnson, 40 L. 346 PROOF OF DEBTS. Part VII. Chap. XIII. fund being taken into account with the other, who has the legal right, and the whole of the benefit or the whole of the loss ; for then he who has the legal right is really the person beneficially interested in the fund, and he may set off" that fund against a debt of his own due to the bankrupt (m). This position of parties may be illustrated by two recent cases. F. kept two accounts at a bank, one private and the other as executor of a person whose residuary legatee he was. The private account was overdrawn. It was held, in the absence of any inter- ference by the other persons interested in the will, and it appear- ing that F. had assets, apart from the bank, more than sufficient to meet outstanding claims under the will, that on the bankruptcy of the bank he was entitled to set off the amount standing in his favour on the executorship account against the amount claimed by the trustee on the private overdrawn account, he being in truth the person beneficially entitled to the former (n). On the other hand, where a county treasurer kept a private account and a police account with a bank, and the balance was against him on the former but in his favour on the latter account, it was held, on his bankruptcy, that the bank having notice that the county had a beneficial interest, and the bankrupt being in- debted to the county on the police account, it was against equity to let the bank pay off' the private debt of the treasurer to them with county money, but as the balance, standing at the bank on the police account to the bankrupt's credit, exceeded the amount due from him to the county, the bank was entitled to retain it against the overdrawn private account. The decision, therefore, in effect was, that as far as the beneficial interest was not in the bankrupt, the persons in whom the beneficial interest really was, viz., the county, had an equity to interpose and prevent a set-off ; but as regards the surplus there was no such equity, and the bank had a right to take the surplus (o). Provision as ti k ured creditor. § 3. — Proof by secured Creditors. " The Bankruptcy Act, 1869," enacts that— Sect. 40. " A creditor holding a specific security on the property of the bankrupt, or on any part thereof, may, on giving up his security, prove for his whole debt. " He shall also be entitled to a dividend in respect of the balance due to him after realizing or giving credit for the value of his security, in manner and at the time prescribed. (m) Blackburn, J., Bailey v. Finch, 41 L. J. (N. S.) Q. B. 87, 88. (n) Bailey v. Finch, 41 L. J. (N. S.) Q. B.' 83. (fl) Ex parte Kingston, Re Gross, 40 L. J. (N. S.) Bankr. 91, as ox- plained by Blackburn, J., in Bailey v. Finch, 41 L. J. (N. S.) Q. B. 86, 87. PROOF BT SECURED CREDIT 347 "A creditor holding such security as aforesaid and not eomplvin^ p 4 *tvii. with the foregoing conditions shall be excluded from all share in any <*■»». xiii. dividend.** • The Bankruptcy Rules. 1570,** provide that — Rule 99. " A secured creditor, unless he shall have realized his security, shall, previously to being allowed to prove or vote, state in his proof the particulars of his securitv and the value at which he assesses the same, and he shall be deemed to be a creditor onlv in respect of the balance due to him after deducting such assessed value of the security** ( p). Ruk ired creditor so proving shall be bound to pav over to the trustee the amount which his security shall produce beyond the amount of such assessed value, and the trustee shall be entitled, at any time before realization of such security by the creditor, to redeem the same upon payment of such assessed value." Rule 101. •• The proof of any such creditor shall not be increased in the event of the security realizing a less sum than the value at which he has so assessed the same.* 1 Sect. 12 of " The Bankruptcy Act 1SS&"" which enacts that no creditor in respect of a debt proveable in bankruptcy shall have any remedy except m directed by the act. provides that " section shall not anect the power of any creditor holding a sec upon the property of the bankrupt to realize or otherwise deal with such security in the same manner as he would have been entitled to realize or deal with the same, if this section had not beer. Sect. 16 enact- that " a secured creditor shall for the purpose of voting be deemed to be a creditor only in respect of the balance (if any ) due to him after deducting the value of his securitv : and the amount of such balance shall, until the security be realized, be determined in the prescribed manner. He may, however, at or previously to the meeting of creditors, give up the securi - the trustee, and thereupon he shall rank as a creditor in resp- the whole sum due to him ;** and the same section proceeds to say that M a secured creditor shall in this act mean any creditor hold- ing any mortgage, charge, or lien on the bankrupt's estate, or any part thereof, as security for a debt due to him"" (r). The above provisions are in accordance with an established rule in bankruptcy that a secured creditor must give up his security before he proves for his debt, or must realize hi- - j and prove for the balance only (*). (p) See Rule 117. a nte. p. Sol. where bills of lading were held, l (q) See the section, ante, p. 315. special circumstances, to be securities See the entire section, ante, p. for the amount of bills of exchange accepted and made parable on de- Bee Ex parte Brett, Im re liTerv of the bills of lading. -. 40 L.J. (N S Bank: 348 PROOF OF DEBTS. Part VIT. Chap. XIII. Proof in case of rent and periodi- cal payment. § 4. — Proof in the Case of Rent and Payments due at stated Periods. " The Bankruptcy Act, 1869," enacts that — Sect. 35. " When any rent or other payment falls due at stated periods, and the order of adjudication is made at any time other than one of such periods, the person entitled to such rent or payment may prove for a proportionate part thereof up to the day of the adjudication as if such rent or payment grew due from day to day." As to distraining for balance of rent after insufficient distress, see sect. 34, ante, p. 328. § 5. — Proof where Persons Injured by Disclaimer of onerous Property. In the case of onerous property of the bankrupt disclaimed by the trustee under the power conferred by sect. 23 (see ante, p. 325), that section enacts, that "any person injured by the operation of this section shall be deemed a creditor of the bankrupt to the extent of such injury, and may accordingly prove the same as a debt under the bankruptcy." That means that he is to be a creditor in respect of what he would have been entitled to recover against the bankrupt, if the bankrupt had remained solvent (t). Where a bankrupt was lessee of premises for a term of years, at an annual rent of 500/., and the trustee disclaimed the lease under sect. 23, and the landlord was unable to relet the premises at so high a rent, it was contended that the injury occasioned to the landlord by the operation of the act was the amount he could have got in the bankruptcy by reason of his right of action being gone against the bankrupt, an amount therefore dependent on the dividend ; but it was held that the landlord was entitled to prove for (lie difference between the rent agreed to be paid for the residue of the term, and its value under existing circumstances (u). The same principle applies to every ordinary contract not per- formed at the time of bankruptcy and put an end to by sect. 23, as, for example, a contract to make a railway. There the obvious extent of the injury is the difference between the sum for which the bankrupt had covenanted to make it and the sum for which somebody else will covenant to complete it. No doubt in esti- mating the amount of damage when property is delivered up, that fact must be taken into consideration, and if the owner can get as much for the use of it, after, as be did before the bankruptcy, then (f) f'x parte Ltynvi ('mil a ml Bankr. 5. Iron Co., In re Hide, 4] L. J. (N. S.) («) Ibid. PROOF AGAINST SEPARATE ESTATES. 349 the damage would be nil. If he cannot get as much, he is en- Partvii. titled to prove for the difference (x). chap. x " tj § 6. — Proof against Separate Estates. Prior to the Bankruptcy Act of 1861, although a proof could be made against both the joint and separate estates, where the pcr.-mi had executed a joint and several guarantee or bond, or a joint and several contract, yet the creditor could not receive a dividend upon both estates, and he had to elect on which he would receive the dividend (y). This was first altered by the Act of 1861, but the alteration, then, was confined to bills of exchange and promissory notes (z). " The Bankruptcy Act, 1869," enacts that— Sect. 37. M If any bankrupt is at the date of the order of adjudication Proof in liable in respect of distinct contracts as member of two or more distinct SfSJ^ * firms, or as a sole contractor, and also as member of a firm, the circum- contracts. stance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint con- tractors, shall not prevent proof in respect of such contracts, against the properties respectively liable upon such contracts." The construction of this section is, that wherever there is a joint mid separate contract and joint and separate estates being ad- ministered in bankruptcy, the creditor shall be entitled to prove against both estates; and not merely to prove, but to receive divi- dends (a). A joint and several promissory note is a distinct separate con- tract and a distinct joint contract within this section, notwith- standing it is on the same piece of paper (b). § 7. — Rules relating to Proof of Debts. "The Bankruptcy Rules, 1870," contain the following rules relating to the proof of debts: — Rule 67. " A creditor may prove his debt at any dulv summoned Sects. 25 and meeting of creditors, or at any time before the meeting, by delivering •*■ or sending through the post in a prepaid letter, before the appointment (x) See judgment of Mellish, (:) 24 & 25 Vict. c. 184, s. 168; L. J., Ex parte Llynri Coal and this statute is now repealed. Iron Co., 1% re Hide, 41 L. J. (N. 8.) (a) Bat parte Homy, In re Bankr. 5. Jefferf, 41 L. J. (N. S.) Bankr. 9. (y) GohUmld v. Cuzrnore, 7 II. L. (b) Ibid. Cas. 785; 29 L. J. (N. t?.) Bankr. 17. 3.50 PROOF OF DEBTS. Part vii. of a creditor's trustee, to the registrar of the court, and after the appoint- Chap. xiii. men t f a creditor's trustee to such trustee, an affidavit according to the form in the schedule." Sect. 26. Rule 68. " The affidavit may he made by himself or by any agent, or any clerk or other person in his employment, but if the affidavit is made by an agent or clerk it shall state that he is authorized by the creditor to make the affidavit, and that it is within his own knowledge that the debt was incurred for the consideration stated, and that to the best of his knowledge and belief the debt still remains unpaid and unsatisfied." Sect. 80, Rule 69. " A company or other body incorporated or authorized to P ar - 7 - sue may prove their debt by an agent, according to the form in the schedule." Sects. 17, 25. Rule 70. "A registrar in his capacity of trustee may admit proofs, and upon sufficient cause shown, disallow any proof to which objection may he taken at the first or any other meeting of creditors." Sect. 14. Rule 71. ""Where a trustee "has been appointed by the creditors, the proofs of debts that have been received by the registrar shall be given over to the trustee, but the registrar shall make and file a list of such proofs on the proceedings." Sects. 25 and Rule 72. " A creditor's trustee as soon as may be after his appoint- *•• ment, and after the receipt of a proof of a debt, shall examine every proof and the grounds of the debt, and in writing reject or admit it, in whole or in part, or require further evidence in support thereof, and when he shall admit or reject any claim he shall give notice thereof in writing to the creditor, stating, in case of rejection, the grounds thereof." Rule 73. " If at any time after the admission of any debt by the trustee he shall have reason to believe that such debt has been improperly admitted, he may apply to the registrar, upon affidavit setting forth the facts, for a day to be appointed for the court to consider the propriety of expunging the proof or reducing the amount thereof." Rule 74. " Any creditor dissatisfied with the decision of the trustee in respect of a proof, may, within fourteen days after the receipt of the notice from the trustee, apply to the court to vary or reverse the de- cision, and the creditor shall give notice to the trustee thereof seven davs before the day so fixed." Sect. 20, Rule 75. "The trustee in every bankruptcy shall send to the registrar pur. 3. f tj ie cour t in which such bankruptcy is pending a copy certified by him of every resolution of a meeting of creditors, and shall also, on the first dav of every month, send to the said registrar a certified list of all proofs, it' any, tendered daring the month next preceding, distinguishing in such list the proofs admitted, those rejected, and such as stand over for further consideration." Rule 76. "Any separate creditor of any bankrupt shall be at liberty to prove his debt under any adjudication of bankruptcy made against such bankrupt jointly with any other person or persons. And under every such adjudication distinct accounts shall be kept of the joint estate and also of the separate estate or estates of each bankrupt, and the separate estate shall be applied in the first place in satisfaction of the debts of the separate creditors. And in case there shall be an overplus of the separate estate, such overplus shall be carried to the account of the joint estate. And in case there shall be an overplus of the joint estate, such overplus shall be earned to the account of the RULES RELATING TO PROOF OF DEBTS. 3ol separate estates of each bankrupt in proportion to the right and interest of eacli bankrupt in the joint estate. And the cost of taking such ac- counts shall be paid out of the joint and separate estates respectively as the court shall direct." Rule 77. " Upon all debts or sums certain, payable at a certain time or otherwise, whereupon interest is not reserved or agreed for, and which shall be overdue at the date of the order of adjudication and proveable in bankruptcy, the creditor shall be entitled to prove for in- terest, to be calculated, at a rate not exceeding four pounds per centum per annum, up to the date of the said order, from the time when Bucb debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or it' payable otherwise, then from the time when demand of payment shall have" been made in writing so as such demand shall give notice to the debtor that interest will be claimed from th'e date of such demand until the time of payment. Any creditor may prove for a debt not payable when the bankrupt committed an act of bankruptcy, and be entitled to prove such debt as if the same was payable presently, and receive dividends equally with the other creditors, deducting only thereout a rebate of interest at the rate of five pounds per centum per annum, computed from the de- claration of a dividend to the time when the debt would have become pavable, according to the terms upon which it was contracted. " Rule 118. "The trustee shall, within seven days of his allowing or disallowing a proof, file such proof with the registrar with a memo- randum thereon of his allowance or disallowance thereof." No. 32. Affidavit for Proof of Debt with or without Security. In the London Court of Bankruptcy [or the county court of holden at ]. In the matter of A. B. of , a bankrupt. I of make oath and say : — 1. That the said A. B. was at the date of the order of adjudication and still is justly and truly indebted to me in the sum of for (state conriderattori) for which said sum or any part thereof I Bay that I have not nor hath any person by my order or to my knowledge or belief for my use had or received any manner of satisfaction or security whatso- ever, save and except the following : [Here set out the particulars of the security, and the value at which the creditor has assessed ike same, or if bills be held specify them in the schedule."] Paut vii. Chap. XIII. Date. Drawn. Acceptor. Amount. Date when due. Sworn at 352 PROOF OF DEBTS. Part vrr. 1 appoint C. D., of, &c, my proxy in the above matter. CHAP.xnr. E p [- or G H of in partaers hip name]. [When affidavit is made by a clerk cdter the form accordingly and add the following.'] That I am a person in the employ of C. D., and that I am duly authorized by him to make this affidavit, and that it is within my own knowledge that the aforesaid debt was incurred, and for the consideration above stated, and that such debt to the best of my know- ledge and belief still remains unpaid and unsatisfied.] No. 33. Prory (when not added to Proof). " The Bankruptcy Act, 1869." Sects. ig and In the London Bankruptcy Court [or the county court of 8°. pa'- 8- holden at ]. Rules 59, co. In the matter of A. B. of , a bankrupt. I, M. N. of , do hereby appoint F. K. of , as my proxy in this matter, excepting as to the receipt of dividend. As witness my hand this day of M. N. [for self and partners.] Signed bv the said M. N. in the presence of X. Y. of Note. — When the creditor desires that his proxy should receive dividends he should strike out the words " excepting as to the receipt of dividends" putting his initials thereto. No. 34. Affidavit of Proof of Debt by Agent of a Company. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B. of , a bankrupt. I , of , secretary [or manager or other officer] of [here state name of corporation'] make oath and say that I am duly autho- rized, under the seal of the [here set out the name and style of the corpora- tion], to make the proof of debt on its behalf [then follow last affidavit, altering form accordingly]. ( 353 ) CHAPTER XIV. DISTRIBUTION OF BANKRUPT'S PROPERTY. § I. — Dividends. § 2. — Priorities. § 1. — Dividends. "The Bankruptcy Act, 1869," contains the following provisions relating to dividends : — Sect. 41. "The trustee shall from time to time, when the committee DtatrlbnHoii of inspection determines, declare a dividend amongst the creditors who o£dhlJemis - have proved to his satisfaction debts proveable in bankruptcy, and shall distribute the same accordingly ; and in the event of his not declaring a dividend for the space of six months, he shall surrlmon a meeting of the creditors, and explain to them his reasons for not declaring the same" Sect. 42. "In the calculation and distribution of a dividend it shall be provision obligatory on the trustee to make provision for debts proveable in hank- ''"•"editors i ■ s xi i i .• xv l residing at a ruptcy appearing trom the bankrupts statements, or otherwise, to be distance, ic. due to persons resident in places so distant from the place where the trustee is acting that in the ordinary course of communication they have not had sufficient time to tender their proofs, or to establish them if dis- puted, and also for debts proveable in bankruptcy, the subject of claims not yet determined." Sect. 43. "Any creditor who has not proved his debt before the decla- Bight at ration of anv dividend or dividends shall be entitled to be paid out of ereditorwho any monies tor the time being in the hand ot the trustee any dividend proved debt or dividends he may have failed to receive before such monies are made 1,cf " r applicable to the payment of any future dividend or dividends, but he dividend, shall not be entitled to disturb the distribution of any dividend declared before his debt was proved by reason that he has not participated therein." Sect. 44. "When the trustee has converted into money all the property Final of the bankrupt, or so much thereof as can. in the joint opinion of him- dividend. self and of the committee of inspection, be realized without needlessly protracting the bankruptcy, he shall declare a final dividend, and give notice of the time at which it will be distributed." Sect. 4."». '-The bankrupt shall be entitled to any surplus remaining Bankrupt after payment of his creditors, and of the costs, charges, and expenses J^piBg, of the bankruptcy." - it 4t'». "No action or suit for a dividend shall lie against the trustee. No action but if the trustee refuses to pay any dividend the court may, it' it thinks f " r dividend. D. VOL. 11. I \ 354 DISTRIBUTION OF BANKRUPT'S PROPERTY. Part VII. Chap. XIV. fit, order the trustee to pay the same, and also to pay out of his own monies interest thereon for the time that it is "withheld, and the costs of the application." Joint creditor may prove for purpose of voting. Joint and separate dividends. Joint Creditors.'] — Sect. 103. "If one partner of a firm is adjudged bankrupt, any creditor to whom the bankrupt is indebted jointly with the other partners of the firm, or any of them, may prove his debt for the purpose of voting at any meeting of creditors, and shall be entitled to vote thereat, but shall not receive any dividend out of the separate property of the bankrupt until all the separate creditors have received the full amount of their respective debts." Sect. 104. "Where joint and separate properties are being adminis- tered, dividends of the joint and separate properties shall, subject to any order to the contrary that may be made by the court on the application of any person interested, be declared together ; and the expenses of and incident to such dividends shall be fairly apportioned by the trustee between the joint and separate properties, regard being had to the work done for and the benefit received by each property." Forfeiture of dividends after five years' non- claim. Unclaimed Dividends.'] — Sect. 116. "Where any dividends remain unclaimed for five years then and in every such case the same shall be deemed vested in the crown, and shall be disposed of as the commissioners of her Majesty's treasury direct ; provided, fliat at any time after such vesting the lord chancellor or any court authorized by him may, by reason of the disability or ab- sence beyond seas of the person entitled to the sum so vested, or for any other reason appearing to him sufficient, direct that the said sum shall be repaid out of money provided by parliament." Interest on debts. Interest on Debts.] — Sect. 3G. "Interest on any debt proveable in bankruptcy may be allowed by the trustee under the same circumstances in which interest would have been allowable by a jury if an action had been brought for such debt." Bankruptcy Rules respecting Dividends.] — "The Bankruptcy Rules, 1870," contain the following jn-o visions respecting divi- dends : — Rule 131. "Where a dividend is intended to be declared, the trustee shall give reasonable notice thereof to such of the creditors, mentioned in the bankrupt's statement, as shall not have proved their debts, and the notice shall also be gazetted." Rule 132. "Notice of a dividend having been declared shall be gazetted by the trustee according to the form in the schedule, and he shall also send a notice to each creditor who has proved, showing the amount of the dividend, and when and where it, is payable." Knle 133. "The amount of the dividend may, at the risk of the creditor, be transmitted to a creditor by registered post letter, inclosing a cheque or post-office order, less the cost of remittance, upon bis returning the notice to the trustee with the receipt attached to it duly signed, or it DIVIDENDS. 355 shall be paid upon the production of the notice and the receipt to the Paut vir. trustee at the time mentioned in the notice." chap, xiv. Rale 134. " All bills of exchange or other negotiable securities upon which proof haB been made must be exhibited to the trustee before pay- ment of dividend." Role 135. " A creditor may apply for the payment of a dividend with- Sect. 4C held by a truster by sending or giving to the registrar and the trustee a notice according to the form in the schedule, and the court may, if it shall see tit, make an order upon such application for the payment of the dividend without requiring the attendance of the creditor thereat" Rule 136. "A creditor who is desirous of giving credit for the value Sect. 40. of his security, in order to entitle him to a dividend in respect of the balance of his debt after deducting the assessed value, shall give notice thereof to the trustee, and the value of his security shall be determined in the same manner as the value of the security is to be determined, as prescribed with reference to the balance upon which a secured creditor may vote, and such creditor shall give credit for the value within four- teen days after he shall be called upon by the trustee so to do, unless he shall be out of England, and then within such reasonable time as the • trustee may fix, having regard to the means of communication between England and the place where the creditor may be, and in default thereof shall be deemed to be fully secured. If the trustee or any other creditor shall be dissatisfied with the value put ou the security, the trustee may require the security to be realized." Rule 137. " "Where the produce of the estate of a bankrupt is sufficient Sect. 45. to pay twenty shillings in the pound and interest as hereinafter men- tinned, and to leave a surplus, such surplus shall be paid by the trustee to such bankrupt, his executors, administrators, or assigns ; and every such bankrupt shall be entitled to recover the remainder, if any, of the debts due to him ; but such surplus shall not be paid until all the cre- ditors who have proved shall have received interest upon their debts to be calculated and paid at the rate and in the order following, viz., all creditors whose debts are by law entitled to carry interest in the event of a surplus shall first receive interest on such debts at the rate of interest reserved or by law payable or proveable thereon, to be calculated from the date of the order of adjudication ; and after such interest shall have been paid, all other creditors who have proved shall receive interest on their debts from such date at the rate of four pounds per centum per annum." "The Bankruptcy Rules, 1871," require the trustee, upon the declaration of a dividend, to send to the comptroller a list of credi- tors who have proved, showing the amount of proof and divi- dends (a). No. 49. Notice in Gazette of intended Dividend. In the London Bankruptcy Court [or the county court of , holden at ]. A dividend is intended to be declared in the matter of A. B., of , adjudicated a bankrupt on the day of , 187 . ( p. o07. A A 2 356 DISTRIBUTION OF BANKRUPT'S PROPERTY. Part vii. Creditors who have not proved their debts by the day of , ChapXIV - 187 , will be excluded. Dated this day of , 187 . G. H., trustee. No. 50. Application by Creditor for Order for Trustee to pay Dividend and Order thereon. " The Bankruptcy Act, 1869." Sect. 46. In the London Bankruptcy Court [or the county court of , holden at ]. Rule 135. In the matter of A. B., of , a bankrupt. I, F. K. of , make application to this court for an order to be made upon the trustee to pay the dividend in this bankruptcy due to me, with interest thereon for the time it has been withheld from me, that is to say, from the day of , 187 , on which day I applied to the trustee for its payment to me, and also to pay to me the costs of this application. Dated this day of , 187 . F. K. Upon the reading of this application, and upon hearing the trustee [and the creditor, where he has been required to attend and has attended], it is ordered that the trustee do forthwith pay to the said F. K. the sum of pounds, the amount of such dividend. And it is further ordered that the trustee do pay to the said creditor at the same time the sum of , for interest on such dividend, being at the rate of 51. per cent, for the time that its payment has been with- held, together with a further sum of for the costs of this appli- cation. Given under the seal of the court this day of ,187 . By the court, Registrar. (If the court does not order payment, then, after the words " it is ordered " insert the order made.') 3. Notice in Gazette of Dividend declared (b). In the London Bankruptcy Court [or the county court of holden at ]. Rule 132, A dividend of shillings in the pound has been declared 1870. in the matter of A. B. of adjudicated bankrupt on the day of , and will be paid by me at [here set out fully the place where the dividend will be paid] on and after the day of 187 . Dated this day of Trustee. (b) "The Bankruptcy Rules, 1871." priorities. 3,57 5 2. — Priorities. partvii. C h a p X I V Priority of certain Debts.'] — " The Bankruptcy Act, 1 869," ~ enacts that — Sect. 32. "The debts hereinafter mentioned shall be paid in priority Preferential to all other debts. Between themselves such debts shall rank equally, debu " and shall be paid in fall, unless the property of the bankrupt is insuffi- cient to meet them, in which ease they shall abate in equal proportions between themselves : that is to say, (1.) All parochial or other local rates due from him at the date of the order of adjudication, and having become due and payable within twelve months next before such time, all assessed taxes, land tax, and property or income tax assessed on him up to the fifth day of April next before the date of the order of adjudica- tion, and not exceeding in the whole one year's assessment : (2.) All wages or salary of any clerk or servant in the employment of the bankrupt at the date of the order of adjudication, not exceeding four months' wages or salary, and not exceeding fifty pounds ; all wages of any labourer or workman in the employ- ment of the bankrupt at the date of the order of adjudication, and not exceeding two months' wages : Save as aforesaid, all debts proveable under the bankruptcy shall be paid pari passu." J'riorities in other Cases.]— Apart from the priority of payment of debts of a certain description, above considered, aud of the question of a secured creditor, as distinguished from the body of creditors, questions of priority may arise otherwise, and the Bankruptcy Act expressly empowers the court to decide all ques- tions of priorities (c). Thus, where two bills of sale of the same goods were given in succession by the bankrupt, and duly registered, and the goods were taken possession of by the holder of the second bill before the net of bankruptcy, and sold after adjudication, on the questiou as to who was entitled (the proceeds of the sale having been in the meantime paid into court), the court held, that the holders of the bills of sale were entitled to the proceeds as against the trustee, and as between themselves directed the holder of the first bill to be paid his claim, and what remained to go to the holder of the second bill, the costs of all parties to be the first charge (d). It is to be observed, that in the case of bankruptcy the questiou of priority of the different creditors inter se, must be governed by the taw of the country where the bankruptcy takes place, and where the assets of the company are being administered (e). Creditor* of Partnership where one Partner Bankrupt.} — If one partner of a firm is adjudged bankrupt, any creditor to whom (r) Sec sect. ~2, ante, p. 203. (r) Judgment of Mellish, L J., {(I) K.c parts Allen and Pane. Exports Melboum, In re Melbourne I!r Middkton, 40 L J. (N. is.) 40 L. J. (N. S.) Bankr. 26. Bankr. 17. 358 DISTRIBUTION OF BANKRUPT S PROPERTY. Part vii the bankrupt is indebted jointly with the other partners, although Chap. XIV. • 1 i i-ii i • -ii • entitled to prove his debt and vote, is not entitled to receive any dividend out of the separate property of the bankrupt until all the separate creditors have received the full amount of their respective debts (/). Lender of Money on Receipt of Share of Profits. .] — In the event of any trader, that is to say, a person engaged in any trade or undertaking, being adjudged a bankrupt, or entering into an arrangement to pay his creditors less than twenty shillings in the pound, or dying in insolvent circumstances, the lender of any loan to him, upon a contract that the lender shall receive a rate of inte- rest varying with the profits, or receiving a share of the profits, is not entitled to recover any portion of his principal, or of the profits or interest, until the claims of the other creditors of the trader for valuable consideration, in money or money's worth, have been satisfied (g). Even if the lender has a mortgage on the trader's property to secure the money lent (the loan being expressly within the above act), it must be treated as subject to the contingency of the trader's bankruptcy, in which case the lender or his trustee must concur in a sale of the mortgaged property for the benefit of creditors (A). Apprentices and Articled Clerks.] — As to the payment of a sum of money to apprentices and articled clerks, see ante, p. 328. (/) See sect. 103, ante, p. 354. (ante, p. 203) gave the power to com- (ff) 28 & 29 Vict. c. 86, s. 5. pel the parties to effect a sale, and that (A) Ex parte Macarthur, In re sect. 95, subs. 1 [ante, p. 321) is to be JRamsden, 40 L. J. (N. S.) Bankr. read subject to 28 & 29 Vict. c. 86. 87, where it was held that sect. 72 ( 359 ) CHAPTER XV. CLOSE OF TIIE BANKRUPTCY AND DISCHARGE OF THE BANKRUPT. § 1.— Close op Bankruptcy. § 2. — Discharge of Bankrupt. § 3. — Release of Trustee. § 4.— Accounts of closed Bankruptcy. § 5. — Status of undischarged Bankrupt. § 1. — Close of Bankruptcy. " The Bankruptcy Act, 1869," enacts that— Sect. 47. " When the whole property of the bankrupt has been realized close of for the benefit of his creditors, or so much thereof as can, in the joint baukru i ,tc J'' opinion of the trustee and committee of inspection, be realized without needlessly protracting the bankruptcy, or a composition or arrangement has been "completed, the trustee shall make a report accordingly to the court, and the court, if satisfied that the whole of the property of the bankrupt has been realized for the benefit of his creditors, or so much thereof as can be realized without needlessly protracting the bankruptcy, or that a composition or arrangement has been completed, shall make an order that the bankruptcy has closed, and the bankruptcy shall be deemed to have closed at and after the date of such order. "A copv of the order closing the bankruptcy may be published in the London Gazette, and the production of a copy of such gazette containing a copy of the order shall be conclusive evidence of the order having been made and of the date and contents thereof." No. 51. Report of Trustee for closing Bankruptcy. "The Bankruptcy Act, 18G9." In the London Bankruptcy Court [or the county court of Sect. -17. holden at ]. In tlic matter of A. B. of , a bankrupt. I, G. II., the trustee <.|' the property of the bankrupt, do hereby report to this court, as follows : — That the whole of the property of the bankrupt has been realized for the benefit of his creditors, [and a dividend to the amount of shillings in the pound has been paid as shown by the .statement here- unto annexed ;] [or That so much of the property of the bankrupt as can, according to the joint opinion of myself and the committee of inspection, hereunto 360 CLOSE OF BANKRUPTCY AND DISCHARGE OF BANKRUPT. Part vii. annexed in writing under our hands, be realized without needlessly pro- Chap. xv. tracting the bankruptcy, has been realized, as shown by the statement hereunto annexed, and a dividend to the amount of shillings has been paid] ; Sect. 28. [or That a composition [or arrangement] offered by the bankrupt was duly accepted by me [or that a general scheme of settlement or arrangement of the affairs of the bankrupt has been assented to by me] to which the approval of this court was given on the day of 187 ]. Dated this day of 187 . G. II., trustee. No. 52. Order on Report of Trustee as to the closing of a Bankruptcy. " The Bankruptcy Act, 1869." Sect. 47. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. Upon reading a report of the trustee of the property of the bankrupt, dated the day of 187 , reporting (here set out the terms of the report) [and upon hearing (here Insert the name of any person who man appear to oppose an order for closing)'], the court being satisfied that (here follow the terms of the report), cloth order and declare that the bankruptcy of the said A. B. has closed [or as the court may otherwise order]. Given under the seal of the court this day of 187 . By the court, Kegistrar. § 2. — Discharge of Bankrupt. " The Bankruptcy Act, 1869," enacts that — Orrior of Sect. 48. " When a bankruptcy is closed, or at any time during its discharge. continuance, with the assent of the creditors testified by a special re- solution, the bankrupt may apply to the court for an order of discharge; but such discharge shall nut lie granted unless it is proved to the court that one of the following conditions lias been fulfilled, that is to say, either that a dividend of not less than ten shillings in the pound lias been paid out of his property, or Dlighl have been paid except through the negligence or fraud of the trustee, or that a special resolution of his Creditors has been passed to the effect that his bankruptcy or the failure to pay ten shillings in the pound has, in their opinion, arisen from cir- cumstances for which the bankrupt cannot justly be held responsible, and that they desire that an order of discharge should be granted to hint : and tin- court ma\ suspend for such time as it deems to be just, or withhold altogether, the order of discharge in the circumstances following; namely, if it appears to the court on the representation of the creditors made by special resolution, of the truth of" which repre- sentation the COUll L8 satisfied, or by other sufficient evidence, that the bankrupt, has made default ill giving Up to his creditors the property which lie is required by this act to give up; or that a prosecution has been commenced against him in pursuance of the provisions relating to DISCHARGE OF BANKRUPT. 361 tlic punishment of fraudulent debtors, contained in the 'Debtors Act, p*«tvii. 1869,' in respect of any offence alleged to bave been committed by him _ ChafXV- . against the said act." Sect. 49. " An order of discharge shall not release the bankrupt from |:(T, ' r tof any debt or liability incurred by means of any fraud or breach of trust, chum, nor from any debt or liability whereof lie has obtained forbearance by any fraud, hut it shall release the bankrupt from all other debts proveable under the bankruptcy, with the exception of — ( l .) Debts due to the crown. (•J.) Debts with which the bankrupt stands charged at the suit of the crown or of any person for any offence against a statute relating to any branch Of the public revenue. Of at the suit of the sheriff or other public officer on a bail bond entered into for the appear- ance of any person prosecuted for any such offence. And he shall not be discharged from such excepted debts unless the commissioners of the treasury certify in writing their consent to his being discharged therefrom." ••An order of discharge shall be sufficient evidence of the bankruptcy, ami of the validity of the proceedings thereon, and in any proceedings that may be instituted against a bankrupt who has obtained an order of discharge in respect of any debt from which he is released by such order, the bankrupt may (dead that the cause of action occurred before his discharge, and may give this act and the special matter in evidence." Sect. .")«'. "The order of discharge shall not release any person who, at the date of the order 61 adjudication, was a partner with the bank- rupt, or was jointly bound or had made any joint contract with him." The following " Bankruptcy Rules, 1870," relate to the order of discharge : — Rule 138. "A bankrupt intending to apply for an order of discharge sect. 48. shall tile an application with the registrar, who shall thereupon fix the time and place at which the application will be heard. Notice of the time and place fixed for the hearing of the application of the order of discharge shall be gazetted, and also given to the trustee by the bank- rupt, twenty-one days before such day." Rule 1.".'.'. "An order of discharge shall be dated of the day on which it is made, and shall take effect on and from the day of its date, and ■hall be gazetted." Rule 140. " An order of discharge shall not be granted until after the sect. id. public examination of the bankrupt under sect. 19 of the act." Rule 141. "An order of discharge shall not be delivered out until after the expiration of the time allowed for appeal, or if an appeal be entered, until alter the decision of the court of appeal thereon." Rule 142. " A bankrupt desirous of obtaining the assent of his cre- ditors to his applying to the court tor an order of discharge during the continuance of his bankruptcy, shall request the trustee to summon a meeting of his creditors, and thereupon the trustee, upon the deposit of a sufficient sum for costs, shall summon such meeting; where at the meeting the Creditors do net so assent no other meeting shall be called for the same purpose until after the lapse of three calendar months." 362 CLOSE OF BANKRUPTCr AND DISCHARGE OF BANKRUPT. Part vii. No. 61. Notice in Gazette of Day a Bankrupt will apply for his Chap - xv - Discharge. In the London Bankruptcy Court [or the county court of hohlen at ]. On the day of 187 , at o'clock in the noon, A. B., of , adjudicated bankrupt on the day of 187 , will apply for an order of discharge. Dated this day of 187 . Registrar. No. 62. Application for Order of Discharge where a Dividend of not less than 10s. has been paid. " The Bankruptcy Act, 1869." Sect. 48. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. The bankruptcy of A. B. having been closed, as shown by the order published in the London Gazette on the day of 187 ,and a dividend of [here state the amount of the dividend, which must he not less than 10s.] shillings in the pound having been paid out of his property to all the creditors who have proved, the said bankrupt doth hereby apply to the court for an order of discharge. Dated this day of 187 . A.B. Let this application be heard on the day of 187 , at o'clock in the noon. Dated this day of 187 . Registrar. No. 63. Application for Order of Discharge where the Failure to pay a Dividend of 10s. arose through Negligence or Fraud of Trustee. "The Bankruptcy Act, 1869." Sect. 48. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. The bankruptcy of A. B. having been closed, as shown by the order published in the London Gazette on the day of 187 , and the failure to pay a dividend of 10s. in the pound out of his property, having been caused through the negligence [or fraud] of the trustee, as proved by the proceedings which have been had in this court for the removal of such trustee [or, as the case may have been], the said bankrupt doth herd iv apply to the court for an order of discharge. Dated this day of 187 . A. B. Let this application be heard on the day of 187 , at o'clock in the noon. Dated this day of 187 . Registrar. DISCHARGE OF BANKRUPT. 36*3 No. C4. Application for Order of Discharge on a Special Resolution that PAnT V| [- the Bankruptcy or the Failure to pay a Dividend of 10s. arose from " Al ' • Circumstances for which the Bankrupt should not be held responsible. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Sect 48. holden at ]. In the matter of A. B., of , a bankrupt. The bankruptcy of A. B. having been closed, as shown by the order published in the London Gazette on the day of 187 , and the creditors of the said bankrupt having, at a meeting held at on the day of 187 , passed a special resolution, as shown by the minutes of the proceedings had at such meeting, duly Bigned by the chairman thereof, to the effect that, in their opinion, his bankruptcy has arisen from circumstances for which the said bankrupt cannot justly be held responsible [or that his failure to pay a dividend of 10.s. in the pound, in their opinion, has arisen from circumstances for which the said bankrupt cannot justly lie held responsible], and that they desire that an order of discharge should be granted to the bankrupt, the said bankrupt both hereby apply to the court for an order of discharge. Dated this day of 187 . A. B. Let this application be heard on the day of 187 , at o'clock in the noon. Dated this day of 187 . Registrar. No. G5. Application for an Order of Discharge during Continuance of Bankruptcy. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of Sect. it*, holden at ]. In the matter of A. B., of , a bankrupt. The creditors of the said bankrupt having, at a meeting held at on the day of 1*7 , passed a special resolution, as shown by the minutes of the proceedings had at such meeting, duly Bigned by the chairman thereof, assenting to the bankrupt applying to this court for an order of discharge, although the bankruptcy has not been closed. [Show here, an in previous forms, whether a dividend of 10*. has been paid, or could have been hut for the negligence or fraud of the trustee, or that by special resolution the bankruptcy or the failure /,, pay a divide,, il of 10«. has arisen from circumstances for which the bankrupt should not be ht Id responsiblt .] The said bankrupt doth hereby apply to the court for an order of dis- charge. Dated this dav of , 187 . A. B. Let this application be heard on the day of lb7 , at o'clock in the noon. Dated this day of , 187 . Registrar. 364 CLOSE OF BANKRUPTCY AND DISCHARGE OF BANKRUPT. Part VTI. Chap. XV. No. 66. Memorandum of Application for Order of Discharge. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of hold en at ]. In the matter of A. B. of , a bankrupt. The application of the said bankrupt for his order of discharge having been read, and the court being satisfied that the bankrupt is entitled to such order, doth hereby grant it. [If suspended or withheld, alter the form accordingly, and state reasons for suspending or withholding.'] No. 67. Order of Discharge. " The Bankruptcy Act, 1869." Sect. 48. In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. Whereas at a court held this day of 187 , the bankrupt applied for an order of discharge ; s and whereas it having been proved to the court that a dividend of ten shillings in the pound has been paid [or might have been paid except through the negligence [or fraud] of the trustee of the property of the bankrupt, or that a special resolution of the creditors of the bankrupt has been passed to the effect that his bankruptcy [or the failure to pay a dividend of ten shillings in the pound] lias, in their opinion, arisen from circumstances for which the bankrupt cannot justly be held responsible, and that they desire that an order of discharge should be granted to the bankrupt], an order of discharge is hereby granted. [Or °And whereas the court, having had made to it a representation <»f the creditors of the bankrupt made by special resolution of the cre- ditors passed at a meeting of them held at on the day of 187 , duly signed by the chairman thereof, that the bank- rupt has made default in giving up to his creditors the property which be is required by the Bankruptcy Act, 1869, to give up [or that a pro- secution has been commenced against the bankrupt in pursuance of the provisions relating to the punishment of fraudulent debtors contained in the Debtors Act, 1869, in respect of an offence alleged to have been committed by the bankrupt against the said act] : and whereas the court being satisfied of the truth of the representation of the creditors made by the said special resolution, it is ordered that the discharge of the bankrupt be withheld altogether [or suspended until from the date of this order]. Given under the seal of the court this day of 187 . By the court, Registrar. RELEASE OF TRUSTEE. 365 "The Bankruptcy Rules, 1871," without expressly superseding Partvil the preceding form, gave the following form of order of discharge: Chap - XVj 2. Order of Discharge. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden .it ]. In the matter of A. B., of , a hankrupt. An order of discharge was this day granted to A. B., of , who R»ie 139, was adjudicated bankrupt on the day of , 187 . 187 °- Dated this day of 187 . Registrar. No. 69. Notice in Gazette of Order of Discharge (/). In the London Bankruptcy Court [or the county court of Sect. 48. holden at ]. In the matter of A. B., of , a bankrupt. An order of discharge was granted to A. B., of , who was ad- Rule 139. judicated hankrupt on the day of 187 . Registrar. § 3. — Release of Trustee. "The Bankruptcy Act, 1869," enacts that— Sect. 51. " When the bankruptcy is closed, the trustee shall call a Keieaseof meeting of the creditors to consider an application to be made to the trustee - court for his release. At the meeting the trustee shall lay before the assembled creditors an account Bhowing the manner in which the bank- ruptcy has been conducted, with a list of the unclaimed dividends, it' any, and of the property, if any, outstanding, and shall inform the meet- ing that he proposes to apply to the court for a release. The creditors assembled at the meeting may express their opinion as to the conduct of the trustee, and they, or any of them, may appear be- fore the court and oppose the release of the trustee. The court, after hearing what, it* anything, can be urged against the release of the trustee, shall grant or withhold the release accordingly, and it it withhold the release, shall make such order as it thinks just, charging the trustee with the consequences of any act or default he may have done or made contrary to his duty, and shall suspend his release until such charging order has been complied with, and the court thinks just to grant the release of the trustee." Sect. 52. " Unclaimed dividends, and any other monies arising from r " l, . v "' tin' property of the bankrupt, remaining under the control of the trustee SSSmei* at the close of the bankruptcy of any bankrupt, or accruing thereafter, diridendi shall be accounted and paid over to such account as may be directed by !"",' " l,t " ,n " d - the rules of court to be made with the sanction of the treasury ; and any *"*** parties entitled thereto may claim the same in manner directed by such rules. The trustee shall also deliver a list of any outstanding property of the bankrupt to the prescribed persons, and the same shall, when (i) " The Bankruptcy Kules, 1870." 366 CLOSE OF BANKRUPTCY AND DISCHARGE OF BANKRUPT. Part vrr. Chap. XV. Effect of release of trustee. Sect. 52. practicable, be got in and applied for the benefit of the creditors in manner prescribed."' Sect. 53. " The order of the conrt releasing the trustee of a bankruptcy shall discharge him from all liability in respect of any act done, or de- fault made by him in the administration of the affairs of the bankrupt, or otherwise in relation to his conduct as trustee of such bankrupt; but such order may be revoked by the court on proof that it was obtained by fraud." The following of the trustee: — Bankruptcy Rules, 1870," relate to the release Rule 122. "A trustee desirous of obtaining his release shall apply to the registrar to fix the time and place upon which he may make appli- cation to the court for such release, and upon such time being fixed he shall summon a meeting of the creditors to consider such application, stating therein the time and place on which the application to the court will be made." 123. "A trustee applying for a release shall produce to the meeting of creditors a report from the comptroller upon his accounts" (k). 124. "The release of a trustee shall operate as a removal of the trus- tee, and thereupon the registrar shall be the trustee." 125. " Upon the close of a bankruptcy the trustee shall deliver a list of the outstanding property to the registrar of the court, who shall realize the property, if practicable, and declare a dividend from the proceeds thereof in the same manner as if he had been the trustee by reason of there being no trustee acting during the continuance of the bankruptcy, as provided by sect. 83 of the act" (7). No. GO. Application for Release by Trustee and Order thereon. " The Bankruptcy Act, 1869." Sect. 51. In the London Bankruptcy Court \or the county court of holden at ]. In the matter of A. B., of , a bankrupt. I, the trustee of the property of the said bankrupt, do make applica- tion to this court for my release as such trustee. Dated this day of 187 . G. II. On the hearing of the above application it is ordered by the court that the release of the said G. II. be granted, and it is hereby granted ac- cordingly, and the said G. H. is hereby removed from the office of trus- tee of the property of the bankrupt. Given under the seal of the court this day of 187 . By the court, Registrar. (/,',) Rule 248 directs that— " Every trustee, heforc calling a meeting of the creditors to consider an applica- tion to be made by him to the court for his release, shall apply to the comptroller for a report on his ac- counts, and the comptroller shall make such report and transmit it to the trustee, who shall produce the same at such meeting and to the court when making such application." {I) Sec sect. 83, ante, p. 276. ACCOUNTS OF CLOSED BANKRUPTCY. 367 § 4. — Accounts of closed Bankruptcy. "The Bankruptcy Rules, 1871," provide that — Rule 17. u Upon the declaration of a dividend a trustee shall send to the comptroller a list of creditors who have proved, showing the amount of proofs and dividends." 18. " At tin' expiration of twelve months from the declaration of such dividend, or if the bankruptcy be closed within twelve months of such declaration, then at the close of the bankruptcy the trustee shall forward to the comptroller a list of the dividends unclaimed, together with vouchers showing the payment of such dividends as have heen paid." 19. " Upon the receipt of such list the comptroller shall send to the trustee an order by the accountant in bankruptcy upon the Bank of England to receive the amount of the dividends which remain unclaimed, and the trustee shall within one week from the date of such order pay into the Bank of England the sum mentioned in such order." 20. " Any other moneys arising from the property of the bankrupt remaining under the control of the trustee at the close of the bankruptcy of any bankrupt, shall, in like manner, be paid by the trustee into the Bank of England." 21. "All moneys received by a registrar acting as trustee after the close of a bankruptcy, shall in like manner be paid by him into the Bank of England within one month of the receipt of the same." 22. " The Governor and Company of the Bank of England shall receive and carry to the credit of the account of the accountant in bankruptcy all moneys so directed to be received by any order of the accountant." 23. " Subject to the provisions of sect. 116 of The Bankruptcy Act, 18G9,' and sect. 19 of ' The Bankruptcy Repeal and Insolvent Court Act, 1809,' the court, upon being satisfied that any person who may claim to be entitled to any dividend or other payment from moneys which shall have been so paid into the Bank of England is entitled thereto, may order payment of the same according to the form in the schedule." 24. " "Where payment is required to be made to a registrar of a county court for the fees authorized to be taken by him for the duties of realizing the estate and of making a dividend, the order directing such payment shall be signed by the judge of the court, and any order made by the London Bankruptcy Court for the payment of such fees shall be made payable to such officer as may be authorized to receive fees on behalf of her Majesty's exchequer." 25. " Every registrar acting as a trustee after the close of a bankruptcy shall, within ten days after the 30th June and 31st December, forward to the comptroller a certificate to the effect that he has paid into the Bank of England all sums of money received by him on account of closed estates." 26. " Every registrar acting as a trustee after the close of a bankruptcy shall, within twenty days of the 30th June in every year, forward to the accountant in bankruptcy an account showing the balance standing to the credit of each closed estate in which he is trustee, which account, if correct, shall he certified by the accountant and returned by him to the registrar." •J7. " Where any money shall be paid into the Bank of England pur- suant to these rules, the trustee shall receive a certificate from one of the cashiers of such bank." Part VII. Chap. XV 368 CLOSE OF BANKRUPTCY AND DISCHARGE OF BANKRUPT. Part vii. Order for payment, Chap. XV. No * J Re: Adjudication dated £ 5. Order for Payment of Moneys out of Bank of England (m). No. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of , holden at 1, day of 18 . In the matter of , a bankrupt. (Under adjudication dated 18 .) It appearing to the court that is en- titled to be paid the sum of pounds shillings and pence, being and that the said sum forms part of the moneys standing to the credit of the account of the ac- countant in bankruptcy in the Bank of England. It is ordered, that the said sum be paid to By the court, £ (l.s.) Registrar. To the Accountant in Bankruptcy. {In pursuance of the above order pay to or order, the sum of pounds shillings and pence. e Accountant. To the Cashier of the Bank of England. N.B. — This order, upon being properly endorsed, will be paid at the Public Drawing Office, Bank of England, any day until three o'clock. Sect. 54. Rules 125 128. No. 68. Notice to Creditors of a Bankrupt, who has paid an additional Sum after close of his Bankruptcy, making up a Dividend of 10s. in the Pound, that he ivill apply for an Order of Discharge. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. To the creditors of the said bankrupt. Take notice, that the bankrupt will apply to this court on the day of 187 , at o'clock in the noon, for an order (in) "Bankruptcy tiules, 1871." ACCOUNTS OF CLOSED BANKRUPTCY. 369 of discharge on the ground that he lias paid to his several creditors since Part Vi f. the close of the bankruptcy a sum which, with the dividend of Chap, xv. paid, makes up ten shillings in the pound on all the debts proved in his bankruptcy. Dated this day of 187 . Registrar. § 5. — Status of undischarged Bankrupt. "The Bankruptcy Act, 1869," enacts that — Sect. 54. " "Where a person -who has been made bankrupt has not ob- status of tained his discharge, then, from and after the close of his bankruptcv, undischarged ,,„,,. , ,, f J » bankrupt. the following consequences shall ensue: — (1.) No portion of a debt proveable under the bankruptcy shall be enforced against the property of the person so made bankrupt until the expiration of three years from the close of the bank- ruptcy ; and during that time, if he pay to his creditors such additional sum as will, with the dividend paid out of his pro- perty during the bankruptcy, make up ten shillings in the pound, he shall be entitled to an order of discharge in the same manner as if a dividend often shillings in the pound had origi- nally been paid out of his property : (2.) At the expiration of a period of three years from the close of the bankruptcy, if the debtor made bankrupt has not obtained an order of discharge, any balance remaining unpaid in respect of any debt proved in such bankruptcy (but without interest in the meantime) shall be deemed to be a subsisting debt in the nature of a judgment debt, and, subject to the rights of any persons who have become creditors of the debtor since the close of his bankruptcy, may be enforced against any property of the debtor, with the sanction of the court which adjudicated such debtor a bankrupt, or of the court having jurisdiction in bank- ruptcy in the place where the property is situated, but to the extent only, and at the time and in manner directed by such court, and after giving such notice and doing such acts as may be prescribed in that behalf." Application for Discharge during Three Years after Close of Bankruptcy.] — " The Bankruptcy Rules, 1870," provide that — Rule 172. " Where a bankrupt who has not obtained his order of dis- sect. 54. charge shall, after the close of the bankruptcy, pay or tender to the several creditors who have proved their debts, a sum, which with the dividend paid previous to the close of the bankruptcy shall make up a dividend of not less than ten shillings in the pound, and shall desire to obtain an order of discharge, he shall file with the registrar a statement, verified by affidavit, of the sums so paid or tendered, and when and where paid, witli the receipts of the creditors or their representatives for the sums respectively paid to them written on or attached thereto." 173. "The registrar shall appoint a day for the hearing of the appli- Form 63. cation for the order of discharge, and a notice thereof shall be gazetted twenty-one days before the day appointed, and a copy thereof shall be sent by the registrar to each creditor who has proved or claimed a debt under the bankruptcy.'' D. VOL. II. B B 370 CLOSE OF BANKRUPTCY AND DISCHARGE OF BANKRUPT. Part vii. 174. " Where a creditor cannot be found or is dead, and no represen- Chap. xv. t a tj ve is known, the bankrupt may deposit the money payable to such creditor with the registrar." Form 64. 175. " At the hearing of the application, an order of discharge maybe granted, if the court is satisfied that a sum equal to a dividend of ten shillings in the pound has been paid to all the creditors who proved Sect. 48. their debts, unless, on a representation of creditors under sect. 48 of the act, the court thinks it just to suspend or withhold such order." Enforcement of Debt against undischarged Bankrupt^] — At the expiration of three years from the close of a bankruptcy, un- paid proved debts may be enforced against the property of the debtor (n). " The Bankruptcy Rules, 1870," provide that — Sect. 54, Rule 183. " Where after the expiration of a period of three years from par ' the close of a bankruptcy, in which the bankrupt has not obtained an order of discharge, an application is made to the court for its sanction to the enforcement by a creditor, of the payment of the balance remain- ing unpaid of a debt proved under the bankruptcy, the creditor shall tile a statement, verified by affidavit, showing the dividend paid under the bankruptcy, the balance remaining unpaid, and the property against which he seeks to enforce payment, and that such property is the pro- perty of the bankrupt, and the registrar shall thereupon appoint a time and place for the hearing of the application and direct notice of the time and place appointed for the hearing, according to the form in the schedule, to be served by an officer or a bailiff of the court, personally on the bankrupt, or at his usual or last known place of residence or business." 184. "At the hearing of the application service of the notice on the bankrupt shall be proved, unless he appears, and the court if it think fit may refuse the application, or adjourn the hearing to some other day, and in such latter case shall direct the creditor to cause a notice to be gazetted and inserted in one local paper, seven days before the day to which the hearing is adjourned, according to the form in the schedule." 185. "At the adjourned hearing the creditor shall produce a copy of the gazette and of the paper in which the notice was published, and the court may then hear all persons claiming to be creditors of the debtor before or since the close of the bankruptcy, and make such order in the matter as it thinks fit, or adjourn the hearing for further evidence." No. 70. Notice in Gazette that a Creditor seeks to enforce Payment of his Debt out of the Property of an undischarged Bankrupt. Sect. 54, In the London Bankruptcy Court [or the county court of par. 2. holden at ]. Uuies 135 to Notice. — The sanction of this court is sought for the enforcement 137 - against A. B., adjudicated bankrupt on the day of 187 , of the payment of the balance remaining unpaid of a debt proved under his bankruptcy. The bankruptcy was closed on the day of 187 . All persons who have become creditors of this bankrupt since such day, and who may desire to show cause against the granting of the sanction sought, should attend at this court on the day of 187 , at o'clock in the noon. Registrar. («) See sect. D4, subs. (2), ante, p. 369. ( 371 ) CHAPTER XVI. LIQUIDATION BY ARRANGEMENT OR COMPOSITION WITH CREDITORS. § 1. — The General Effect of the Provisions for Arrange- ment and Composition. § 2. — Liquidation by Arrangement. § 3. — Composition with Creditors. § 4. — Rules respecting Liquidation by Arrangement or Composition. § 5. — Forms. § 1. — The General Effect of the Provisions for Arrange- ment and Composition. In the preceding chapters, the suhject of bankruptcy, pure and simple, has been dealt with. Other parts of" The Bankruptcy Act, 1869," have now to be considered, which enable the creditors to decide, upon the application of the debtor, whether the distribution shall be made upon terms to which a majority of the creditors shall agree, with or without actual bankruptcy, or by means of a com- position. Nevertheless in each of the cases, except a composition, the plain purpose and effect of the statute is to transfer the whole property of the debtor to the creditors, for the purpose of equal distribution among them, and to leave in the debtor neither right nor power in or over that which, before his inability to pay his debts was declared, was his. Although it was thought proper to enact the law relating to simple bankruptcy in separate clauses, yet the provisions as to liquidation by arrangement are, by reference and by implication, strong and clear, so united with those clauses as to make one entire, complete and harmonious law upon the sub- jects which the statute comprehends (a). Liquidation by composition stands on a somewhat different foot- ing. The great difference between cases of liquidation where the creditors have resolved that their debtor's affairs are to be liquidated by arrangement and not in bankruptcy, and cases in which cre- ditors have resolved to accept a composition in satisfaction of their O) Judgment of Bacon, C. J., of S.) Bankr. 30; approved of on appeal, the Bankruptcy Court, in Est parte Id. OS. Dulgnan, Re itissdl, 40 L.J. (N. B b2 372 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part vii. debts, must in all cases be observed. The rights of the debtor and chap, xvi. j^ g cre( jit ors are w holly different in the two cases. Both are initiated by a petition filed by the debtor stating his inability to pay his debts (&). At that time it is uncertain whether the liquida- tion shall be effected by means of the appointment of a trustee, and the distribution among the creditors of the whole of the debtor's estate, with all the powers and provisions which are enacted respecting bankruptcy, and it is at the option of the requisite majority of creditors at a meeting duly convened, to determine whether the estate shall be so distributed and dealt with or not; and to this state of things the 125th section of the act (comprising the provisions relating to liquidation by arrangement) and the rules applicable to that section, relate. But it is also in the power and at the option of the creditors, under the 126th section, at a like meet- ing to resolve that, instead of exercising the powers conferred upon them by section 125, they will "without any proceedings in bank- ruptcy," accept a composition in satisfaction of their debts; and thereupon machinery is provided by the 126th section and the Rules, for giving effect to such composition. When once a resolu- tion is passed to accept a composition, the appointment of a trustee is unnecessary and improper. The property of the debtor is not taken from him, nor vested in a trustee ; it is not " distributed in the same manner as in bankruptcy" (as is provided for in the law of liquidation by arrangement) (c). On the contrary, the debtor is left in the possession of his assets, for the very purpose, it may be, of enabling him to fulfil the engagement he has entered into with his creditors to pay them the stipulated composition. The terms agreed to are binding upon all the creditors, may be embodied in a deed and secured by covenants if the creditors so will, and may be enforced by the court as any order of the court may be. But there is no power in this latter case to deprive secured creditors of their securities; no relation of title to any act of bankruptcy prior to the presentation of the petition or otherwise; nor anything in which the creditors who have resolved to accept a composition, have any interest beyond enforcing the performance of that condition on which they have agreed to accept the composition (d). § 2. — Liquidation by Arrangement (e). The subject of bankruptcy simple being dealt with by the first (b) See the rules, pott, p. 381. rangement an( j composition executed (c) See sect. 125, subs. (7), post, under the former law, the " Bank- P- 374. ruptcy Rules, 1870," contain the (d) Judgment of Bacon, C. J., Ex following provisions: — parte Birmingham Gas Light and " Trust Deeds." Coke Co., lie Adams, 40 L. J. (N. S.) Rule 31G. " The chief judge of the Bankr. 1. London Bankruptcy Court shall have 0) With respect to deeds of ar- and exercise all' the powers, jurisdic- LIQUIDATION BY ARRANGEMENT. 373 five parts or divisions of "The Bankruptcy Act, 1869" (/); the PAarvrr. sixth part deals with Liquidation by Arrangement. c hap, xvi. The section enacts as follows — Sect. 125. "The following regulations shall he made with respect to Regulation* the liquidation by arrangement of the affairs of the debtor: "• '." ''i'"- (1.) A debtor unable to pay his debts may summon a general meeting a^uSent. ot Ins creditors, and such meeting may, by a special resolution as defined by this act, declare that the affairs of the debtor are to be liquidated by arrangement and not in bankruptcy, and may at that or some subsequent meeting, held at an interval of not more than a week, appoint a trustee, with or without a committee of inspection. (2.) All the provisions of this act relating to a first meeting of cre- ditors, and to subsequent meetings of creditors in the case of a bankruptcy, including the description of creditors entitled to vote at such meetings, and the debts in respect of which they are entitled to vote (7/), shall apply respectively to the first meeting of creditors, and to subsequent meetings of creditors, for the purposes of this section, subject to the following modi- fications : (a.) That every such meeting shall be presided over by such chairman as the meeting may elect; and (b.) That no creditor shall be entitled to vote until he has proved by a statutory declaration a debt proveable in bankruptcy to be due to him, and the amount of such debt, with any prescribed particulars ; and any person wilfully making a false declaration in relation to such debt shall be guilty of a misdemeanor. (3.) The debtor, unless prevented by sickness or other cause satis- factory to such meeting, shall be present at the meeting at which the special resolution is passed, and shall answer any in- quiries made of him, and lie, or if he is so prevented from being at such meeting some one on his behalf, shall produce to the meeting a statement showing the whole of his assets and debts, tions and authorities of the old Rule 317. " Every such deed in London Bankruptcy Court, and the respect of which an" order has been judges of the local bankruptcy courts made extending the time for regis- shall have and exercise all the powers, tcring the same to a date subsequent jurisdictions and authorities of any to 31st December, 18(59, shall be district court of bankruptcy, or of deemed to have been in course of any county court with respect to any registration within the meaning of trust deed, or deed of arrangement, the last rule." composition or inspectorship executed Rule 318. " The chief registrar of by a debtor whether registered or in the old London Bankruptcy Court course of registration, on or before shall complete the registration of any the 31st day of December, 1869, in such last-mentioned deed in manner the same manner as he or they may required by the Bankruptcy Act, exercise jurisdiction, powers and 1861, and "the Bankruptcy Amend- authorities with respect to any other ment Act, 18G8, and shall retain and legal proceedings pending on that day exercise all necessary authority lor under any of the enactments repealed that purpose." by the Bankruptcy Repeal and In- (/) Seethe divisions of the statute, solvent Courts Act, 1869, as provided ante, p. 200, note, by sect. 20 of such act." (^) See ante, p. 269. 374 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part vii. and the names and addresses of the creditors to whom his debts Chap. XVI. are d ue . (4.) The special resolution, together with the statement of the assets and debts of the debtor, and the name of the trustee appointed, and of the members, if any, of the committee of inspection, shall be presented to the registrar, and it shall be his duty to inquire whether such resolution has been passed in manner directed by this section, but if satisfied that it was so passed, and that a trustee has heen appointed with or without a com- mittee of inspection, he shall forthwith register the resolution and the statement of the assets and debts of the debtor, and such resolution and statement shall be open for inspection on the prescribed conditions, and the liquidation by arrangement shall be deemed to have commenced as from the date of the appointment of the trustee (h). (5.) All such property of the debtor as would, if he were made bank- rupt, be divisible amongst his creditors shall, from and after the date of the appointment of a trustee, vest in such trustee under a liquidation by arrangement, and be divisible amongst the cre- ditors, and all such settlements, conveyances, transfers, charges, payments, obligations and proceedings as would be void against the trustee in the case of a bankruptcy shall be void against the trustee in the case of liquidation by arrangement. (6.) The certificate of the registrar in respect of the appointment of any trustee in the case of a liquidation by arrangement shall be of the same effect as a certificate of the court to the like effect in the case of a bankruptcy. (7.) The trustee under a liquidation shall have the same powers, and perform the same duties, as a trustee under a bankruptcy, and the property of the debtor shall be distributed in the same manner as in a bankruptcy; and with the modification herein- after mentioned, all the provisions of this act shall, so far as the same are applicable, apply to the case of a liquidation by ar- rangement in the same manner as if the word ' bankrupt' in- cluded a debtor whose affairs are under liquidation, and the word ' bankruptcy' included liquidation by arrangement ; and in construing such provisions the appointment of a trustee under a liquidation shall, according to circumstances, be deemed to be equivalent to and a substitute for the presentation of a petition in bankruptcy, or the service of such petition, or an order of adjudication in bankruptcy. (h) See the various rules as to (N. S.) Bankr. 41. It is unneces- the meeting and voting, post, § 4. sary that the votes in the negative The registrar under Rule 295, post, is should be evidenced in the same way. to determine the validity of the rcso- If a creditor does not sign affirma- lution by the affirmative signatures, tively, he must be conclusively taken which are conclusive; and if the to have voted in the negative, unless assents of the proper proportion of the before the resolution is put he with- Avhole value present, in person or by draws his pi-oof under Rule 27.3 (2)ost, proxy, appears by such written proof p. 384). Ex parte Orde, In, re it is immaterial, and the registrar IForsley, 40 L. J. (N. S.) Bankr. 60. cannot inquire, whether one of the The same regulations apply to a rcso- creditors so signing, voted in the lution for adjournment {Id.). negative at the meeting. Ex jmrte Sec further, note to Rule 295. Pooley, In re Russell, 40 L. J. LIQUIDATION BY ARRANGEMENT. 375 (8.) The creditors at their first or any general meeting may prescribe Part vii. Hi,- bank into which the trustee is to pay any monies received LHA1 - A • by him, and the sum which he may retain in his hands. (9.) The provisions of this act with respect to the close of the bank- ruptcy, discharge of a bankrupt, to the. release of the trustee, and to the audi? of accounts by the comptroller, shall not apply in the case of a debtor whose affairs are under liquidation by arrangement; but the close of the liquidation maybe fixed, and the discharge of the debtor and the release of the trustee may be granted by a special resolution of the creditors in general meeting, and the accounts may lie audited in pursuance of such resolution, at such time and' in such manner and upon such terms and conditions as the creditors think fit. (10.) The trustee shall report to the registrar the discharge of the debtor, and a certificate of such discharge given by the registrar Bhall have the same efTect as an order of discharge given to a bankrupt under this act. (11.) Rules of court may be made in relation to proceedings on the occasion of liquidation by arrangement in the same manner and to the same extent and of the same authority as in respect of proceedings in bankruptcy. (12.) If it appear to the court, on satisfactory evidence, that the liquidation by arrangement cannot, in consequence of legal difficulties, or of there being no trustee for the time being, or for any sufficienl cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may adjudge the debtor a bankrupt, and proceedings maybe had accordingly. (13.) Where no committee of inspection is appointed, the trustee may act on his own discretion in cases where lie would otherwise have been bound to refer to such committee. (14.) In calculating a majority on a special resolution for the pur- poses of this section, creditors whose debts amount to sums not exceeding ten pounds shall be reckoned in the majority in value, but not in the majority in number." The registration of the resolutions is, in the absence of fraud, conclusive evidence that they were duly passed, and all the re- quisitions of the act in respect of such resolutions complied With (i). Some difficulty arises from the circumstance that while the pro- visiona relating to bankruptcy proper arc expressed in detail, those which relate t<> liquidation by arrangement are made by reference only to those which belong to the former. It will be observed, that by the section now under consideration (forming, as already stated, the sixth part of the act), all the pro- perty (sub-sect. 5) of the debtor vests in a trustee appointed under liquidation, and is divisible among the creditors, and all proceed- ing which would be void against a trustee in bankruptcy are void against a trustee under liquidation; and by sub-sect. 7, such a trustee has the same powers as a trustee under a bankruptcy, and the property of the debtor is to be distributed in the Bame manner 0') Sec sect. 127, post, \>. 379. 376 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. part vii. as in a bankruptcy, and all the provisions of the act apply to the chap, xvi. cage f liquidation by arrangement in the same manner as if the word "bankrupt" included a debtor whose affairs are under liqui- dation, and the word "bankruptcy" included liquidation by arrange- ment (k). In the sub-sections, and in the rules (see post, § 4), relating to this part of the statute, the possibility of actual bankruptcy being adopted instead of liquidation by arrangement is kept in view, and yet the power of adjudicating in bankruptcy exists only by means of a petition in a prescribed form (see Rule 252, post, p. 381), con- taining an admission of the debtor's insolvency. The filing of the petition is, therefore, an act of bankruptcy (/). Form of Resolution for Liquidation by Arrangement.~\ — Reso- lutions that the estate should be wound up by liquidation, not by bankruptcy, and appointing a trustee and committee of inspection, and that upon payment by the debtor of a fixed named sum within a month after the registration of the resolution, and his giving a bond for a further payment, the debtor should have his discharge, and that the first payment should be accepted in full satisfaction of all right to apply to the court as to the pay of the debtor, were held to be good resolutions under sect. 125, and not to require to be treated as an acceptance of a composition and requiring an ex- traordinary resolution under sect. 12fj {post, p. 378) (m). Rights of the Trustee in Liquidation.^ — Although by sub- sect. 4 the liquidation by arrangement is deemed to have com- menced as from the date of the trustee's appointment, that is, that the active prosecution of the liquidation shall thenceforth ensue, it is also provided by sub-sect. 7 that the appointment of a trustee in liquidation (and this, it seems, without any reference to the particular time at which such appointment may have been made) shall be deemed to be equivalent to, and a substitute for, the pre- sentation of a petition in bankruptcy, or the service of such petition or an order of adjudication in bankruptcy; and, therefore, the trus- tee in liquidation is as much entitled to call in question any pro- ceeding by which a portion of the debtor's property has been with- drawn from distribution, as a trustee in bankruptcy (rc), for not- withstanding the words of sub-sect. 4 create a difficulty, they cannot control sub-sect. 5 and the other parts of the act which clearly make the same property vest in the trustee as would vest (k) See the judgment of the chief affirmed on appeal, Id. 69. judge in bankruptcy in Ex parte (?n) Ex parte Pooley, In re Rtis- Todhunter, 39 L. J. (N. S.) Bankr. sell, 40 L. J. (N. S.) Bankr. 41. 22. (?i) See the judgment in Ex parte (I) See Ex parte Ru iff nan, Re Todhunter, 39 L. J. (N. S.) Bankr. Bissell, 40 L. J. (N. S.) Bankr. 33; 22. LIQUIDATION BY ARRANGEMENT. 377 in bankruptcy if the creditors chose to make the debtor bank- Partvii. , , v r J Chai-. W I. rupt (o). Effect of Petition for Liquidation, on Executions.^ — In accord- ance with this view of the effect of a petition for liquidation by arrangement, it was held, that the seizure in execution of the goods of a debtor, after the filing of a petition for liquidation, al- though before the appointment of a trustee, was of no avail as against the trustee, the goods on his appointment becoming the property of the trustee from the act of bankruptcy by filing the petition (p). On the other hand, a trustee in liquidation is not entitled to the proceeds of a sale under an execution against a non-trader debtor where the seizure was before the petition was filed (q). Therefore, where the sheriff having seized the goods of a non- trader debtor under an execution, sold them under judge's orders, paying the proceeds into court, and between the seizure and sale the debtor filed a petition in liquidation, of which notice was given before sale to the sheriff and execution creditor, and after the sale a trustee was appointed, it was held, that the question must be decided as if the petition for liquidation had been a petition in bankruptcy presented before the sale, followed by an adjudication after sale ; and that, assuming the filing the petition for liquidation to be an act of bankruptcy, yet the execution creditor, having seized before notice thereof, was entitled to retain the proceeds against the trustee (r). So, in a subsequent case, where before sale the sheriff was served with notice of a petition for liquidation, and an injunction by the county court judge to restrain the sale, it was held, that the judg- ment creditor was entitled to have his debt satisfied out of the proceeds of the goods (s). O) Mc\\ish,L. J., Ex parte Buig- 39 L. J. (X. S.) Bankr. 23. This nan, In re Bissell, 40 L. J. (X. S.) case was, however, in apparent con- Bankr. To. flict with the authorities noticed, (p) Ex parte Duignan, Be Bis- ante, p. 322 (Slater v. Binder, Ex sell, 40 L. J. (N. S.) Bankr. 33; parte Bocke, £».). Although Ex affirmed on error, Id. 68. parte Veness cannot be supported on (q) See Ex parte Boehe, In re the grounds on which it was decided, Hall, 40 L. J. (X. S.) Bankr. 70; see it may be supported on the facts, for also ante, p. 322. there was in that case an act of bank- (r) Ex parte Tbdhunter, Law ruptcy before seizure, and the doctrine Rep., 10 Eq. 425; 39 L.J. (X. S.) of relation back applies to liquidation Bankr. 17; and see Ex parte Bocke, by arrangement (see Ex parte Duig- Jn re Hall, 40 L. J. (X. S.) Bankr. nan, supra); but the judgment did 70. Id a case decided the same day not proceed on that ground. See the as Ex parte Todhunter, where the comments on Ex parte I 'eness in the seizure was before the petition for judgments of the Court of Exchequer liquidation, but the trustee was ap- in Slater v. Binder, 40 L. J. (X. S.) pointed before the sale, the chief Ex. 146. judge held that the execution was («) Ex parte Bailey, In re Jcclcs, not protected. Ex parte Ymess 41 L. J. (X. S.) Bankr. 1. (Be tinynn),La.v,- Kcp., 10 Eq. 119; 378 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. pakt vii. A petition for liquidation has the same effect as a petition in HAP " ' bankruptcy in cases under sect. 87, which provides for the proceeds of sale of goods of a trader taken in execution on a judgment for a sum exceeding fifty pounds, where notice of a bankruptcy peti- tion is given within fourteen days, although no trustee is appointed within that period (<). § 3. — Composition with Creditors. The main distinctive features of liquidation by composition with creditors, as compared with liquidation by arrangement, have been already pointed out (see ante, pp. 371, 372). The procedure and precise effect of such composition have now to be considered. The "Regulations" respecting Composition with Creditors com- prise the seventh part of "The Bankruptcy Act, 1869," and are contained in sect. 126 of that act. Regulations Sect. 126. "The creditors of a debtor unable to pay his debts may, as to enm-^ without any proceedings in bankruptcy, by an extraordinary resolution, creditors/ resolve that a composition shall be accepted in satisfaction of the debts due to them from the debtor. " An extraordinary resolution of creditors shall be a resolution which has been passed by a majority in number and three-fourths in value of the creditors of the debtor, assembled at a general meeting to be held in the manner prescribed, of which notice has been given in the pre- scribed manner, and has been confirmed by a majority in number and value of the creditors assembled at a subsequent general meeting, of which notice has been given in the prescribed manner, and held at an interval of not less than seven days nor more than fourteen days from the date of the meeting at which such resolution was first passed. " In calculating a majority for the purposes of a composition under tins section, creditors whose debts amount to sums not exceeding ten pounds shall be reckoned in the majority in value, but not in the majority in number, and the value of the debts of secured creditors shall, as nearly as circumstances admit, be estimated in the same way, and the same description of creditors shall be entitled to vote at such general meetings as in bankruptcy. " The debtor, unless prevented by sickness or other cause satisfactory to such meetings, shall be present at both the meetings at which the extraordinary resolution is passed, and shall answer any inquiries made of him, and he, or if lie is so prevented from being at such meetings some one on his behalf, shall produce to the meetings a statement show- ing the whole of his assets and debts, and the names and addresses of the creditors to whom such debts respectively are due(w). "The extraordinary resolution, together with the statement of the debtor as to his assets and debts, shall be presented to the registrar, and it shall be his duty to inquire whether such resolution has been passed in manner directed by this section, and if satisfied that it has ft) Ex parte Keys, Re Skititicr, (») Sec note to Rule 295, post. 30 L. J. (N. S.) Bankr. 28. COMPOSITION WITH CREDITORS. 379 been so passed lie shall fo rt h w i th register the resolution and statement Partvii. of assets and debts, but until such registration has taken place such L '" AP xvf ' resolution shall be of no validity ; and any creditor of the debtor may inspect such statement at prescribed times, and on payment of such fee, if any, as may be prescribed. " The creditors may, by an extraordinary resolution, add to or vary the provisions of any composition previously accepted by them, without prejudice to any persons taking interests under such provisions who do not assent to such addition or variation ; and any such extraordinary resolution shall be presented to the registrar in the same manner and with the same consequences as the extraordinary resolution by which the composition was accepted in the first instance. •• The provisions of a composition accepted by an extraordinary reso- lution in pursuance of this section shall be binding on all the creditors whose names and addresses, and the amount of the debts due to whom, are shown in the statement of the debtor, produced to the meetings at which the resolution has passed, but shall not affect or prejudice the rights of any other creditors. " "Where a debt arises on a bill of exchange or promissory note, if the debtor is ignorant of the holder of any such bill of exchange or promis- sory note, he shall be required to state the amount of such bill or note, the date on which it falls due, the name of the acceptor or person to whom it is payable, and any other particulars within his knowledge re- specting the same, and the insertion of such particulars shall lie deemed a sufficient description of the creditor of the debtor in respect of such debt, and any mistake made inadvertently by a debtor in the statement of his debts may be corrected after the prescribed notice has been given, with the consent of a general meeting of his creditors. "The provisions of any composition made in pursuance of this sec- tion may be enforced by the court on a motion made in a summarv manner by any person interested, and any disobedience of the order of the court made on such motion shall be deemed to be a contempt of court. "Rules of court may be made in relation to proceedings on the occa- sion of the acceptance of a composition by an extraordinary resolution of creditors in the same manner and to the same extent and of the same authority as in respect of proceedings in bankruptcy. "If it appear to the court on satisfactory evidence that a composition under this section cannot, in consequence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may adjudge the debtor a bankrupt and pro- ceedings may be had accordingly." Sect. 127. "The registration by the registrar of a special resolution Registration of the creditors on the occasion of a liquidation by arrangement under °t«woiottona part six of this act, or of an extraordinary resolution of the creditors on MSariro'lB the occasion of a composition under the seventh part of this act, shall, certain am. in the absence of fraud, be conclusive evidence that such resolutions respectively were duly passed and all the requisitions of this act in re- spect of such resolutions complied with." This section is part of the comprehensive provisions which include the general law relating to insolvent debtors and their creditors. The rules (see post, § 4) which relate equally to pro- ceedings for liquidation by arrangement and composition, require 380 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. part vn. that the proceedings by the debtor shall be instituted by a petition Chap, xvf. w j 1 j c j 1 j g entitled in bankruptcy (x) ; and until after the meetings have been held it cannot be ascertained what form the future pro- ceedings shall assume, but it is certain that until the resolutions shall have been passed and registered, the proceedings are in bank- ruptcy. The meaning of the language at the commencement of the section that the creditors of a debtor may " without any pro- ceedings in bankruptcy," resolve to accept a composition, mean, without any proceedings by them or on their behalf, and have not the effect of abrogating all that has been done before the resolu- tion, and by reason of which alone the resolution could be passed and registered. On the contrary, the proceedings are subject to the general control and jurisdiction of the Courts of Bankruptcy conferred by sect. 72 (see ante, p. 203) and other sections, and such jurisdiction may be accordingly exercised in reference to sect. 126, for the purpose of deciding "all questions whatsoever whether of law or fact, arisiug in any case of bankruptcy coming within the cognizance of the court, or which the court may deem it expedient to decide for the purpose of doing complete jus- tice" (y). For example, until at the meeting of the creditors it has been determined by their resolution whether the proceedings shall be under sect. 125 or sect. 126, it would be quite right that an injunc- tion should be granted restraining any creditor's process against the debtor's person or estate (z). Not only does this jurisdiction exist before the resolution is passed, but even after the resolution is registered. Thus, where goods were seized in execution by the sheriff, and the debtor filed a petition for liquidation, and the court granted an injunction restraining any dealing with the goods, and subse- quently the creditors passed a resolution accepting a composition under sect. 126, and after the resolution was registered, the debtor, claiming the goods, brought an action against the sheriff, and, on the other hand, the execution creditor ruled the sheriff to proceed. It was held, that the sheriff being under this cross-fire was right in applyiug to the Bankruptcy Court, and the court accordingly stayed the debtor's proceedings against the sheriff, holding that the execution creditor was entitled to the execution of the writ. In the same case it was held that a resolution to accept a com- position under sect. 126, has not the effect of revesting in the debtor the title to goods previously seized by the sheriff under an execution, but, on the contrary, restores the execution creditor to his position. It was urged, on behalf of the debtor, that the result of the resolution was that he was freed from all his debts except O) See Rule 252, post, p. 381. L. J. (N. S.) Bankr. 65. (?/) See the judgment of the chief (z) Ex parte The Birmingham judge in bankruptcy, approved by the Gag Light and Coke (Company, Re Lords Justices, In, re England, Ex Adams, 40 L. J. (N. S.) Bankr. 1. parte Tlie Sheriff of Middlesex, 40 COMPOSITION WITH CREDITORS. 381 only as to the composition, and that he was restored to the same partvii. position and with the same rights as he was before he presented " AP - xvr « hifi petition. The court agreed with the latter proposition, hut observed that before the presentation of the petition the goods in questiou had been seized. The debtor could not have then pre- vented the sheritf from selling except by the proceedings in bank- ruptcy, and that proceeding having terminated, the debtor and creditor were in exactly the same position as before the petition, (except that the creditor had been delayed), but it would be putting them in totally different positions if the creditor were to be deprived of the rights Avhich he had acquired under his exe- cution (a). The same view of the effect of a composition was taken in a previous case, where a creditor in exercise of a statutory power to distrain and sell a debtor's goods (b) seized them, and on the debtor's subsequently petitioning for liquidation by arrangement, a composition was accepted; it was held that the creditor was en- titled to proceed and sell as before the petition (c). § 4. — Rules respecting Liquidation by Arrangement or Composition. "The Bankruptcy Rules, 1870," contain the following rules relating to " proceedings for liquidation by arrangement or com- position with creditors." Sections 125 and 126. Rule 252. " Proceedings under these sections shall be instituted by the debtor by petition and affidavit thereto annexed according to the forms given in the schedule." 253. "The court having jurisdiction in such proceedings shall be the court to which a bankruptcy petition against the debtor could be pre- sented." 254. " The first general meeting shall be summoned, to be held at the place mentioned in the affidavit filed with the petition (subject to such place being changed by order of the court, as hereinafter pro- vided), and the time of meeting shall be at a stated hour between 10 a.m. and 5 p.m. on a day within one calendar month from the presentation of the petition, unless the court in any particular case shall otherwise order." 255. " The first general meeting of creditors shall be summoned by notice according to the form in the schedule." 25G. " All first general meetings shall be summoned as follows : — "A sufficient number of forms of such notice, duly signed, addressed, and stamped for post, shall be delivered to the registrar, together with (a) In re England, Ex parte The (c) Ex parte The Birmingham Slurift of Middlesex, 40 L. J. (N. S.) Gas Light and Coke Company, lie Bankr. 65. Adams, 40 L. J. (N. S.) Bankr. 1. (b) See sect. 34, ante, p. 329. 382 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part vii. a request and list of creditors according to the form in the schedule, Chap, xvi, an( j suc \ 1 \{^ ma y h e added to, or additional requests and lists be filed, as circumstances may require. Every request shall bear a stamp calcu- lated at the rate of threepence for each notice required to be sent. The registrar shall cause the notices to be checked with the list or lists delivered to him, and to be sealed with the seal of the court and to be posted to the creditors, and the person posting the same shall forthwith make and file an affidavit, exhibiting a form of notice, and stating that he had posted similar notices to the persons mentioned in the lists delivered to the registrar, and stating also the date and place of posting." 257. " The debtor shall also deliver to the registrar a notice according to the form in the schedule to be gazetted seven days at least before the meeting is to be held." 258. " Notices summoning any first general meeting shall be posted at least 14 days before the clay on which the meeting is to be held." 259. "Upon sufficient cause proved to the satisfaction of the court by the debtor or by any creditor, either ex parte or otherwise, the court may order and direct the place of any general meeting to be changed, provided application be made in such time as will allow notice of the change to be given to the creditors, as hereinafter directed. Any order so made by the court shall be according to the form in the schedule, and a copy thereof shall be gazetted forthwith, and notice thereof shall be given by the registrar by sending by post, on or before the eighth day prior to the meeting, a sealed office copy of the order of the court addressed to the several creditors, and to the debtor. The expense of and incident to such order and despatching copies thereof to the cre- ditors as aforesaid shall be borne and paid in such manner as the court shall direct, and in case of non-compliance the copies of the order shall not be sent, but the meeting shall be held as originally summoned." 260. " The court may at any time after the presentation of a petition restrain further proceedings in any action, suit, execution, bankruptcy petition or other legal process against the debtor or his estate in respect of any debt proveable ; or it may allow such proceedings, whether in progress at the filing of the petition or subsequently commenced, to proceed upon such terms as the court may think just. The court may also at any time after presentation of the petition appoint a receiver or manager of the property or business of the debtor, or of any part thereof, and may direct immediate possession to be taken of such property or business or any part thereof" (d). 261. " Any receiver or manager so appointed shall enter upon and act in the performance of his office at such time and in such maimer and to such extent as the court may from time to time direct." 262. "A trader shall state in his petition the estimated amount of the debts owing by him to his creditors, and where no receiver or manager has been appointed by the court, a majority in value of such creditors may at any time prior to the passing of the special or extraordinary resolution, as the case may be, nominate and appoint a receiver or manager of the trade effects or business of the debtor, or any part (d) Rule 200 is a repetition of sect. and the rule seems inapplicable to 13 (ante, p. 24i>),only applied toliqui- composition, so the force of the rule dation. Semble, sect. 13 would have may be doubted, applied to liquidation by arrangement, RULES RESPECTING LIQUIDATION AND COMPOSITION. 383 thereof according to the form in the schedule. Where any such receiver Part vir. or manager has been so appointed he shall investigate the state of the Chap - xvt - debtor's affairs, and report thereon to the general meeting of creditors. The nomination and appointment of any such receiver shall be con- firmed by the court upon summary application in any case in which the debtor refuses to give possession or control to the receiver or manager so appointed. Any such nomination paper shall be in duplicate, and may be signed by the creditors in their individual or partnership names, or by some person who shall state in his signature that he does so by procuration . " All debts which would have been proveable in bankruptcy had the debtor been adjudicated bankrupt at the date of the institution of the proceedings shall be proveable under any such proceedings." 384 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part vii. 271. "All proofs and proxies intended to be used at any general Chap, xvi. mee ti n g, and not previously filed, shall be handed in to the chairman of the meeting. Any objection thereto shall be marked thereon by the chairman, and shall be dealt with by the registrar on the resolution being presented to him for registration." 272. " A secured creditor, unless he shall have realized his security, shall, previously to being allowed to prove or vote, state in his proof the particulars of his security and the value at which he assesses the same, and he shall be deemed to be a creditor only in respect of the balance due to him after deducting such assessed value of the security. In cases of liquidation by arrangement any secured creditor so proving shall be bound to pay over to the trustee the amount which his security shall produce beyond the amount of such assessed value, and the trustee shall be entitled at any time before realization of such security by the creditor to redeem the same upon payment of such assessed value. The proof of any such creditor shall not be increased in the event of the security realizing a less sum than the value at which he has so assessed the same." 273. " Where any creditor shall desire to retire from any meeting and not to be considered as present, he may withdraw his proof without prejudice to his again proving his debt on any subsequent occasion." 274. " The debtor shall produce to the first general meeting, and also, in case there be any, to the second general meeting, a state- ment showing the whole of his debts and assets, and the names and addresses of the creditor to whom such debts respectively are clue. The name of each creditor in such statement shall be numbered consecu- tively, and the list of creditors whose debts do not exceed 101. shall be separated from and follow after the list of those creditors whose debts exceed that amount. The debtor's statement of affairs shall be as near as may be in the form required in bankruptcy." 275. " The resolution passed at the first general meeting (or first and second general meetings, as the case may be) shall determine whether the affairs of the debtor are to be liquidated by arrangement and not in bankruptcy, or whether any and what composition shall be accepted in satisfaction of the debts due to the creditors from the debtor, or it may reject either of such modes of arrangement. The resolution may declare to whom the registration of the resolution and the debtor's statement of affairs shall be intrusted, and the original resolution and statement shall forthwith be delivered accordingly to the person so appointed, and in the event of no such declaration being made in the resolution the same shall be registered by the debtor. Only such resolutions as are reduced into writing and are signed by or on behalf of the statutory majority of the creditors assembled at a meeting shall be taken cognizance of by the court, but the signatures of such creditors may be subscribed sub- sequently to the meeting, but prior to the filing or registration of the resolution." 276. " The chairman shall be bound forthwith to deliver to the person, if any, so appointed, or, in default of such appointment, to the debtor, every declaration or affidavit for proof of debt and proxy paper of what nature or kind soever, and whether in due form or otherwise, which shall have been received at the general meeting or meetings, and also the debtor's statement of affairs, and in default thereof may be summoned before the court, and the court may make such order in the matter as it shall think fit." KULES RESPECTING LIQUIDATION AND COMPOSITION. 385 277. "In the event of a liquidation by arrangement being resolved Pamtvit. upon at any general meeting, and no trustee with or without a com- Chap - xvi - mittee of inspection being then appointed, a subsequent meeting shall be held at such time and place, at an interval of not more than a week, as shall be appointed by the resolution, or in default of any such sub- sequent meeting being so appointed, the same shall be held on the same day in the following week, at the same time and place. No notice of any such subsequent meeting need be given to the creditors." 278. " In cases of liquidation by arrangement the general meeting shall by special resolution declare what security, if any, shall be given by the trustee, and what remuneration, if any, the trustee shall receive, or they may resolve to leave his remuneration to the committee of inspection, or to a subsequent general meeting." 279. " Where the creditors at the first general meeting duly pass a resolution that a composition shall be accepted in satisfaction of the debts due to them from the debtor, they shall specify in their resolution the amount of the composition and the instalments and dates at which the same shall be payable, and they may name some person as trustee lor receipt and distribution of the composition and any negotiable securities which may be given for the same." 280. " Instead of specifying by their resolution the security to be given the creditors may resolve that the composition or some part or instalment thereof shall be secured in such manner as may be approved by a creditor or creditors to be named by the resolution." 281. "The extraordinary resolution may provide that the terms of the composition be embodied in a deed between such parties and containing such covenants for payment of the composition, and for protecting and releasing the debtor, and such other covenants and such provisions for securing the composition either by assignment of pro- perty, or by inspection of the debtor's business or otherwise, as the nature of the case may require, and as the resolution may specify in particular or general terms." 282. "Where, at the first general meeting, a resolution has been passed, resolving that a composition shall be accepted in satisfaction of the debts due to the creditors from the debtor, such resolution shall be filed with the statement of the debtor's affairs, proof, and proxies within three days, and another general meeting shall be appointed to be held at an interval of not less than seven days nor more than fourteen davs from the date of the meeting at which the resolution was first passed. The second general meeting shall be held at the same place as the first general meeting unless the resolution at such first general meeting shall have otherwise directed. Notice thereof according to the form in the schedule shall be given to every creditor in manner provided witli respect to first general meetings, with this addition, that the notice to every creditor who was not present or represented at the first general meeting shall be sent by registered post letter. Such notices shall be sent on or before the sixth day prior to the day on which the second meeting is appointed to be held. In the event of notice not being requested to be sent by the debtor or his attorney on the sixth day prior to the second meeting, any creditor may tile a similar request, desiring the registrar to forward the notices summoning the second meeting; and in the event of any meeting being so summoned it shall be sufficient if the notices are signed by the registrar and scaled, and are posted on the third day prior to the meeting." D. VOL. II. C C 386 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part vii. 283. " At the second general meeting of creditors, the creditors as- Chap. xvi. sembled may confirm the resolution passed at the first general meeting, or they may pass a special resolution that the affairs of the debtor are to be liquidated by arrangement and not in bankruptcy." 28-4. " The person to whom the registration of the special or extra- ordinary resolution may have been entrusted, or the debtor or his attor- ney, as the case may be, shall file the same in court, together with the debtor's statement of affairs and all proofs and proxies, within three days after he shall have received the same, or in default thereof shall be summoned before the court, and some person able to depose thereto shall verify and identify the resolutions, statement, proofs, and proxies so filed as being the whole of the resolutions, statement, proofs, and proxies come to and produced at the meeting or meetings when such special or extraordinary resolutions were passed." 285. " In cases of proceedings for liquidation, by arrangement or composition, instituted by partners, separate meetings of the different classes of creditors shall be held ; thus : if the partnership consists of A., B. and C, a meeting of the joint creditors of A., B. and C. shall be first held, and separate meetings of the separate creditors of A., B. and C. shall be held at a date or time subsequent to the meeting of the partnership creditors. The joint creditors may come to such resolution as they may think fit with regard to the joint estate. The separate creditors may also come to such resolution as they may think fit as regards the liquidation of the estate of their individual debtor, but in the event of their determining upon his bankruptcy, or the liquidation of his estate by arrangement, they shall choose the same trustee, if any, as has been or shall be appointed by the joint or partnership creditors, but they may appoint a committee of inspection from their own body, if they think fit, or they may adopt the committee (if any) appointed by the joint or partnership creditors. In the event of the separate cre- ditors of any such debtor agreeing to accept a composition, in cases where the joint creditors have resolved on a liquidation by arrangement, the assets of such separate debtor shall be made available by the trustee for or towards the payment thereof, in such manner as the court shall direct and approve, and any surplus of such separate estate re- maining in the hands of the trustee, after payment of or provision for such composition, and all proper costs incurred in connexion therewith, shall be deemed partnership assets. If in any such case the separate debtor shall be a member of more than one firm, the surplus of his separate estate shall be applied in such manner as the court may direct." 286. "If the petition be by partners, and any two or more of such partners constitute a separate and independent firm, the creditors of such firm may likewise come to a separate resolution as regards the liquidation of such minor partnership estate, and where any surplus shall arise upon the liquidation thereof, the same shall be carried over to the separate estates of the partners in such minor firm according to their respective rights therein." 287. " In cases of proceedings for or towards liquidation by arrange- ment or composition by an individual debtor, his creditors and debts shall be deemed to be and include not only those creditors to whom or those debts in respect of which he is individually responsible, but also those creditors and debts to whom or in respect of which he is also responsible jointly with any other person or persons; and the statutory majority required for the purpose of any resolution shall be a collective RULES RESPECTING LIQUIDATION AND COMPOSITION. 387 majority of the whole of such joint and separate creditors assembled at Part vir. any meeting. In any Buch last-mentioned proceedings the terms of the C " AI '- xvt - resolution as regards joint and separate creditors need not be identical, and, if so desired, the resolution may provide fur the payment of a com- position to the separate creditors, and that the rights of the joint cre- ditors shall not he prejudiced or affected thereby." "The creditors assembled at any general meeting may include in their resolution a direction that the proceedings be transferred to any court Other than that in which the same were originated; and upon any such resolution being filed, the proceedings shall be forthwith transferred by the registrar in accordance therewith ; and the court to which the same shall have been transferred shall thereafter act in the matter of the proceedings in like manner as if the same had been properly instituted therein in the first instance." 289. " Every creditor in respect of a proveable debt shall in the event of a liquidation by arrangement being resolved upon, be absolutely re- strained from commencing or continuing or enforcing any proceedings whatsoever against the debtor or his property, notwithstanding that such creditor has not received notice of the general meeting, unless the court shall lie of opinion that such creditor's rights have been prejudicially affected by the resolution, and that the estate would yield a larger divi- dend if administered in bankruptcy" (e). 290. " Where bankruptcy occurs during the continuance of a liquida- tion by arrangement, the trustee under such liquidation shall pay over and account for to the trustee to be appointed under the bankruptcy any monies or property of the debtor which have come to his hands, and in lit of a dividend having been paid to some of the creditors the court shall make such order for the appropriation thereof as will equalize the distribution of the monies or properly amongst the creditors who would or should have been entitled thereto under the liquidation pro- 291. "In case of liquidation by arrangement, all proper costs of and incidental to the proceedings prior to the passing of the resolution shall be paid by the trustee out of the estate of the debtor in like manner and in the like priority as the costs of a petitioning creditor under a bank- ruptcy petition." 292. " Where bankruptcy occurs pending proceedings for or towards liquidation by arrangement or composition with creditors, the proper co.-ts incurred in relation to such proceedings shall be paid by the trus- tee under the bankruptcy out of the debtor's estate, unless the court shall otherwise order." 293. •• Where any resolution is required to be passed or any act to be done by the creditors present or represented at any meeting, the majority required for the purpose shall, in the absence of any enactment to the contrary, be a majority in value of the creditors present or repre- sented thereat." 294. " Resolutions duly come to at any meeting shall have full force and effect, notwithstanding that it may also be resolved that for other purpose- the meeting shall stand adjourned." '2'Jo. '• Upon presentation of B special or extraordinary resolution for (V) The judicial discretion of tlio Em parte Mill*, Be Manning, 40 court in granting injunctions is not L. J. (N. S.) Bankr. 69. excluded by this rule. James, L. J., c c2 388 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. PARTVri. registration the registrar shall examine the same, and may hear any Chap, xvi. creditor who shall have given him notice of his desire to be heard thereon. The registrar being satisfied that the requirements of the statute and of these rules have been complied with shall register the same, making a memorandum thereon and on the debtor's statement of affairs as follows : — 'Registered day of 187 , Registrar,' and shall seal the same with the seal of the court. The registrar in cases of liquidation by arrangement shall thereupon deliver to the trustee a certificate according to the form in the schedule. The regis- tration of any special or extraordinary resolution, or the refusal to register the same by the registrar, shall be an act that may be appealed from by the debtor or any creditor who was heard before the registrar on the occasion of such registration or refusal. The registrar shall, where he refuses to register such resolution, certify the grounds of such refusal by memorandum under his hand, and file it with the proceed- ings" (/). 29G. " The resolution and statement so registered shall at all times be open for inspection by any creditor whose name appears on the statement or by any person on his behalf." 297. " If a receiver or manager has been appointed, his duties shall terminate upon the appointment of a trustee in cases of liquidation by arrangement, and upon the passing of the extraordinary resolution in cases of composition, unless such resolution shall otherwise provide." 298. " Where a receiver or manager has been appointed and his duties are concluded, he shall render his account, and pay or deliver over any money or property in his hands to the trustee (in cases of liquidation by arrangement), or to the debtor or his nominee (in cases of com- position)." 299. " The court shall have the same power and discretion as to the appointment, remuneration, and removal of the receiver or manager, and in the settlement of his accounts, and in directing the appropriation of monies or property in his hands as is exercised by the Court of Chancery, or as near thereto as may be." 300. "Neither the resolutions nor the proofs or proxies of creditors assembled at any meeting shall be objected to or refused by the regis- trar by reason of any informality therein, unless he shall be of opinion that such informality is matter of moment, in which event he shall refer the matter to the judge." (/) The registrar has no power to terial. No abuse can arise from this examine the debtor or witnesses on limitation of the registrar's power, as the presentation of the resolution. there is an appeal under llule 295, The debtor may be examined (though whether the registrar registers or re- not on oath) at the creditors' meet- fuses. Further, if a creditor had no ings, and his answers taken down may opportunity of examining the debtor be used as evidence by an opposing at the meetings, or if the debtor's an- creditor before the registrar. The swers are unsatisfactory, an applica- registrar must of course hear a ere- tion may be made to the court to re- ditor (either in person, or his attorney strain the registration even without or counsel) who has given notice an allegation of fraud. E,c parte under link: 295; and the registrar, if Levy, lie Varbetlan, 40 L. J. (N. S.) not satisfied of the truth of the Bankr. 40. As to the duty of the debtor's statement, may refuse to registrar in ascertaining the validity register the resolution; but in other of the resolution, see ante, p. 374, respects his duties are merely minis- note. RULES RESPECTING LIQUIDATION AND COMPOSITION. 389 301. " The passing of a special resolution (in the case of liquidation Part vir. by arrangement) shall be deemed and taken as conclusive evidence that Chap - xvi - the debtor has complied with the provisions of the statute with regard to the statement ui' Ids affaire required to be submitted to the general meetings of his creditors. The debtor shall, however, at all times render to the trustee every information in his power with reference to his debts and assets, ami shall in default be liable to be summoned and examined before the court thereon." 302. " "Where liquidation by arrangement and not in bankruptcy has been resolved on, the creditors may at the same meeting at which such resolution is passed, resolve whether the debtor's discharge shall be granted either forthwith or at a date to be specified in the resolution, or subject to any and what conditions. In default of any resolution being then come to as to the debtor's discharge a general meeting shall be summoned for the purpose of considering the grant thereof, either when the trustee shall see fit or when the committee of inspection (if any) or when the debtor, with the concurrence of one-fourth in value of his creditors, who have proved, shall require the trustee to summon the same." 303. " The resolution to be come to at any such meeting and the re- port thereof to the registrar, and the debtor's discharge, shall be accord- ing to the form in the schedule." 304. " General meetings subsequent to the appointment of a trustee shall be summoned by him by giving seven days' notice by post to each of the creditors wdio have proved their debts, stating the object of the meeting and the business proposed to be transacted thereat." 305. "A general meeting may, however, at any time be similarly summoned by any creditor with the concurrence, including himself, of one-fourth in value of the creditors who have proved their debts." 306. " Any mistake made inadvertently by a debtor in the statement of his debts may be corrected with the assent of a majority in value of his creditors assembled at a general meeting similarly summoned by the debtor." 307. " A trustee may be removed by a special resolution of the credi- tors assembled at a general meeting summoned for the purpose, and another trustee may be appointed in his place, by a majority in value of the creditors then present or represented. Where a trustee shall die, or where for any reason there shall be no trustee acting in the liquida- tion, a general meeting may be summoned in manner hereinbefore directed, and another trustee may be appointed by the majority in value of the creditors present or represented thereat." 308. " The resolution appointing any such new trustee shall be regis- tered with the registrar, and the certificate of the registrar in respect of the appointment of any such new trustee shall be conclusive evidence of his appointment." 309. " Any creditor or creditors resident in foreign parts, the notice to whom could not have been received in sufficient time to enable him or them to attend or be represented at the general meeting thereby con- vened may show cause to the court against the resolution being pro- ceeded with, notwithstanding its registration, but the same shall not be disturbed unless the creditor or creditors do show or can prove to the satisfaction of the court that, had he or they been present and dissented from the resolution, the same could not have been carried by the statu- tory majority, and unless also the court is of opinion that it is unjust or inequitable that the resolution should be binding on him or them." 390 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part vri. 310. " Proof of debt by any creditor shall be deemed conclusive evi- Chap. xvi. j ence t] ia t notice of all general meetings, prior to and inclusive of that at which such proof is produced, has been duly given to him." 311. "All debts must be proved prior to the payment of dividend thereon by the trustee." 312. " Seven days at least before declaring any dividend under a liqui- dation by arrangement, a notice shall be gazetted by the trustee in the form given in the schedule requiring the creditors to send to him their names and addresses, and the particulars of their debts or claims, and on declaring a dividend, a sufficient reserve shall be made by the trus- tee for such dividend upon all debts or claims notified to him in pursu- ance of such notice. The trustee shall be also deemed to have notice of the debts of all creditors whose names are inserted in the debtor's statement of affairs, and (except where any such debt has been adjudi- cated upon prior to the declaration of the dividend) a similar reserve shall be made in respect thereof." 313. " Wherever the trustee shall reject the claim or proof of any cre- ditor he shall give notice to such creditor by post in the form given in the schedule, and where the creditor is resident in Europe the trustee shall be entitled to exclude from dividend any such claimant or creditor whose debt he so rejects, unless such creditor shall, within fourteen days from the time at which the trustee's notice should have been delivered to him in the ordinary course of post, apply to the court to admit his proof and proceed with such application with due diligence. Where any such creditor is resident beyond the limits of Europe such length of notice shall be given to him as the court shall order." 314. " Except as before mentioned, the trustee shall declare dividends amongst such creditors only as have proved their debts up to the time of such declaration of dividend, and no creditor who has omitted to prove his debt or to send to the trustee the particulars of his claim, or whose name does not appear in the debtor's statement shall be entitled to dis- turb any such dividend, or to make any claim in respect thereof against the trustee, but upon proof of his debt any such creditor shall be entitled to receive the same prior to the payment of any further dividend to the other creditors." 315. " An office shall be attached to the London Bankruptcy Court to be called the ' office for registration of arrangement proceedings.' Such office shall be presided over by such registrar or registrars as the chief judge may from time to time appoint. All petitions to such court under sects. 125 and 126, and all proceedings thereunder, shall be filed in such office, and the same shall be kept in continuation of the records of the trust deeds under ' The Bankruptcy Act, 1861,' which shall be transferred to the aforesaid office. A similar index to that heretofore in use for trust deeds, or as near thereto as may be, shall be kept of all resolutions registered under 'The Bankruptcy Act, 1869.' The resolutions registered in the London Court of Bankruptcy shall be entered therein as soon as registered, and the resolutions registered in the county courts shall be entered therein as soon as an office copy thereof shall be received. Every registrar of a county court registering any special or extraordinary resolution shall forthwith send an office copy thereof to the said office for registration of arrangement proceedings (such office copy to be paid for by the person registering the resolution)." FORMS. 391 S «; Forms Part VII. 5 0.— J?ORMS. Chap.XVI. The following forms relating to liquidation by arrangement or composition are provided by the Rules of 1870: — No. IOC. Petition under Sections 125, 126. "The Bankruptcy Act, 18G9." To the London Bankruptcy Court [or the county court of bolden at ]. The humble petition of A. B. of, &c. Bhoweth, That your petitioner alleges that he is unable to pay his debts, and is desirous of instituting proceedings for liquidation of his affairs by arrangement or composition with his creditors, ami hereby submits to the jurisdiction of this court in the matter of such proceedings. (In the case of a trader, add " and that your petitioner estimates the amount of the debts owing by him to his creditors at t "•) [Add where petition presented to a county court, That your petitioner does not reside or carry on business within the district of the London Bankruptcy Court.] Your petitioner therefore prays that notices convening such general meeting or meetings of his creditors as may be necessary to be given by him during the course of such proceedings may be sent in the prescribed manner, and that such resolution or resolutions as his creditors may lawfully pass in the course of such proceedings, and as may require registration, may be duly registered by the registrar of the court. And your petitioner shall ever pray, &c. A. B. Signed by the petitioner, A. B., on the (lay of 187 , in the pre- sence of Registrar or Attorney. (Address.) If the petition be by partners alter the form accordingly. No. 107. Affidavit in support of Petition under Sections 125, 126. " The Bankruptcy Act, 1869." In the London Bankruptcy Court [or the county court of bolden at ]. T, A. B. of , make oath and say, as follows : — I am the [or one of the] petitioner [or petitioners] named in the peti- tion hereunto annexed. I verily believe that it will be most convenient to the creditors whose debts exceed ten pounds that the general meeting should be held at Sworn at . A. B. (Where an attorney is employed add the following certificate.) I certify my belief that it will be most convenient to the creditors of the petitioner that the general meeting should be held at [as a&oiv]. CD, Attorney in the matter of the petition. 392 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part VII. Chap. XVI. No. 108. Notice to Creditors of General Meeting. "The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or the county court of holden at ]. In the matter of proceedings for liquidation by arrangement or com- position -with creditors instituted by A. B. of (description as in petition). A general meeting of the creditors of the above-named person [or persons] is hereby summoned to be held at (here insert name of toivn, and street or place) on , the day of instant [or next], at o'clock in the noon precisely. The sections of " The Bankruptcy Act, 1869," under which the proceedings are insti- tuted, provide as follows : — [Here extract from clause 125, sub-sects. 1 and 5, and the two first para- graphs of sect. 126.] A form of proof and proxy will be found on the third side of this notice. Dated the day of 187 . (Signed) A. B. (Debtor), or, C. D. (adding address), Attorney for the said debtor. In case of partnership the notice must be signed by one of the partners in the partnership name, or by all the partners, or by a solicitor or solici- tors on their behalf. No. 109. Affidavit to be annexed to the Notice summoning First General Meeting. In the London Court of Bankruptcy [or the county court of holden at ]. In the matter of proceedings for liquidation by arrangement or com- position with creditors instituted by A. B. of, &c. I of make oath and say, as follows : — The said A. B. was at the date of the institution of the said proceed- ings, and still is, justly and truly indebted to me in the sum of for (state consideration) for which said sum or any part thereof I say that I have not, nor hath any person by my order or to my knowledge or belief, for my use had or received any manner of satisfaction or security whatsoever, save and except the following : — [Here set out security, or if bills be held specify them in the schedule^ Date. Drawn. Acceptor. Amount. Due Date. Sworn at I appoint C. D. of, &c, my proxy in the above matter. E. F. [or G. II. of in partnership name.] FOU.MS. 393 No. 110. Request icith List of Creditors. " The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or the county court of holden at ]. (stamp at the\ In the matter of proceedings for liquidation by ar- rateof J rangement or composition with creditors instituted by per nunc (insert name; the address need not be inserted). To the registrar. I [or we] request that the notices of the general meeting on the day of 187 , herewith delivered to you, duly addressed and stamped for post, may be sent to the under-scheduled creditors. Dated this day of 187 . (To be signed by the debtor or one of the debtors or his or their attorney.) Part VFT. Chap XVI. No. Names of Creditors or Firms of Creditors. Addresses. Estimated Amount of Debt. No. 111. Notice for Gazette. "The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or the county court of holden at ]. In the matter of proceedings for liquidation by arrangement or com- position with creditors instituted by A. B. of Notice is hereby given that a first [or second, as the case may be] general meeting of the creditors of the above-named person or persons, has been summoned to be held at on the day of at o'clock in the noon precisely. Dated this day of 187 . A. B. or C. D. (attorney for the said A. B.). The signature to this notice, if not sealed, must be verified by affidavit, unless signed by a London solicitor. 394 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part VI r. Chap. XVI. No. 112. Order changing Place of Meeting. " The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or the county court of holden at ]. In the matter of proceedings for liquidation by arrangement or composition with creditors instituted by of, &c. (follow- ing description as in jJetition). Upon sufficient cause this day shown to the satisfaction of the court, the general meeting of creditors in this matter summoned for the the day of , is hereby directed to be held at in lieu of the place originally named. And hereof let notice be given forthwith. Dated this clay of , 187 . Registrar, or Deputy Registrar. No. 113. Nomination of Receiver or Manager by Creditors. "The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or in the county court of holden at ]. In the matter of proceedings for liquidation by arrangement or composition with creditors instituted by A. B. of, &c. "We, the undersigned, being a majority in value of the creditors of the said A. B., do hereby nominate and appoint Mr. of to be receiver [or manager] of the trade effects (and business) of the said A. B., pending the resolution to be come to by the creditors under the said proceedings. Dated this day of , 187 . Witnesses' Name and Address. Creditors' Signatures. Amount of Debt. FOKMS. 395 No. 1 14. List cf Creditors assembled to be used at every General Medina. Tart vii. Chap. XVI. "The Bankruptcy Act, 18G9." In the London Court of Bankruptcy [or the county court of , holden at ]. In the matter of General meeting, held at this day of 187 . No. of Assents of Creditors whose Debts ex- Number. Names of Creditors assembled. Amount of Assent. Amount of Proof. ceed £10. 1 1 2 1 3 1 4 5 1 6 1 7 7 Total number of cre- ditors assembled. mbcr of assents. 5 Total nu Totals . . . £ No. 50. Order to stag Proceedings on a Composition, dec. (g). "The Bankruptcy Act, 1809." In the London Bankruptcy Court [or the county court of holden at ]. In the matter of A. B., of , a bankrupt. Upon the application of II. D. of it having been proved to the satisfaction of the court that the proceedings in this bankruptcy ought to be stayed, by reason that negotiations are pending for the Sect, so, l>ar. 10. (fj) Sect. 80, sub-sect. 10, authorizes the stay of proceedings in the ce negotiations pending f<>r the liquida- tion of the affairs of the bankrupt by arranpemont, or for the acceptance of a composition by the creditors (see ante, p. 245, note), and the above form, although placed among those relating to the acceptance of compo- sition or settlement under proceedings in bankruptcy (ante, p. l".»7), seems intended to relate to sects. 126 and 126, and it is therefore inserted here. 396 LIQUIDATION BY ARRANGEMENT OR COMPOSITION. Part vil. liquidation of the affairs of the bankrupt by arrangement, [or for the CiiAp.xvr. . lcce ptance of a composition by the creditors in satisfaction of the debts Sects. 125, due to them from the debtor,] [or, state any other reason that may have 12e - been proved to exist for the order'] : It is ordered that the proceedings in this bankruptcy be stayed until further order. Given under the seal of the court this day of , 187 . By the court, Registrar. No. 115. First General Meeting where Liquidation by Arrangement resolved on. " The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or the county court of , holden at ]. In the matter of proceedings for liquidation by arrangement or composition with creditors instituted by We, the undersigned, being the statutory majority of creditors, as- sembled at the general meeting in the above matter duly held at , this day of , 187 , in accordance with the provisions of the said act, do hereby resolve as follows : — (1.) That the affairs of the said shall be liquidated by arrangement and not in bankruptcy. (2.) That be, and he is hereby appointed trustee. (3.) That be and they are hereby ap- pointed a committee of inspection (or in lieu of 2 and 3 the following : —That a subsequent meeting be held at on , at o'clock a.m. [or p.m.] precisely, for the appointment of a trustee, with or without a committee of inspection). (4.) That be entrusted with the registration of this special resolution. [Here follow signatures of creditors^] F. K., Chairman. No. 11G. First General Meeting where Composition resolved on. "The Bankruptcy Act, 1809." In the London Court of Bankruptcy [or in the county court of , holden at ]. In the matter of proceedings for or towards the liquidation by arrangement or composition with creditors instituted by A. B. of , &c. We, the undersigned, being the statutory majority of creditors as- sembled at the first meeting in the above matter, duly held at , this day of ,187 , in accordance with the provi- sions of the said act, do hereby resolve as follows : — (1.) That a composition of in the pound shall be accepted in satisfaction of the debts due to the creditors from the said A. B. (2.) That such composition be payable as follows [here state whether the same is to be payable in one payment or by instalments, and at what date from the second meeting']. FORMS. 397 (3.) That the security of C. D. be accepted for the said composition Part vii. [or the instalment thereof], or that the said compost- C " AP xvf - tinn [or the instalments thereof] be secured to the satisfaction of E. F. and (!. II. (4.) That I. K. be appointed trustee in the matter. [Here follow si y natures of creditors.'] F. K., Chairman. No. 117. Notice concerniny Second General Mectiny. "The Bankruptcy Act, I860." In the London Court of Bankruptcy [or in the county court of holden at ]. In the matter of proceedings for liquidation by arrangement or com- position with creditors instituted by A. B. of, &c. A second general meeting of the creditors of the above-named person [or persons] is hereby summoned to be held at on the day of instant [or next], at o'clock in the noon precisely. A majority in number and value of the creditors then assembled may confirm the resolution come to at the first general meeting, or a majority in number representing three-fourths in value of such creditors may by resolution declare that the affairs of the above-named person [or persons] may be liquidated by arrangement and not in bankruptcy. Dated the day of , 187 . (Signed) A. B. {Debtor), or C. D. {adding address), Attorney for the said debtor. No. 118. Resolution at Second General Mectiny. "The Bankruptcy Act, 1809." In the London Court of Bankruptcy, or In the county court of , \ holden at . S In the matter of proceedings for or towards the liquidation by arrangement or composition with creditors instituted by A. B., of , &c. We, the undersigned, being the statutory majority of creditors asscm- bled at the second meeting in the above matter, duly held at this day of , 187 , in accordance with the provisions of the said act, do hereby confirm the resolution passed by the statutory majority of the creditors of the said A. B. assembled at the first meeting [«-/■ do hereby resolve that the affairs of the said A. 15. be liquidated by arrangement and not in bankruptcy,] [and following on as in tin form provided for resolution of the first general meeting, where liquidation by arrangement is resolved mi]. [litre follow siynatuns Sworn at, &c. FORMS. 401 4. Form of Affidavit on Nomination of Receiver by Creditors (/<). cha"xvi " The Bankruptcy Act, 1869." In the London Court of Bankruptcy [or in the county court of holden at ]. In the matter of proceedings for liquidation by arrangement or composition with creditors instituted by A. B. of, &c. I, of , make oath and say as follows : — Rule 262, 1. I am [or a partner in the firm of , which firm is] one of the 1870- three principal creditors of the above-named A. B., who have nominated C. D. as receiver [or manager] of the property (and business) of the said A. B. 2. I verily believe the said C. D. has been duly nominated as such receiver [or manager] by a majority in value of the creditors of the said A. B., in pursuance of Rule 262 of "The Bankruptcy Rules, 1870." Sworn, &c. (//) Bankruptcy Rules, 1871. VOL. II. D D ( 402 ) CHAPTER XVII. FEES IN BANKRUPTCY PROCEEDINGS. "The Bankruptcy Act, 1869," enacted that— Scale of fees. Sect. 68. " The Lord Chancellor shall, with the sanction of the Trea- sury, from time to time prescribe a scale of fees to be charged for any- business done by any court or officer thereof under this act ; and the Treasury shall direct whether the same shall be imposed by stamps or otherwise, and by whom and in what manner the same shall be col- lected, accounted for, and appropriated, and whether any and what remuneration shall be allowed to any person performing any duties under this act." By virtue of the power thus vested in him, the Lord Chancellor ■with the sanction of the Treasury, by order dated 10th August, 1871, prescribed that the following scale of fees shall be the scale of fees to be charged for any business done by any court or officer under the said act in lieu of all other fees (i) : — SCALE OF FEES. Table A. Stamp duty. £ s. d. Every declaration by a debtor of inability to pay his debts . . ..050 Every debtor's summons. . .. .. .. .. .. ..050 Every bankruptcy petition .. .. .. .. .. ..500 Every bond with sureties .. .. .. .. .. ..050 Every affidavit filed, other than proof of debts . . . . ..010 Every subpcena .. .. .. .. .. .. .. ..010 Every petition under sections 125 or 126 of the act .. .. ..100 For despatching notice to creditors or others, exclusive of postage, each notice .. .. .. .. .. .. .. ..003 Every application for an order of discharge in bankruptcy or certi- ficate of discharge in liquidation .. .. .. .. ..100 Every special resolution presented to a registrar for registration under sect. 125, paragraph 4, stamps denoting a dutj' computed at the rate of five shillings upon 100 J. or fraction of 100Z. on the gross amount of the estimated assets, not exceeding a total duty of 200Z. Every extraordinary resolution presented to a registrar under sect. 12G, stamps denoting a duty computed at the rate of five shillings upon 1001. or fraction of 100 J. on the gross amount of the compo- sition, not exceeding a total duty of 2001. (i) This order superseded a previous scale of 1st January, 1870. FEES IN BANKRUPTCY PROCEEDINGS. 403 Stamp duty. Every application for search for proceedings, other than by pcti- £ s. d. turner, trustee, or bankrupt .. .. •• .. .. ..010 Every application to a court .. •• •• •• •• ..050 Every office copy, each folio of 72 words .. .. .. ..002 On first certified statement showing assets realized, forwarded by a trustee to the comptroller under sect. 55 of the act, stamps denoting a duty computed at the rate of five shillings upon 100/. or fraction of 100/. on the gross amount of the assets realized and brought to credit, and on any subsequent statement, stamps de- noting a duty computed at the rate of one shilling upon 20/. or any fraction of 20/. on the gross amount of additional assets realized and brought to credit in any such subsequent statement. On every record of trial .. .. .. .. .. .. ..500 or such less sum as the court may specially order. Every allocatur by any officer of the court for any costs, charges, or disbursements, where such bill of costs shall not exceed 5/. .. 1 G Kxeeeding £5 and not exceeding £10 .. .. .. ..026 „ 10 „ 20 5 „ 20 „ 30 7 6 30 „ 50 10 „ 50 „ 100 15 „ 100 „ 150 10 „ 150 „ 200 1 10 200 „ 300 2 300 „ 500 3 500 „ — 5 Part VII. Chap. XVII. Table B. Attending court each sitting .. .. .. .. .. ..020 Serving every debtor's summons, bankruptcy petition, subpeena, order, notice, or other process within two miles, including affidavit of service .. .. .. .. .. .. .. ..036 Preparing advertisement for Gazette or local paper .. .. ..036 Agent's charge for insertion in Gazette . . . . . . ..010 Executing every warrant of seizure, or search warrant, or warrant of apprehension, or order of commitment, within two miles of court house . . . . . . . . . . . . . . ..0100 Keeping possession — for each day the man is actually in possession ; including affidavit of possession being actually kept . . ..046 (3*. Cxi. of the above sum is to be paid to the man in possession, and his receipt produced.) High bailiff's, or in the London Bankruptcy Court officer's, man travelling to place of possession, or to execute a warrant of or order of commitment, or to serve a summons, petition, order, notice, subpoena, or other process, or for any other purpose specially directed by the court per mile .. .. .. ..005 His time, per day, where distance exceeds 10 miles .. .. ..046 Bis expenses, per day .. .. .. .. .. .. ..046 If high bailiff of a county court or officer of London Bankruptcy Court directed by the conrt personally to travel, per mile ..007 If high bailiff of a county court or officer of London Bankruptcy Conrt directed by the court personally to travel, his time, per day 10 If high bailiff of a county court or officer of London Bankruptcy Court directed by the court personally to travel, his expenses, per day 10 Where an inventory is deemed requisite, and is directed by the court or trustee to be taken bv a high bailiff or officer of the court, a proper remuuera- DD2 404 FEES IN BANKRUPTCY PROCEEDINGS. Part vii. tion may be allowed for taking it, having regard to the time occupied, and the Chap, xvii . nature of the property included in it. Where no trustee is appointed by the creditors, or where there is a vacancy in the office of trustee, and the bankruptcy is carried on with the aid of the registrar as trustee : for realization of the estate 51. per cent, on the first amount of 1001. or any less sum realized by the registrar ; 2\ per cent, on the next amount of 400Z. or any less sum ; 1 per cent, on the next amount of 500^. or any less sum ; and \ per cent, on all further sums. On dividend 21. per cent, on the first amount of 1,000Z. or any less sum actually divided, and 1 per cent, on all further sums. Table C. The fees and allowances payable on proceedings had after the 31st day of December, 1869, in respect of any matter which was pending in any court having jurisdiction in bankruptcy on the said day shall be the same as if those proceedings had been taken before such day, and shall be applied to the same purposes. We, the undersigned Lords Commissioners of her Majesty's Treasury, do hereby sanction the foregoing scale of fees, and do direct that the fees to be taken by stamps shall be those mentioned in Table A., and that the fees men- tioned in Table B. shall be taken in money, and that the fees and allowances referred to in Table C. shall be taken by stamps or money according as they have hitherto been taken. And we further direct that the stamp shall be affixed or the money paid in respect of every fee before the proceeding is had in respect of which the fee is payable, and that the charge to be made by the London Gazette for the inser- tion of each notice authorized by the act or rules shall be ten shillings. W. P. Adam. W. H. Gladstone. 10th August, 1871. Stamps.'] — " The Bankruptcy Rules, 1870," provide that — Sect. 68. llule 20G. " Every officer of the court who shall receive any document to which an adhesive stamp shall be affixed, shall, immediately upon the receipt of such document deface the stamp thereon, by writing partly on the stamp and partly on the document the name of the debtor ; and no such document shall be filed or delivered until the stamp thereon shall have been defaced in manner aforesaid, and it shall be the duty of the party presenting or receiving such document to see that such defacement has been duly made. ' ( 40o ) CHAPTER XVIII. COSTS IN BANKRUPTCY. § 1. — General Provisions relating to Costs. § 2.— Scale of Costs in Bankruptcy. § 3. — Scale of Costs in Liquidation by Arrangement. § 1. — General Provisions relating to Costs. "The Bankruptcy Act, 1869," s. 78, empowered the Lord Chan- cellor, with the advice of the chief judge in bankruptcy, to make rules of court, prescribing regulations inter alia " as to the fund out of which costs are to be paid, the order of payment, and the amount and taxation thereof" (a). " The Bankruptcy Rules, 1870," contain the following provisions relating to costs : — Rule 186. " The court may in all matters before it award such costs as to it shall seem fit and just ; and all costs so awarded by the London Bankruptcy Court shall be recoverable in the same manner as costs awarded by a rule of any of the superior courts of common law at "West- minster may be recovered, and all costs so awarded by a county court shall be taxed and recoverable in the same manner as costs ordered to be paid in any such court in any action or suit." 187. " Every order for payment of money and costs, or either of them, shall be sealed with the seal of the court, and be signed by a registrar, and shall be forthwith filed with the proceedings." 188. " All costs shall be in the discretion of the court, and shall be paid by such persons as the court shall order, and every such order for payment of costs may be enforced by execution." 189. "The costs directed by any such order to be paid shall be taxed on production of an office copy of such order, and the allocatur being duly stamped shall be signed and dated by the master or registrar taxing the costs." "The Bankruptcy Rules, 1871," contain the following further provisions : — Rule 4. " All bills and charges of attorneys, receivers, managers, accountants, auctioneers, brokers, and other persons not being trustees, in matters of bankruptcy, shall be taxed by the proper officer of the (a) See sect. 78, ante, p. 206. 406 COSTS IN BANKRUPTCY. Part vii. court, and no payments in respect of such bills or charges shall be Ch. xviii. a ]i owe( j Dv the comptroller, in the accounts of a trustee, without clue proof of such taxation having been made. The taxing officer shall satisfy himself that the employment of a solicitor has been duly autho- rized by section 29 of the act." Rule 5. " All bills and charges of attorneys, receivers, managers, accountants, auctioneers, brokers, and other persons not being trustees, in matters of liquidation, shall be taxed by the proper officer of the court, and no payments in respect of such bills or charges shall be allowed in the accounts of a trustee without due proof of such taxation having been made. No payment shall be allowed in respect of the remuneration of a trustee in liquidation, except on the allocatur of the taxing officer, as being in accordance with the determination of the creditors thereon." Rule 6. " Where in bankruptcy or liquidation a receiver or manager is continued as trustee, the remuneration of trustee at the rate determined on shall commence as from the date of his appointment as receiver or manager, and shall be assessed accordingly ; and no other than the aforesaid remuneration shall be made to the trustee for his services as receiver or manager." Rule 7. " Where the receiver or manager is not continued as trustee, or is continued as trustee but without remuneration, he shall be allowed out of the estate such sum for his services as receiver or manager as the taxing officer of the court shall, having regard to the views of the trustee and committee of inspection (if any) thereon, think fit." Rule 8. " Where any costs in bankruptcy or liquidation are incurred subsequent to these rules, and the proveable debts of the debtor do not exceed 1501., or the estimated assets do not exceed 200Z., a lower scale of attorneys' costs shall be allowed, namely, three-fifths of the charges ordinarily allowed, disbursements being added. If in error any charges have been allowed or paid on the higher scale, and the proveable debts shall afterwards be ascertained not to exceed 750Z., or the gross proceeds of the assets not to exceed 2007., the excess shall be disallowed, and if paid shall be repaid to the trustee." The jurisdiction to tax costs in bankruptcy is, it seems, inde- pendent of the Attorneys and Solicitors Act, 6 & 7 Vict. c. 73, s. 37, and the registrar is bound to tax such costs, notwithstanding the lapse of twelve months from the delivery of the bill (b). § 2. — Scale of Costs in Bankruptcy. The following scale of costs was issued on the 1st January, 1870:— SCALE OF ATTORNEY'S COSTS. Petitioning Creditor's Bill of Costs to the Appointment of Trustee. £ s. d. Instructions for petition .. .. .. .. .. .. -.100 Examining -witnesses as to trading, where necessary.. .. .. 10 Ditto as to act of bankruptcy . . . . . . . . . . . . 10 (b) See Ex parte Blair, In re Mackle, 39 L. J. (N. S.) Bankr. 45. SCALE OF COSTS IN BANKRUPTCY. 407 £ S. d. PartVIT. Examining particulars of petitioning creditor's account . . ..068 Ch. xvill. The act of bankruptcy being a declaration admitting inability to pay, filed by the attorney to the petitioner, or an assign- ment prepared by the attorney to the petitioner, or default made upon a debtor's summons issued by the attorney to the petitioner, these two last charges will not be allowed. The expense of an assignment will not be allowed where a declara- tion of inability would answer the purpose. If attorney reside at a distance : — Writing agent to search for prior petition, 3s. Gd. Agent's writing result of search, 3s. Gd. Searching, if prior petition filed .. .. .. . . ..078 Drawing bankruptcy petition, including order for hearing . . .. 10 If exceeding 10 folios, a shilling a folio. Ingrossing same, id. per folio only to be allowed where the petition exceeds seven folios. Paid for stamp and parchment. . .. .. . . .. ..510 Attesting signature of each petitioner, except in case of partnership 6 8 Drawing and fair copy affidavit verifying petition . . . . ..034 Attending petitioner to be sworn .. .. .. .. ..068 Paid oath (if paid) . . . . . . . . . . . . . . Two copies of petition for sealing, id. per folio. Preparing subpoena and serving witnesses, or arranging with wit- nesses for their attendance on presentation of petition . . . . 13 4 Paid them See Witnesses' Scale. Petitioning creditor is not to be regarded as a witness, and is not to be paid for loss of time ; he may claim his expenses of travelling and subsistence. Attending on presentation of petition when court investigated state- ments therein, and clerk .. .. .. .. .. ..100 One fee only for attending will be allowed, unless by direction of the court at the time, and a memorandum of its allowance produced to the taxing officer. Drawing order for hearing of petition. . .. .. .. ..034 Service of petition (see General Utiles). Attending court on hearing (where debtor does not appear or dis- pute), including two fair copies of adjudication and certificate of registrar's appointment of trustee .. .. .. .. ..100 Drawing order for bankrupt's attendance at first meeting, and copy for service and attending and obtaining signature . . . . ..068 Attending first meeting and clerk .. .. .. .. ..150 1]7icre Act of Bankruptcy the filing a Declaration of Inability to pay. Drawing declaration for inability to pay .. .. .. ..068 Attending attesting .. .. .. .. .. .. ..068 Paid stamp .. .. .. .. .. .. .. ..051 Attending filing 068 ~\\~here Act of Banhnntoy (j an Assignment for Benefit of Creditors (to be allowed only by special Order of the Court). Instructions for assignment .. .. .. .. .. ..068 Drawing same . . . . . . . . . . . . . . . . 10 If above Is. per folio. Fair copy per folio id. Paid stamp and paper, if stamped .. .. .. .. 1 15 6 Attesting execution, each assigning party .. .. .. ..068 COSTS IN BANKRUPTCY. Cost of Debtor's Summons. , & s. d. Instructions for affidavit of debt, and for debtor's summons . . 6 8 Affidavit of debt, and for copy .. .. .. .. •• ..068 Particulars of demand (tbree copies) at id. per folio. Attending swearing each deponent .. .. .. •• ..068 Paid oath (if paid) . . . . . . . . . . Attending filing .. .. .. .. .. .. •• ..068 Paid for office copy . . . . . • • • • • . • • • Summons and two fair copies and particulars . . . . ..068 Attending sealing summons, copies and particulars . . . . ..068 Paid stamp 050 Service of summons . . . . . . . . . . « • .".050 Attending court on hearing of summons . . . . . • . . 13 4 Costs where the Debtor is required by the Court to enter into a Bond. Attending making inquiries as to sufficiency of sureties .. . . 13 4 This charge will be subject to increase, according to the distance of the sureties' residence ; and, where necessary, agency charges for making such inquiries. Drawing exceptions to sureties .. .. . . .. •• ..034 Service thereof on debtor's attorney .. .. .. .. ..050 Attending court when sureties allowed or disallowed . . . . 13 4 Costs of affidavits in opposition to the allowance of the bond for want of sufficiency of sureties, the same allowance as for other special affidavits. Costs of Debtor's Summons, where the Court allows Costs to Debtor on Dismissal of Summons. The debtor's personal expenses for travelling and loss of time, ac- cording to the scale allowed to witnessess. And if attended by a solicitor, and his costs allowed (which must be by special order of the court). Instructions to attend the court on the summons . . . . ..068 Affidavit of denial of debt 026 Paid stamp 10 Attending court on hearing of summons, and drawing up order . . 13 4 Attending for appointment to tax, and copy and service of order and appointment .. .. .. .. .. .. .. ..050 Attending taxing .. .. .. .. .. . • ..068 Paid allocatur stamp . . . . . . . . Costs of Application to prosecute a Petition in a 2>articular District, or to transfer Petition from one District to another. Instructions for affidavit to ground application . . . . ..068 Drawing same, Is. per folio. Pair copy, id. per folio. Attending deponent to be sworn .. ..068 Paid oath .. .. .. .. .. .. .. .. .. Attending court when order made, and drawing up same . . . . 13 4 Costs on Application for Warrant. Instructions for affidavit in support of application for warrant .. 6 8 Drawing same, per folio Is. Fair copy, per folio id. Attending to read over and to get same sworn . . . . ..068 Attending court, warrant granted . . . . . . . . ..0134 Fair copy, per folio id. Attending officer, instructing him as to the execution of the warrant 6 8 SCALE OF COSTS IN BANKRUPTCY. 409 Costs of disputing Statements in Petition. Part vii. Ch X VIII Attending debtor served with copy of petition, taking instructions to £ s. d. — . - show cause against same .. .. •• .. . . ..068 Drawing notice showing cause . . .. .. .. .. ..050 Two fair copies for service .. •• .. .. .. ..020 Service on creditor, including postage.. .. .. .. ..036 Ditto registrar 036 Perusing and considering petition .. .. .. .. ..068 Examining witnesses in opposition . . . . . . . . . . 10 Costs of brief, and counsel's fee, where requisite to employ counsel. Attending court .. .. •• .. ..100 Petitioning Creditor's Costson Bankrupt disputing Statements inPetition. The debtor having served notice of disputing the statements in petition, attending petitioner.. .. .. .. .. ..068 Special attendances will be allowed to examine witnesses as to the facts they can prove, the charges for which, and for summoning them, will be in the discretion of the taxing officer, according to the circumstances; and where necessary to employ counsel to support the petition, the usual charges for brief and counsel's fees will be allowed. Attending court when adjudication made .. .. .. ..100 Costs for substituted Service where Debtor keeps out of the way to avoid Service. Several attendances to serve without effect, when it appearing that the debtor was keeping out of the way, and could not be personally served, instructions to apply for substituted service . . ..068 •Drawing affidavit of facts, and that due pains had been taken to effect personal service, per folio Is. Fair copy, id. per folio. Attending court for order for substituted service, and drawing up order 13 4 Costs of Brief. Instructions for brief in discretion of taxing officer (Allowed only when counsel employed.) Drawing same, 1*. per folio. Fair copy, id. per folio. Fee to counsel and clerk . . . . Attending him .. .. .. .. .. .. .. ..068 "Where consultation or conference is necessary, attending to appoint same 068 Fee to counsel and clerk .. .. .. Attending consultation or conference .. .. .. .. ..0134 Costs of Cases for Opinion of Counsel. Instructions for case .. .. .. .. .. .. ..068 Drawing same 1*. per folio. Fair copy, id. per folio. Fee to counsel and clerk . . . . . . . . . . . . . . Attending him .. .. .. .. .. .. .. ..068 Where conference is necessary attending to appoint same . . ..068 Fee to counsel and clerk attending conference .. .. .. 13 4 Attending for and perusing opinion .. .. .. .. ..068 Attending client, reading over opinion, and conferring with him thereon .. .. .. .. .. ..068 410 COSTS IN BANKRUPTCY. Part Vir. Costs of Motion. £ s. d. Ch. XVIII. _ . ,. rt - Instructions .. .. .. .. .. .. .. ..068 Where on appeal . . .. .. .. .. .. .. .. 13 4 Drawing notice of motion to be served, per folio Is. Fair copies, id. per folio. Perusing documents (by London agent) in an appeal, from 11. Is. to 21. 2s. Making short note of motion, and attending registrar therewith, previously to the sitting of the court . . . . . . ..034 Instructions for affidavit in support of motion .. .. ..068 [No instructions allowed where the attorney or his clerk makes the affidavit; no fees allowed to counsel to settle affidavit, unless very special.] Drawing same, at per folio Is. Fair copies, per folio id. Attending reading over and to be sworn . . . . . . ..068 Paid oath . . . . . . . . . . . . . . . . . . Copy affidavit for service with the notice of motion, id. per folio. Service {see General Utiles). Attending to file affidavit .. .. .. .. .. ..068 Paid for office copy, when required Affidavit of service and copy notice of motion to annex . . ..068 Attending court on motion if heard 11. Is., and if not .. .. 10 6 Drawing order, per folio Is. Attending settling same . . .. .. .. .. .. .. 13 4 Fair copy, per folio id. Attending to pass order .. .. .. .. .. .. ..068 Copy to serve, where necessary, per folio id. General Rules. 1. More than one attendance at presentation or hearing of bank- ruptcy petition will not be allowed unless ordered by the court, and memorandum be obtained to that effect. 2. Attendance upon the court for necessary purposes not included in the foregoing scale, each .. .. .. .. ..068 Attending court on each sitting' (including presentation and hearing of petition) .. .. .. .. .. ..100 If by agent 200 Clerk's attendance at each sitting, when required . . ..050 3. Service of petition, summons, order, notice, or other process, each service .. .. •• •• •• •• ..050 If the distance be more than three miles, 5d. per mile extra, or a further sum, in the discretion of the taxing officer, according to circumstances. In cases of great distance, the service must be by agent, unless otherwise sanctioned. 4. Drawing and copy bill of costs, per folio . . . . . . ..004 6. General attendances, each .. .. .. .. .. ..068 Long and special attendances . . . . . . . . . . 13 4 (Or more, in the discretion of the taxing officer.) 6. Writing letters, each, special .. .. .. .. ..050 Ditto, common .. .. .. .. .. .. ..036 7. Circular letters, if above twenty . . . . . . each ..010 If numerous, they must be printed. 8. Attendances to insert advertisements . . . • . . ..034 9. Extra allowances for length of sittings, or other increased allowances must have the sanction of the court, and a memorandum to that effect ob- tained, or all such charges will be disallowed. 10. Vouchers must be produced on taxation for all payments, or they will be disallowed. SCALE OF COSTS IN BANKRUPTCY. 411 11. Bills of costs must be written lengthwise, on one side only, and date* ■mitst be furnished to eaeh Item, such dates not to be written in the margin, which is to be left clear for taxation. 12. In special casts, where counsel are not instructed to appear in court, a charge by the attorney for the preparation of minutes of fact or evidence for his own use may be allowed. N.B.— Other matters not herein provided for may be allowed on a similar scale, as nearly as may be, or in accordance with the practice of the superior courts, according to the nature of the proceeding. Scale of Allowances to Witnesses. Part VII. Ch. XVIII. 1. Bankers, merchants, esquires, and gentlemen 2. Professional men 3. Auctioneers and accountants 4. Notaries 5. Engineers and surveyors 6. Clerks of attorneys or other persons 7. Master tradesmen, shopkeepers, yeoman farmers < 8. Artizans, mechanics, &c. . . . . . . . . 9. Females, according to station in life 10. Police inspector 11. Police constable The travelling expenses of the first five classes of witnesses will be allowed at the rate of Id. per mile, and the others at ~>d. per mile one way, where no railway is available, or travelling ex- penses actually incurred, in the discretion of the taxing officer; the travelling expenses of female witnesses, Id., or od. according to their station. Governors of gaols bringing up prisoners Travelling expenses of gaoler bringing up prisoner under warrants in addition to the above allowance 7/1. per mile one way for each (himself and prisoner), or the amount actually paid, and for the prisoner's safe custody and refreshment, in the discretion of the taxing officer. If resident If resident at a distance in the town \ from the in which Court, sub- the Court is j sistence in held. these cases i included. 1 1 1 1 1 1 1 1 1 1 10 10 to 15 7 5 to 10 5 3 H 6 6 6 •! 10 6' s. d. 1 to 3 1 to 2 2 1 1 to 3 3 15 15 o to 1 1 7 to 10 5 to 10 7 6 to 10 5 to 7 6 1 1 to 1 11 6 412 COSTS IN BANKRUPTCY. Part vii. The following charges to the end are to be subject to variation by the Ch. XVIII. trustees, with the consent of the committee of inspection, or of the court where there is no committee: — Broker's Allowance. For inventory and valuation — £ s. d. For the "first 1001 2 10 For the next 4002. per cent. 150 All above .. -.100 ( This allowance to include all expenses, and any travelling within five miles of the court, and a fair copy of the inventory.) Beyond 5 miles, per mile one way .. .. .. .. ..007 Auctioneer's Charges, including all Expenses of Sale. Sales by auction of goods, chattels, and effects : — 101. per cent, on the first 1002. After to .. .. 1,0002. .. hi. per cent. After to . . . . 5,0002. . . 21. 10s. per cent. After to . . . . 10,0002. . . 11. 5s. per cent. If the above be sold by valuation, 11. 10s. per cent, on the first 1,0002., and 11. os. per cent, beyond. Sales by auction of estates, freehold, leasehold, &c: — 51. per cent, on the first 3001. After to .. .. 1,0002. .. 21. 10s. per cent. After to .. .. 5,0002. .. 11. per cent. After to . . . . 10,0002. . . 10s. per cent. If the above be sold by valuation, half the above charges; and if not sold, the expenses to be paid, and fee to the auctioneer to be allowed as agreed with the trustee, or at the discretion of the taxing officer; or if bought in, and subsequently sold by private contract, by the negotiation of the auctioneer, half the above charges on sales by auction. Farming stock 51. per cent, on the first 100/., and 21. 10s. on the re- mainder. "When sold by valuation, half the above charges. Costs of Surveys, Dilapidations, and Specifications. From 21. to 51. in discretion of taxing officer. Sales of Stock by Tender. Not above iOOl 42. per cent. After to 1,0002 31. 1 0s. per cent. After to 2,0002 21. 10s. per cent. After to 5,0002 21. per cent. Above 5,0002. and upwards .. .. .. 12. 15s. per cent. Expenses to be allowed, such as advertisements and printing, not exceed- ing 22. or at the discretion of the taxing officer. AccoxintanVs Charges. For preparing balance sheet, investigating accounts, &c, principal's £ s. d. time, per day of eight hours, including necessary affidavit . . 2 2 Chief clerk's time .. .. 110 (0 10 6 Other clerk's time, per day of eight hours < to (0 15 These charges to include stationery. ilvtherlky, c. James Bacon, Chief Judge in Bankruptcy. 1st January, 1870. scale of costs in liquidation by arrangement. 413 5 3. — Scale of Costs in Liquidation by Arrangement. partvii. Ch. xvni. The following Scale was issued in July, 1871: — Scale of Attorney's Costs of Pboceedings for Liquidation by Aiuia.n(;kmi:.\t, under Sect. 125, up to Appointment of Trustee. (The taxing officer will exercise a fair discretion as to the allowance of preliminary or other charges connected with the debtor's failure and any ttept ta hen to protect the estate for the general benefit of creditors, subject to order of court or resolution of creditors.) £ 8. d. Inductions for petition.. .. .. .. .. .. .#100 Attending searching if bankruptcy petition filed . . . . ..068 Paid search 10 Drawing and engrossing petition . . . . . . . . . . 10 Paid stamp and parchment .. .. .. .. .. ..110 Attesting signature of (each) petitioner .. .. .. ..068 Drawing and fair copy affidavit verifying petition . . . . ..034 Attending petitioner to be sworn .. .. .. .. ..068 Paid oath and exhibit on petition where necessary . . . . ..026 Paid stamp 010 Attending petitioner as to the nature of his liabilities and as to addresses of his creditors and preparing certificate as to place of meeting.. .. .. .. .. .. .. .. ..068 Attending court on presentation of petition, and filing same and affidavit 100 If by agent 200 [In special cases attorney's journey may be charged where resident at a distance from the court.'] Paid for file for proceedings . . . . . . . . . . . . Drawing notice to creditors of first general meeting and copies thereof . . . . . . . . . . . . . . (2*. 6d. each for the first 20, and Is. each afterwards, and 3d. each, throughout, for forms and printing.) Paid postage stamps Drawing request to registrar to send notices and list of creditors to annex at Is. per folio .. .. .. .. Fair copy (per folio 4d.) . . . . Paid stamj >s at 3d. per notice .. Attending with request and list of creditors and lodging notice, and going through and checking same with registrar (in discretion of taxing officer according to length of list) Drawing and two fair copies notice of general meeting for Gazette .068 Attending obtaining signature of registrar and seal thereto .. 3 4 Attending inserting in Gazette. . .. .. .. .. ..068 Paid insertion . . . . . . . . . . . . . . . . Attending for copy Gazette and attending filing .. .. ..034 Paid for copy Gazette (cost of same) . . [Where statement of affairs prepared by attorney, charge to be allowed for instructions and attendances on debtor and dran-iny statement at Is. per folio, and fair copy thereof at id., and attendances on debtor and obtaining his signa- ture thereto; if prepared by an accountant, perusing and eonsidering statement and attendances on debtor and accountant thereon.'] Attending meeting, self and clerk .. .. .. .. ..150 Jf by agent .. .. .. .. .. .. 250 [A double or longer sitting will only be allowed where cer- tified for by the chairman, and approved by the taxing officer. In special cases attorney's journey may be charged where resident at a distance from the place of meeting.] 414 COSTS IN BANKRUPTCY. Part VII. Fee for examining and exhibiting proofs, comparing and completing £ s. d. Ch. XVIII. resolutions with proxies, &c, and (where necessary) obtaining signatures of creditors subsequently to the meeting. Rule 275 of 1870 [Where any special circumstances, drawing resolutions or deed for carrying same into effect, and fees to counsel to settle may be allowed.'] Drawing and fair copy affidavit, verifying resolutions, statement, proofs, and proxies produced at meeting and of appointment of chairman .. .. .. .. .. .. .. ..068 Attending swearing .. .. .. .. .. .. ..068 Paid oath (where necessary) and stamp .. .. .. ..026 Drawing affidavit as to value of assets . . . . . . ..068 Attending swearing .. .. .. .. .. .. ..068 Paid oath (where necessary) and stamp . . . . . . ..026 Attending registrar on application to register special resolution . . 15 If by agent 250 Paid ad valorem stamp duty on resolution . . . . [In country cases paid for office copy resolutions to be sent to London court.] Drawing and two fair copies certificate of trustee's appointment . . 6 8 Attending obtaining registrar's signature and seal of the court thereto 068 Where Resolutions objected to. Attending obtaining appointment for registration . . . . ..068 Drawing notice of intention to register and fair copy . . ..050 Copy and service of notice {each) .. .. .. .. ..050 Drawing affidavit of service and copy notice to annex . . ..068 Paid oath and stamp .. .. .. .. .. .. ..026 Attending swearing affidavit and filing . . . . . . ..068 Attending registrar on hearing of application and drawing order . . 13 4 [Any additional charges to be certified by registrar at time of hearing amplication.'] Where Receiver appointed. Instructions for application for appointment of receiver . . ..068 Drawing and fair copy application .. .. .. .. ..050 Stamp thereon .. .. .. .. .. .. .. ..050 Drawing affidavit in support of application . . . . . . ..068 Attending swearing .. .. .. .. .. .. ..068 Paid oath and stamp .. .. .. .- .. .. ..026 Drawing affidavit of responsibility .. .. .. .. ..068 Attending swearing .. .. .. .. .. .. ..068 Paid oath and stamp .. .. .. .. .. .. ..026 Attending court on application order made . . . . . . ..0134 [The attendance of counsel is not to be allowed unless sanc- tioned by the court at the time of application for receiver."] Drawing order, and two fair copies, and obtaining registrar's sig- nature, and passing .. .. .. .. .. .. ..068 Where Interim Injunction necessary pending full Notice of Motion for Injunction. Instructions for application to restrain pending proceedings ..068 Drawing and fair copy application .. .. .. .. ..050 Paid stamp .. .. .. .. .. .. .. ..050 Drawing affidavit in support of application and copy Attending swearing .. .. .. .. .. .. ..068 SCALE OF COSTS IN LIQUIDATION BY ARRANGEMENT. 415 _ . £ 8. d. Part VI r. Paid oath and stamp 026 Cn. xvnr. [The attendance of counsel is not to he allowed unless sanc- tioned by the court at the time of application for interim injunction.'] Attending court on application order made . . . . . . ..0134 Drawing and engrossing order and passing .. .. .. ..068 Notice of injunction, copy and service {each) .. .. ..050 [ Where possible the application for receiver and interim in- junction to be made at one and the same sitting, and the costs to be allowed by the tawing officer accordingly. ,] Injunctions. Instructions for notice of motion for (or to continue) injunction ..068 Drawing same, 1*. per folio Fair copies (id. per folio) Drawing affidavit and copy Attending swearing .. .. .. .. .. ,. ..068 Paid oath and stamp .. .. .. .. .. .. ..026 Copies affidavits to accompany notice, id. per folio . . Service of notice and copies affidavits (each service) . . ..050 [Costs of Brief— See scale of costs under " The Bankruptcy Rules, 1870."] Attending court on application for (or for continuance of) injunc- tion 13 4 Drawing order, Is. per folio . . . . . . , . . . . . Fair copy, id. per folio . . . . . . . . . . . . Attending passing .. .. .. .. .. .. ..068 Paid for office copies . . . . . . Service of order (each service) .. .. .. .. .. ..050 [Where more than one injunctiofi (interim or absolute) is applied for or granted, the taxing officer is to exercise discretion whether more than one set of costs is to be allowed. Separate applications are not to be made un- necessarily. Mliere the proceedings restrained relate to a claim not exceeding 201., charges are to be allowed on the lower scale in respect of the injunction, notwithstanding that the debts exceed 7o0l. or the assets 2001. — See Rule 8 0/1871.] Where Appointment of Trustee advertised. Drawing advertisement of appointment of trustee and copy . . 6 8 Attending obtaining registrar's signature and seal thereto . . ..068 Attending to insert in Gazette and daily paper 6 8 Paid Attending for copies, papers, and filing advertisements with regis- trar 068 Paid Debtor's Discharge (where granted). Drawing report of trustee to registrar and engrossing .. .. 10 Attending obtaining trustee's signature .. .. .. ..068 Attending tiling and obtaining registrar's certificate thereto ..068 As to matters not specifically provided for and subsequent to the appoint- ment of a trustee, the tasting officer will be guided by the scale of attorney's costs under "The Bankruptcy Rules, 1870," and the general practice in bankruptcy. Hatherley, C. James Bacon, Chief Judge. 7th July, 1871. ( 416 ) CHAPTER XIX. PUNISHMENT OF FRAUDULENT DEBTORS. "The Debtors Act, 1869" (32 & 33 Vict. c. 62), which came into operation simultaneously with "The Bankruptcy Act, 1869," con- tains a variety of provisions affecting bankrupts. The act is divided into three parts. Part I. relates to the abolition of im- prisonment for debt; and its provisions, and rides made under them, so far as they affect county courts, form the subject of a separate chapter in a former part of this work (a). It is sufficient to state here (so far as regards this part of the act) that while it enacts that, with certain exceptions, no person shall " be arrested or im- prisoned for making default in payment of a sum of money," one of the exceptions is "default in payment for the benefit of creditors of any portion of a salary or other income in respect of the pay- ment of which any court having jurisdiction in bankruptcy is authorized to make an order" (b) ; and further, the same part of the act in a subsequent section enacts that — Saving for Sect. 9. "Nothing in this part of this act shall in any way affect any Jia " kru !' tcv right or power under 'The Bankruptcy Act, 1869,' to arrest or imprison ■ VOL. II. Chap. XIX. I i; 418 PUNISHMENT OP FRAUDULENT DEBTORS. Part VII. Chap. XIX. Penalty for absconding with pro- perty. Penalty on fraudulently obtaining credit. &c. 11. If after the presentation of a bankruptcy petition against him or the commencement of the liquidation, or within four months next before such presentation or commencement, he fraudulently parts with, alters, or makes any omission, or is privy to the fraudulently parting with, altering, or making any omission in any document affecting or relating to his property or affairs : 12. If after the presentation of a bankruptcy petition against him or the commencement of the liquidation, or at any meeting of his creditors within four months next before such presentation or commencement, he attempts to account for any part of his property by fictitious losses or expenses: 13. If within four months next before the presentation of a brnkruptcy petition against him or the commencement of the liquidation, he, by any false representation or other fraud, has obtained any pro- perty on credit and has not paid for the same : 14. If within four months next before the presentation of a bankruptcy petition against him or the commencement of the liquidation, he, being a trader, obtains, under the false pretence of carrying on business and dealing in the ordinary way of his trade, any pro- perty on credit and has not paid for the same, unless the jury is satisfied that he had no intent to defraud : 15. If within four months next before the presentation of a bankruptcy petition against him or the commencement of the liquidation, he, being a trader, pawns, pledges, or disposes of otherwise than in the ordinary way of his trade any property which he has obtained on credit and has not paid for, unless the jury is satisfied that he had no intent to defraud : 1G. If he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors or any of them to any agreement with reference to his affairs or his bankruptcy or liquidation." 12. " If any person who is adjudged a bankrupt or has his affairs liqui- dated by arrangement after the presentation of a bankruptcy petition against him or the commencement of the liquidation, or within four months before such presentation or commencement, quits England and takes with him, or attempts or makes preparation for quitting England and for taking with him, any part of his property to the amount of twenty pounds or upwards, which ought by law to be divided amongst his creditors, he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of felony, punishable with imprisonment for a time not exceeding two years, with or without hard labour." 13. "Any person shall in each of the cases following be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to be im- prisoned for any time not exceeding one year, with or without hard labour ; that is to say, (1.) If in incurring any debt or liability he has obtained credit under false pretences, or by means of any other fraud : (2.) If he has with intent to defraud his creditors, or any of them, made or caused to be made any gift, delivery, or transfer of or any charge on his property: (3.) If he has, witli intent to defraud Ins creditors, concealed or removed any part of his property since or within two months before the date of any unsatisfied judgment or order for pay- ment of money obtained against him." PUNISHMENT OF FRAUDULENT DEBTORS. 419 14. " If any creditor in any bankruptcy or liquidation by arrangement Pakt vii. or composition with creditors in pursuance of 'The Bankruptcy Act, Chap. XIX. 18GIV wilfully and with intent to defraud makes any false claim, or rate* claim any proof, declaration, or statement of account which is untrue in any fc&,amte- material particular, he shall be guilty of a misdemeanor, punishable with (itmea " or - imprisonment not exceeding one year, with or without hard labour." 1"). " Where a debtor makes any arrangement or composition with his Debts in- creditors under the provisions of ' The Bankruptcy Act, 18G ( J,' he shall gj™* by remain liable for the unpaid balance of any debt which he incurred or increased, or whereof before the date of the arrangement or composition be obtained forbearance, by any fraud, provided the defrauded creditor has nut assented to the arrangement or composition otherwise than by proving bis debt and accepting dividends." lb\ "Where a trustee in any bankruptcy reports to any court exer- Order in- cising jurisdiction in bankruptcy that in his opinion a bankrupt has < " lirtf " r been guilty of any offence under this act, or where the court is satisfied oTreporto* upon the representation of any creditor or member of the committee of trustee. inspection that there is ground to believe that the bankrupt has been guilty of any offence under this act, the court shall, if it appears to the court that there is a reasonable probability that the bankrupt may be convicted, order the trustee to prosecute the bankrupt for such offence." 17. " Where the prosecution of the bankrupt under this act is ordered Expenses of by any court, then, on the production of the order of the court, the ex- BKMecBtkmH. penses of the prosecution shall be allowed, paid, and borne as expenses of prosecutions for felony are allowed, paid, and borne." 18. " Every misdemeanor under the second part of this act shall be Application deemed to be an offence within and subject to the provisions of the act Jf,,^.'*,"!.',','^ 8 of the session of the twenty-second and twenty-third years of the reign Act t.. at- ofher present Majesty, chapter seventeen, intituled 'An Act to prevent fences under vexatious indictments for certain misdemeanors ;' and when any person tllsact - is charged with any such offence before any justice or justices, such jus- tice or justices shall take into consideration any evidence adduced before him or them tending to show that the act charged was not committed with a guilty intent." 10. "In an indictment for an offence under this act it shall be suffi- Form of cient to set forth the substance of the offence charged, in the words of indictment - this act specifying the offence or as near thereto as circumstances admit, without alleging or setting forth any debt, act of bankruptcy, trading, adjudication, or any proceedings in, or order, warrant, or document of any court acting under ' The Bankruptcy Act, 1869.' " 20. " So much of the act of the session of the fifth and sixth years of Quarter her Majesty's reign (chapter thirty-eight), 'to define the jurisdiction of •j*-s*» , » s to justices in general and quarter sessions of the peace,' as excludes from d'fctioiHu" the jurisdiction of justices and recorders at sessions of the peace or reape d ol adjournments thereof the trial of persons for offences against any pro- ||JJa««el vision of the laws relating to bankrupts, is hereby repealed as from the passing of this act ; and any offence under this act shall be deemed to be within the jurisdiction of such justices and recorders.'' 21. "The provisions of the act of the session of the fifth and sixth Mayors, &a years of William the Fourth, chapter seventy-six, for the regulation of *j"W* )Wted municipal corporations, sections titty-two and fifty-three, as to the dis- 2eSr^ qualification of mayors, aldermen, and town councillors having been declared bankrupt or having compounded by deed with their creditors, shall extend to evcrv arrangement or composition by a mayor, alderman, K E 2 420 PUNISHMENT OF FRAUDULENT DEBTORS. Part VII. Chaf. XIX. Justices of the peace becoming bankrupt or arranging with credi- tors. Punishments muter this act cumu- lative. or town councillor with his creditors under ' The Bankruptcy Act, 18G9,' whether the same is made by deed or otherwise." 22. " If any person being assigned by her Majesty's commission to act as a justice of the peace is adjudged bankrupt, or makes any arrangement or composition with his creditors under ' The Bankruptcy Act, 1869,' he shall be and remain incapable of acting as a justice of the peace until he has been newly assigned by her Majesty in that behalf." 23. " Where any person is liable under any other act of parliament or at common law to any punishment or penalty for any offence made punishable by this act, such person may be proceeded against under such other act of parliament or at common law or under this act, so that he be not punished twice for the same offence." Brokers.']— By "The London Brokers Relief Act, 1870," if a judge in bankruptcy, in any action, suit or other proceeding prose- cuted or depending before such judge, and to which a London broker is a party, certifies (as he is thereby empowered to do) that such broker has been guilty of fraud, and that he ought to be disqualified from acting as a broker altogether, or for such period as such judge shall name in the certificate, such broker shall be accordingly dis- qualified and his name removed from the list of brokers (rf). (d) 33 & 34 Vict. c. GO, s. 6. INDEX. A. Abatement of suit, in equity, by death, marriage or otherwise, 100. Abode, place of, in some cases determines the court in which proceedings in equity are to be taken, 30. "Absconding Debtors Act, 1870," proceedings in bankruptcy under, 239. Absent beyond seas, payment into court of legacy or money to which absent person entitled, 87. Absent parties, notice of decretal order to, 86. duty of the registrar on reference to him to inquire as to, 88. Absenting and beginning to keep house an act of bankruptcy, 229. Acceptance in bankruptcy of composition or settlement, 297. Account, equitable jurisdiction of county courts in matters of, 6. Account, books of, prima facie evidence, 28, 89. See Books. Accounts of receiver in equity, 86. reference to registrar to take, 89. certificate of registrar thereon, 92, 95. of registrar in equity, auditing, 100. of trustee in bankruptcy, 283. of bankrupt's property mortgaged or pledged, 341. of closed bankruptcy, 367. ACKNOWLEDGMENT, form of, of filing of receipt or transfer ticket (in equity), 57. of deeds by married women, 142. Action not to be brought on agreement between attorney and client under " The Attorneys and Solicitors' Act, 1870".. 141. Actions, provisions relating to, applied to suits in equity, 6. restraint of, alter presentation of petition in bankruptcy, 249. by trustee of bankrupt, 836. Acts of bankruptcy, 220, 226. (1) Assignment for the benefit of creditors, 226. (2) Fraudulent conveyance, 227. (3) Absenting ami beginning to keep house, 229. (4) Filing a declaration of inability to pay, 230. 422 INDEX. Acts of bankruptcy — continued. (5) Execution against a trader, 231. (6) Debtor's summons, 231. time within which acts of bankruptcy must be committed, 240. doctrine of relation back to act of bankruptcy, 308. notice of act of bankruptcy, 322. taking away right of set-off, 345. Actual Fraud, setting aside agreements in case of, 1 5. Adding parties in equity, 86. Adjournment, in equity, for proof of documents, 74. scale of costs of the day on, 123. in bankruptcy, of hearing of petition, 255. of first meeting of creditors, 266, 277. Adjudication of bankruptcy, who may be adjudicated bankrupt, 222. the petition for, 241. the adjudication, 259. form, 259. publication, 260. appeal from, 261. annulling adjudication, 304. effect of adjudication on the bankrupt's property and rights, 307. effect on claims against the bankrupt, 315. Administration, in equity, of real and personal estate, jurisdiction of county courts in, 6. mode of administration in equity, 8. of trust property, 18. in what court proceedings to be taken, 30. forms of plaint for, 34 — 36. form of decretal order in administration suit, 78. proof and allowance of claims in, 90, 91. Administration, letters of, jurisdiction of county court respecting, 190. Administrator, applications by, in equity, to court, 18. payment of money by, into court, 53. Admiralty Court, jurisdiction of the, 147, 148. Admiralty jurisdiction of the county court, 146—189. Admission, in bankruptcy, of debt by debtor of bankrupt, 338. form of admission, 338. Admission of documents in equity, 68. adjournment when objected to, 74. Admissions in equity, 61. form of, 61. general form of heading for, 52. Advancement of infants, jurisdiction of county court relating to, 20. proceedings to be by petition, 49. INDEX. 423 Advertisement for creditors, under decretal orders in equity, 90. Advertisements in equity proceedings, order for, by judge, 96. in bankruptcy, 209. Affairs of bankrupt, statement of, 267. Affidavit, in equity, rules respecting, 67. general form of heading and conclusion, 68. on payment, &c. by trustees, &c. into court in equity, 53. form of, 5ti. in support of application for substituted service in equity, 60. of signature to defendant's admission, 61. ex parte applications upon injunctions, 66. petitions and applications under Trustee Acts, &c, 74. notice of intention to use, at the hearing, 72. to be read as evidence of the person by whom used, 74. in admiralty cases, to found arrest and detention of vessel or property, 170. of justification of sureties, 171. rules as to, generally, 177. to give contentious jurisdiction to county court in probate and ad- ministration cases, 192, 194. in taking acknowledgments by married women, 143 — 145. in, bankruptcy, rules respecting, 213. form of, 213. before whom sworn, 214. filing, 213. applications to the court to be supported by, 212. to support debtor's summons, 232. forms of, 233, 234. of service of debtor's summons, 235. form of, 236. of truth of statements in petition, 245. of service of petition, 247. of justification of sureties, 258. of no receipts or payments by trustee, 285. in support of application for committal of bankrupt for contempt, 290. of person interested in a composition for committal, 299. in support of application for enforcement of provisions of composition, 300. of trustee to compel delivery of monies and securities, 332. for proof of debt with or without security, 851. of proof of debt by agent of a company, 352. in support of petition for liquidation, 391. to be annexed to notice summoning general meeting, 392. of computed amount of estimated assets or composition, ion. on nomination of receiver in liquidation by creditors, 401. Agent, appearance in bankruptcy by, 211. corporation may ait by, in bankruptcy, 211. delivery of money ami securities by, in bankruptcy, 332. proof of debt in bankruptcy by, of a company, ;J.">2. Agreements for the sale or purchase of property, suits for specific per- formance of, or for the delivering up or cancelling, 12, 14. in what court proceedings to !>c taken, 3U. how suits to be commenced, 31. 424 INDEX. Agreements for the sale or purchase of property, &c. — continued. form of plaint respecting specific performance of, 42, 43, 44. on application for injunction or for specific performance of, damages may be awarded, 75. Agreements between attorneys and clients, enforcing or setting aside, 140. Allowance of claim, in equity suit, notice to creditor of, 91. to witnesses in equity, 124. to bankrupt for maintenance of services, 294. Amendments, in equity, before final decree or order, 74. in bankruptcy, when allowed, 209. Annuities, transfer of, into court, 19, 53. certificate of registrar as to, 94. Annulling adjudication of bankruptcy, 304. where no trustee appointed, 304. an acceptance of composition or arrangement, 297, 305. application and order to annul, 298. effect of annulling, 305. notice of annulling, 306. Answer of defendant, in equity, 62. Appeal, in equity, scale of costs on, 123. from order in the case of small charities, 127. in, admiralty cause, 182. from the decision of surveyors under " The Merchant Shipping Act, 1871".. 189. in probate and administration cases, 192. in bankruptcy, to chief j ndge in bankruptcy by any person aggrieved by any order of •a local Bankruptcy Court, 303. to Court of Appeal in Chancery from order of chief judge, 303. from adjudication of bankruptcy, 261. from dismissal of petition, 262. to court from any act of the trustee, 280. costs of appeal, 303. rules relating to appeals, 303. Appearance of parties on hearing of equity suits, 73. of defendant in admiralty suit, 166. prcecipe to enter, 166. of parties by attorney or agent, in bankruptcy, 211. Application, in canity, a- parte, 66. for copies of proceedings and documents, 68. to judge fur further directions, 95. to enforce decrees and orders, 102. for committal for contempt, 105. notice <>f application, 106. for discharge from custody, 106. notice of, 107. to transfer proceedings, 109. by private persons in the case of small charities, 127. for removal of trustee of friendly society, 131. to add parties, 100, 101. to review agreements between attorneys and clients, 141. INDEX. 425 Application— continued, u nth r Probate Act, to t : i k ( ■ proceedings, 195. in bankruptcy, how made, 212. to dismiss debtor's summons, 237. for appointment of receiver or manager, 251. for directions by trustee, 280. for committal of bankrupt, 289. form of, 290. to annul adjudication, 298. for enforcement of provision in a composition, 300. by creditor for order for trustee to pay dividend, 356. for order of bankrupt's discharge, 861, 36i). various forms, 302, 303. for release by trustee, 306. Apportionment of salvage, in admiralty cases, 176. APPRAISEMENT of property under arrest in admiralty causes, 131. Apprentices, effect of bankruptcy of master on, 328. Appropriation of pension or salary of bankrupt, 333. forms of order, 334, 33-3. Arbitration, power of trustee in bankruptcy to refer disputes to, 283. Arrangement with creditors, 371. See Liquidation. Arrest of foreign ships under "The Merchant Shipping Act, 1864". • 160. the detention of vessel or property pending proceedings, 170. ARREST and commitment in bankruptcy, 21"), 216. of bankrupt after the presentation of petition, 252. Articled Clerks, to bankrupt, position and claim by, 328. Assent to legacies, effect of, on right to recover, 8. Assessment of damages, in equity suits, 75. Assessor of passage court, power of, to make rules, 158. Assessors, in admiralty causes, 174, 175. i\s>i;rs. jurisdiction of county courts in the administration of, 6. legal and equitable described, 7. administration and marshalling of, 8. in what court proceedings respecting, to be taken, 30. ASSIGNMENT of stock by way of mortgage, form of plaint in equity, 38. for the benefit of creditors, an act of bankruptcy, 220. ASSISTANCE, warrant of, in equity, KM. Attendance of bankrupt at meeting of creditors, 207. order for attendance, 265. Attornkv, parties in equity may act by, 65. definition of, in admiralty orders, 150. plaint in equity filed by, to state particulars, 32. 426 INDEX. Attorney — continued. proceedings by, in equity, before tbe hearing, 65. service of proceedings by, 66. change of, 66. service upon, 65, 66. scale of costs of, in equity, 121. in admiralty, 186. costs of societies in winding-up, &c, 140. costs between solicitor and client in equity, 120. and client, enforcing or setting aside agreements between, 140. costs of, in probate cases, 198. appearance by, in, bankruptcy against trustee, 211. costs of, in bankruptcy to be taxed, 288. not unless written sanction obtained, 288. Attorney-General, proceedings by, in the case of charities, 128. Auction, employment of puffer at, 15. sale by, in equity, of personal property, 88. order for sale, 96. order for sale of real estate, 96. Auctioneer, where trustee in bankruptcy is an auctioneer, not to sell pro- perty without consent, 282. Audit of registrar's accounts in equity, 100. of trustee's accounts in bankruptcy, 283, 284. Auxiliary bankruptcy courts, 204. Avoidance of voluntary conveyances and transfers in bankruptcy, 317. of fraudulent preferences, 318. B. Bail Bond, in admiralty suits, 171. Balance of partnership account, recovery of, 2, 21. Bankrupt. See also Table op Contents. duty of, on adjudication, 289. duty in general, 289. attendance of, at first meeting of creditors, 267. order for, 265. production by, of statement of affairs, 267. examination thereon, 292. appeal by, to court against any act of trustee, 279, 280. application by trustee for committal of, 289, 290. superintendence of the property by, 293. allowance to, for maintenance or services, 294. need not be joined in actions on joint contracts, 336. discharge of, 360. offences by, 294. punishment for fraud, 416 — 420. status of undischarged, 369. enforcement of debts against, 370. "Bankruptcy Act, 1869," general scope and principles of, 199. Bankruptcy, jurisdiction and practice of the county courts in, 199, 420. See Table of Contents. Beginning to keep house, an act of bankruptcy, 229. " Bills op Sale Act, 1854".. 314. INDEX. 427 Bond, to be given by receiver, in equity, 87. as security in admiralty suits, 170. form of bail bond, 171. as security in bankruptcy, 214. execution of, 215. deposit in lieu of, 214. on stay of proceedings in bankruptcy, 257. by trustee in bankruptcy, 274. BOOKS of account, evidence in equity, 28, 81). " suits and proceedings in equity book," 32 n. duty of trustee in bankruptcy to keep, 281, 3.11. of account of bankrupt, not to be withheld from trustee, 283. possession of, by trustee, 331. Bottomry, admiralty jurisdiction in cases of, 148. Breach of order in nature of injunction, 105. order of committal for, 106. Brokers, disqualification of bankrupt if certified to be guilty of fraud, 420. Business, place of, of parties in some cases determines court in which equity proceedings are to be taken, 30. of bankrupt, power to carry on, 282. to sell goodwill of, 282. Cancelling agreements, suits for, 12, 14. how suits to be commenced, 31. Cargo, damage to, county court jurisdiction in respect of, 160. Case, statements of, on appeal in equity, 113, 114. Certificate, in equity, general form of heading for, 52. form of, in case of money, 57. in case of transfer of stock, 57. of deposit of security, 58. of registrar on matter referred to him, 92. form of certificate, 92. of principal and interest due on mortgage, 95. in bankruptcy, that registrar trustee, 2G0. form of, 261. of appointment of trustee by creditors, 272, 274. form of, 275. of appointment of trustee to fill vacancy, 279. of no receipts or payments by trustee, 286. of judge for transfer of proceedings, 301. of appointment of trustee in liquidation, 398. Cestui que Trust, plaint by, 36. Chambers, sittings in, in bankruptcy, 211. Chancerv, power of Court of, conferred on county courts, 2. in cases of partnersbip, 2. charitable trusts, 2. dissolution of literary and scientific institutions, 2. 428 INDEX. Chancery, power of Court of — continued. in equity, 2, 3. for payment and transfer by trustees, 20. payment of legacy into Court of, 97, 98. transfer to, of proceedings iu equity in county courts, 109. transfer from, to the county courts, 1 10. Charge or lien, suits for enforcing, 10. in what court proceedings to be taken, 30. how suits commenced, 31. charging property with costs, 124. Charitable Trusts Acts, 2. Charities, jurisdiction of county court in respect of small, 2, 125. applications by private persons, 127. proceedings by the attorney-general, 128. fees, 129. Choses in Action. See Things in Action. Cinque Ports, admiralty jurisdiction of the, 152, 154. transfer to Admiralty Court of, 168. Civil Law, proceedings in the Admiralty Court according to, 150. Claims, in equity, proof of, 90. notice of allowance of, 91. in admiralty cases, in, rem and in personam, 150. against bankrupt, effect of adjudication on, 315. Client, costs as between solicitor and (equity), 120. in admiralty, 187. enforcing or setting aside agreements between, and attorney, 140. CLOSE of bankruptcy, 359. Collision, claims for damage by, under admiralty jurisdiction, 160. notice of defence, 167. Commencement of bankruptcy, 308. Commitment, order of, on a judgment summons, 107. Committal, in equity, for contempt, 105. general form of heading and conclusion for orders of, in equity, 78. notice of application for, 106. orders for, 106, 107. notice of application for discharge from custody, 107. order of discharge, 107. in bankruptcy, 215, 216. for contempt, 216, 291. application for, 290. to what prison, 206. of bankrupt, 289. application for, 289, 290. order of committal, 291, 299. warrant of committal for contempt, 291. INDEX. 429 Committee of Inspection, in bankruptcy, 2G3, 27.". regulations us to, 27(i. power of, over trustee, 279. to meet every three months and audit trustee's accounts, 283. committal for non-delivery of monies or securities to trustee, 333. Common Law, ordinary jurisdiction of county courts governed and con- trolled by, 2. doctrine of, in case of mortgages, 10. could not compel performance of personal contracts, 14. in case of partners, 21. when concurrent jurisdiction at for recovery of land, court not bound to relieve, 76. and admiralty jurisdiction, 14G, 147. "Common Law Procedure Act, 1854 "..14, 172. Companies, equitable jurisdiction in winding up, 138. Company, petition by, 242. proof of debt by agent of, 352. Complaint to Board of Trade of unseaworthiness of ships, 189. Composition with creditors, 371, 378. acceptance of offer of, in bankruptcy, 297. notice of meeting to authorize trustee to accept, 297. annulling adjudication thereon, 298. committal of bankrupt for contempt thereon, 299. COMPROMISE of debts and claims in bankruptcy, 283. Comptroller in bankruptcy, appointment and duties of, 284, 28C. Computation of time in bankruptcy, 210. Concurrent Jurisdiction, where in law and in equity, relief need not be given against common law, 7ti. of High Court of Admiralty and county courts, 1G1. Conditions of sale of property, 88. Conduct of suits in equity, rule respecting, G(i. Consent to increased admiralty jurisdiction, 1G0. of true owner or reputed ownership in bankruptcy, 310. Constitution of county courts in bankruptcy, 199, Constructive Fraud in agreements, 15, 1G. Contempt, committal for, for neglect to obey decree or order in equity, 105. committal for, in bankruptcy, 2S9— 292, 332, 333. Contentious Jurisdiction of the Court of Probate conferred on county courts in certain cases, 190, 191. Contract, on application for injunction for breach of, or for specific per- formance of, damages may lie awarded, 75. admiralty jurisdiction in respect of contracts, 1 17 — 1 I'.', joint, in bankruptcy, actions in respect of, 886. CONTROL of trustee in bankruptcy, 279. by comptroller, 286. 430 INDEX. Conveyance, for the benefit of creditors, an act of bankruptcy, 226. fraudulent, an act of bankruptcy, 227. voluntary, void in bankruptcy, 317. by way of fraudulent preference, void, 318. Convicts, effect of bankruptcy of, 329. Copies of proceedings or documents in equity, how obtained, 68. production of, 71. in admiralty suit, 172. in bankruptcy, 209. when evidence, 216. Copyholds, dealing with, in bankruptcy, 331. Corporation may act in bankruptcy by agent, 211, 212. Costs, in equity, general rule as to, 119. costs out of the estate or fund, 119. between party and party, 120. costs, charges and expenses in the case of trustees, 120. of partition suit, 17. undertaking by next friend to pay, 33. on stay of proceedings, 64. of affidavits not in conformity with rules, disallowed on taxation, 67. of proof of documents, not allowed unless notice to admit given, 68. of inspection of documents, 69. on non-production of documents, 70. on appeal, 115. scale of costs and charges to be paid to counsel and attornies in equit- able matters, 121. costs of the day, 123. costs on appeal, 123. taxation of costs, 124. allowance to witnesses, 124. costs to creditors, 124. interest on costs, 124. charging property with costs, 124. under the Friendly Societies and other acts, 136. in winding-up societies, 140. in admiralty cases, 183. where proceedings unnecessarily taken in High Court of Admiraltv, 161, 162. where failure of notice of defence in suit for collision, 167. security for costs on transfer of suits, 167. bail for costs, where vessel or property likely to be removed, 170. of assessors, 174, 175. on appeal, 182. scale of costs, 183, 186. taxation of, 188. in probate and administration cases, 197, 198. form of decree for, 197. in bankruptcy, 4().~>. general provisions as to, 405. scale of, 406. in liquidation by arrangement, 413. of proceedings in the first instance, 241. costs of witnesses, 217. of receiver or manager on dismissal of petition, 262. INDEX. 431 Costs, in bankruptcy — continued. of trustee, 287, 288. in case of joint estate, 287. of appeal on bankruptcy, 303. of prosecutions for fraud, 419. Counsel, scale of costs of, in equity, 121. in winding-up societies, &c, 140. in admiralty causes, 18G. in probate cases, 11)8. definition of, in admiralty orders, 159 n. attorney and solicitor may appear without, in bankruptcy, 211. but motions by, have precedence in bankruptcy, 213. charges for, not allowed for applications in bankruptcy unless sanc- tioned by committee of inspection or by court, 288. Counties, boundaries of, when adjoining the sea, 14G n. Court in which proceedings in equity are to he taken, 30. time of sitting in equity, 33. suits to be heard in open, 73. applications to, in equity ex parte, GG. damages may be assessed and questions of fact tried before, 75. transfer of suits from one court to another, 111. of Bankruptcy, description of. 201, 277 n. general powers and jurisdiction of, 203. time of sittings, 211. Court of passage of Liverpool, 158 n. Covenant, on application for injunction for breach of, or for specific per- formance of, damages may be awarded, 75. Creditor, petitioning in bankruptcy. See Petitioning Creditor. Creditors, in equity, suits in equity by, 6, 7. how commenced, 31. form of plaint, 34. proof of claims by, 90. notice to, to prove, 91. notice to, of allowance of claim, 91. costs of, of proving debts, 124. ("// bankruptcy, representation of by agent, 212. assignment for the benefit of, an act of bankruptcy, 227. meetings of creditors, first, 263. subsequent, 295. See Meetings OF CREDITORS, creditors' trustee, 273. See TRUSTEE, control of trustee by, 279. directions to trustee by, 279. proof by, 342. secured proof by, 346. joint, 364, dividends to, 353. CROSS Suits, under admiralty jurisdiction, 1G9. 432 INDEX. Custody, in equity, application for discharge, 106. notice of, 107. order of discharge, 107. D. Damage to ships and vessels, admiralty jurisdiction respecting, 148. county court jurisdiction, 160. Damages, the only remedy at common law for non-performance of con- tracts, 14. courts of chancery and county court may award, in addition to or in substitution for specific performance, 14. inapplicable to orders in the nature of injunctions, 23. power to award, in equity, 75. in admiralty cases, 148, 149. Date of petitioning creditor's debt, 225. Day, scale of costs of the, on adjournment, 123. Death, abatement of suit in equity by, 100. of bankrupt, 304. of trustee in bankruptcy, 277, 278. on death of bankrupt or his wife or witness, deposition evidence, 216. Debt, petitioner's, in bankruptcy, amount and nature of, 224. staying proceedings where debt denied, 255. Debtor. See Table of Contents, Bankruptcy. Debtor's summons, an act of bankruptcy, 231. Debts, in equity, jurisdiction of courts of equity in reference to, 6. proof and allowance of, in equity, 90, 91. certificate of registrar as to, 93. interest on, 93, 100. order in equity for sale of outstanding, 96. costs of proving, in equity, 124. in bankruptcy, declaration of inability to pay, an act of bankruptcy, 230. due to bankrupt in course of trade within the reputed ownership clause, 309. proof of, 342. description of debts proveable, 342. dividends upon, 353. interest on, 354. priority of certain, 357. Declaration of inability to pay, an act of bankruptcy, 230. Decrees and decretal orders in equity, 77. general form of heading and conclusion for, 78. forms of final decree, 82. registration of, 84. mode of enforcing. 102. in general, 102. execution to enforce payment of money, 103. committal for contempt, 105. order of commitment on a judgment summons, 107. index. 433 Decrees and orders in admiralty suits, 178. enforcement of, 178, 179. appeal from, 182. Decrees and orders in probate cases, 192, 195. form of, 197. Decretal orders in equity, 77. forms of, 78 — 82. proceedings in carrying out, 85. drawing up, 85. notice of, to absent parties, 86. Deeds form of prayer for injunction to restrain action to recover 39 order, in equity, for preparation and execution of, 88 acknowledgment of, by married women, 142. possession of, by trustee in bankruptcy, 331. Defeasible property, on bankruptcy, 327. Dependant's proceedings in suit in equity, CI. in admiralty suits, 1G6. Delegation of powers by judges in bankruptcy, 204. Delivering up agreements, suits for, 12, 14. how suits to be commenced, 31. Delivery of lands and goods, execution to enforce in equity, 104. Deposit, mortgage by, without express agreement, form of plaint in re- spect of, 39. e of security in court, in equity, 53. application to enforce, CO. of money as security, in admiralty suit, 170. in bankruptcy, 214, 215. Deposition of witness, how taken and returned, 72. to be read as evidence of person, by whom used, 74. Detention of vessel or property pending admiralty proceedings, 170. Determination of interest, by bankruptcy, 32G. Devisees, jurisdiction in suits bv, G. commencement of suits by, 31. Devolution of property on trustee in bankruptcy, 274. Directions, application to judge for further, in equity suit, 95 application for, to court by trustee in bankruptcy, 280. to trustee in bankruptcy by creditors or committee of inspection, 279. DM( Sder <3 W? CUSt0d - v in e(luit ^'' notice of application for, 10C, 107. order for, from custody on contempt in bankruptcy °92 of bankrupt, 3G0. r " ' Disclaimer by defendant in equity, 62, of onerous property in bankruptcy, 825. proof where persona injured by, 848. Discovery of property, in bankruptcy, 337. V. VOL. II. F F 434 INDEX. Dismissal of suit, in equity, at the plaintiff's instance before return-day, 72. of debtor's summons in bankruptcy, 237. affidavit on application, 238. order on application, 238. of petition in bankruptcy, 2G1. Disputes in friendly societies, jurisdiction respecting, 131. in respect to salvage, 152. Dissolution' of partnerships, jurisdiction of county courts for, 21. how suits commenced, 31. form of plaints, 40, 41. of decretal order, SI. Distribution of bankrupt's property, 353. Distributive Share under an intestacy, jurisdiction of county court for, 2. District in which equity proceedings are to be taken, 126. in which proceedings in the case of small charities are to be instituted, 126. for admiralty purposes, 157, 1G3. in bankruptcy, 201. exclusion of, by chancellor, 203. London Bankruptcy district, 202. Dividends in bankruptcy, 353. joint creditors, 354. unclaimed, 354. interest on debts, 354. rules respecting, 354. forms, 355, 356. See also Priorities, 357. Documents, in equity, form of, 32. service of, 59. filing of, 68. copies of, 68, 71. special rules as to proof of, 26, 74. inspection and admission of, 68. summons to witness to produce, 70, 71. adjournment of hearing for proof of, 74. in admiralty, inspection and copies of, in admiralty suits, 172. Draft Orders {ex parte in equity), how prepared, 67. Drawing up decretal orders in equity, 85. E. Effect of Adjudication of bankruptcy, 307. Enforcing charge or lien in equity, suits for, 10. bow commenced, 31. decrees and orders in equity, 102. index. 433 En forcing charge or lien in equity — cant limed. orders in the case of friendly and otlier societies, ]?,'>. or setting aside agreements between attorneys and their clients, 140. decrees in admiralty causes, 178. bankruptcy, the general circumstances under which it can be enforced, 220. orders and warrants of courts in bankruptcy, 205. provision of a composition, 300. enforcement of debts against undischarged bankrupt, 370. England, service of process (in equity) out of, GO. bankruptcy jurisdiction, in general, confined to, 201 n., 204 n. service of debtor's summons must be in, 231!. debtor departing from or remaining out of, an act of bankruptcy, 229. warrant against debtor about to quit, 252. Enlarging or abridging time for taking steps, 66. Equitable answers to actions and defences, 5. Equitable Assets, 7. Equitable claims by way of set-off in bankruptcy, 345. Equitable jurisdiction, in general, 2. See Jurisdiction. special equitable jurisdiction in various matters, 125. Equitable Mortgages, 11. Equity, jurisdiction and powers and practice of county courts in, 1, 145. principles on which judge acts in, 77. Equity of Redemption, what it is, 10. Estate, transfer of real and personal, by court, 19. personal estate account, 92. outstanding and real and personal, registrar's certificate as to, 94. payment of costs out of, 119. Evidence, in equity, special provision as to proof of documents, in suits in county courts, 26, 74. commented on, 27. books of account primt't facie evidence, where accounts taken under decretal orders, 28, 89. in equity suits to be, in general, vied voce on oath, 73. but in petitions under Trustee Act and on applications for injunctions fails to be proved by affidavit, 74. adjournment for proof of documents, 74. proof of rules of friendly aud other societies, 135. in admiralty cases, 176. oral, 176. affidavits, 177. transcript of notes of, 176. in bankruptcy, 216 mode of taking evidence, 216. proof of proceedings, 216 deposition of deceased bankrupt or witness, 216. witnesses, 217. evidence of appointment of trustee, 274. t v 2 436 INDEX. EXAMINATION of witnesses by county court judges on winding-up com- panies, 22. of witnesses in equity, before bearing, 71. of bankrupt, 292. or witness in bankruptcy, 293. Exclusive jurisdiction of bankruptcy courts, 203. Execution to enforce decrees and orders in equity, 102. for payment of money, 103. for delivery of lands or goods, 104. committal for contempt, 105. to enforce decrees in admiralty causes, 178, 179. execution against vessel, 179. forms, 180. of process in bankruptcy, 215. against a trader, wben an act of bankruptcy, 231. Execution of deeds, order for, in equity, 88. Execution of trusts, suits for jurisdiction, 9. bow suits commenced, 31. form of plaint, 35. Execution, effect of bankruptcy on property taken in, 322. effect of petition for liquidation on, 377. Executors, applications to court by, 18. payment of money, &c. into court by, 53. Exemption from stamp duty of bankruptcy proceedings, 209. Ex-parte Applications in equity, 66. F. FARM CROPS, right to, in case of bankruptcy, 329. Fee, for taking the acknowledgment of a married woman, 145. Fees, under the equitable jurisdiction of the county courts, 116. registrar's fees, 116. high bailiff's fees, 118. in proceedings relating to small charities, 129. in proceedings under the Friendly Societies and Industrial and Provi- dent Societies Acts, 135, 139. registrars and high bailiffs' fees under " The Companies Acts, 1867". . 140. under admiralty jurisdiction, 183. under probate jurisdiction, 197, 198. decree for, 197. in bankruptcy, 402. Felony, appointment of new trustee in place of one convicted of, 19. Fieri Facias, writ of, as a warrant of execution in equity, 103. Filing of plaints in equity, 32, 33. documents in equity, general rule respecting, 68. instruments and documents in admiralty suits, 173. INDEX. 437 Filing of plaints in equity — continued. affidavits in bankruptcy, 213. petition in bankruptcy, 241. declaration of inability to pay, an act of bankruptcy, 230. Final Decree, in equity, 82. forms of, 82, 83. in admiralty cause, 178. Fine on assessor in admiralty cases for non-attendance, 175. Fiest meeting of bankrupt's creditors, 263. See Meetings of Creditors. Fixtures, when goods and chattels in bankruptcy, 312. Foreclosure, jurisdiction in suits for, 10. how suits commenced, 31. forms of plaint, 37, 38, 39. decretal order in suit for, 86. final decrees, 83. registrar's certificate of amount due, 95. Foreign Ships, arrest of, 150. Form of affidavits, in bankruptcy, 213. Formal defects not to invalidate proceedings in bankruptcy, 209. FORMS of proceedings and documents in equity, 32 n. in bankruptcy, 208. Fraud, setting aside agreements in case of, 15. actual, in contracts, 15. constructive, 15, 16. Fraudulent Conveyance, an act of bankruptcy, 227. Fraudulent Debtors, punishment of, 419. Fraudulent Preferences, avoidance of, in bankruptcy, 318. Friendly Societies, jurisdiction in the case of, 130. parties to the suit, 132. proof of rules, 135. enforcement of orders, county court rules respecting, 135. fees, 136. costs, 136. forms, 136, 137. Fund in court, in equity, powers and duties of the registrar in respect of, 99. payment of costs out of, 119. Funeral Expenses, certificate of registrar as to (in equity), 93. G. Gaming Securities, delivering up to be cancelled, 16. Gazette. See London Gazette. Goods, execution in equity to enforce delivery of, 101. warrant of possession of, 104. 438 INDEX. Goods and Chattels, right of trustee and creditors to, of which bank- rupt reputed owner, 310, 311, 312. taken in execution, effect of bankruptcy on, 322. Grant of probate and administration, jurisdiction of county court in questions as to, 190. Guardian of Infant, petition by, 49. H. Heading and Conclusion, general form of, for plaints, 34. for notices, admissions, statements, orders, certificates and warrants, 52. for decretal order, or decree, or orders of committal, 78. Hearing, the, in equity, 73. how parties to come prepared, 73. evidence, 73. examination of witnesses before hearing, 71. notice of intention to use affidavits, 72. amendments, 74. trial by jury, 74. decrees and decretal orders, 77. final decree, 82. re-hearing, 84. registration of decrees, 84. Hearing of admiralty suits, 173. See Trial. notice of hearing, 173. Hearing and adjudication on petition in bankruptcy, 254. adjournment of hearing, 255. Heirs- at-Law, suits by, 6. how commenced, 31. High Bailiff, to serve process in equity, 59, 102. to superintend sale of personal property, 88. to pay over money, 103. fees of, in equity, 118. in winding-up societies, &c, 140. to serve process in bankruptcy, 215. High Court of Admiralty, concurrent jurisdiction of, 161. transfer of admiralty causes by, 167. transfer of sale of property to, 181. appeal from decree of, 182. High Seas, limit of, 14G n. I. Identification of petitioner in bankruptcy, 242. Imposition, setting aside contracts obtained by, 16. Imprisonment for contempt in equity, 105. on a judgment-summons in equity, 107. Inability to pay, declaration of an act of bankruptcy, 230. index. 439 Income of bankrupt, setting aside part of, 333—335. Incumbrances on real estate, certificate of registrar as to (in equity), 04. Industrial and Provident Societies, disputes in, 132. Infant Trustees, and mortgagees, transfer and vesting of property of, 19. Infants, equitable jurisdiction of county courts relating to, 20. undertaking by next friend of, to pay costs, 33. proceedings mating to tbe advancement of, 49. form of petition, 51. payment into court of money or legacy to which infant entitled, 97. in bankruptcy, cannot be made bankrupt, 222. Injunction, • in equity, proceedings for order in the nature of, 22, 51. rule relating to, 52. form of notice of application for order in the nature of, 52. form of prayer for, to restrain action, 39. to restrain disposal of partnership property, 41 n. mode of applying to the court, 66. upon affidavit, 74. power to award damages in addition to or in substitution for iui unc- tion, 75. order in nature of, 82. service of, 102. committal for contempt for breach of, 105. in bankruptcy, 249, 256. costs in, 414, 415. Inquiries (in equity), reference to the registrar to make, 89. Inspection, committee of, in bankruptcy, 263, 275. See Committee of Inspection. Inspection of documents in equity, 68. in admiralty suits, 172. Institution of suit in admiralty cases, 163. Instruments, inspection and copies of, in admiralty suits, 172. Interest on debts and legacies in equity, 100. certificate of registrar as to, 93, 94. on costs in equity, 124. on certain claims in admiralty causes, 170. on debts in bankruptcy, 354. Interpleader, in bankruptcy, 325. IRELAND, execution of orders and warrants in bankruptcy in, 204, 205. but Bankruptcy Act does not apply to, unless cxpressl v 'provided, 201 n., 204 n. Irregularities not to invalidate proceedings in bankruptcy, 209. J. Joint Contracts in bankruptcy, actions in respect of, 330. Joint Creditors, proof, and dividends in bankruptcy in respect of, 354. 440 INDEX. Joint Stock Companies, equitable jurisdiction of county courts does not apply to winding-up, 22. power of county court judges to take evidence in, 138. Joint Tenant, cannot maintain suit for partition, 17. Judges of county courts, commissioners for taking evidence in winding-up companies, 22. in equity, to determine suits at hearing, 74. power of, to amend, 74. to try questions of fact, and assess damages without a jury, 75. principles on which they act in equity, 77. applications to, in equity suit, for further directions, 95. power to determine questions between attorney and client, 141. jurisdiction of, in salvage cases, 151, 156. powers and jurisdiction of, in bankruptcy, 203. delegation by, of powers to registrar, 204, 205. Judgments, registration of, in equity, 84. Judgment-Summons in equity, order of commitment on, 107. Jurisdiction of County Courts, in equity, 1. in general, 2. in suits by creditors, legatees, devisees, heirs-at-law and next of kin, 6. in suits for the execution of trusts, 9. in suits for foreclosure, or redemption, or for enforcing any charge or lien, 10. in suits for specific performance of, or for the delivering up or can- celling any agreement for the sale or purchase of property, 12. in suits for partition, 17. in proceedings under the Trustees Relief Acts or under the Trustee Acts, 18. in proceedings relating to the maintenance or advancement of infants, 20. in questions as to the separate property of married women, 21. in suits for the dissolution or winding-up of any partnership, 21. in proceedings for orders in the nature of in j unctions, or for stay of proceedings at law, 22. in suits transferred to the county courts, 23, 110. transfer of suits to Court of Chancery where subject-matter exceeds jurisdiction of county court, 109. Jurisdiction of Court, in equity, transfer and vesting of property where trustee or mortgagee out of, 19. service of plaint and summons out of, 60. examination of witness out of, 72. special equitable jurisdiction in various matters, 125. in admiralty cases, 146. jurisdiction in maritime cases before the County Courts Admiralty Jurisdiction Act, 1868.. 146. admiralty jurisdiction under the County Courts Admiralty Jurisdiction Act, 1868, and the Amendment Act, 1869.. 157. appeals to the county courts from the decision of surveyors as to the unseaworthiness of vessels under the Merchant Shipping Act, 1871 ..189. in questions as to the grant and revocation of probate of wills and letters of administration, 190. INDEX. 441 Jurisdiction of the county courts in bankruptcy, 190, 203. (1) General scope and principles of the Bankruptcy Act, 1869.. 199. (2) Description of the court, 201. change of jurisdiction by chancellor, 203. (3) General powers and jurisdiction of the courts and judges, 203. (4 ) Rules for regulating the practice and procedure, 206. (5) Record and form of proceedings, 207. service of debtor's summons out of the jurisdiction, 236. Jury, trial by, in equity cases, 74. in bankruptcy, 301. Justices, jurisdiction of, in salvage cases, 152. disqualification of bankrupt, 420. Justification of Surety, affidavit of, in admiralty suit, 171. in bankruptcy, 215. form of, 258. K. " Keeping House," an act of bankruptcy, 229. Kin, next of, suits by, 6, 31. See Next of Kin. Land, proceedings in equity relating to charge on, where to be taken, 30. where object of suit in equity is to recover or defend possession of, nature of relief to be given, 76. execution to enforce delivery of, 104. Lease, of property, jurisdiction in suits respecting, 13. how suits commenced, 31. disclaimer of, in bankruptcy, 326. determinable on bankruptcy, 328. Legacies, cognizance of, by courts of equity, 6. jurisdiction of county courts in respect of, 2. certificate of registrar as to, 94. interest on, 94, 100. Legacy, payment of, to which an infant or person bevond seas is en- titled, 97. Legacy Duty, payment of, 100. Legal Assets, 7. Legal Title, when may prevail over equitable, 76. Legatees, jurisdiction in suits by, 6. suits by, in equity, 8. equities of, 9. suits by, how commenced, 31. forms of plaint, 36. Letters, post, of bankrupt may be delivered to trustee, 294. Letters of Administration, jurisdiction of county court respecting grant or revocation of, 190. 442 INDEX. Lien, suits for enforcing, 10. when proceedings to be taken, 30. how commenced, 31. decretal order of sale in suit, 80. Limitation of jurisdiction in equity, 4. Limitation of time for recovery of mortgaged property, 1 1 . Liquidation by arrangement or composition with creditors, 371. general effect of provisions, 371. arrangement, 372. composition, 378. rules respecting, 381. forms, 391. scale of costs, 413. Literary and scientific institutions, j urisdiction of county courts on dis- solution of, 2, 129. rules respecting, 135. London Bankruptcy Court, 201. district, definition of, 202. London Gazette, advertisements in, in equity suits, 96. in bankruptcy, 209, 260. register of notices in, 284 n. Lunatics, transfer of estate of trustees or mortgagees, being, 19. M. Main Sea, defined, 146 n. Maintenance, of infants, jurisdiction of county courts, relating to, 20. form of petition respecting, 51. of bankrupts, allowance for, 294. Manager, appointment of, in bankruptcy, 251. costs of, on dismissal of petition, 262. Mandamus to compel performance of duties, 14. Maritime Cases, jurisdiction in, 146. Maritime Lien, 150. Marriage, abatement of suit in equity by, 100. Married Women, jurisdiction of county courts in questions as to separate property of, 21. undertaking by next friend of, to pay costs, 33. payment of money where married women interested, 97. applications by, as to property in friendly and other societies, 132. acknowledgment of deeds by, 112. cannot in general be made bankrupt. 223. otherwise where sole traders, 223. Meetings of Creditors in Bankruptcy, first meeting, 263. ( 1 ) General provisions, 263. (2) Proceedings preliminary to the meeting, 264. place of meeting, 264. form of notice of first meeting, 260. order for attendance of bankrupt, 265. form of order, 265. index. 443 Meetings of creditors in bankruptcy— continued. first meeting — continued. (3) The proceedings at the meeting, 265. business to be transacted, 200. adjournment, 260. by creditors, 267. (4) The attendance of the bankrupt, 26.", 207. production of statement of affairs, 207. form of statement, 268. (5) The right and mode of voting, 269. proxy, 261). how votes are estimated, 269. quorum, 270. (6) Minutes and report of proceedings, 270. form of minutes, 270. list of creditors present, 271. form of report and certificate of appointment of trustee, meetings subsequent to the first, 295. form of order of court for general meeting, 296. meeting to authorize trustee to accept a composition, 2ti7. meeting on resignation or death or removal of trustee, 27S. meetings of creditors on liquidation by arrangement or composi- tion, 373. regulations as to meetings, 373, 374, 381. meetings of creditors on liquidation bv composition, 378. regulations as to meetings, 378, 381. Memorandum to be placed at foot of everv summons, notice, decree or order of court or any other process, M. Mercantile Assessors, in admiralty cause, 175. Merchant Shipping Acts, 150, 151, 189. Metropolitan County Courts, list of, 202. Minutes of proceedings at first meeting of creditors, 270. at meeting on resignation, &c. of trustee, 279. Money, ill /'quit)/, payment of trust, into court, 19, 53. rules respecting, 96, 97. forms respecting, .".7, 58. applications in equity to enforce payment of. 66. order for payment of, into court of, to which infant or person beyond seas is entitled, 97. J mode of enforcing payment of, 103, 105. warrants of execution, 10.J. high bailiff to pay over, within twentv-four hours, 10:i. judgment Bummons on default of payment of, 107 L08* deposit of, as security in admiralty suit, 170. in bankruptcy, 214. payment out of co'urt of, in admiralty suit, 181. in hankriijitcii, property includes money, 201 n., 309. delivery of, to trustee, 832. payment or delivery of, when protected, 320. dividend to lender of, when he had share of profits, 368. form of order for payment of, out of Bank of England, 36a 444 INDEX. MORTGAGE, jurisdiction of county courts in reference to, 10. court in which proceedings relating to, to be taken, 30. forms of plaint respecting, 37 — 39, 44. certificate of amount due on, 95. admiralty jurisdiction in the case of mortgaged ships, 149 n. power of trustee in bankruptcy to, 283, 340. where not fraudulent in bankruptcy, 320. Mortgage Debts, payment of, out of personalty, 8. principles of equity respecting, 10 — 12. registrar's certificate of amount of principal and interest in foreclosure suit, 95. taking account of, in bankruptcy, 341. Mortgagees, rights of, in law aud equity, 10, 12. transfer of property of lunatic or infant, 19. decretal orders in suit by, 80. of vessels, claims and actions by, 148. Mortgagors, rights of, in law and equity, 10. Motions, applications in bankruptcy to be by, 212. notice of, 212. notes of, 213. order in which motions heard, 213. Mutual Credits, debts and dealings in bankruptcy, 342. N. NAME, of parties in plaint, 31. when christian name unknown, 32. Nautical Assessors, in admiralty causes, 174. Naval Prize Act, 160 n. Necessaries, claims for, supplied to ships, 148. county court jurisdiction in respect of, 160. statement in affidavit of national character of vessel in suit for, 170. Neglect to obey decree or order in equity, committal for contempt for, 105, 106. Next Friend, undertaking by, for costs, 33. of infant, petition by, 49. Next of Kin, suits by, 6. how commenced, 31. form of plaint, 35. certificate of registrar as to, 94. Note, of decretal order or final decree, 84. of motions in bankruptcy, 213. Notice, in equity, general form of heading for, 52. of payment of money or transfer of stock or deposit of security (equity), 58. to treasurer of deposit of security, 59. service of notices, 60. of admission, 61. to admit and inspect documents, 69. INDEX. 44o "Somen— continued. of intention to use affidavits at hearing, 72. of decretal order to absent parties, 86, K8. in equity, 'X2. to creditor to prove his claim, 91. of allowance of claim, 91. to inspect registrar's certificate, 95. of decree or order, 102. to enforce decree or order, 105. of intention to apply for discharges from custody, IOC, 107. in admiralty cases, of defence in suit for collision, 107. of sureties, 171. of hearing, form of, 173. to defendant of proceedings nnder Probate Act, 195. in bankruptcy, may be sent by post unless otherwise prescribed, 215. register of gazetted notices, 284 n. service of notice of motion, 212. of proposed sureties when security required, 215. by debtor of intention to dispute petition, 218. form of, 248. of sureties on bond on day of proceedings, 258. of first meeting of creditors, 260. of meeting on resignation of trustee, 278. to trustee at instance of comptroller, 286. form of, 287. of application for committal of bankrupt, 289. in gazette of appointment of trustee and of day for public examination, 292. in gazette of meeting to authorize trustee to accept composition, 297. of act of bankruptcy, 328. taking away right of set-off, 345. of application for committal for non-delivery of monies or securities, 333. of application to set aside part of salary or income, 335. of intended dividend, 355. of dividend declared, 356. of application for bankrupt's discharge, 362. to creditors of application for discharge after close of bankruptcy, 308. that creditor seeks to enforce payment out of property of undischarged bankrupt, 370. to creditors of general meeting for liquidation, 392. for gazette, 393. of second general meeting, 397. O. Oath, examination of witness in equity on, 72, 7.'!. in admiralty causes, 170. before whom affidavits to be sworn in bankruptcy, 214. Offences by bankrupt, 294. Office Copies of proceedings in bankruptcy, 209 Officer of county court, proceedings against, where to be taken. 31. 446 INDEX. Onerous Property, disclaimer of, in bankruptcy, 325. proof where persons injured by disclaimer, 348. Oppression, setting aside contracts in case of, 16. Oral Evidence, in equity suits, 73. in admiralty causes, 176. Order in Council appointing county courts to have admiralty jurisdic- tion, 158. Order or Disposition of bankrupt, clause as to goods and chattels in, 309, 310. Orders, equity, power to frame, 3. general form of heading for, 52. in the nature of injunctions, jurisdiction of county courts in, 22. proceedings for, 51, GG. ex parte, 66. how drawn up and executed, GG. enforcement of orders, 102. service of order in nature of injunction, 102. committal for neglect to obey, 105. See Decretal Order and Decree. general orders and rules relating to companies and winding up, 139. enforcement of, under Friendly and other Societies Acts, 135. form of order, 13G. orders for regulating the practice and procedure of the admiralty jurisdiction of county courts, 158. of the Court of Passage, 158. in probate cases, 194. enforcement of orders in bankruptcy, 205. Outstanding Estate (in equity), certificate of registrar as to, 94. P. Parties, how to come prepared on hearing of equity suit, 73. adding, in equity, 86. notice of decretal order to absent, 86. inquiries by registrar as to absent, 88. parties to suit under Friendly Societies and other acts, 132. appearance of, in bankruptcy, 211. Partition, jurisdiction in suits for, 17. [petition must be for a partition and not merely for a sale, see Hol- land v. Holland, 41 L. J., Ch. 220, reported since p. 17 went to press.] Partnerships, equitable jurisdiction of county courts over, in suits for winding up, 21. general jurisdiction of courts of equity over, 22. in what courts proceedings to be taken, 30. how suits commenced, 31. form of plaints, 40, 41. decretal order for dissolution, 81. final decree, 82. INDEX. 447 Partnerships— r««f inued. bankrupt oy, provisions respecting, petition against, 222. presentation of petition, 242. affidavit for summoning debtors in partnership, 234. petition by co-partnership, 242. actions and suits by trustee in the case of, 33G. dividends where one partner bankrupt, 357. " Party and Party," costs as between, in equity, 120. Passage Court of Liverpool, 158. Payment, in equity, of legacy or money to which an infant or person beyond seas is en- titled,"^. of legacy and succession duty, 100. of money by high bailiff, 103. execution to enforce, payment of money under decree or order, 103. out of court in admiralty suits, 181. in bankruptcy, when protected, 320. of money to trustee, 332. Payment into court, in equity, of trust monies, 19. of purchase-money, applications to enforce, 66. directions as to, 96. Payments due at stated periods, proof in bankruptcy in the case of, 348. Pecuniary Legatees, plaint by, 35. Penalty, when equity cannot relieve against, 77. Pension, of bankrupt, appropriation of, 333. Peremptory Motions, in equity, rules respecting, 66, 67. Performance, Specific, suits for, 13. where proceedings to be taken, 30. how, 31. form of plaints, 42, 43, 44. Perjury, in evidence in admiralty suit, 176. Personal Estate, administration of, in county courts, 6. transfer of, 19. sale of, in equity, 88. certificate of registrar as to, 92. limit of, to give jurisdiction in probate cases, 190, 191. Petition, proceedings in equity by, 49. rules relating to, 49. general form of heading and conclusion for, 50. forms of petition, 50, 51. paper <>n which to be written, 33 n. service of, 60. under " The Attorneys and Solicitors Act, 1870".. 140. Petition in Bankruptcy, 241. who may petition, 224. presentation of petition, 241. where to be tiled, 241. time for presentation, 842. 448 INDEX. Petition in Bankruptcy — continued. presentation in the case of partnerships, 242. by company or co-partnership, 242. form of, 243. verification, 244. service, 246. notice by debtor of intention to dispute petition, 248. restraint of actions and legal process after presentation of, 249. appointment of receiver and manager after, 251. arrest after presentation, 252. the hearing, 254. staying proceedings, 255. adjudication, 259. dismissal of petition, 261. appeal from dismissal, 262. Petition for Liquidation in bankruptcv, 381. form of, 391. affidavit in support of, 391. Petitioner in bankruptcy, 224. identification of, 242. Petitioning Creditor's Debt, in bankruptcy, 224. the amount, 224. nature of the debt, 224. secured debt, 224. date of debt, 225. Pilot, defence in admiralty suit that vessel in charge of, 167. Plaint, proceedings in equity by, 31. what to state, 31, 32. form of, 32. entry of filing, 31. delivery of, and copies, 32. general form of heading and conclusion for, 34. service of summons in proceedings by, 6(5. Plaintiff's proceedings to commence suit in equity, 30. Pledged Property of bankrupt, account and sale of, 341. Possession of property, ex parte application to obtain, in equity, 66. of goods, warrant of, in equity, 104. taking, of property in bankruptcy, 330. cause of, admiralty jurisdiction in respect of, 148. Post, notices and other proceedings in bankruptcy when may be sent by, 215. post letters to bankrupt may be ordered to be delivered to trustee, 294. form of order to postmaster general, 294. Post Office Savings Banks, payment of trust money into, in equitv, 19, 97, 99, 100. rules respecting drawing money out of, 99. Power of Sale generally inserted in mortgage, 11. Power of the trustee, in bankruptcy, 282. Practice in bankruptcy, general provisions and rules relating to, 210. INDEX. 449 Praecipe in admiralty cases, to institute suit, 1C4. to enter appearance, 166. for paying in money, 167. for office copies, 173. for warrant of execution, 180. Preferences, avoidance of fraudulent, in bankruptcy, 318. Preparation of deeds, order for, in equity, 88. Presentation of petition in bankruptcy, 241. Principles on which judge acts in equity, 77. of law in reference to persons liable to be adjudged bankrupt, 218. Prior act of bankruptcy, 308. Priority, in eguitij, between actual mortgagees, 1 2. in bankruptcy, of certain debts, 357. in other cases, 357. creditors of partnership where one partner bankrupt, 357. lender of money on receipt of share of profits, 358. apprentices and articled clerks, 328, 358. Prison, committal to, for contempt in equity suit, 105. on judgment summons and order, 107, 108. to what, commitment in bankruptcy to be, 206. Privilege of parliament, does not avail against bankruptcy, 223. Prize Cause, not within county court admiralty jurisdiction, 160. Probate of wills, jurisdiction of county courts in questions as to, 190. Proceedings, form of, in equity, 32 n. Proceedings, stay of, at law under equitable jurisdiction, 22. stay of suit or proceedings, 64. transfer of, in equity, 109. Proceedings in equity book, 32 n. at meetings of creditors in bankruptcy, 265. minutes of proceedings, 270. See Meetings op Creditors. Process, in equity, to be under seal, 33 n. form of heading and conclusion of, 34. service of, 59. in bankruptcy, service of, 215, 216. Production of documents in equity, 70, 71. Proof of claims in equity, 90. notice to creditor to prove, 91. creditors' costs of proof, 124. PROOF of Debts in bankruptcy, 342. description of debts proveable, 342. proof in case of mutual credits, debts and dealings, 344. D. VOL. II. G G 450 INDEX. Proof of Debts in bankruptcy — continued. by secured creditors, 346. in the case of rent and payments due at stated periods, 348. where persons injured by disclaimer of -onerous property, 348. against separate estates, 349. rules relating to proof of debts, 349. Property, in equity, suits respecting agreements for the sale or purchase of, 12. proceedings in equity to secure the possession of, 66. order for sale of, 88. claims against, in maritime cases, 150. arrest and detention of, in admiralty causes pending proceedings, 170. appraisement of, 181. warrant of execution against, in admiralty causes, 180. transfer of sale of, 181. in bankruptcy, definition of, 201. effect of adjudication on, 307. devolution of, on trustee, 274, 307. power of trustee in respect to, 282. superintendence of, by bankrupt, 293. description of, divisible amongst creditors, 308. voluntary conveyance and transfer of, void, 317. fraudulent conveyance and transfer of, void, 318. taken in execution, 322. disclaimer of onerous, 325. defeasible property, 327. getting in property, 330. taking possession of, in general, 330. dealing with property of a particular kind, 331. stocks and shares, copyholds, choses in action, deeds and books, 331. delivery of securities, 331. sequestration, 331. delivery of money and securities by agents, 332. appropriation of pension or salary, 333. actions and suits in respect of, 336. discovery of, 337. seizure of, by warrant, 339. sale and mortgage of, 340. taking accounts of, mortgaged or pledged, and of the sale, 341. Protection of certain transactions in bankruptcy, 320. Proxy, votes by, in bankruptcy, 269. form of, 352. Publication of adjudication of bankruptcy, 260. Puffing, effect of, on contracts of sale, 15. at auctions, 15 n. Punishment of Fraudulent Debtors, 416. Purchase of property, equitable jurisdiction of county courts respecting agreements for, 12. how suits commenced, 31. Purchase-money, application in equity to enforce deposit or payment into court of, 66. INDEX. 431 Q- QUORUM, to constitute meeting in bankruptcy, 270. to constitute meeting of committee of inspection, 275, 277. R. Real Estate, administration of, by county courts, 6. transfer of, 19. form of plaint for performance of agreement for sale of, 43. certificate of registrar as to, 94. order for sale of, 96. limit of jurisdiction in probate cases in respect of, 190, 191. Receipt of trust money, form of acknowledgment of, 57. Receiver, in equity, appointment of, 86. duties of, 86. bond to be given by, 87. in bankruptcy, appointment of, 251. costs of, on dismissal of petition, 262. Record of proceedings in bankruptcy, 207. Record for trial in equity, in cases of questions of fact or of damages, 76. Records of admiralty suits, inspection of, 172. Redemption, suits for, 10. bow commenced, 31. form of plaint, 37. Reference, decretal order for, in foreclosure suit by legal mortgagee, 80. iu equity to the registrar, 88. to take accounts or to make inquiries, 89. Reforming agreements, suits for, 13. how to be commenced, 31. Registrar, in equity, reference to in equity, 88. to take accounts or to make inquiries, 89. certificate of, on any matter referred to him in equity, 92. form of certificate, 92. notice of inspection of certificate, 95. certificate of amount due on mortgage, '.».". to Real and issue process of execution, 102, powers and duties of, in respect of funds in court, 99. accounts of, how audited, 100. fees of, in equity, 1 lij. in winding-up societies, 140. fa bankruptcy, delegation of bankruptcy powers to, 204, 205. first trustee before appointment of creditors' trustee, 307. certificate that registrar trustee, 260. not required to trive security, 276 n. travelling expenses of, 264. G o 2 452 INDEX. Registration of mortgaged deeds, 12 n. of shares, plaint to secure, 47. of decrees, 84. and orders in admiralty causes, 178. Rehearing of suit in equity, 84. " Relation BACK," doctrine of, in bankruptcy, 308. Release of property arrested in admiralty suit, 170. form of order, 172. of trustee in bankruptcy, 365. Removal of trustee of friendly society, 131. of trustee in bankruptcy, 277. Rent, effect of bankruptcy on, 329. proof in the case of, 348. Rent and Profits account, in equity, certificate of registrar as to, 94. Report of proceedings at meeting of creditors in bankruptcy, 270. form of report, 272. of trustee for closing bankruptcy, 359. Reporter's Notes of evidence of witnesses in admiralty causes, 176. Representation of creditors in bankruptcy, 212. Representative character of parties, to be described in plaint, 31. Reputed Ownership, by bankrupt of goods and chattels, 309, 310. " Reside " and " Residence," where court in which proceedings in equity to be taken depend on, 30. meaning of, 31. Residuary Legatees, form of plaint by, 35. Resignation of trustee in bankruptcy, 277. Resolutions, of creditors in bankruptcy for liquidation bv arrangement, 373, 376. by composition, 378. forms, 396. Restraint, in equity, of action to recover deposited deeds, form of prayer for injunction, 39. in bankrrqrtcy, of actions and legal process after presentation of petition, 249. Return Day of summons or petition in equity, 33. dismissal of the suit at plaintiff's instance before, 72. how parties to come prepared on, 73. Returns, to be made to comptroller in bankruptcy, 286. Reversionary Interests, contracts respecting cannot be set aside on the ground of undervalue, 16, 17. Revivor and Supplement, of suit in equity on abatement, 100. order of revivor, 101. index. 453 REVOCATION of probate and letters of administration, 190. Rules and Orders in equity, power to frame, 3. in probate cases, 192. relating to companies and winding-up societies, 139. Rules in bankruptcy, power to make, 206. Rules of friendly societies, proof of, 135. S. Salary of bankrupt, appropriation of, 333. Sale of property, equitable jurisdiction of county courts respecting agree- ments for, 12. how suits commenced, 31. form of plaint for specific performance of, 43. applications in equity to compel, 66. order for, 88. forms of order, 96. sale instead of foreclosure of mortgaged property, 11. power of, generally inserted in mortgages, 11. sale may be directed in a suit for partition, 17. by auction, employment of puffers at, 15. transfer of sale of vessel or property under execution in admiralty suit, 17*/ D., 1 ol, form of order, 181. sale of bankrupt's property, 340, 341. Salvage, admiralty jurisdiction in respect of, 148. county court jurisdiction in, 151, 160. arrest and release of property in salvage cases, 170, 171. apportionment of, 176. Scale of Costs of counsel and attornies in equity, 121. in admiralty causes, 1 86. Scientific Institutions, jurisdiction of county courts on the dissolution of, 2, 129. Scotland, orders in bankruptcy, how far enforcible in, 204, 205. but Bankruptcy Act does not apply to, except as expressly provided 201 n., 204 n. Sea, definition of, for purposes of admiralty jurisdiction, 146 n. Seal of the Court, documents in equity to be sealed with, 33. in admiralty cases, 165. in bankruptcy, 207. SEARCH Warrant in bankruptcy, 339. addressed to high bailiff, 215," 216. form of, 339. Seaworthiness of Vessels, jurisdiction of county courts on appeals as tO| i8y. Second Mortgagee, rights of, 11, 12. Second Suits in admiralty cases, 169. 454 INDEX. Secured Creditor, definition of, in bankruptcy, 265, 266. proof by, 346. Secured Debt, not sufficient for petition, unless security given up, 224. Securities, delivery of, into court in equity, 19, 53. certificate of deposit of, 58. delivery of, to trustee in bankruptcy, 332. Security for money, ex parte application in equity to obtain, 66. for costs, on transfer of admiralty suits, 167. how to be given, 170. in bankruptcy, mode of giving -when required, 214. bond, 214. deposit in lieu of bond, 214. notice of proposed sureties, 215. justification, 215. execution of bond, 215. notice of deposit, 215. where petitioning creditor's debt secured, security must be given up, 224, 331. right of creditor to realize, 315. agent to deliver up to trustee, 332. Seizure of property of bankrupt, 339. form of warrant, 340. Separate Estates in bankruptcy, proof against, 349. Separate Property of married women, questions as to the, 21. Sequestration, on bankruptcy of beneficed clergyman, 331. Service of process, in equity, 59. of notice on absent parties, 88. of copy of decree or order, necessary before enforcing it, 102. of order in the nature of injunction, 102. in bankruptcy, service of process in general, 215. of orders to show cause and of notices of motion, 212. arrests and commitments, 215. notice of application for committal for contempt, 216. service of debtor's summons, 235, 236, 237. of petition in bankruptcy, 246. affidavit of service, 247. substituted service, 247. Services, allowance to bankrupt for, 294. Set-off in bankruptcy, 344, 345. Setting aside agreements between attorneys and clients, 140. Setting aside part of bankrupt's income, 333 — 335. Settlement of bankruptcy by assent to scheme of arrangement, 297. Settlements, avoidance of voluntary, in bankruptcy, 317. definition of " settlement," 317. Shares, plaint to secure registration and transfer of, 47. dealing with, in bankruptcy, 331. INDEX. 455 SHIPS, admiralty jurisdiction in the case of, 148. county court jurisdiction, 160. as to seaworthiness of, 189. Shorthand-writees' notes, in admiralty causes, 176. Sittings of court in equity, 33, 73. in admiralty suits, 173. in bankruptcy, 211. in chambers, 211. Societies, friendly, and other, jurisdiction in, 130. winding-up, jurisdiction in, 138. Solicitor and Client, costs as betweeen, in equity, 120. enforcing or setting aside agreements between, 140. See Attorney. Special equitable jurisdiction in various matters, 125. Specific (legatees), form of plaint by, 35. Specific Performance, jurisdiction in suits for, 12 — 17. in what court proceedings to be taken, 30. how, 31. forms of plaints for, 42, 43, 44. damages may be awarded in addition to, or in substitution for, 75. Stamp Duty, exemption of documents in bankruptcy, 209. Stannaries Courts, jurisdiction of, preserved, 4. Statements, general form of heading for in equity, 52. form of defendants in equity, 63. of his affairs by bankrupt, 267, 268. STATUS of undischarged bankrupt, 369. Stay of proceedings at law, orders for in equity, 22, 64. on petition in bankruptcy, 255. when petitioner's debt denied, 255. where proceedings for liquidation by arrangement or composition pending, 256. where another petition presented, 261, 262. form of order to stay proceedings, 257. Stock, transfer of, into court (in equity), 19, 53. assignment of by way of mortgage, 38. forms of certificate and of receipt of transfer ticket, 57. of notice of transfer, 58, 59. dealing with, in bankruptcy, 331. Stoppage in transitu, 315. when the transit ends, 316. SUBPCENA or summons to witness in bankruptcy, 217. Substituted service of process in equity, 59, 60. of debtor's summons in bankruptcy, 235. forms, 237. of petition in bankruptcy, 247. Succession Duty, payment of, 100. 456 INDEX. Suits in Equity, provisions relating to actions applied to, 5. jurisdiction in suits, 3. See Jurisdiction and Table of Con- tents. transfer of equitable, to and from county courts and Court of Chan- cery, 23, 109. • general course of proceeding in, in county courts, 24 — 29. to be heard in open court, 73. plaintiff's proceedings to commence, 30. defendant's proceedings in, 61. dismissal of suit at plaintiff's instance before return-day, 72. rehearing, 84. abatement of, by death, marriage or otherwise, 100. suits in friendly and other societies, parties to, 132. institution of suits in admiralty cases, 163. cross or second suits in, 169. suits by trustee in bankruptcy, 336. Summoning witnesses, in equity, 70. jury in equity, 74. Summons, proceedings in equity by, 31. form of, 48. rule respecting, 33. service of, 60. to witness, 70. application for, to produce documents, 71. proceedings in admiralty cases by, 165. form of, 166. to assessors in admiralty cases, 1 75. judgment-summons in equity, 107. to witness in bankruptcy, 217. to persons suspected of having property of bankrupt, 337. debtor's, an act of bankruptcy, 231. form of, 232. service of, 235. Superintendence of property by bankrupt, 293. Supplementary decree or order on abatement of suit in equity, 100, 101. Sureties, notice of, in admiralty suits, 171. affidavit of justification, 171. bail bond, 171. in bankruptcy, notice of, 215, 258. justification, 215, 258. Surrender of leases by trustee in bankruptcy, 326. Surveyors of Board of Trade, appeal from decision of, under the Merchant Shipping Act, 1871.. 189. Taxation of costs in equity, 124. of attorney's bills, 141, 142. of costs in admiralty causes, 188. of trustee's costs in bankruptcy, 288. Tenant in Common, cannot maintain suit for partition, 17. index. 457 Tender in admiralty cases, 167. in salvage cases* 162. Things in Action, included in property of bankrupt passing to trustee, Ml n., 30/ . ' but things in action, other than trade debts, not within clause as to reputed ownership, 309, 314. dealing with, in bankruptcy, 331. action in respect of, 336. Time of sitting of county court in equity, 33. enlarging or abridging time for taking steps in equity, 66 computation of, in bankruptcy, 210. within which acts of bankruptcy must, be committed, 240. for presentation of bankruptcy petition, 242. for hearing petition, appointment of, 243. of commencement of the bankruptcy, 308. Title to ships and vessels, admiralty jurisdiction respecting, 148. Tools of trade, of bankrupt, not properly divisible amongst creditors, 309. Towage, claim for, in county courts, 160. Traders, for the purpose of " The Bankruptcy Act. 1869" 2^1 description of, 221. execution against trader an act of bankruptcy, 231. Transfer of shares, plaints to secure, 47. Transfer of stock by trustees (equity), 19, 53. form of certificate in case of, 57. " of acknowledgment of transfer ticket, 57. of notice of, 5S. Transfer of suits in equity, 109. to the Court of Chancery on application of the parties 109 to the Court of Chancery where the subject-matter exceeds' the juris- diction of the court, 109. J from the Court of Chancery to the county court 23 110 from one county court to another, 111. Transfer of admiralty causes, 167. by the High Court, 107. by the county court, 107. forms of order, 169. of proceedings for sale, of vessel or property taken in execution, 179. Transfer of winding-up from one county court to another, 138. Transfer of proceedings in bankruptcy, 300. form of certificate of judge for, 301. Transfers, voluntary, void in bankruptcy, 317. Trial of equity suits, 73. See Hearing. Trial of admiralty causes, I 7:!. sittings of the courts, 173. notice of hearing, 174. mode of deciding causes, 174. nautical assessors, 174. mercantile assessors, 175. apportionment of salvage, 1 76. interest, 176. 458 INDEX. Trial of admiralty causes — continued. evidence, 176. oral, 176. affidavits, 177. witnesses, 178. form of final decree or order, 178. registration of decrees or orders, 178. Tkial by jury in equity, 74. TRIAL of questions of fact by a jury in bankruptcy, 301. Trust Monies, payment of, into court, 19. Trust, property held on, by bankrupt not divisible amongst creditors, SOS, 310. Trusts, jurisdiction of county court in suits for execution of, 9. definition of, 9. how suits commenced, 31. form of plaints, '65. charitable trusts, equitable jurisdiction in, 125. Trustee in bankruptcy, 273. definition of word, 274. vesting of property in, 274, 307. the registrar trustee until appointment, 274. certificate that registrar trustee, 260. form of certificate, 261. appointment of trustee by creditors, 263, 273. evidence of appointment, 274. notice in Gazette of appointment, 292. bond by, 274. appointment to fill vacancy on resignation, 279. superintendence of trustee by committee of inspection, 275. regulations as to trustees and committee of, 276. death, resignation, or removal of trustee, 277. his duty, 279. control over and by comptroller, 286. power, 282. accounts, 283, 367. costs, 287. release of, 365. Trustee in Liquidation, appointment of, 373. powers of, 374. rights of, 376. Trustee Acts and Trustee Relief Acts, 18. proceedings under, where to be taken, 30. to be by petition, 49. forms of petition, 50, 51. facts to be proved by affidavits, 74. where a bankrupt is trustee under acts, new trustee may be appointed, 308, 309 n. Trustees (equity), jurisdiction of the county court in suits for the re- lief of, 18. application to court, 1 8. payment of trust monies into court, 19, 53. rules respecting, 53. in hex. 459 Trustees — continued. applications for removal and appointment of, 19. resting and conveying property of, 19. petition by, rules respecting, 49. costs, charges, and expenses in the case of, 120. Trustees of friendly societies, application for removal of, 131 powers of, 132. U. Unclaimed Dividends, in bankruptcy, 354. Undertaking, by next friend to pay costs, 33. form of, 33. Undervalue, effect of, in equity on contracts, 16, 17. Undischarged Bankrupt, status of, 369. Undue Influence, setting aside contracts by reason of, 16. Unseaworthiness of vessels, appeal from decision of surveyors as to, 189. V. Validity of certain transactions in bankruptcy, 320, 321. Verification of bankruptcy petition, iM4. Vessels, admiralty jurisdiction in respect of, 148. county court jurisdiction, 160. definition of " vessel" in admiralty orders, 159 n. arrest and detention of, pending proceedings, 170. execution against, 179. form of warrant, 180. appeal from decision of surveyors as to unseaworthiness of, 189. Vesting of bankrupt's property in trustee, 307, 309. Voluntary Conveyances and Transfers in bankruptcy, avoidance ot, 317. J Votes in bankruptcy, how estimated, 269. Voting in bankruptcy, 269. by proxy, 212, W. Wages, seamen's, admiralty jurisdiction in respect of, 148, 149. county court jurisdiction, 160. recovery of, in general, 160 n. on arrest of property in suit for national character of vessel to be stated, 170, Warrants, in equity, power to order and issue, 102. general form of heading for, 52. service of, 59. 460 INDEX. W arrant? — continued, in equity — continned. of possession, 102, 104. of execution for pavment of monev, 103. forms of. 103. 104, "l 07. of execution under the Friendly Societies and other acts, 137. in admiralty causes, of arrest of Tessel or property, 170. form of, 171. of execution, 1 7 9 forms, 18 j;j bankruptcy, enforcement of, 805. addressed to high bailiff. 215, 216. against debtor about to quit England, 252. of committal for contempt, 291. to apprehend person suspected of having property of bankrupt, 33$. .rch for property. ze property, 340. Wearing apparel, excepted from seizure in execution in equity. I excepted from bankrupt's property divisible amongst creditors, 300. Wills, probate of, grant and revocation of. Winding-up cf partnerships, jurisdiction of county courts in. 21. 31. does not extend to joint-stock companies, 22. judges of county courts in certain cases commissioners for taking evidence respecting, 22. WINDING-UP societies and companies. 13S. "Witnesses, examination of, in winding-up companies, 22. examination of, in equity, before hearing. 71. summonini; how evidence of, taken, 73 allowance to. 124. in admiralty causes, 177. scale of allowance to, 177. evidence of, 176. in bankruptcy, subpoena or summons for, 217. examination of, 293. taxation of, 217. "Women. See Marrted Women. Weongfcl Act, on application for injunction against the commission or continuance of, damages may be awarded, 75. LONDON* : PRINTED BY C. ROWORTH AND SON: NEWTON STREET, HIGH HOLBORN. Davis's County Courts Practice and Evidence. Fourth Edition. Lately published, one thick volume 8vo., 36s. cloth, postage Is. 6d. extra. THE PRACTICE AND EVIDENCE IN Hefums IN THE COUNTY COURTS. BY JAMES EDWARD DAVIS, OF TUE MIDDLE TEMPLE, ESQUIRE, BAKRISTER-AT-LAW. FOURTH EDITION. \* This is the only work on the County Courts which gives Forms of Plaints, and treats fully of the Law and Evidence in Actions and other Proceedings in these Courts. LONDON: BUTTERWORTHS, 7, FLEET STREET, I'ato (publishers to the 0>ccn's ttlost (fvccllcnt ittajtstij. 2 Davis's County Courts Practice S>- Evidence. 4th edit. PBEFACE. In presenting a Fourth Edition of a Work, an Author need not use many words by way of Preface. If an apology is required in this instance, it is for the delay (caused by various circumstances) in the appearance of the Work. Retaining as the prominent features, the Practice of the County Courts for the use of Suitors, and the Evidence in support of and in answer to claims brought in those Courts, considerable alterations have, nevertheless, been made in the present Edition. Instead of an Appendix containing an undigested mass of Statutes, Rules, aud Forms, these have been incorporated with the text under different heads. In the First Part of the Work (almost entirely new), the Constitu- tion and general Jurisdiction aud Procedure of the County Courts have been given, including a separate Chapter devoted to the Election to sue in those Courts iu reference to the important Question of the Right or Liability to Costs. In the Second Part of the Work, devoted to the Practice of the County Courts, the Sections of the Acts, and the Rules and Forms, have been given, as already mentioned, so that their precise language may be seen at once. As an illustration of the pains taken to render this part of the Work as complete as possible, reference may be made to the Chapter on Replevin, in which an attempt has been made to place the scope of that peculiar and most important remedy for wrongs, on an intelligible principle. In the part of the Work relating to Evidence in Particular Actions, besides bringing down the Cases and Acts of Parliament to the most recent date, new Chapters have been added on Easements and Eject- ments, so as to embrace the extended Jurisdiction of the Courts since the appearance of the Third Edition. In consequence of these and other additions, it has been found necessary to devote a separate Volume to the Equitable Jurisdiction aud Practice in Bankruptcy and in various miscellaneous matters. Carefully-prepared Tables of the Statutes, Rules, and Forms, given or referred to in the course of the Work, are prefixed, and also (iu compliance with a request from many quarters) a List of Cases Cited is given. OPINIONS OF THE PRESS. From the SOLICITORS' JOURNAL. " Mr. Davis says that, in presenting a fourth edition of a work, an author need not use many words by way of preface; neither with regard to so well known and valued a work need we say many words hy way of commendation. Learning and accuracy may he looked for with reasonable certainty in any work proceeding from the hand of the careful compiler of the volume on Poor Law in the late edition of Barn's Justice, nor has the publisher failed to contribute his full share to the excellence of the work. The distribution of the matter is upon the whole methodical and convenient. En the present work, however, besides the judgment with which the matter is distributed and the usual excellent topographical Davis's County Courts Practice dj Evidence. 47// edit. 3 arrangement, a good index at the end, and a very much better index of statutes at the beginning, go far to remove the difficulty which the omission of the ap- pendix might cause. We must repeat, that the book before us is well and care- fully compiled." From the LAW JOURNAL. " Mr. Davis's work has grown with the growth of his subject. The original edition was a manual — a title as modest as that of the first County Court Statute, 'An Act for the more easy Recovery of Small Debts ;'— and now the fourth edition appears under the title, fully justified by the contents, of the Practice and Evidence in the County Courts. In one respect, however, the County Courts have succeeded in outstripping Mr. Davis ; for, although he refers briefly to the fact that they now exercise a jurisdiction other than in actions at common law, it will be seen by the title that the work does not profess to deal with the practice and evidence of the Equity, Bankruptcy, Probate and Admiralty sides of this many-sided Court. The author has wisely abstained from attempting to compre- hend all these diverse subjects, which, if included, might have made his book more complete in theory, but would have derogated from its practical usefulness, and has confined himself to that class of subjects which forms the staple of County Court litigation. Mr. Davis's work has stood almost as long a trial as the County Courts themselves. The chapters on Evidence, clearly and tersely written, will repay the perusal of every common law practitioner, whether in the County or the Superior Courts. The book is altogether thoroughly well turned out down to its ready-cut pages, for which innovation all persons, especially reviewers, will thank the publishers." From the LAW TIMES. "A new edition attests the continued confidence of the Profession in Mr. Davis as a guide to the Practice of the County Courts. Erom a humble beginning it has grown into a very ponderous volume, with all necessary forms for practice, and full instructions to the court and to the practitioner what is to be done, and lunv it is to be done, when a case conies before them. " It was because these instructions were so full and accurate that Mr. Davis succeeded in so easily establishing his work as the Practice of the Count)' Courts, and in maintaining the position he had won. All who have used it speak well of it. They say tiny can readily find what they want, ami, better still, it contains the information they want, which cannot be said of all books of practice. A book of practice should assume that those who consult it require to be instructed upon the entire proceedings, from the first stop to the close, and every form to be used, however familiar it may be thought, should be given in exteitSO, with minutest directions what the practitioner is to do, when to do it, and htm to do it. This has been Mr. Davis's design in his Practice of the County Courts. There is another feature of this work. Besides the Practice, it contains a complete treatise on EviDEXCE in the County Courts, after the manner of Selwyu's Nisi Prius. Thus, all that can be wanted in court is contained under one cover, greatly to the saving of time and temper in laborious search. " It is undoubtedly the best book on the Practice of the County Courts." From the LAW MAGAZINE. "A text book which is well known in both branches of the Legal Profession. From a small beginning it has gradually grown into a bulky volume, and now contains an exhaustive exposition of the Law and Practice relating to the County Courts. The third part of this manual contains a valuable digest of the Law of Evidence as applicable to the procedure of the County Courts. In this particular it certainly excels all the other text books on the subject. The importance of this part of the work cannot be too highly estimati d " From the SOLICITORS' JOURNAL. " This is a greatly enlarged edition of Davis's Count) Courl Practice, a work well enough known to need no introduction to the legal public, or at any rate to that port ion thereof which is concerned with proceedings in the Count) Coarta. We can safely and heartily recommend the book for the perusal of all intending practitioners in any County Court." OTHER WORKS BY MR. DAVIS PUBLISHED BY MESSRS. BUTTERWORTH. Davis's Law of Registration and Elections. One small 12mo. vol., 15s. cloth. MANUAL OF THE LAW AND PRACTICE OF ELEC- TIONS AND REGISTRATION. Comprising all the Statutes, with Notes and Introduction, and a Supplement containing the Cases on Appeal down to 1869, the Rules relating to Election Petitions, and a complete Index to the whole Work. By James Edward Davis, Esq., Barrister-at-Law, Author of "Manual of Practice and Evidence in the County Courts," &c. " A work which, in our judgment, is the tively, in order to obtain a fair mastery of the handiest and most useful of the manuals which whole subject, we have no hesitation in highly the Reform Act of 1867 has brought into ex- recommending this work." — Solicitors' Journal. istence." — Law Magazine. " Xo one comes forward with better creden- " We think this the best of the now numerous tials than Mr. Davis, and the book before us works on this subject. It has a great advantage seems to possess the qualities essential to a in its arrangement over those which are merely guide to a discharge of their duties by the new editions of works published before the officials. The scheme of Mr. Davis's work is recent legislation. To read through consecu- very simple." — Law Journal. The Supplement may be had separately , price 3s. sewed. Davis's Law of Master and Servant. 12mo., 6s. cloth. THE MASTER AND SERVANT ACT, 1867 (30 & 31 Vict. c. 1-11), with an Introduction, copious Notes, Tables of Offences, and Eorms of Proceedings, prepared expressly for this Work. By JAMES E. DAVIS, Esq., Barrister-at-Law, Stipendiary Magistrate, Sheffield. *** Besides the Act and copious Soles, Introduction, and a variety of Forms of Summons, Orders, Convictions, Recognizances, Ac, specially prepared for tliis Work, Tables have been f rained classifying all the offences within the jurisdiction of Justices. It is hoped that this will be found vseful, not only to Magistrates and their Clerks, but to the Legal Profession generally; for in consequence of the new Act not describing the offences, but merely referring to a schedule of seventeen former Acts, it is very difficult to say what cases are or are nut within the purview of the new Act. The decisions of the Superior Courts, so far as they are applicable to the present law, are also given. Davis's Criminal Law Consolidation Acts. 12mo., 10s. cloth. THE NEW CRIMINAL LAW CONSOLIDATION ACTS, 1861; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by tbe Court of Criminal Appeal. Together with alphabetical Tables of Offences, as well those punishable upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the Old or New Statute upon which it is founded, and the Limits of Punishment ; and a full Index. By James Edward Davis, Esq., Barrister-at-Law. LONDON : BUTTEIIWORTHS, 7, FLEET STREET, ^al» llnblisbtrs to the ('Jurrn'8 |ttost (tvccllnvt Ithijcstn. a aiHiumw OF LAW WORKS PUBLISHED BY Messrs. BUTTERWORTH, Sato licobclta au^ |}ublifilm\'; TO THE QUEEN'S MOST EXCELLENT MAJESTY AND TO H.R.H. THE PRINCE OF WALES. " Now for the Laics of England (if I shall speak my opinion of them without "partiality either to my profession or country), for the matter and nature of them, " I hold them vise, just and moderate laics: they give to God, they give to Cicsar, " they give to the subject what appertained. It is true they are as mixt as our " language, comj/ounded of British, Saxon, Danish, Norman customs. And surely " as our language is thereby so much the richer, so our laws are likewise by that " mixture the more complete" — Lord Bacon. LONDON : 7, FLEET STEEET, E.C. 1878. gndcx to gafaJpQitc. Accounts, PAGE Solicitors'. Coombs... 39 Law of. Pulling ... 53 Actions at Law. Browne 54 Kerr 52 Lush 17 Williams 45 Administration Bonds. Chadwick 6 Admiralty, Practice. Coote ... 16 Prize Law. Lushington 46 Advowsons. Mirehouse 55 Agricultural Holdings. Bund 7 Aliens. Cutler 42 Appeals, Lords. Denison & Seott 9, 56 Arbitrations. Redman 4S Arbitrations (Masters and Workmen) . Lovesy 54 Articled Clerk. Law Exam. Journal 50, 56 Handy Bool;. Mosely 31 Student's Guide. Benham 51 Attachment. Foreign. Brandon ... 43 Average, General. Crump 34 Awards. Redman ... 48 Banking. Grant ... 38 Keyser ... 54 Bankruptcy. Bulley &Bund ... 24 County Courts. Davis 8 Index. Linklater ... 53 Robson 13 Bar. Pearce 51 Smith 43 Bar Examination Journal. 66 Kalendar. Shaw 51, 56 Barbados, Law of ... 52 Belligerents. Hamel 52 Phillimore 28 Bengal Code. Begidationsofthe. Field 49 Bills of Exchange. Grant 38 Bills of Sale. Hunt ... 42 Blackstone. Stephen's 5 Blockade Deano ... 54 Bookkeeping, Solicitors'. Coombs 39 Boundaries. Hunt ... 19 Brokers. Keyser ... 54 Burgesses' Manual. Gaches 44 Canal Traffic. Powell 46 Carriers, Inland. Powell ... 46 Railway. Shelf ord ... 33 Chamber Practice, Common Law. Parkinson 52 Chancery Division, Forms. Drewry ... 18 Chancery Practice. Goldsmith 24 Hunter 53 Drafting. Lewis ... 25 Channel Islands. Bowditch 53 Charitable Trusts. Tudor 31 Chart of Descents. Fearne 54 Hindu, of Inheritance 54 Church Building. ■ Trower 40,55 Church Seats. Heales 44,55 Circumstantial Evi- dence, -wills ... 47 Civil Law. Tomkins and Jencken 44 Civil Service Exam. (Indian). Cutler ... 52 Claims and Defences, Forms of. Drewry... 18 Code, English Law. Blaxland 54 Collieries. Bainbridge 19 Commentaries. Phillimore's, Inter- national ... ... 28 Stephen'sBlackstone's 5 Commercial, Forms. Crabb ... 30 Law. Chitty 54 Treaties. Hertslet 39, 41 Common Form Practice. Coote 7 Common Law, At Chambers. Parkinson 52 Costs. Gray 52 PAGE Common Law — cont. Pleading. Chitty, jun 32 Greening 53 Williams 45 Practice. Dixon 17 Kerr 52 Lush 17 Companies. Shelf ord... 17 Compensation, Law of. Ingram 41 Shelf ord 33 Consolidation Acts. Shelf ord 33 Criminal. Davis ... 45 Conspiracy. Davis 9 Law of. Wright ... 42 Constitution. May ... 11 Stephen 5 Constitutional History. Fulton 39 Contentious Business. Tristram 56 Contraband of War. Moseley :>i Contracts. Specif c Performance. Fry 39 Pothier 54 Contributories. Collier 46 Conveyancing, Introduction, to. Lewis 25 Practice. Barry 23 Rouse 20 Smith 41 Tudor ... 26 , 56 Forms. Ball 25 Barry 23 Christie 30 Crabb 30 Kelly 32 Rouse 20 Shelf ord 30 Convictions (Summary). Synopsis of. Oke 35 Forms. Oke 36 Co-operative Societies. Brabrook 29 Copyholds, Enfranchisement. Rouse 29 Law of . Scriven ... 29 Coroner. Baker ... 53 Corporations, Municipal. Caches ... 44 Sewell ... 54 In General. Grant ... 32 INDEX TO CATALOGUE. PAOE Costs, Law of. Gray ... 52 County Courts. Davis 8 Rules and Arts, 1876. Davig 8 '/ mid Bankruptcy, Davis 9 Criminal Law. Davis 45 Oke 35 Curates. Field 55 Customs LaWB. llamel 18 Deeds. Tudor 26 Defences in Chancery. Drewry 18 Descents. Fearne ... 54 Dictionary, Law. Mnzley &Whiteley... 10 Digest, Mouse Lords Cases. Clark 20 Patent Cases. Higgins 16 Directory of Magis- trates. Thorn ... 49 Divorce. Finn! Examination. Bedford 22 Practice. Browning 45 Domestic Servants. Baylia 32 Drafting, Equity. Lewis 25 Draftsman (The). Kelly 32 Drainage. Woolrych 31 Wilson 52 Easements. Latham... 40 Ecclesiastical, Practice. Coote ... 55 Judgments. Binder v. Heath . . . 55 Gorham v. Bp.of Exeter 55 Hebbert v. Purehas ...55 Long v. Bp. Cape Town 55 Martin v. Mackonochie 55 "Westerton v. Liddell... 55 Election, Law. Davis 40 Elementary Law. Francillon 52 Mosely 31 Enfranchisement, Copy- holds. Rouse ... 29 England, Laiusof. Blaekstone ... 5 Btephen ... 5 English Bar. Pearoe... 61 Smith ... 43 English Law. Blaxland 54 Equity, Doctrine and Practiceof. Goldsmith 24 Huberts 11 Draftsman. Lewis ... SB Equity and Law. ( Unite 36 I 'ivwry ... 52 alence of. Trowcr 14 Suit in. Hunter ... 53 See Chancery. PAGE Evidence, Circumstantial. "Wills 47 County Court. Davis 8 Law of. Powell ... C Wills. Wigram ... 46 Examinations. Preliminary. Benham 51 Journals ... ... 50 IntermediateandFinal. Mosely 50 Fences. Hunt 19 Final Examination. Judicature Acts. Bedford 22 Probate and Divorce. Bedford 22 Fisheries, Salmon, Bund 15 Oke 36 Foreign Attachment. Brandon 43 Foreshores. Hunt 19 Williams v. Nichol- son 52 Forms, Conveyancing. Barry 23 Crabb 30 Rouse 20 County Courts. Davis 8 Equity. Drewry ... 18 Magisterial. Oke ... 35 Probate. Chadwick... 6 Formulist, Magisterial. Oke 36 Frauds. Hunt 42 Friendly Societies. Brabrook 29 Gams' Roman Law ... 44 Game Laws. Oke ... 37 Gaming. Edwards ... 54 Gas Companies Acts... 40 Gavelkind. Robinson 54 General Average. Crump 34 Guarantees. DeColyar IS Health, Public. Glen 56 Highways. Glen ... 56 History, Constitution al . Fulton 39 House of Lords, Appeals. Denisonand Scott 9, 56 Practice. May 11, 56 ]>hi> si.'i Index toCases. (lark 20 Idiots, rhillipg ... 10 Income Tax Laws. Dowell 47 Indian Civil Service Kx.tm. Cutler ... 52 Indian Penal Code. Cutler and Griffin ... 49 Indian Statute Law. Field 49 Industrial & Provident Societies. Brabrook 29 Inheritance Indian Chart of. Field ... 54 Inns, Law of. Oke ... 3S Institutes of Public and Private Law. Nasmith 12 Insurance, Marine. Crump 34 Intermediate Exami- nation, Guide. Bedford ... 22 Journal ... 50, 56 International Law. Hamel Hertslet I'liillimore Jersey (Law of). Bowditch .. 52 .. 41 .. 28 .. 53 88 Joint Stock. Banks. Grant Companies. Shelf ord 17 Judicature Acts. Bedford Chute Drewry Trowcr Webb Jurisprudence. Form of Law. Holland 43 Webb 86 Justice of Peace. Oke 35 Kalendar, Bar. Shaw 51,50 Labour Laws. Davis 9 Landlord and Tenant. Bund 7 Fawcett 14 Law Dictionary. Mozley A: Whiteley... 10 Law and Equity. Chute 26 LawExam. Journal 50,56 Law Pamphlets. 52 to 55 Law Studies. Mosely... .".1 Smith " ... 48 Stephen's Blaekstone 5 Leading Cases, Peal Property. Todor 20, 50 Leases. Crabb 80 ae 20 y Duties. Shelf ord 46 Libel, Starkie. Folkard.. 15 Licensing Laws. Oke 38 Lifp Assurance. Blsfyney 54 Lord Mayor's Court. Brandon 43 A 2 INDEX TO CATALOGUE. TAGE Lords, House of, Appeals. Denison & Scott 9, 56 Cases. Clark 20 Lunacy. Phillips ... 10 Magisterial Law, Acts. Davis 45 Practice. Oke ... 35 Forms. Oke 36 Marine Insurance. Crump 34 Maritime Warfare. Deane 54 Hamel 52 Masters and Servants. Baylis 32 Davis 9 Masters and "Workmen. Lovesy 54 Matrimonial Causes. Browning 45 Mercantile Accounts. Pulling 53 Mercantile Law. Chitty 54 .Accounts. Pulling ... 53 Mines and Minerals. Bainbridge 19 Mortgages. Fisher 12,56 Rouse ... 20 Municipal Law. Caches 44 Grant 32 Naturalization. Cutler 42 Naval Prize. Lushington 46 Negligence. Saunders 41 Neutrals. Phillimore... 28 Ortolan's Roman Law 21 Outline of Law. Geach. 24 Pamphlets, Law. 52 to 55 Parliamentary. Clifford & Stephens... 48 Davis 40 May 11,56 Parsonages. Trower 40, 55 Partition. Lawrence ... 43 Partnership. Dixon... 21 Patent Cases. Higgins ... ... 16 Patents. Norman ... 52 Peerage Claims, Gardner. Le Marchant 52 Petty Sessions. Oke... 35 Pews. Heales ... 44,55 Pleading, Common Law. Chitty, jun. ... 32 Greening ... ... 53 Williams 45 Equity. Drewry ... 52 Lewis ... 25 PAGE Precedents, Conveyancing. Crabb 30 Rouse 20 Mortgage. Fisher ... 56 Pleading. Chitty ... 32 Preliminary Examina- tion Journal 51 Principal and Surety. DeColyar 18 Priority. Fisher 12 Private Bills. Clifford & Stephens... 48 May 11,56 Private Law (English) . Nasmith 12 Privilege, Parliamentary May 11,56 Privy Council Practice, Admiralty. Coote ... 16 Prize Law. Lushington 46 Probate, Final Examination. Bedford 22 Common Form. Coote 7 Contentious. Tristram 56 Forms. Chadwick ... 6 Duties. Shelf ord ... 45 Property Law, Ques- tions on. Aldred ... 47 Property Tax Laws. Dowell 47 Provident Societies. Brabrook 29 Public Law (English). Nasmith 12 Quarries. Bainbridge... 19 Railways. Shelf ord ... 33 Compensation. Ingram 41 Carriers. Powell ... 46 Real Property. Seaborne 23 Tudor 26,56 Chart. Fearne ... 54 Statutes. Aldred ... 47 Referees' Court Practice. Clifford & Stephens... 48 Clifford & Rickards... 48 Registration. Davis... 40 Religion. Church & State 55 Ritual. Bayford ... 55 Bullock ... 55 Hamel 55 Phillimore ... 55 Roman Law. Gaius 44 Ortolan 21 Tomkins 44 Tomkius and Jencken 44 Salmon Fisheries. Law of . Bund ... 15 Savings Banks. Forbes 43 Grant 38 Schools. Trower 40,55 Sea Shore. Hunt ... 19 TAGE Servants, Law of. Baylis 32 Davis 9 Settlements, Voluntary. Bouse ... 20 Sewers. "Woolrych ... 31 Sheriff. Sewell ... 54 Short Hand. Gurney 53 Slander, Starkie. Folkard 15 Solicitors' Bookkeeping. Coombs 38 Specific Performance. Fry 39 Stamp Laws. Dowell 47 Standing Orders. May 11,56 Statutes, Table of Lead- ing. Bedford 22 Stock Exchange. Grant 38 Keyser 54 Students' Examination Guide. Mosely ... 31 Succession Duty. Shelf ord 45 Summary Convictions. Oke 35 Suit in Equity. Hunter 53 Surety, Principal and. DeColyar 18 Tariff. Hamel 18 Hertslet ... 39 Tenancies, Agricultural. Bund 7 Tenant, Landlord and. Fawcett 14 Town Councillors' Manual. Gaches ... 44 Torts, Law of. Underbill ... 27 Trade Marks. Adams 13 Trades Unions. Brabrook 29 Treaties. Hertslet 39, 41 Trusts and Trustees. Underhill 27 Trusts, Charitable. Tudor 31 Turnpike Laws, oke 38 Vendors & Purchasers. Seaborne 23 Wagers. Edwards > ... 54 Water Companies Acts 40 Waters. Hunt 19 Wills. Coote 7 Crabb 30 Rouse 20 Tudor 26 Wigram ... 46 Winding-up. Collier... 10 Grant... 38 Shelford 17 WindowLights . Latham40 Wrongs. Underhill ... 27 LAW WORKS PUBLISHED BY MESSRS. BUTTERWORTH. Stephen's New Commentaries— 7th Edition, 1874. 4 vols. 8vo., 41. 4*. cloth. MR. SERJEANT STEPHEN'S NEW COMMENTARIES ON THE LAWS OF ENGLAND, partly founded on Blackstone. The Seventh Edition. By James Stephen, Esq., LL.D., Judge of County Courts; late Pro- fessor of English Law at King's College, London, and formerly Recorder of Poole. *** This Work is set for the intermediate Examinations for Solicitors for 1880. From the Law Journal. " It is unnecessary for us on this occa- sion to repeat the eulogy which six years ago (in 1868) we bestowed, not without just reason, on the Commentaries as they then appeared. It has been re- marked that Stephen's Commentaries enjoy the special merit of being an edu- cational work, not merely a legal text- book. Their scope is so wide that every man, no matter what his position, profes- sion, trade or employment, can scarcely fail to find in them matter of special interest to himself, besides the vast fund of general information upon which every Englishman of intelligence may draw with advantage." From the Solicitors'' Journal. " A Work which has reached a Seventh Edition needs no other testimony to its usefidness. And when a law book of the size and costliness of these ' Com- mentaries ' passes through many editions, it must be taken as established that it supplies a need fejt in all branches of the profession, and probably to some extent, also, outside the profession. It is difficult indeed to name a law book of more general utility than the one before us. It is (as regards the greater part) not too technical for the lay reader, and not too full of detail for the law student, while it is an accurate and (considering its design) a singularly complete guide to the practitioner. This result is due in no small degree to the mode in which the successive editions have been revised, the alterations in the law being concisely embodied, and carefully interwoven with the previous material, forming a refresh- ing contrast to the lamentable spectacle presented by certain works into which successive learned editors have pitch- forked headnotes of cases, thereby render- ing each edition more unconnected .and confusing than its predecessor. As the result of our examination we maysavthat the new law lias, in general, been accu- rately and tersely stated, and its relation to the old law carefully pointed out." From the Law Times. " We have in this Work an old and valued friend. For years we have had the last, the Sixth Edition, upon our shelves, and we can state as a fact that when our text - books on particular branches of the Law have failed us, we have always found that Stephen's Com- mentaries have supplied us with the key to what we sought, if not the actual thing we required. We think that these Commentaries establish one important proposition, that to be of thorough prac- tical utility a treatise on English Law cannot be reduced within a small com- pass. The subject is one which must be dealt with comprehensively, and an abridgment, except merely for the pur- poses of elementaiy study, is a decided blunder. ' ' Of the scope of the Commentaries we need say nothing. To all who profess acquaintance with the English Law their plan and execution must be thoroughly familiar. The learned Author has made one conspicuous alteration, confining ' Civil Iuj uries ' within the compass of one volume, and commencing the last volume with ' Crimes,' and in that volume he has placed a Table of Statutes. In every respect the Work is improved, and the present writer can say, from practical experience, that for the Student and the Practitioner there is no better Work published than ' Stephen's Com- mentaries.' " From the J.aw Examination Journal. "What Bacon's works are to philo- sophy, Blackstone's Commentaries and Stephen's Commentaries founded on Blackstone, are to the study of English Law. For a general survey of the entire; field of English Law. or, at least, for a comparative survey of different branches of law, Stephen's Commentaries are un- rivalled : and we may observe that these Commentaries should not he used merely as a book of reference, they should be carefully studied." LAW WORKS PUBLISHED BY Powell on Evidence.— 4th Edit. By Cutler & Griffin. Post 8vo. 18s. cloth, 22s. calf. POWELL'S PEINCIPLES AND PEACTICE OF THE LAW OF EVIDENCE. Fourth Edition. By J. Cutler, B.A., Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London, and E. F. Griffin, B.A., Barristers-at-Law. *#* This edition contains the alterations necessary to adapt it to the practice under the Judicature Acts, as ivell as other material additions. The Bankers' Books Evi- dence Act, 1876, is given as an Addendum to the Appendix of Statutes. "The plan adopted is, we think, an admirable oue for a concise, handy book on the subject. Such maxims as, that hearsay is inadmissible, are given at the head of the chapter in large type, aud then follow the explanation and applica- tion of the general rule. The Indian code of evidence given at the end of the book deserves to be read by every student, whether going to India or not. The few rules of the English law of evidence which are purely statutory are also given verbatim, including the two orders of the Judicature Act, 1875, which appear to be correctly appreciated. The present form of Powell on Evidence is a handy, well-printed and carefully pre- pared edition of a book of deserved re- putation and authority." — Law Journal. " The editors of this work put forward no claim to that exhaustiveness which other works dealing with the law of evidence aim at.' Their desire, on the contrary, is to ' adhere to the principle ' of their author ' of not overloading the book with cases.' We heartily approve the principle; which, however, is some- what difficult of application. We must add, however, that in most instances the cases are tersely abstracted, and the convenience of the reader is considted by references to more than one set of reports. The plan of the book is to give pretty frequently, and, as far as we can discover, in almost every chapter, a ' rule ' of general application, and then to group the cases round it. These rules or axioms are printed in a distinctive type. The work has been pruned and remodelled by the light of the Judicature Acts. The authors give in an appendix the Indian Evidence Acts, with some Indian decisions thereupon, and occa- sionally notice these acts in the text. On the whole we think this is a good edition of a good book. It brings down the cases to the latest date, and is con- structed upon a model which we should like to see more generally adopted." — Solicitors'' Journal. " We are informed in the preface that the results of the Judicature Acts as regards evidence have been duly noted, whilst the work itself has been rendered more comprehensive. It is an excellent summary of principles." — Law Times. "There is hardly any branch of the law of greater interest and importance, not only to the profession, but to the public at large, than the law of evidence. We are, therefore, all the more inclined to welcome the appearance of the Fourth Edition of this valuable work." — Law Exam motion Journal. "To the general practitioner the main value of the work must consist in its treatment of the law prevailing in this country (Ireland) and in England, and in this respect we confidently recommend the work to our readers. To the student we know of no work on the law of evi- dence we could more strongly recom- mend, and both branches of the profes- sion will find Powell's Law of Evidence a work which can be consulted with confidence." — Irish Law Times. Cliadwick's Probate Court Manual, corrected to 1876. Royal 8vo.. 12s. cloth. EXAMPLES OF ADMINISTEATION BONDS FOR THE COURT OF PROBATE ; exhibiting the Principle of various Grants of Admi- nistration and the correct Mode of preparing the Bonds in respect thereof ; also Directions for preparing the Oaths, arranged for practical utility. With Extracts from the Statutes ; also various Forms of Affirmation prescribed by Acts of Parliament, and a Prefatory as well as a Supplemental Notice, bringing the work down to 187G. By Samuel Ciiadwick, of Her Majesty's Court of Probate. "We undertake to say that the posses- "This is purely a book of practice, sion of this volume by practitioners will but therefore the more valuable. It tells prevent many a hitch aud awkward de- lay, provoking to the lawyer himself and difficult to be satisfactorily explained to the clients." — Law Magazine. the reader what to do, and that is the information most required after a lawyer begins to practise." — Law Times. MESSRS. BUTTERWORTII, 7, FLEET STREET, E.G. Coote's Probate Practice.— 8th Edition. Just Published, in 1 vol. 8vo. 26s. cloth; 30.s. calf. THE COMMON FOEM EEACTICE OF THE HIGH COUET OF JUSTICE IN GRANTING PROBATES AND ADMINISTRATIONS. By Henry Charles Coote, F.S.A., late Proctor in Doctors' Commons, Author of "The Practice of the Ecclesiastical Courts," &c. &c. *** The Forms as printed in this work are in strict accordance with the Orders of Court and Decisions of the Sight Son. 8ir James Hannen, mid arc those which are in use in tin- Principal Registry of the Probate Divisional Court. "This work tirst appeared soon after tions under the old probate practice, as (In- abolition of ecclesiastical jurisdiction over probate and administration, and the establishment of the Court of Probate by 20 & 21 Vict. c. 77. That it has reached the eighth edition is sufficient attestation of its merits ami popularity. Mr. Coote acknowledges the co-operation of his friend Mr. Frederic Kruckenbcrg; and it appears to us that these gentlemen have spared no pains to render this edition a perfect specimen of what a law- book should be. In fact, it would be a difficult task to find a fault in ' Coote's Probate Practice;' and, with the ever increasing mass of probate business, it may be confidently predicted, as well as hoped, that this new edition will meet with even greater success than its pre- decessors." — Law Journal. " The above is another name for what is commonly known to the profession as Coote's Probate Practice, a work about as indispensable in a solicitor's office as any book of practice that is known to us. The seventh edition is chiefly dis- tinguishable from the sixth edition in this, that certain important modifications and alterations are effected which have been rendered nccessaiy by the Judi- cature Acts. Judicial decisions subsequent to the last edition have been carefully noted up. We notice several new and useful forms ; and the author has not only attempted, hut lias in the main suc- ceeded, in adopting the forms and direc- cmbodied in previous editions of the work, to the new jiroccdurc under the Judicature Acts. Solicitors know that the difficulties in the way of satisfying the different clerks at Somerset House are frequently great, and there is nothing so likely to tend to simplicity of practice as Mr. Coote's book."- — Law Times. " Nearly five years have elapsed since the pubbcation of the last edition of this book, which has long held a high repu- tation amongst solicitors, but we find little change in its contents. The Judi- cature Acts, which have rendered obsolete so many works of practice, have left this almost untouched. The chief changes in this edition appear to be the alteration of the headings of many of the f orms ; the insertion of several new cases and of some of the judgments of Dr. Bcttes- worth, of the fees to be taken by solicitors and paid to the Court in common form business as directed by the ltules of 1S74 ; and a considerable increase in the number of forms in non-contentious business." — Solicitors'' Journal. "In 1858 Mr. Coote published a first attempt to explain the principles which were to regulate the Common Form Practice of the then new Court of Pro- bate. Very welcome, indeed, therefore, was his opportune book of practice, and its utility has been significantly proved by the fact that we have the sixth edition now before us." — Law Magazine. Bund's Agricultural Holdings Act, 1875. Demy 12mo. 5*. cloth. THE LAW OF COMPENSATION FOR UNEXHAUSTED AGRICULTURAL IMPROVEMENTS, as amended by tho Agricultural Holdings (England) Act, 1S75. By J. W. "Willis Bund, M.A., of Lincoln's Inn, Barrister-at-Law, Author of "The Law relating to Salmon Fisheries in England and Wales," &o. 1 It will be found very serviceable to all those who have to administer the Agricultural Holdings Act." — Daily News. "A more complete volume never came under our notice." — Worcester Herald. "It contains clear statements and ex- planations." — Chamber of Agriculture Journal. "Mr. Bund's book is a useful work for land agents." — BsU I "All who have any interest in landed property may read it to advantage." — Laud and II "'< r. " We hope that this little book may be of service To the classes for whose use it has been specially designed." — The Field. " Mr. "Willis Bund has compressed into a simple and convenient form, the infor- mation needful for understanding tho bearing of the Agricultural Holdings Act." Saturday /.'< vit vs. "We may congratulate Mr. Bund on having laid the law down very clearly to the lay mind." — Uurduurs Chronicle. Davis's County Court Rules and Acts of 1875 & 1876. Just published, 8vo. 16s. cloth. THE COUNTY COUET KULES, 1875 and 1876, with Forms and Scales of Costs and Fees ; together with the County Courts Act, 1875, the Agricultural Holdings Act, 1875, and the Provisions of the Friendly Societies Act, 1875, and of other recent Statutes affecting the Jurisdiction of the County Courts. Forming a Supplement to Davis's County Court Practice and Evidence, but complete in itself. ' ' The sweeping alterations in procedure and in substantive matters of law com- pelled Mr. Davis either to prepare a new edition of his work or to edit a Supple- ment. He has chosen the latter course. Such disadvantages as are inherent to a Supplement he has reduced to a minimum by numerous references and a full Index to the whole work. Some notion can be gained of the extent of the new matter with which Mr. Davis had to deal from the fact that the volume before lis con- tains, exclusively of the Index, 326 pages of matter. First is given the text of the County Courts Act, 1875, with notes; then follows an analysis of several acts, among which are the Public Health Act, the Judicature Act, 1875, the Friendly Societies Act, the Employers and Work- men Act and the Agricultural Holdings Act; after which the Rules of 1875 and of the present year, with Forms, Table of Costs, Court Fees, and the like, are printed in extenso. The volume is in a neat and handy form and well adapted for general use." — Law Journal, April 15, 1876. " We have here, in good type and con- veniently arranged, all the new legisla- tion, whether parliamentary or judicial, relating to County Courts. The book opens with the Act of last session, shortly annotated; then follow the portions of other Acts passed last session which re- late to County Courts; and, after these, the Consolidated Rules issued last year, and the new rules which came in force on Monday last. A very full Index is added, containing references, not only to the present volume, but also to the work to which it is intended as a supplement." — Solicitors' Journal, April 8, 1876. "Mr. Davis has published a Supple- ment to his work on County Court Prac- tice and Evidence, which supplies the County Court Rules of 1875 and 1876, the County Court Act, 1875, and other recent statutes affecting the jurisdiction of the County Courts. The number of statutes affecting County Courts passed in 1874-5 is certainly formidable, and required to be brought at once to the notice of practitioners. This Mr. Davis does in a form which has thoroughly re- commended itself to the profession. The voluminous Index will form an excellent guide to the legislation as well as to the rules and orders." — Law Times, April 29, 1876. " We will merely content ourselves with pointing out that the additions and changes, as regards County Courts juris- diction, have been very great and im- portant, and that this volume indicates them in a well arranged and convenient form. Its issue has been wisely delayed so as to include the Rules of 1876." — Law Magazine, August, 1876. "The result of his labours cannot fail to prove abundantly useful to practi- tioners, who will find that this work supplies, in a collected form, the entire legislation of 187-1-5 affectingthe County Courts and the Rules of 1875-6, with the new Scale of Costs, &c. The work, in our opinion, deserves the favourable con- siderationof the profession." — Irish Law Times, May 20, 1876. Davis's County Courts Practice and Evidence. Fiftii Edition. 8vo. 38s. cloth, 43s. calf. THE PEACTICE AND EVIDENCE IN ACTIONS IN THE COUNTY COURTS. By James Edward Davis, of the Middle Temple, Esq., Barrister-at-Law. Fifth Edition. *#* This is the only ivork on the County Courts which gives Forms of Plaints and treats fully of the Laiv and Evidence in Actions and other Proceedings in these Courts. "We believe Mr. Davis's is the best and newest work on County Court prac- tice." — Law Times. "Mr. Davis's works are all conspicuous for clearness and accuracy. The present edition will fully sustain the well-earned reputation of the work."— So/is.' Journ. " It is hardly necessary for us to sum up in favour of a book which is so popular that the several editions of it pass rapidly out of print. All we need say is, that the verdict of the purchasing public has our entire approbation." — Law Journal. MESSES. BUTTERWORTLT, 7, FLEET STREET, E.C. S Davis's Equity, Bankruptcy, &c. in County Courts. 8vo. 18s. cloth, 22s. calf. THE JURISDICTION and PRACTICE of the COUNTY COURTS in EQUITY, ADMIRALTY, PROBATE and ADMINISTRATION CASES, and in BANKRUPTCY. By J. E. Davis, of the Middle Temple, Esq., Barrister-at-Law. %* This work, although issued separately, forms a Supplementary or Second Volume to Davis s County Courts Practice and Evidence in Actions. Denison and Scott's House of Lords Appeal Practice. Vary nearly ready, in 1 vol. 8vo. cloth. APPEALS TO THE HOUSE OF LORDS: Procedure and Practice relative to English, Scotch and Irish Appeals ; with the Appellate Jurisdiction Act, 187G ; the Standing Orders of the House; Directions to Agents ; Forms, and Tables of Costs. Edited, with Notes, References, and a full Index, forming a complete Book of Practice under the new Appellate System. By Chakles Marsh Denisox and Chaeles Hexdeeson Scott, of the Middle Temple, Esqs., Barristers-at-Law. Davis's Labour Laws of 1875. 8vo. 12s. cloth. THE LABOUR LAWS OF 1875, with Introduction and Notes. By J. E. Davis, of the Middle Temple, Esq., Barrister-at-Law, and late Police Magistrate for Sheffield. "Mr. Davis says that his object has standard work on this important sub- been to combine a popular comment ject." — Solicitors' 1 Journal. with a strictly practical treatise. In « The work will undoubtedly increase this he has completely succeeded. The t h e reputation of the author, and may book is m every respect careful and fc e rcgjr ded as essential to all who have thoughtful, it gives the best reading of to administer the law." —Capital and the law which we have, and furnishes Labour. in externa all the Acts of Parliament "The work is intended to be, and no relating to the subject."— Lqw Turns. doubt will become a text-book for the " Mr. Davis's book is not a reprint of profession and for those who will have the acts with a few notes, but an original to administer the law."— Beeh we. and complete treatise, and it will be ,,__ . ,, , . . appreciated by those who are concerned Tho best exposition that we know of, in the working of the Labour Laws."— of the Labour Laws of the country. — Low Journal. Echo. . . . ., " ' The Labour Laws ' are the subject A nevv and important work on the of a treatise by Mr. J. E. Davis which Labour Laws. Mr. Davis s special know- magistrates and practitioners will find ledge of these statutes eminently fats him useful."— Daily News, for the work."— S/u-Jficld Daily Inde- "A good book on this subject should 1 H " , . „ . fulfil two distinct functions by no means " We can onl >" assuro our r™< k, rs that easy to combine. It should afford a we conscientiously estunate the work as clear and untechuical explanation of the one u P on the possession ot which they law for the benefit of the magistrates Wl11 congratulate themselves. —Irish who will have to administer, and it law linns. should also contain a careful and accu- "There is much information in the rate commentary on the law for the Labour Laws of 1875 which is of import- benefit of lawyers. Mr. Davis has, in ancc to ironmasters, colliery propri our opinion, successfully fulfilled both and all employers of manual labour, and these requisites. Mr. Davis may bo to them we recommend Mr. Davis's congratulated upon having produced a book with confidence." — London Iron book which will probably become the Trade Exchange. 10 LAW WOKKS PUBLISHED BY Mozley and Whiteley's Concise Law Dictionary. In 1 vol. 8vo. 20s. cloth, 25s. brown calf. A CONCISE LAW DICTIONARY, containing Short and Simple Definitions of the Terms used in the Law. By Herbert Newman Mozley, M. A. , Fellow of King's College, Cambridge, and of Lincoln's Inn, Esq., and George Crispe Whiteley, M.A.Cantab., of the Middle Temple, Esq., Barristers-at-Law. "Messrs. Mozley & Whiteley, by the the legal_profession but also to the general wording of their title-page, seem to have set brevity before them as the special feature of their work, which is comprised within little more than 500 pages. As a handy-book for the desk, and as con- taining general accuracy with brevity, we have no doubt that Messrs. Mozley & Whiteley's Concise Law Dictionary will meet with a large amount of favour." — Law Magazine. ' ' This book is a great deal more modest in its aims than the law dictionary we received a little while ago. Its main object is to explain briefly legal terms both ancient and modern. In many cases, however, the authors have added a concise statement of the law. But as the work is intended both for lawyers and the public at large, it does not profess to give more than an outline of the doctrines referred to under the several headings. Having regard to this design, we think the work is well and carefully executed. It is exceedingly complete." — Solicitors' Journal. "This book contains a large mass of information more or less useful. A considerable amount both of labour and learning has evidently been expended upon it, and to the general public it may be recommended as a reliable and useful guide. Law students desirous of cram- ming will also find it acceptable." — Law Times. "The authors of the above work do not profess to address themselves solely to the members of the legal profession ; their object has been to produce a book which shall also be useful to the general public by giving clear yet concise ex- planations of the legal terms and phrases in past and present use, and we think they have satisfactorily perf onned their task." — Justice of the Peace. "It should contain everything of value to be found in the other larger works, and it should be useful, not merely to public. Now the work of Messrs. Mozley & Whiteley appears to fulfil those very conditions, and while it assists the lawyer will be no less useful to his client. On the whole, we repeat that the work is a praiseworthy performance, which de- serves a place in the libraries both of the legal profession and of the general public." — Irish Law Tutus. ' ' The Concise Law Dictionary, by Mr. H. Mozley and Mr. G-. Whiteley, is not only concise but compendious, and is well adapted for those who desire to refresh the memory or obtain a succinct expla- nation of legal terms without going through a mass of details." — Saturday Review. "The book contains much useful in- formation, and as the price is moderate, and the ordinary terms of English law appear to be well explained, we may conscientiously recommend the Concise Law Dictionary to the young lawyer and student." — Aiheneewm. "This work will supply a want felt by many, as well among law students as the general public, of an explanatory index of legal terms and phrases, complete to the present time, and at the same time moderate in bulk. To such, too, it may be recommended for its many con- cise supplementary expositions of the law bearing upon the subject-matter of many of the titles indexed." — Noncon- formist. " In many cases its greater brevity is an advantage, enabling the book to be consulted with more rapidity and promp- titude." — Daily News. "The compilers being scholars and gentlemen, have taken pains and made their book a valuable one, of which we can prophesy new and even improved editions." — Publishers'' Circular. "An extremely handy book of refer- ence as to the meaning of legal terms and phrases." — Bookseller. Phillips's Law of Lunacy. Post 8vo. 18s. cloth. THE LAW CONCERNING LUNATICS, IDIOTS, AND PERSONS OF UNSOUND MIND. By Charles Palmer Phillips, M.A., of Lincoln's Inn, Esq., Barrister-at-Law, and one of the Commissioners in Lunacy. "Mr. C. P. Phillips has in his very " The work is one on which the author complete, elaborate and useful volume has evidently bestowed great pains, and presented us with an excellent view of the present law as well as the practice relating to lunacy." — Law Magazine and Review. which not only bears the mark of great application and research, but which shows a familiarity with the subject."— Justice of the Peace. MESSES. BUTTERWORTH, 7, FLEET STREET, E.C. 11 Sir T. Erskine May's Parliamentary Practice. Eighth Edition. Preparing for publication. In One very thick volume, 8vo. A TREATISE on the LAW, PRIVILEGES, PROCEEDINGS and USAGE OF PARLIAMENT. By Sir Thomas Erskixe May, D.C.L., K.C.B., Clerk of the House of Commons and Bencher of the Middle Temple. Eighth Edition, Revised and Enlarged. Contents: Book I. Constitution, Powers and Privileges of Parliament. Book II. Practice and Proceedings in Parliament. Book III. The Manner of Passing Private Bills, with the Standing Orders in both Houses, and tho. most recent Precedents. ' ' A work, which has risen from tho position of a text-book into that of an authority, would seem to a considerable extent to have passed out of the range of criticism. It is quite unnecessary to point out the excellent arrangement, ac- curacy and completeness which long ago rendered Sir T. E. May's treatise the standard work on the law of Parliament. Not only are points of Parliamentary law discussed or decided since the publi- cation of the last edition duly noticed in their places, but the matter thus added is well digested, tersely presented and carefully interwoven with the text." — Solicitors' Journal. " Fifty pages of new matter have been added by Sir Thomas May in his seventh edition, thus comprising every alteration in the law and practice of Parliament, and all material precedents relating to public and private business since the publication of the sixth edition. We need make no comment upon the value of the work. It is an accepted authority ami is undeniably the law of Parliament. It has been brought up to the latest date, and should be in the hands of every one engaged in Parliamentary life, whether asalawyer or as a senator." — Law Times. Roberts's Principles of Equity —3rd Edition. Just published, 8vo. 18*. cloth. THE PRINCIPLES OF EQUITY as administered in tlie Supreme Court of Judicature and other Courts of Ecpiitable Jurisdiction. By Thomas Archibald Roberts, of the Middle Temple, Esq., Banister-at-Law. Third Edition. " The work will be found to abound in useful summaries of the leading doctrines in equity, and the student and practitioner may safely rely on finding this work exe- cuted with great experience and know- ledge of the subject, which are, indeed, the only sure foundation for a work of this kind calculated to be useful." — Justice of the Peace. " This work, by a member of the bar, will meet a want which must have been felt by every student of equity since the passing of the Judicaturo Acts. Mr. Roberts's work is more extensive than Mr. Josiah Smith's, as well as more readable. The Table of Statutes is especially valuable." — Law 'Examination Journal. "The work, we have no doubt, will prove useful to the profession, but more especially to the student class of our readers, and we cordially recommend it to them. It runs to less than 500 pages; it is printed upon good paper and in good type, and it has the very satisfactory guarantee that it is now in its third edition." — Law Journal. "When a book reaches a third edition, We may presume it has gained a secure place in the estimation of the class to which it appeals. The author tells us in the preface to this edition, that he wn ite the first edition for students, but that he has carefully revised the whole work and enlarged it with references to books and cases, so as to adapt it to the wants of students and also for the use of prac- titioners. If we might make a suggest i< >n it is that the names of cases should be given, and not merely refer reports in which they are to be found. In other respects the book is praise- worthy." — Law Times. " Practitiouers would find in it much that they imperfectly know, and students would find much rudimentary learning By studious compression the author has contrived to introduce into by no means a large book a surprising amount of matter."— Solrt.' Journal, June 30, 1877. II 2 Fisher's Law of Mortgage.— 3rd Edition. Just published, 2 vols, royal 8vo. 60s. cloth, 72s. calf. THE LAW OF MORTGAGE AND OTHER SECURITIES By William Richard Fishek, of Lincoln's Inn, Esq., UPON PROPERTY. Barrister - at - Law. "This work has built up for itself, in the experienced opinion of the profession, a very high reputation for carefulness, accuracy aud lucidity. This reputation is fully maintained in the present edition. The law of securities upon property is confessedly intricate, and probably, as the author justly observes, embraces a greater variety of learning than any other single branch of the English law. At the same time an accurate knowledge of it is essential to every practisingbarrister, and of daily requirement among solicitors. To all such we can confidently recommend Mr. Fisher's work, which will, moreover, prove most useful reading for the student, both as a storehouse of information and as an intellectual exercise." — Law Magazine. "Those who are familiar with the work know that it is never prolix, that it is accurate and complete : and we think that the present edition will not diminish its reputation in these respects. On sub- jects upon which we have examined it we have found the cases diligently collected and carefully stated, and the effect of the new legislation very concisely given. The various points upon which the Judir cature Act has a bearing on Mr. Fisher's subject are very well annotated ; and not only on this subject, but as the general result of an examination of this edition, we can say that it contains evidence of un- remitting care and industry." — Solicitors' Journal. ' ' His work has long been known as the standard work on the law of mortgages, and he has now published his third edition. The object and scope of his work is probably familiar to most of our readers. It is, as the author himself says, ' to explain the nature of the different kinds of securities, the rights and equities which they create, and the manner of and circumstances attending their discharge.' The earlier parts of the work have been recast and now appear in the language and arrangement used in the completed part of the ' Digest of the Law of Mort- gage and Lien,' which Mr. Fisher de- signed and executed for the Digest Com- mission. This system of classification, by adoption of comprehensive and for- mally stated propositions, is the right mode of framing a work of this nature, and the present edition of Mr. Fisher's work is, without doubt, a vast improve- ment on the last edition. The form and style admit of little exception. The work is not much enlarged in bulk; but, be- sides the new statutes and decisions relating to the subject, the author has added a great number of references to contemporary reports not formerly cited. In conclusion we may compliment Messrs. Butterworth on the excellent type and correct printing of these volumes, and the handsome and convenient style in which they have been got up." — Law Journal. " We have received the third edition of the Law of Mortgage, by William Richard Fisher, Barrister- at- Law, and we are very glad to find that vast improvements have been made in the plan of the work, which is due to the incorporation therein of what Mr. Fisher designed and exe- cuted for the abortive Digest Commission. In its present form, embracing as it does all the statute and case law to the pre- sent time, the workis oneof great value." — Law Times. Nasniith's Institutes. Post 8vo. 12s. cloth. THE INSTITUTES OF ENGLISH PUBLIC LAW, embracing an Outline of General Jurisprudence, the Development of the British Constitution, Public International Law, and the Public Municipal Law of Eng- land. By David Nasmith, Esq., LL.B., of the Middle Temple, Barrister-at-Law, Author of "The Chronometrical Chart of the History of England," &c. ; Joint Translator of Ortolan's "History of Roman Law." Two vols, or books, post 8vo. 21s. cloth. THE INSTITUTES OF ENGLISH PRIVATE LAW, embracing an Outline of the Substantive Branch of the Law of Persons and Things. Adapted to the New Procedure. By David Nassiith, LL.B., of the Middle Temple, Barrister-at-Law, Author of ' ' Institutes of English Public Law, " &c. &c. MESSRS. BUTTERWORTII, 7, FLEET STREET, E.C. 13 Robson's Bankrupt Law.— 3rd Edition. Just published, 8vo. 38s. cloth, 43s. calf. A TREATISE ON THE LAW OF BANKRUPTCY; containing a full Exposition of the Principles and Practice of the Law, including the Alterations made by the Bankruptcy Act, 1869. With an Appendix com- prising the Statutes, Rules, Orders and Forms. By Geokge Young Robson, Esq. , of the Inner Temple, Barrister-at-Law. Third Edition. " We are glad to see that Mr. Robson's learned work on bankruptcy has reached a third edition. As a systematic treatise on the important branch of law to which it relates it has long held a deservedly high place in the estimation of the pro- fession. The author has evidently spared no pains to make the present edition worthy of continued support by a pains- taking general revision, and by incor- porating the results of all important decisions affecting both the general law of bankruptcy and the practice under the act of 1869. The historical retro- spect of bankruptcy legislation contained in Mr. Robson's work is by no means one of its least instructive and useful features. In the case of the third edition of so well known a work it is unnecessary to go much into details, especially as the author has retained the original arrange- ment, correcting and supplementing where necessary. The references to cases are numerous throughout, and the notes are short and to the point. The Index is both copious and good." — Law Magazine, Ma;/, 1877. " In the new edition we observe that the author has used his best endeavours to maintain the credit of his work. He has diligently collected the cases decided on bankruptcy law and practice since 1872, and has set forth in the proper places in the volume the substance of the decisions contained in those cases ; and we further observe that he has taken pains to give references to the various sets of reports, so as to render his book in this respect of equal value to every practitioner. There is, also, a copious Index. Any one to whose lot it has fallen to grapple with questions in bank- ruptcy practice will appreciate this part of the author's labours." — Law Journal. " We have always considered the last edition of Mr. Robson's book a model of careful editing, and in our opinion this edition does not fall beloAv the same level. The new decisions are brought down in the Addenda to an unusually recent date, and are noted with great accuracy. There is no scissors-and-paste work here ; the effect of the cases is weighed and their result stated in as few words as possible. Mr. Robson is very cautious, and does not frequently volun- teer an opinion, but he nevertheless occasionally draws attention to mis- taken views of the law, and flaws which ought to be amended by the legislature." — Solicitors' Journal. "We welcome the third edition of Mr. Robson's Law and Practice in Bank- ruptcy. Xo alteration has been made in the scheme of the work, and none was required. The author does not pretend to have done more than to revise the text and index and note up the cases. We have already expressed a high opinion of the work, which has been confirmed by frequent reference to its pages." — Law Timet. Adams on Trade Marks. 8vo. 7s. GJ. cloth. A TREATISE ON THE LAW OF TRADE MARKS; Tvitli the Trade Marks Registration Act of 1875, and the Lord Chancellor's Rules. By F. M. Adams, B.A., of the Middle Temple, Barrister-at-Law. " A comprehensive treatise on the sub- ject of the Law of Trade Marks. We can recommend Mr. Adams' work to the favourable attention of patentees, manu- facturers and others interested in the use of trade marks." — Chambers of Com- merce Chronicle. " The subject of trade marks is beset with difficulties, in the elucidation of which this work will be valuable." — < 'it ii Press. " A second issue of this work has been rendered necessary by the Act of is;."), which came into force in July of the same year, and which almost revolu- tionized the law upon the subject. Every- thing has been brought down to the latest dates, and the new act. together with the Lord Chancellor's rules, will be found in the added Appendix." — Standard. "Any one who is the owner of trade marks should certainly not be without this book. The subject is treated very ably throughout, and the list of illus- trative oases which are given will enable the most illiterate to comprehend the state of the law. We are not aw any better work on the subject of trade marks than the work before us." — The Ironmongt r. 14 LAW WOEKS PUBLISHED BY Trower's Prevalence of Equity. Just published, 8vo. 5s. cloth. A MANUAL OF THE PEEVALENCE OF EQUITY under Section 25 of the Judicature Act, 1873, amended by the Judicature Act, 1875. By Chaeles Francis Teowee, Esq., M. A., of the Inner Temple, Barrister-at-Law, late Fellow of Exeter College, and Vinerian Law Scholar, Oxford ; Author of "The Law of Debtor and Creditor," "The Law of the Building of Churches and Divisions of Parishes," &c. "We congratulate Mr. Trower on having produced a concise yet compre- hensive treatise on the Prevalence of Equity under the 25th section of the Judicature Act, which cannot fail to prove of great service alike to the student and to practitioners of the common law branch of the profession, who, under the recent legislation, find themselves called upon, probably for the first time, to study and apply in practice the equitable principles which now ' prevail.' " — Law Magazine, February, 1877. " As a sketch, suggesting to those who are in a measure already acquainted with the doctrines of equity, the effect which may be expected to result from recent legislation, the book is likely to prove of value. The amount of information con- tained in a compressed f orm within its pages is very considerable, and on the whole it appears to be accurate. The work has been carefully revised and is well and clearly printed." — Law Times. ' ' The propositions are fairly worked out and substantiated by references. The author hopes that his pages may be use- ful to the common law branch of the profession, which now finds itself called upon to apply the principles of equity to practice. Mr. Trower's manual may save them some hunting in text-books of equity." — Law Journal. Fawcett's Law of Landlord and Tenant. 8vo. 14s. cloth. A COMPENDIUM of the LAW of LANDLOED and TENANT. By William Mitchell Fawcett, of Lincoln's Inn, Esq., Barrister-at-Law. " It never wanders from the point, and being intended not for students of the law, but for lessors and lessees and their immediate advisers, wisely avoids his- torical disquisitions, and uses language as untechnical as the subject admits. It may safely be assumed to contain infor- mation on all the ordinary questions which either contracting party may re- quire to be answered."' — Law Journal. " The author has succeeded in com- pressing the whole of his subject within the reasonable compass of 373 pages. It may roughly be said of Mr. Fawcett's work, that it is statutory throughout, in accordance with the predominant cha- racter of the law at the present day; and Mr. Fawcett takes advantage of this characteristic of modern law to impart to his compendium a degree of authen- ticity which greatly enhances its value as a convenient medium of reference, for ho lias stated the law in the vciy words of the authorities. We have discovered plain utility to be the aim and end of Mr. Fawcett'streatise." — Law Magazine. "The amount of information com- pressed into the book is very large. The plan of the book is extremely good, and the arrangement adopted has enabled the author to put together in one place the whole law on any particular branch of the subject, and to avoid repetitions. Thus not only is it easy to find what the author has to say on any particular point, but when we have found a reference to it in one place, we may be satisfied that we have found all the book contains upon the point. In this respect, though probably from its smaller size it must contain less information than Woodfall, it will be found far more convenient for ordinary use than that treatise." — Soli- citors' Journal. "He contents himself with a plain statement of the existing law, prudently omitting all matters of merely historical interest and topics collateral to the special subjects. Above all, it has been his pur- pose to state the law in the language of the authorities, presenting the principles enunciated in the very words of the judges. Another excellent feature is a concise summary of the effect of each enactment in the marginal notes. It will be seen from this that the book is tho- roughly practical, and, as such, will doubtless find a favorable reception from the profession." — Laic Times. MESSES. BUTTEEWORTH, 7, FLEET STEEET, B.O. 15 Bund's Law of Salmon Fisheries, corrected to 1876. Post 8vo. 16s. cloth. THE LAW EELATING TO THE SALMON FISHERIES OF ENGLAND AND WALES, as amended by the Salmon Fishery Act, 1873, incorporating the Bye-laws, Statutes and Cases to November, 1876. By J. W. Willis Bund, M.A., LL.B., of Lincoln's Inn, Esq., Barrister-at-Law, Vice- Chairman Severn Fishery Board. The Supplement, embodying the Legislation, Bye-laws and Cases to November, 1876, may be had separately. Price 1*. sewed. " I would wish in this place to express cation will doubt. Mr. Bund has done the work excellently well, and nothing further in this way cau be desired." — The Field. " This terse and useful summary gives not merely the Salmon Fishery Act of 1873, but the state of the law as left repealed and unaffected by that act, with statutes and cases arising from them. The whole subject is treated exhaustively, and iu a manner most satisfactory." — Standard. "There is happily a good and ample index at the end of the volume. By means of this we have tested the author on various difficult points, and we have always found his opinion sound, and his explanations clear and lucid. This volume must of necessity become a hand- book to salmon-fishers in general, and especially to boards of conservators, who will thereby be much assisted in the for- mation of the new boards of conservators, under the act of 1873; also the operation of the Acts of 1861 and 1865, as amended by the Act of 1873."— Land and Water. " The author of the work before us has done much to supply the shortcomings of legislation. He has brought to the sub- ject not only a comprehensive knowledge of this branch of the law, but a practical acquaintance with its administration, and the result is a book of considerable merit." — Public Opinion. my approval of ' Bund's Law of Salmon Fisheries in England and Wales, with Statutes and Cases.' This work will afford great assistance to those engaged in administering the law, while it affords valuable information on the theory and practice of salmon legislation in general." — From the Thirteenth Annual Report of Inspector BucJeland on Salmon Fisheries, 1874. "Mr. Willis Bund, the draftsman of the new act, has published an im- portant treatise on the whole of the Salmon Fisheiy Acts, which has already been accepted as a complete exposition of those statutes." — From the Thirteenth Annual Report of Inspector Walpole on Salmon Fisheries, 1874. "Doubtless all the law will be found between his covers, and we have not been able to detect any erroneous statements. We can recommend the book as a dis- quisition, — it is conscientiously exe- cute id." — Law Times. "Mr. Bund, whose name is so well known to all who take interest in our Salmon fisheries, has lost no time since the passing of the Act of 1873 in bringing out his work on Salmon fishery law. That the book, so far as England and Wales are concerned, is a very complete and exhaustive one, no one who knows Mr. Bund's clearness and power of appli- Folkard on Slander and Libel.— 4th Edition. Just published, one thick volume, royal Svo. 45s. cloth. THE LAW OF SLANDER AND LIBEL (founded on Staririe's Treatise), including the Pleading and Evidence, Civil and Criminal, adapted to tin- present Procedure: also Malicious Prosecutions and Contempt of Court. By Henry C. Folkard, Esq., Barrister-at-Law. Fourth Edition. The fourth edition of this well- has failed in the full discharge of his known work on Slander and Libel, to which circumstances have prevented our according an earlier notice in these . reflects great credit upon the learned author, by the evidence which it cxhihits of laborious carefulness and discriminating judgment, together with their resultant lucidity, accuracy and comprehensiveness. There is a full table of cases, and the index appears to be copious and w( !l executed." . 1 s 7 7 . '•>>"o one can say that Mr. Folkard onerous duty, and we are Bttre tit will earn, as lie will obtain, the gratitude of the profession."- -Law Journal. " We recommend Mr. Folkard's work to the attention of the profession and the public. It is, as now edited, very valu- able." — La "The result is a valuable addition to the lawyer's library, which for many years has been much needed."—./ of the i "It has been most laboriously exe- cuted." — Solicitors' Journal. 16 LAW WOEKS PUBLISHED BY Higgins's Digest of Patent Cases. 8vo. 21s. cloth, 25s. calf. A DIGEST OF THE EEPOETED CASES relating to the Law and Practice of LETTERS PATENT FOE, INVENTIONS, decided from the passing of the Statute of Monopolies to the present time. By Clement Higgins, M.A., F.C.S., of the Inner Temple, Barrister-at-Law. mary of the reported patent cases decided " Mr. Higgins's work will be useful as a work of reference. Upwards of 700 cases are digested : and, besides a table of contents, there is a full index to the subject-matter ; and that index, which greatly enhances the value of the book, must have cost the author much time, labour and thought." — Law Journal. " ' This is essentially,' says Mr. Higgins in his preface, ' a book of reference.' It remains to be added whether the compil- ation is reliable aud exhaustive. It is only fair to say that we think it is ; and we will add, that the arrangement of subject- matter (chronological under each head- ing, the date, and double or even treble references being appended to eveiy de- cision), and the neat and carefully exe- cuted index (which is decidedly above the average) are such as no reader of ' essentially a book of reference ' could quarrel with." — Solicitors' Journal. " On the whole Mr. Higgins's work has been well accomplished. It has ably fulfilled its object by supplying a reliable and authentic summary of the reported patent law cases decided in English courts of law and equity, while present- ing a complete history of legal doctrine on the points of law and practice relating to its subject." — Irish law Times. " Mr. Higgins has, with wonderful and accurate research, produced a work which is much needed, since we have no collection of patent cases which does not terminate years ago. We consider, too, if an inventor furnishes himself with this Digest and a little treatise on the law of patents, he will be able to be as much his own patent lawyer as it is safe to be." — Scientific and Literary Review. "Mr. Higgins's object has been to supply a reliable and exhaustive sum- in English courts of law and equity, and this object he appears to have attained. The classification is excellent, being, as Mr. Higgins very truly remarks, that which naturally suggests itself from the practical working of patent law rights. The lucid style in which Mr. Higgins has written his Digest will not fail to recommend it to all who may con- sult his book ; and the very copious index, together with the table of cases, will render the work especially valuable to professional men." — Mining Journal. "The appearance of Mr. Higgins's Digest is exceedingly opportune. The plan of the work is definite and simple. We consider that Mr. Higgins, in the production of this work, has met a long felt demand. Not merely the legal pro- fession and patent agents, but patentees, actual or intending inventors, manufac- turers and their scientific advisers will find the Digest an invaluable book of reference." — Chemical News. "The arrangement and condensation of the main principles and facts of the cases here digested render the work in- valuable in the way of reference." — Standard. "The work constitutes a step in the right direction, and is likely to prove of much service as a guide, a by no means immaterial point in its favour being that it includes a number of comparatively recent cases." — Engineer. " From these decisions the state of the law upon any point connected with pa- tents may be deduced. In fine, we must pronounce the book as invaluable to all whom it may concern." — Quarterly Journal of Science. Coote's Admiralty Practice.— 2nd Edition. 8vo. 16*. cloth. .THE PEACTICE of the HIGH COUKT OF ADMIRALTY OF ENGLAND : also the Practice of the Judicial Committee of Her Majesty's Most Honorable Privy Council in Admiralty Appeals, with Forms and Bills of Costs. By Henry Charles Coote, F.S.A., one of the Examiners of the High Court of Admiralty, Author of "The Practice of the Court of Probate," &c. Second Edition, almost entirely re-written, with a Supplement giving the County Courts Jurisdiction and Practice in Admiralty, the Act of 18G8, Eules, Orders, &c. *#* This work contains every Common Form in use by the Practitioner in Admiralty, as well as i very description of Bill of Costs in that Court, a feature possessed by no other work on the Practice in Admiralty. MKssiiS. BUTTERWORTH, 7, FLEET STREET, E.C. 17 SMford's Companies.— 2nd Edit. By Pitcairn & Latham. 8vo. 21s. cloth. SHELFORD'S LAW OF JOINT STOCK COMPANIES; containing a Digest of the Case Law on that Subject; the Companies Acts, 1862,' 1867, and other Acts relating to Joint Stock Companies; the Orders made under tin >se Acts to regulate Proceedings in the Court of Chancery and County Courts, and Notes of all Cases interpreting the above Acts and Orders. Second Edition,' much enlarged, and bringing the Statutes and Cases down to the date of publi- cation. By David Pitcaibn, M.A., Fellow of Magdalen CoUege, Oxford, and of Lincoln's Inn, Barrister-at-Law ; and Francis Law Latham, B.A., Oxon, of the Inner Temple, Barrister-at-Law, Author of "A Treatise on the Law of "Window Lights." "We may at once state that, in our opinion, the merits of the work are very great, and we confidently expect that it be at least for the present the standard manual of joint stock company law. That great learning and research have been expended by Mr. Pitcairn no one can doubt who reads only a few pages of the book ; the result of each case which has any bearing upon the subject under discussion is very lucidly and accurately stated. We heartily congratulate him on the appearance of this work, for which we anticipate a great success. There is hardly any portion of the law at the present day so important as that which relates to joint stock companies, and that this work will be the standard authority on the subject we have not the shadow of a doubt.— "Law Journal. "After a careful examination of this work we are bound to say that we know of no other which surpasses it in two all- important attributes of a lawbook : first, a dear conception on the part of the author of what he intends to do and how he intends to treat his subject; and, secondly, a consistent, laborious and in- telligent adherence to his proposed order and method. All decisions are noted and epitomised in their proper places, the practice-decisions in the notes to Acts and Rules, and the remainder in the in- troductory account or digest. In the digest Mr. Pitcairn goes into everything with original research, and nothing seems to escape him. It is enough for us that Mr. Pitcairn'fl performance is able and exhaustive. Nothing is omitted, and everything is noted at the proper place. In conclusion, we have great pleasure in recommending this edition to the practi- tioner. Whoever possesses it, and keeps it noted up, will be armed on all parts and points of the law of joint stock com- panies." — Solicitors' Journal. " Although nominally a second edition of Mr. Shelf ord's treatise, it is in reality an original work, the form and arrange- ment adopted by Mr. Shelf ord have been changed and, we think, improved by Mr. Pitcairn. A full and accurate index also adds to the value of the work, the merits of which we can have no doubt, will be fully recognized by the profession." — Law Magazine, " This book has always been the rade tneeum on company law, and will, ap- parently, long continue to occupy that position. It is perhaps even more useful to the legal practitioner than to the man of business, but still it is the best source of information to which the latter can go." — Financier and Monty Market lit i- it' u\ Mr. Justice Lush's Common Law Practice. 3rd Edition by Dixon. Two vols. 8vo. 46*. cloth. LUSH'S PRACTICE OF THE SUPEEIOE COURTS OF COMMON LAW AT WESTMINSTER, in Actions and Proceedings over which they have a Common Jurisdiction: with Introductory Treatises reap) cting Parties to Actions; Attomies and Town Agents, their Qualifications, Eights Duties, Privileges and Disabilities; the Mode of Suing, whether in Person or by Attorney in Forma Pauperis, &c. &c. &c. ; and an Appendix, containing the Authorized Tables of Costs and Fees,Forms of Proceedings and W T rits of Execution. Third Edition. By Joseph Dixon, of Lincoln's Inn, Esq., Barrister-at-Law. 18 LAW WOEKS PUBLISHED BY Drewry's Forms of Claims & Defences in Chancery. Just published, post 8vo. 9s. cloth. POEMS OF CLAIMS AND DEFENCES IN THE COUETS OF THE CHANCERY DIVISION of the HIGH COURT OF JUSTICE. "With Notes containing au Outline of the Law relating to each of the subjects treated, and au Appendix of Forms of Endorsement on the "Writ of Summons. By C. Stewart Deewey, of the Inner Temple, Esq., Barrister-at-Law, Author of a Treatise on Injunctions and of Reports of Cases in Equity, temp. Kindersley, V.-C, and other works. "Mr. Drewry has attempted to supply the defect of the Schedule to the Judi- cature Act of 1875, aud he has proceeded in his work in the safest and most satis- factory manner. The forms thus intro- duced are coucise and cannot fail to be very useful and welcome." — Law Magazine. "Mr. Drewry's plan of taking the facts for the forms from reported cases and adapting them to the new rules of pleading, seems the best that can be adopted. The fonns we have looked at seem to be fairly correct." — Solicitors' Journal. "The draftsman of the present day cannot but need the aid of a work thus compiled, however experienced in the niceties of the past system, and trusting to its guidance benefit in tune and labour saved ; while to the younger members of the profession especially we cordially recommend the work." — Irish Law Times. "The work is one likely to prove useful to the practitioner." — Justice of the Peace. "On the whole, we can thoroughly recommend it to our readers." — Law- Examination Journal. De Colyar's Law of Guarantees. 8vo. 14s. cloth. A TEEATISE ON THE LAW OF GUAEANTEES AND OF PRINCIPAL AND SURETY. By Heney A. de Colyae, of the Middle Temple, Esq., Barrister-at-Law. "Mr. Colyar's work contains internal evidence that he is quite at home with his subject. His book has the great merit of thoroughness. Hence its pre- sent value, and hence we venture to predict will be its enduring reputation." — Law Times. " The whole work displays great care in its production ; it is clear in its state- ments of the law, and the result of the many authorities collected is stated with au intelligent appreciation of the subject in hand." — Justice of the Peace. Hamel's Customs Laws, 1876. Just published, post 8vo. 6s. ; demy 8vo. 8s. Gel. cloth. THE LAWS OF THE CUSTOMS, consolidated by direction of the Lords Commissioners of Her Majesty's Treasury. With Practical Notes and References throughout ; an Appendix, containing various Statutory Pro- visions incidental to the Customs; the Customs Tariff Act; and a copious Index. By Felix John- Hamel, Esq., Solicitor for Her Majesty's Customs. "Mr. Hamel, Solicitor for Her Majesty's Customs, has produced a very useful 'pocket volume' edition of The Customs Laws and Tariff Act, 1876, for which his official position affords him unique facili- ties, and which ought to be in the hands of all who have au interest in our mari- time commerce." — Law Magazine, Feb- ruary, 1877. "By issuing this handy edition of the Customs Laws Consolidation Act of last session, Mr. Hamel has conferred a benefit on a very large class of the public, and has completed the work which that act was intended to accomplish. A copious Index is added, referring to the sections of the Consolidation Act. We must add a word of praise of the con- venient form of the work, and of the excellent type adopted." — Solicitors'' Journal. "The work is in all respects most skilfully executed, and amply deserves public favour." — Irish Law Times. MESSBS. BUTTERWORTH, 7, FLEET STREET, E.G. 1!) Hunt's Boundaries, Fences & Foreshores— 2nd Edit. Post 8vo. 12*. cloth. A TREATISE ON THE LAW relating to BOUNDARIES and FENCES, and to the Rights of Property on the Sea Shore and in the of Public Rivers and other Waters. Second Edition. By Aimiun Joseph Hunt, Esq., of the Inner Temple, Barrister-at-Law. " It speaks well for this book that it has so soon passed into a second edition. That its utility has been appreciated is shown by its success. Mr. Hunt has availed himself of the opportunity of a second edition to note up all the cases to this time, and to extend considerably some of the chapters, especially that which treats of rights of pro2)erty on the sea shore and the subjects of sea walls and commissions of sewers." — Law Times. " There are few more fertile sources of litigation than those dealt witli in Mr. Hunt's valuable book. It is sufficient here to say that the volume ought to have a larger circulation than ordinarily belongs to law books, that it ought to be found in every country gentleman's li- brary, that the cases are brought down to the latest date, and that it is carefully prepared, clearly written, and well edited." — Law tfagaz* " Mr. Hunt chose a good subject for a separate treatise on Boundaries ami Fences and Eights to the Seashore, and we arc not surprised to find that a second edition of his book has been called for. The present edition contains much new matter. The chapter especially which treats on rights of property on the sea- shore, has been greatly extended. Ad- ditions have been also made to The chap- ters relating to the fencing of the property of mine owners and railway companies. All the cases which have been decided since the work first appeared have l.eeu introduced in their proper places. Thus it will be seen this new edition has a considerably enhanced value." — Solici- tor^ Journal. Bainbridge's Law of Mines and Minerals— 4th Edit. Just published, 1 vol. roy. Svo. 45s. cloth. A TREATISE on the LAW OF MINES AND MINERALS. By William Baixbkidge, Esq., F.G.S., of the Inner Temple, Barrister-at-Law. Fourth Edition. By Archibald Bkowx, M.A., Edin. and Oxon, of the Middle Temple, Barrister-at-Law. This work has been wholly re-cast, and in the greater part re-written. It contains, also, several chapters of entirely new matter, which have obtained at the present day great mining iniporta;: . "Much of the old work has been re- Index facilitates the refereucet o the cou- written, and there is much in this edition that, is entirely new. The whole of the law relating to mines and* minerals is treated in an exhaustive manner. As coming more particularly within our own peculiar province, we may notice ( lhapter XII., which deals with criminal offences relatingto mines; Chapter XIII., as to the statutory regulation and ii tiou of mines; and Chapter XV., which contains the law relating to the rating of mines and quarries, comprising tin: liability of coal and other mines and quarries to the poor and other rates — The tenancy — Improvements to be in- cluded—Allowances and deductions to be made-- Rateable value, and all other matters necessary to make this portion of the work mosl valuable to those con- ■\ in the rating of such property. "The appendix contains a vali collection of conveyancing forms Local Customs — A Glossary of English Mining Terms, and a full and well arranged tents of the volume. "The cases cited are brought down to a very recent date. The work undertaken by Mr. Brown was an arduous on he has irily performed it." — Justir : ■!//( edit. ' ' This work must be already familiar to all readers whose practice brings them in any manner in connection with min< a or mining, and they well know its value. We can only say of this new edition that it is in all respects worthy of its pre- jors." — Law Times on 3rd edit. "It would be entirely superfluous to attempt a general review of a work which lias for so long a per d the position of the standard work on this important Bubiect. Those only who, by the nature of their practice, have learned to lean upon Mr. Bainbndge as on a solid staff, can appreciate t£ March, the admirable method, and the id style of this model treatise." — Law Journal on 3rd edit. c 2 20 LAW WOEKS PUBLISHED BY Rouse's Conveyancer.— 3rd Edit, with Supplement. Two vols. 8vo., 30s. cloth, 38s. calf. THE PEACTICAL CONVEYANCER, giving, in a mode combining facility of reference with general utility, upwards of Four Hundred Precedents of Conveyances, Mortgages and Leases, Settlements, and Miscel- laneous Forms, with (not in previous editions) the Law and numerous Outline Forms and Clauses of Wills and Abstracts of Statutes affecting Real Property, Conveyancing Memoranda, &c. By Rolla Rouse, Esq., of the Middle Temple, Barrister-at-Law, Author of "The Practical Man," &c. Third Edition, greatly enlarged. With a Supplement, giving Abstracts of the Statutory Provisions affecting the Practice in Conveyancing ; and the requisite Alterations in Forms, with some New Forms ; and including a full Abstract in numbered Clauses of the Stamp Act, 1870. The Supplement separately, price Is. 6d. seivcdi " The best test of the value of a book written professedly for practical men is the practical one of the number of editions through which it passes. The fact that this well-known work has now reached its third shows that it is considered by those for whose convenience it was written to f ultil its purpose well." — Law Magazine. "In this edition, which is greatly en- larged, Mr. Rouse has for the first time introduced Precedents of Wills, extend- ing to no less than 116 pages. We can accord immiiigled praise to the convey- ancing memoranda showing the practical effect of the various statutory provisions in the different parts of a deed." — Laiv Times. " So far as a careful perusal of Mr. Rouse's book enables us to judge of its merits, we think that as a collection of precedents of general utility in cases of common occurrence it will be found satis- factorily to stand the application of the test. The draftsman will find in the Practical Conveyancer precedents appro- priate to all instruments of common oc- currence, and the collection appears to be especially well supplied with those which relate to copyhold estates. In order to avoid useless repetition and also to make the precedents as simple as possible, Mr. Rouse has sketched out a number of out- line drafts so as to present to the reader a sort of bird's-eye view of each instru- ment and show him its form at a glance. Each paragraph in these outline forms refers, by distinguishing letters and num- bers, to the clauses in full required to be inserted in the respective parts of the in- strument, and which are given in a sub- sequent part of the work, and thus every precedent in outline is made of itself an index to the clauses which are necessary to complete the draft. In order still fur- ther to simplify the arrangement of the work, the author has adopted a plan (which seems to us fully to answer its purpose) of giving the variations which may occur in any instrument according to the natural order of its different parts." — Law Journal. "That the work has found favour is proved by the fact of our now having to review a third edition. This method of skeleton precedents appears to us to be attended with important advantages. To clerks and other young hands a course of conveyancing under Mr. Rouse's auspices is, we think, calculated to prove very instructive. To the solicitor, es- pecially the country practitioner, who has often to set his clerks to work upon drafts of no particular difficulty to the experienced«practitioner, but upon which they, the said clerks, are not to be quite trusted alone, we think to such gentlemen Mr. Rouse's collection of Precedents is calculated to prove extremely serviceable. We repeat, in conclusion, that solicitors, especially those practising in the country, will find this a useful work." — Solicitors' Journal. Clark's Digest of House of Lords Cases. Royal 8vo. 31s. M. cloth. A DIGESTED INDEX to all tlio EEPORTS in the HOUSE OF LORDS, from the commencement of the Series by Dow, in 1814, to the end of the Eleven Volumes of House of Lords Cases, with references to more recent Decisions. By Charles Clark, Esq., one of Her Majesty's Counsel, Reporter by appointment to the House of Lords. Dixon's Law of Partnership. One vol. 8vo. 22s. cloth. A TREATISE ON THE LAW OF PARTNERSHIP. By JosErn Dixon, of Lincoln's Inn, Esq., Barrister-at-Law, Editor of "Lush's Common Law Practice." " We imagine that very few questions are likely to come before the practitioner which Mr. Dixon's book will not he found to solve. Having already passed our opinion on the way in which the work is carried out, we have only to add that the value of the hook is very materially increased by an excellent marginal sum- mary, and a very copious index.' — Law Magazine and Revit w. " Mr. Dixon enters into all the con- ditions of partnerships at common law, and defines the rights of partners among themselves ; the rights of the partnership against third persons; the rights of third persons against the partnership; and the rights and liabilities of individuals, not actually partners, but liable to be treated by third persons as partners." — Times. _ "We heartily recommend to practi- tioners and students Mr. DLxon's treatise as the best exposition of the law we have read, for the arrangement is not only artistic, but conciseness has been studied without sacrifice of clearness. He sets forth the principles upon which the law is based as well as the cases by which its application is shown.— Lair Times. " He has evidently bestowed upon this book the same conscientious labour and painstaking industry for which we had to compliment him some months since when reviewing his edition of Lush's 'Practice of the Superior Courts of Law,' and, as a result, he has produced a clearly writtei i and well arranged manual upon one of the most important branches of our mer- cantile law."— Law Journal. Ortolan's Eoman Law, translated by Pricliard & Xasinitli. 8vo. 28s. cloth. THE HISTORY OF ROMAN LAW, from the Text of Ortolan's Histoire de la Legislation Romaine et Generalisation du Droit (Edition of 1870). Translated, with the Author's permission, and Supplemented by a Chronomc- trical Chart of Roman History. By Ilttjdtjs T. Peichaed, Esq., F.S.S., and David Nasmith, LL.B., Barristers-at-Law. " We know of no work, which, in our opinion, exhibits so perfect a model of what a text-book ought to be. Of the translation before us, it is enough to say, that it is a faithful representation of the original." — Law Magazine. " This translation, from its great merit, deserves a warm reception from all who desire to lie acquainted with the history and elements of Iioman law, or have it's interests as a necessary part of sound legal education at heart. With regard to that great work it is enough to say, that English writers have been continu- ally in the habit of doing piecemeal what Messrs. Prichard and Nasmith have done wholesale. Hitherto we have had but gold-dust from the mine; now we are Fortunate in obtaining a nugget. Mr. Nasmith is already known as the designer of a chart of the history of England, which has been generally approved, and bids fairly for extensive adoption."— Law Journal. "We are extremely glad to welcome the appearance of a translation of any of the works of M. Ortolan, and the hist* i v and generalization of Roman law. which are now presented to us in English, are perhaps the most useful books thai could be offered at the present time to st of the Roman law. The utility of 1 law, as an instrument of legal education, is now generally admit ■ • gli&h of the book is unusually free from : idioms which so often disfigure transla- tions. The hook itself we strongly recom- mend to all who are interested in Roman law, jurisprudence or history, ami who are not sufficiently familiar with French, to be able to read the original w ith i Solicitors' Journal. 22 LAW "WOKKS PUBLISHED BY ifc Sdtfrctfs MA Ifemrak CO' c? co v Bedford's Final Guide to Probate and Divorce. Just published, 8vo. 4s. cloth. THE FINAL EXAMINATION GUIDE TO THE LAW OF PROBATE AND DIVORCE : containing a Digest of Final Examination Questions, with the Answers. By E. H. Bedford, Solicitor, Temple, Author of the "Final Examination Guide to the Practice of the Supreme Court of Judica- ture," &c. &c. "The examiners have added, as extra subjects in the ' Final,' the Probate and Divorce Law. Mr. E. H. Bedford, Soli- citor, who seems to be always anxious to keep abreast of the tide, has prepared a Guide or Manual to assist his pupils and candidates generally in the exami- nation in acquiring due knowledge of these subjects. His Guide takes the favourite form of Questions and An- swers, and seems to have been carefully and accurately compiled." — Laic Journal. "Mr. Bedford, who has compiled Guides on pretty nearly eveiy subject of importance to articled clerks, now supplies a Final Examination Guide to the Law of Probate and Divorce — this having been made an extra subject by the examiners. A student who masters this little work ought to be able to satisfy the examiners, for the questions appear to be exhaustive, whilst the answers have been compiled with skill, and con- vey a very great deal of information. An index to such a work, in our opinion, is unnecessary, but it is supplied for what it may be worth." — Law Times. "As our readers are aware, the sub- jects of Probate and Divorce are now introduced into the Final Examination as honour subjects. Candidates for honours who desire to distinguish them- selves in these subjects cannot do better than procure the book named at the head of this review." — Laic Examination Journal. Bedford's Final Guide to Judicature Acts, 1873-5. One vol. 8vo. 7s. 6d. cloth. THE FINAL EXAMINATION GUIDE TO THE PEACTICE OF THE SUPREME COURT OF JUDICATURE : containing a Digest of the Final Examination Questions, with many new ones, with Answers under the Supreme Court of Judicature Acts. By Edwaed Henslowe Bedford, Solicitor, Editor of the "Preliminary," "Intermediate," and "Final," &c. &c. " Every conceivable question appears "Mr. Bedford's Final Examination to have been asked, and a full answer is Guide supplies a want which will be given in each case. Mr. Bedford really knows better than we do what students require, and we have no doubt that his compilation will be extensively used. It contains a sufficient index." — Laic Times. "The various sections, orders and rules of the acts have been here arranged under their proper and consecutive head- ings in the form of question and answer, and the result is a useful and readable book, which we would recommend stu- dents to keep in view." — LrishLaw Time:;. much felt by students as to what they are to read with reference to the new practice. The Guide and Time Table will be found useful helps to students in perusing the Judicature Acts." — Law Examination Journal. "We have in these pages a well arranged and clear digest of the final examination questions, and many new questions with answers, under the Su- preme Court of Judicature Acts." — Standard. Bedford's Intermediate Examination Guide. Two vols, in one, Svo. 14s. 6d. cloth. THE INTERMEDIATE EXAMINATION GUIDE: containing a Digest of the Examination Questions on Common Law, Conveyancing and Equity, with the Answers. By Edwaed Henslowe Bedfoed, Solicitor, Temple, Editor of the ' ' Preliminary, " " Intermediate ' ' and ' ' Final, ' ' &c. By the same Author, on a Sheet, Is. A TABLE OF THE LEADING- STATUTES for the INTER- MEDIATE and FINAL EXAMINATIONS in Law, Equity and Conveyancing. MESSES. BUTTEEWORTH, 7, FLEET STREET, E.G. 23 Seaborne's Law of Vendors and Purchasers. Post 8vo. 9*. cloth. A CONCISE MANUAL OF THE LAW OF VENDOES AND PURCHASERS OF REAL PROPERTY, with a Supplement, including the Vendor and Purchaser Act, 1874, with Notes. By He>tey Seabobne. *** This work is designed to furnish Practitioners with an easy means of reference to the Statutory Enactments and Judicial Decisions regulating the transfer of Real I'r<'/i' rty, and also to bring these authorities in a compendious shape under the attention of Students. "The value of Mr. Seaborne's work consists in its being the most concise summary yet published of one of the most important blanches of the law. The student will find this book a useful introduction to a dry and difficult sub- ject." — Law Examination Journal. "The book before us contains a good deal, especially of practical information, as to the course of conveyancing matters in solicitors' offices which may be useful to students." — Solicitors' Journal. " We will do Mr. Seaborne the justice to say that we believe his work will be of some use to articled clerks and others in solicitors' offices, who have not the opportunity or inclination to refer to the standard works from which his is com- piled." — Law Journal. ( Barry's Forms in Conveyancing. 8vo. 21s. cloth. FORMS AND PEECEDENTS IN CONVEYANCING; with Introduction and Practical Notes. By W. Whittakee Baeey, of Lincoln's Inn, Esq. , Barrister-at-Law, Author of " A Treatise on the Practice of Conveyancing. ' ' Barry's Practice of Conveyancing. 8vo. 18*. cloth. A TEEATISE ON THE PEACTICE OF CONVEYANCING. By W. Whittakee Baeey, Esq., of Lincoln's Inn, Barrister-at-Law, late Holder of the Studentship of the Inns of Court, and Author of "A Treatise on the Statutory Jurisdiction of the Court of Chancery." " We feel bound to strongly recom- mend it to the practitioner as well as the student. The author has proved him- self to be a master of the subject, for he not only gives a most valuable supply of practical suggestions, but criticises them with much ability, and we have no doubt that his criticism will meet with general approval." — Law Magazine. "It contains, in a concise and read- able form, the law relating to almost every point likely to arise in the ordinary evcrv day practice of the eonveyaneer, with references to the various authorities and statutes to the latest date, and may be described as a manual of practical conveyancing." — Law Journal. "This treatise supplies a want which has Ions been felt. There has been no treatise on the Practice of Conveyanc- ing issued for a long time past that is adequate for the present requirements. Mr. Barry's work is essentially what it professes to be, a treatise on the Practice of Conveyancing. The treatise, although capable of compression, is the produc- tion of a person of great merit and still greater promise." — Solicitors^ Journal. "A work, the substance of which well known to our readers, needs no recommendation from us. for its merits arepatcntto all, from personal acquaint- ance with them. The information that the treatise so much admired may now be had in the more convenient form of a book, will suffice of itself to secure a and eager demand for it." — Law Times. 24 LAW WOKKS PUBLISHED BY Goldsmith's Equity.— Sixth Edition. Post 8vo. 18s. cloth. THE DOCTEINE AND EEACTICE OF EQUITY: or a concise Outline of Proceedings in the High Court of Chancery, designed principally for the Use of Students. Sixth Edition, according to the recent Statutes and Orders. By Geo. Goldsmith, Esq., M.A., Barrister-at-Law. extent with that adopted by Mr. Haynes in his excellent 'Outlines of Equity,' but his work is more complete than that of Mr. Haynes." — Law Examination Journal. " The whole work is elaborated by Mr. Goldsmith with evident care and a deter- mination to deal with all that can come within the scope of the title. It is characterized by comprehensiveness and at the same time conciseness, by clearness of diction and attractiveness of style and avoidance of technicalities which might prove embarrassing to the student, and a close adherence to the purpose as ex- pressed in the preface. Mr. Goldsmith's volume is marked by as much originality as well can be found in a work of its kind." — Laic Journal. " Altogether the author's method and his execution are alike commendable — and we are of opinion that the lawyer, who, as a student, avails himself of the primary intention of Mr. Goldsmith's work by findiug in it his first equity read- ing book or primer, will afterwards verify the anticipation of the author by making of it dilectu j'uvenili or rade mecum in hislater practice." — Law Maga- zine, 2nd notice. "A well-known law student's book, the best, because the most thoroughly complete, yet simplified instructor, in the principles and practice of equity that has ever been provided for him ; and that its value has been recognized by those who have made use of it is proved by this — that their commendations have carried it to a sixth edition. The principles of equity are as they were, but the practice has so changed since the publication of the first edition, that every part of this division of the work has required to be rewritten almost as often as a new edition was demanded. Of course, the size of the book has grown also, and from being, as we remember it, a very little book, to be carried in the pocket, it has become a portly volume, and this fairly represents its increased merits. Now that every student aspiring to the bar is to be ex- amined before admission, good books for instruction in the law will be more than ever in request." — Laic Times. " It is difficult to know which to praise most, the excellence and dignity of the style, or the exhaustiveness of the infor- mation furnished to the reader. Mr. Goldsmith's plan corresponds to some Geach's Outline of Law. Svo. 2s. 6d. cloth. A FLAIN OUTLINE OF LAW. By Henry Harmr Geach, Solicitor of the Supreme Court. Bulley and Bund's Bankruptcy Manual. 12mo. 16s. cloth. A 1MANUAL of the LAW and PEACTICE of BANKRUPTCY as Amended and Consolidated by the Statutes of 1869: with an APPENDIX containing the Statutes, Orders and Forms. By John F. Bulley, B.A., of the Inner Temple, Esq., Barrister-at-Law, and J. W. Willis Bund, M.A., LL.B., of Lincoln's Inn, Esq., Barrister-at-Law. With Supplement, including the Orders to 30th April, 1870. The SurrLEJrENT may be had separate?!/, Is. saved. MESSES. BUTTERWORTII, 7, FLEET STREET, E.C. 25 Locock Webb's Practice of the Court of Judicature. Just published, 1877, one thick vol. 8vo. 30*. cloth. THE PRACTICE of the SUPREME COURT of JUDICATURE and of House of Lords on Appeals, the Jurisdiction of the Court of Bankruptcy, the Court of Chancery of the County Palatine of Lancaster, the Court of the Lord Warden of the Stannaries, and the County Courts ; shewing to what extent such jurisdiction is exclusive or is concurrent with that of the High Court of Justice, and the Practice on Appeals from those Courts. By Locock "Webb, Q.C., of the Middle Temple, Esq. "This is a work of undoubted merit, Jurisdiction, Law, and Procedure. Some and is in eveiy way superior to the books of what may be called the brief essays on of practice under the Judicature Acts the different heads embraced are models already published. We congratulate Mr. of concise statement. This volume must Webb on the fact that he has not adopted prove a welcome addition to the library the rule of a bookmaker. With the aid of the judge and the practitioner." of several competent assistants, he gives Law Times, Feb. 10, 1877. to the profession a pithy treatise on Ball's Popular Conveyancer. Just published, 8vo. 10s. 6d. cloth. THE POPULAR CONVEYANCER, being a comprehensive Theoretical and Practical Exposition of Conveyancing, with Concise Precedents. By James Ball. Contexts :— Chap. I. Introduction.— II. Terms employed in Conveyances.— III. Agreements or Contracts for Sale or Purchase.— IV. General Contracts — V. Conveyances on Sales.— VI. Leases.— VII. Mortgages.— VIII. Partnerships —IX. Settlements.— X. Wills.— XI. Miscellaneous Deeds.— XII. Abstracts of Title —XIII. Memorials.— XIV. Notices— XV. Eecitals.— XVI. Requisitions on Title. — XVII.— On Conducting and completing Conveyancing Matters. — Appendix A Charter of Feoffment.— B. 23 & 24 Vict. cap. 14.5 (with Notes).— C. Affidavits and Declarations. — D. Public Companies: Instruments required upon Incorporation Table of Cases cited.— Table of Precedents.— General Index. " The work shows that Mr. Ball has a transacted in a solicitor's office. We very clear conception of conveyancing ; think the book will be useful for this his notes are well written and compen- puipose, and the diligence with which dious, and the precedents have been the author has annotated his precedents selected with great care. Such a book will certainly save the solicitor, or his must commend itself to students and conveyancing clerk, the trouble of im- practitioners."— Law Times. parting a good deal of elementary infor- " Mr. Ball's main object is to place in mation to the articled clerks. "Solicitors' the hands of clerks and students a guide Journal. to the simpler conveyancing matters Lewis's Introduction to Equity Drafting. Post 8vo. 12s. cloth. PRINCIPLES OF EQUITY DRAFTING:; with an Appendix of Forms. By Hubeet Lewis, B.A., of the Middle Temple, Barrister-at-Law, Author of " Principles of Conveyancing," &c. Lewis's Introduction to Conveyancing. 8vo. 18*. cloth. PRINCIPLES OF CONVEYANCING explained and illustrated by Concise Precedents ; with an Appendix on the effect of the Transfer of Land Act in modifying and shortening Conveyances. Bv Hubert Lewis, B.A., late Scholar of Emmanuel College, Cambridge, of the Middle Temple, Barrister-at- Law. J> 26 LAW WORKS PUBLISHED BY Chute's Equity in Relation to Common Law. Post 8vo. 9s. cloth. EQUITY UNDER THE JUDICATURE ACT, OR THE RELATION OP EQUITY TO COMMON LAW: with an Appendix con- taining the High Court of Judicature Act, 1873, and the Schedule of Rules. By Chaloxee William Chute, Barrister-at-Law; Pellow of Magdalen College, Oxford ; Lecturer to the Incorporated Law Society of Great Britain. 1 His manner is eminently philoso- interesting way in which modern cases phical, and proves the capacity of the author for the position of a lecturer, while it is just the kind of teaching by which students are attracted to the light. Students may here congratulate them- selves on the possibility of finding, within the limits of two hundred pages, many of the chief doctrines of Equity, set forth briefly, lucidly and completely." — Laic Journal. " We may add that his style presents a very agreeable contrast to the general style of law books. In conclusion, we would heartily recommend this most in- structive and interesting work to the perusal of the student."— Law Exami- nation Journal. " The present volume can scarcely fail to become a standard work on the sub- ject of which it treats. Mr. Chute has one special virtue for which his readers will be thankful— the method and ar- rangement — which are specially valuable in a book of this kind." — Morning Post. " The book is deserving of praise, both for clearness of exposition and for the are used to illustrate the doctrines ex- pounded. As it stands it appears to us to be a useful guide to the leading prin- ciples of Equity Jurisprudence. The book is written in easy and familiar lan- guage, and is likely to prove more at- tractive to the student than many f onnal treatises." — Solicitors' Journal. " He thinks clearly, writes very well. As a small and meritorious contribution to the history of j urisprudence it de- serves to be welcomed." — Laic Times. ' ' The work is conscientiously done and will be useful to the student at the pre- sent juncture." — Echo. "Mr. Chute's book is founded upon lectures delivered by him to the students at the Law Institution. The object of it is to point out concisely the principles on which the doctrines of Equity depend, and to show the relation of Equity to the Common Law, and the work is a useful one for the class of persons to whom the lectures are delivered." — Athenccum. Tndor's Leading Cases on Eeal Property, &c— 3rd Ed. In the Press. A SELECTION OE LEADING CASES ON THE LAW RELATING TO REAL PROPERTY, Conveyancing, and the Construction of Wills and Deeds ; with Notes. By Owen Davies Tudoe, Esq., of the Middle Temple, Barrister-at-Law, Author of "A Selection of Leading Cases in Equity." Third Edition. " The second edition is now before us, and we are able to say that the same ex- tensive knowledge and the same laborious industry as have been exhibited by Mr. Tudor on former occasions characterize this later production of his legal author- ship ; and it is enough at this moment to reiterate an opinion that Mr. Tudor has well maintained the high legal reputation which his standard works have achieved in all countries where the English lan- guage is spoken, and the decisions of our Courts are quoted." — Laic Magazine and Review on "2nd edit. ' ' To Mr. Tudor' s treatment of all these subjects, so complicated and so varied, we accord our entire commendation. There are no omissions of any important cases relative to the various branches of the law comprised in the work, nor are there any omissions or defects in his statement of the law itself applicable to the cases discussed by him. We cordially recom- mend the work to the practitioner and the student alike, but especially to the former." — Solicitors' Journal on 2nd edit. ' ' This and the other volumes of Mr. Tudor are almost a law library in them- selves, andweare satisfied that the student would learn more law from the careful reading of them than he would acquire from double the time given to the elabo- rate treatises which learned professors recommend the student to peruse, with entire forgetfulness that time and brains are limited, and that to do what they advise would be the work of a life. No law library should be without this most useful book." — Law Times on 2nd edit. MESSES. BUTTERWORTH, 7, FLEET STREET, E.G. Underbill's Law of Trusts and Trustees. Just published, in 1 vol. post 8vo. 8s. cloth. A CONCISE MANUAL of the LAW relating to PRIVATE TRUSTS AND TRUSTEES. By Aethub Undeehill, M.A., of Lincoln's Lin, Esq., Barrister-at-Law. "The Courts of Equity have always exercised a very extensive authority in all matters of trust, and the object of this work is to present to the reader the principles in relation to the law of pri- vate trusts. The author has divided his subjects into 76 Articles, and he so treats his subjects that it will not be found a difficult matter for a person of ordinary intelligence to retain the matter therein contained, which must be constantly necessary, not only to the professional man, but also for all those who may have taken upon themselves the respon- sibilities of a trustee." — Justice of the Peace. ' • We recently published a short review or notice of Mr. A. F. Leach's ' Digest of the Law of Probate Duty,' and remarked that it was framed after the model of Sir Fitzjames Stephen's ' Digest of the Criminal Law and Law of Evidence from the Indian Acts,' and which has been followed by Mr. Pollock in his ' Digest of the Law of Partnership.' Mr. Under- bill has, in the above-named volume, performed a similar task in relation to the 'Law of Trusts.' In seventy-six articles he has summarized the principles of the ' Law of Trusts' as distinctly and accurately as the subject will admit, and has supplemented the articles with illus- trations. He has chosen a branch of the law which appears one of the most diffi- cult to deal with in this way. He has, however, succeeded fairly well, and it seems probable, as he suggests in his preface, that ' a person of ordinary in- dustry and capacity may easily learn the seventy-six articles of this work, and may, without great effort, remember the main facts of such of the illustrative cases as are what may be called ' lead- ing;' and when he has done so he will possess such a knowledge of the prin- ciples upon which the court acts with regard to private trusts as will enable him to answer without hesitation all such questions as occur in the every-day ex- perience of a general practitioner." — Z/nr Journal. " The work is intended for those who cannot study larger tomes, and Mr. Un- derbill is sanguine that the student will be able to learn and remember all that he has written. We believe this to be quite possible, and commend the work to the attention of students." — Laic Times. Underbill's Law of Torts or Wrongs.— 2nd edit. Just published, in 1 vol. post 8vo. 8s. cloth. A SUMMARY OF THE LAW OF TORTS OR WRONGS INDEPENDENT OF CONTRACT, for the use of Students and Practitioners. By Abthtte Undeehill, M.A., of Lincoln's Inn, Esq., Barrister-at-Law, 2nd edit. "Mr. Underhill states that his chief aim has been to write for the student, but many who have passed their pupil- age and are now enjoying the advan- tages of considerable practice, may con- sult these pages with advantage. Mr. Underhill places before his readers broad principles or rules of law, which he illustrates by cases falling under them, so that they are placed before the mind in a manner most impressive. Excep- tions are not omitted, and the rules are, when necessary, elucidated by sub-rules. The plan is a good one, and lias been honestly carried out, and a good index facilitates reference." — Justice of the i " He has set forth the elements of the law with clearness ami accuracy. The little work of Mr. Underhill is inexpen- sive, and may be generally relied on." — Law Times. "This is a very useful little book on the law of Torts. The book is intend) d for the student who desires to have prin- ciples before entering into particulars, and we know no book on the subject so well adapted for the purpose." — Law nation Reporter. "This work appears fairly to deserve the success which it has attained. The plan of it is to arrange the law under a series of "rules" in large type, and to print beneath each "rule" such ami comments as arc necessary in ex- planation. In the present edition, the first chapter — which treats of wrongs purely ex delicto — has been completely re-written, and new chapters upon in- junctions, negligence and fraud the whole has been care- fully corrected and revised. We can confidently recommend the book to stu- dents." — Lnic Journal. 28 LAW WORKS PUBLISHED BY Phillimore's Commentaries on International Law. 2nd Edition. Four vols. 8vo. 6/. 3s. cloth, 11. 3s. calf. COMMENTAEIES ON INTEENATIONAL LAW. By the Right Hon. Sir Robert Phillimore, Knt., Member of H.M.'s Most Hon. Privy Council, and Judge of the High Court of Admiralty of England. *** For the convenience of purchasers, Vol. I., price 25s., Vol. II., price 28s., Vol. III., price 36s., and Vol. IV., price 34s. cloth, may be had separately to complete sets. Extract from Pamphlet on "American Neutrality,' 1 '' by George Bemis {Boston, U.S.). — "Sir Robert Phillimore, the present Queen's Advocate, and author of the most comprehensive and systematic 'Commentary on International Law' that England has produced." ' ' The authority of this work is ad- mittedly great, and the learning and ability displayed in its preparation have been recognized by writers on public law both on the Continent of Europe and in the United States. With this necessarily imperfect sketch we must conclude our notice of the first volume of a work which forms an important contribution to the literature of public law. The book is of great utility, and one which should find a place in the library of every civilian." — law Magazine. " We cordially welcome a new edition of Vol. I. It is a work that ought to be studied by every educated man, and which is of constant use to the public writer and statesman. It will not be out of place to further remark, that the arrangement is excellent, the table of contents, the list of authorities are com- plete, and, therefore, these Commentaries are singularly handy for reference. Al- together this work is a witness to the zeal, industry and ability of Sir R. Phillimore. It will not only be read at home, but also in the United States, and it cannot fail to smooth the way for the thorough international understanding between England and America that the true men of both countries so ardently desire." — law Journal. " It is the most complete repository of matters bearing upon international law that we have in the language. We need not repeat the commendations of the text itself as a treatise or series of treatises which this journal expressed upon the appearance of the two first volumes. The reputation of the Author is too well established and too widely known. We content ourselves with testifying to the fulness and thoroughness of the work as a compilation after an inspection of the three volumes (second edition) ." — Boston (United States) Daily Advertiser. "Sir Robert Phillimore may well be proud of this work as a lasting record of his ability, learning and his industry. Having read the work carefully and critically, we are able to highly recom- mend it. Usually when such a work reaches a second edition critical com- mendation is superfluous, but the present is an exceptional case, because Philli- more's Commentaries will be of the greatest use to many non-professional readers who, as public men and public writers, find it necessary to study inter- national law. It is in itself a well di- gested body of laws." — Law Journal (second notice). ' ' We have within a short period briefly noticed the previous volumes of the im- portant work of which the fourth volume is now before us. We have more than once recognized the ability and profound research which the learned author has brought to bear upon the subject, but this last volume strikes us as perhaps the most able and lucid, and, in addition to these merits, it deals with a division of international jurisprudence which is of very great interest, namely, private in- ternational law or comity. The issue of a second edition proves that it has at- tained a position of authority and is favourably received by international jurists. We have no grounds for im- pugning its accuracy, and as a compila- tion it must receive our acknowledgment that it is able and learned." — Laic Times. " The second edition of Sir Robert Phillimore's Commentaries contains a considerable amount of valuable ad- ditional matter, bearing more especially on questions of international law raised by the wars and contentions that have broken out in the world since the publi- cation of the first edition. Having upon a former occasion discussed at some length the general principles and execu- tion of this important work, we now propose to confine ourselves to a brief examination of a single question, on which Sir Robert Phillimore may justly be regarded as the latest authority and as the champion of the principles of maritime law, which, down to a recent period, were maintained by this country, and which were at one time accepted without question by the maritime powers. Sir Robert Phillimore has examined with his usual learning, and established with- out the possibility of doubt, the history of the doctrine 'free ships, free goods,' and its opposite, in the third volume of his 'Commentaries' (p. 302)." — Edin- burgh Review. No. 296, October, 1876. MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 29 Scriven's Law of Copyholds.— 5th Ed. by Stalman. Abridged in 1 vol. royal 8vo. 30*. cloth ; 36*. calf. A TREATISE ON COPYHOLD, CUSTOMARY FREEHOLD and ANCIENT DEMESNE TENURE, with the Jurisdiction of Courts Baron and Courts Leet. By John Scriven, Serjeant-at-Law. Fifth Edition, con- taining references to Cases and Statutes to 18G7. By Henry Stat.man, of the Inner Temple, Esq., Barrister-at-Law. " Xo lawyer can see or hear the word ' copyhold ' without associating with it the name of Scriven, whose book has been always esteemed not merely the best but the only one of any worth. Until a commutation of the tenure for a fixed rent- charge, after the manner of a tithe commutation, is compelled by the legis- lature, this treatise will lose none of its usefulness to the solicitors in the count ry . ' ' — Law Times. "It would be wholly superfluous to offer one word of comment on the general body of the work. Scriven on Copyholds has for exactly half a century been not only a standard work but one of unim- peachable authority, and in its pages the present generation has learned all that is known of copyhold and customary tenures. All that is necessary to say is, that in the present edition of Scriven on Copyholds Mr. Stalman has omitted what it was useless to retain, and inserted what it was necessary to add. Until copy- holds have disappeared utterly, it is at least certain that Scriven on Copyholds by Stalman will hold undisputed sway in the profession." — Law Journal. Rouse's Copyhold Manual.— 3rd Edition. 12mo. 10s. Gd. cloth. THE COPYHOLD ENFRANCHISEMENT MANUAL, giving the Law, Practice and Forms in Enfranchisements at Common Law and under Statute, and in Commutations ; with the Values of Enf ranehisements from the Lord's various Rights: the Principles of Calculation being clearly explained and made practical by numerous Rules, Tables and Examples. Also all the Copyhold Acts, and several other Statutes and Notes. Third Edition. By Rolla Rouse, Esq., of the Middle Temple, Barrister-at-Law, Author of "The Practical Conveyancer," &c. "This new edition follows the plan of its predecessor, adopting a fivefold division: — 1. The Law. 2. The Practice, with Practical Suggestions to Lords, Stewards and Copyholders. 3. The Ma- thematical consideration of the Subject in all its Details, with Eules, Tables and Examples. 4. Forms. 5. The Statutes, with >iotes. Of these, we can only re- peat what we have said before, that they exhaust the subject; they give to the practitioner all the materials required by him to conduct the enfranchisement of a copyhold, whether voluntary or com- pulsory." — Law Times. " WTien we consider what favour Mr. Rouse's Practical Man and Practical Conveyancer have found with the pro- fession, we feel sure the legal world will greet with pleasure a new and improved edition of his copyhold manual. The third edition of that work is before us. It is a work of great practical value, suitable to lawyers and laymen. We can freely and heartily recommend this volume to the practitioner, the steward and the copyholder." — Law Marjazinc. "Now, however, that copyhold tenures are being frequently converted into free- holds, Mr. Rouse's treatise will doubtless be productive of very extensive benefit; for it seems to us to have been very care- fully prepared, exceedingly well com- posed and written, and to indicate much experience in copyhold law on the part of the author." — ^oUcHo}^ Journal. Brabrook's Co-operative and Provident Societies. 12mo. 6s. cloth. THE LAW relating to INDUSTRIAL and PROVIDENT SOCIETIES, includini: the Winding-up Clauses, with a Practical Introduction, Notes, and Model Rules, to which are added tin- Law of France on the same subject, and Remarks on Trad, s 1'uions. By Edward W. Brabbook, F.SJL, of Lincoln's Inn, Esq., Barrister-at-Law, Assistant Registrar of Friendly Societies in England. 30 LAW WOEKS PUBLISHED BY Christie CraWs Conveyancing — 5tli Edit, by Shelford. Two vols, royal 8vo. Zl. cloth, %l. 12*. calf. CEABB'S COMPLETE SERIES OF PRECEDENTS IN CONVEYANCING and of COMMON and COMMERCIAL FORMS in Alpha- betical Order, adapted to the Present State of the Law and the Practice of Con- veyancing; Avith copious Prefaces, Observations and Notes on the several Deeds. By J. T. Cheistie, Esq., Barrister-at-Law. The Fifth Edition, with numerous Corrections and Additions, by Leonard Shelfoed, Esq., of the Middle Temple, Barrister- at - Law. *** This work, which embraces both the Principles and Practice of Conveyancing, con- tains likewise every description of Instrument wanted for Commercial Purposes. General Table of Heads of Prefaces and Forms. Abstracts. — Accounts. — Acknowledgments. — Acquittances. — Admittances. — Affida- vits, Affirmations or Declarations. — Agreements : to relinquish Business : to Guarantee : for a Lease : before Marriage : for a Partition : between Principal and Agent : for the Sale and Purchase of Estates : for Sale of Copyhold Estates : for Sale of Leaseholds: for Sale of an Advowson. — Annuity: secured on Copy- holds — Annuities: Assignments of. — Appointments: of Guardians. — Apportion- ment. — Apprenticeship : to the Sea Service : to an Attorney : Assignment of. — Arbitration : Award. — Assignments : Bouds : Leases : Patents : Pews : Policies of Insurance : Keversionary Interests. — Attestations. — Attornments. — Auctions : Particulars of Sale. — Bargains and Sales : of Timber. — Bills of Sale of Goods. — Bonds: Administration: Receiver pending Suit: Post Obit: Stamps on. — Certifi- cates. — Composition: Conveyances in Trusts for Creditors. — Conditions: of Sale. — Confirmations. — Consents. — Copartnership : Dissolution of Copartnership. — Covenants : Stamps on : for Production of Title Deeds. — Declarations. — Deeds: I. Nature of Deeds in General : II. Requisites of a Deed : III. Formal parts of Deeds : IV. Where a Deed is necessary or otherwise : V. Construction of Deeds : VI. Avoiding of Deeds : VII. Proof of Deeds : VIII. Admission of Parol Evidence as to Deeds : IX. Possession of Deeds : X. Stamp Duty on Deeds. — Defeasances. — Demises. — Deputation. — Disclaimers. — Disentailing Deeds. — Dis- tress : Notices of. — Dower. — Enfranchisements. — Exchanges. — Feoffments. — Further Charges. — Gifts. — Grants. — Grants of Way or Road.— Indemnities. — Leases : I. Nature of Leases in General : II. Requisities to a Lease : III. Parts of a Lease : IV. Incidents to a Lease : V. Stamps on Leases. — Letters of Credit. — Licences. — Mortgages : of Copyholds : of Leaseholds : Transfer of : Stamp Duty on. — Notes, Orders, Warrants, &c. — Notices: to Quit. — Partition. — Powers: of Attorney.- — Presentation. — Purchase Deeds : Conveyance of Copyholds : Assignments of Leaseholds : Stamps on. — Recitals. — Releases or Conveyances : or Discharges. — Renunciations or Disclaimers. — Besignations. — Revocations. — Separation. — Settlements : Stamp Duty on. — Shipping : Bills of Lading : Bills of Sale: Bottomry and Respondentia Bonds: Charter Parties. — Surrenders. —Wills : 1. Definition of Will and Codicil : 2. To what Wills the Act 7 Will. 4 & 1 Vict. c. 26 does not apply : 3. What may be disposed of by Will. : 4. Of the capacity of Persons to make Wills : 5. Who may or may not be Devisees : 6. Execution of Wills : 7. Publication of Wills : 8. Revocation of Wills : 9. Lapse of Devises and Bequests : 10. Provisions and Clauses in Wills : 11. Construction of Wills. From the Law Times. From the Solicitors' Journal. " The preparation of it could not have "The collection of precedents contained been confided to more able hands than in these two volumes are all that could those of Mr. Shelford, the veteran be desired. They are particularly well authority on real property law. With adapted for Solicitors, being of a really the industry that distinguishes him he practical character. They are moreover has done ample justice to his task. In free from the useless repetitions of com- carefulness we have in him a second mon forms that so much increase the Crabb, in erudition Crabb's superior; bulk and expense of some collections that and the result is a work of which the we could name. We know not of any original author would have been proud, collection of conveyancing precedents could it have appeared under his own that would make it so possible for a tyro auspices. It is not a book to be quoted, to put together a presentable draft at an nor indeed could its merits be exhibited exigency, or which are more handy in by quotation. It is essentially a book of every respect, even for the experienced practice, which can only be described in draftsman. Mr. Shelford has proved rude outline and dismissed with applause, himself in this task to be not unworthy and a recommendation of it to the notice of his former reputation. _ To those of those for whose service it has been so familiar with his other works it will be a laboriously compiled." sufficient recommendation of this." MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 31 Christie Crabb's Conveyancing — continued. From the Law Magazine and Review. 44 To this important part of his duty — the remodelling and perfecting of the Forms — even with the examination which we have already been able to afford this work, we are able to affirm that the learned editor has been eminently suc- cessful and effected valuable improve- ments." From the Law Chronicle. " It possesses one distinctive feature in devoting more attention than usual in such works to forms of a commercial nature. We are satisfied from an ex- amination of the present with the imme- diately preceding edition that Mr. Shel- f ord has very considerably improved the character of the work, both in the pre- faces and in the forms. On the whole the two volumes of Crabb's Precedents, as edited by Mr. Leonard Shelford, will be found extremely useful in a solicitor's office, presenting a large amount of real property learning, with very numerous precedents : indeed we know of no book BO justly entitled to the. appellation of ' handy' as the fifth edition of Mr. Crabb's Precedents." Mosely's Articled Clerks' Handy-Book. By Bedford. Just published, in 1 vol. post 8vo., 8s. 6d. cloth. MOSELY'S FEACTICAL HANDY-BOOK OF ELEMENTAEY LAW, designed for the Use of Articled Clerks, with a Course of Study, and Hints on Reading for the Intermediate and Final Examinations. Second Edition. By Edward Henslowe Bedford, Solicitor, Editor of the ' ' Pre- liminary," "Intermediate," and "Final," &c., &c. Tudor's Law of Charitable Trusts.— 2nd Edit. Post 8vo. 18s. cloth. THE LAW OF CHAEITABLE TEUSTS ; with the Statutes to the end of Session 1870, the Orders, Regulations and Instructions issued pursuant thereto; and a Selection of Schemes. By Owen Davies Tudor, Esq., of the Middle Temple, Barrister-at-Law, Author of "Leading Cases in Equity," "Real Property and Conveyancing," &c. Second Edition. 14 Mr. Tudor's excellent little book on Charitable Trusts. It is in all respects the text-book for the lawyer, as well as a hand-book for reference by trustees and others engaged in the management of charities." — Law Times. " No living writer is more capable than Mr. Tudor of producing such a work : his Leading Cases in Equity, and also on the Law of Real Property, have deservedly earned for him the highest reputation as a learned, careful and judicious text-writer. We have only to add that the index is very caref idly com- piled." — Solicitor** Journal. Woolrych's Law of Sewers.— 3rd Edition. 8vo. 12s. cloth. A TEEATISE OF THE LAW OF SEWEES, including the DRAINAGE ACTS. By Humphry W. Woolrych, Serjeant-at-Law. 3rd Edit., with considerable Additions and Alterations. " Two editions of it have been speedily exhausted, and a third called for. The author is an accepted authority on all subjects of this class." — Law limes. 44 This is a third and greatly enlarged edition of a book which has already ob- tained an established reputation as the most complete discussion of the subject adapted to modern times. Since the treatise of Mr. Serjeant Callis in the early part of the 17th century, no work filling the same place has been added to the literature of the profession. It is a work of no slight labour to digest and arrange this mass of legislation ; this task, however, Mr. Serjeant Woolrych has undertaken, and an examination of his book will, we think, convince the most exacting that he has fully succeeded. No one should attempt to meddle with the Law of Sewers without its help." — Solicitors' Journal. 32 LAW WORKS PUBLISHED BY Kelly's Conveyancing Draftsman. Post 8vo. 6s. cloth. THE DEAFTSMAN : containing a Collection of Concise Prece- dents and Forms in Conveyancing ; with Introductory Observations and Practical Notes. By James Henry Kelly. "This is a thoroughly practical book, speaking, of the character contemplated designed for the solicitor and the student. by the author's design. We have been Mr. Kelly has rightly conceived the duties favourably impressed with a perusal of of a conveyancer ; and his short intro- several of the precedents in this book ; ductory recommendations should be at- and practitioners who have already tentively considered by all who are adopted forms of their own will probably anxious to become safe draftsmen. The Audit advantageous to collate them with author gives a few forms under each those given by Mr. Kelly. Each set of heading, confining himself to such as are precedents is prefaced by a few terse likely to be of everyday use in the office. aud practical observations." — Solicitors' This volume ought to be popular, as it Journal. combines law and practice." — Law " Such statements of law and facts as Times. are contained in the work are accurate." "Mr. Kelly's object is to give a few — Law Journal. precedents of each of those instruments ' ' It contains matter not found in the which are most commonly required in a more ambitious works on conveyancing, solicitor's office, and for which precedents and we venture to think that the student are not always to be met with in the will find it a useful supplement to his ordinary books on conveyancing. The reading on the subject of conveyancing." idea is a good one, and the precedents — Law Examination Journal. contained in the book are, generally J. Chitty, jun's. Precedents in Pleading.— 3rd Ed. Complete in 1 vol. royal 8vo. 38s. cloth. J. CHITTY, Jim's. PEECEDENTS IN PLEADING; with. copious Notes on Practice, Pleading- and Evidence. Third Edition. By the late Tompson Chitty, Esq., and by Leofric Temple, R. G. Williams, and Charles Jeffeey, Esquires, Barristers-at-Law. (Part 2 may, for the present, be had separately, price 18s. cloth, to complete sets.) Grant's Law of Corporations in General. Boyal 8vo. 26s. boards. A PEACTICAL TEEATISE on the LAW of COEPOEATIONS in GENEBAL, as well Aggregate as Sole ; including Municipal Corporations ; Bailway, Banking, Canal, and other Joint -Stock and Trading Bodies ; Dean and Chapters; Universities; Colleges; Schools; Hospitals; with quasi Corporations aggregate, as Guardians of the Poor, Churchwardens, Churchwardens and Over- seers, &c. ; and also Corporations sole, as Bishops, Deans, Canons, Archdeacons, Parsons, &c. By James Grant, Esq., of the Middle Temple, Barrister-at-Law. Baylis's Law of Domestic Servants.— By Monckton. Foolscap 8vo. 2s. cloth. THE EIGHTS, DUTIES and EELATIONS OF DOMESTIC SERVANTS and their MASTERS and MISTRESSES. With a Short Account of the Servants' Institutions, &c. and their Advantages. By T. Henry Baylis, M.A., of Brasenose College, Oxford, Barrister-at-Law of the Inner Temple. Fourth Edition, with considerable Additions, by Edward P. Monckton, Esq. , B.A., of Trinity College, Cambridge, Barrister-at-Law of the Inner Temple. " An excellent manual of the subject subject to which it relates. This volume of which it treats." — Law Times. wili be found a convenient handbook to "This little work thoroughly deserves the leading authorities on the subject." the success it has gained. It contains in — Solicitors' Journal. a small compass the law on the important MESSRS. BUTTERWORTH, 7, FLEET STREET, E.C. 33 Shelford's Law of Railways.— 4th Edition by Glen. In 2 thick vols, royal 8vo. 63s. cloth ; 75s. calf. SHELFOED'S LAW OF KAILWAYS ; containing the whole of the Statute Law for the Regulation of Railways in England, Scotland and Ireland : with copious Notes of Decided Cases upon the Statutes, Introduction to the Law of Railways, and Appendix of Official Documents. Fourth Edition. By William Cunningham Glen, Barrister-at-Law, Author of the "Law of Highways," "Law of Public Health and Local Government," &c. From the Law Magazine. " Though we have not had the oppor- tunity of going conscientiously through the whole of this elaborate compilation, Ave have been able to devote enough time to it to be able to speak in the highest terms of the judgment and ability with which it has been prepared. Its execution quite justifies the reputation which Mr. Glen has already acquired as a legal writer, and proves that no one could have been more properly singled out for the duty he has so well dis- charged. The work must take its un- questionable position os t fie leading Manual of the Railway Law of Great Britain. The cases seem to have been examined, and their effect to be stated with much care and accuracy, and no channel from which information could be gained has been neglected. Mr. Glen, indeed, seems to be saturated with knowledge of his subject. The value of the work is greatly increased by a number of supplemental decisions, which give all the cases up to the time of publication, and by an index which appears to be thoroughly ex- haustive." From the Law Times. "Mr. Glen has done wisely in pre- serving that reputation, and, as far as possible, the text of Shelford — though very extensive alterations and additions have been required. But he has a claim of his own. He is a worthy successor of the original author, and possesses much of the same industry, skill in arrange- ment and astuteness in enumerating the points really decided by cited cases. But we have said enough of a work already so well known. It will have a place not in the library of the lawyer alone. It is a book which every railway office should keep on its shelf for reference." From the Law Journal. "Mr. Glen has modestly founded his work as a superstructure on that of Mr. Leonard Shelford, but he has certainly claims to publish it as a purely indepen- dent composition. The toil has been as great, and the reward ought to be as complete, as if Mr. Glen had disregarded all his predecessors in the production of treatises on railway law. Since the year 1864 he has been unceasinglyjengaged in collecting materials, and though he has been ready for the printer for some time. and has delayed the appearance of the volumes in the expectation of legislative changes in railway law, yet he has ex- pended full five years of care and atten- tion on his work. Let us hope that he will have no cause to think his labour has been in vain. At any rate ire //""/ venture to predict that Mr. Cunningham Glen's edition of She/ford on Railways will be the standard work of our day in that department of law." From the Justice of the Peace. " Far be it from us to undervalue Mr. Shelford's labours, or to disparage his merits. But we may nevertheless be per- mitted to observe that what has hitherto been considered as the ' best work on the subject'' (Shelford) has been immeasurably improved by the application of Mr. Glen's diligence and learning. Sufficient, how- ever, has been done to show that it is in every respect worthy of the reputation which the work has always enjoyed. We feel little doubt that the credit of that work will be greatly increased by Mr. Glen's instrumentality, and that not only will he have ably maintained its reputation by his successful exertions, but that he will have added materiallv to it." From the Solicitors' Journal. " The practitioner will find here col- lected together all the enactments bearing on every possible subject which may come before him in connection with rail- ways or railway travelling. Whatever questions may arise the lawyer who has this book upon his shelves, may Bay to himself ' If there has been any legislation at all connected with this branch of the subject I shall at once find it in Shelford ;' and it needs not to be said that on this account the book will be a very ' com- fortable' one to possess. The collection is equally exhaustive in the matter of rules, orders, precedents and documents of official authority. To sum up our review ; as a collection of statutes and general information the work will prove extremely useful, because in these re- spects it is so perfectly exhaustive." 34 LAW WORKS PUBLISHED BY Crump's Marine Insurance and General Average. Royal 8vo. 21s. cloth, 26s. calf. THE PEINCIPLES of the LAW KELATING TO MAEINE INSURANCE and GENERAL AVERAGE in England and America, with occasional references to French and German Law. By Frederic Octavtus Crump, of the Middle Temple, Esq., Barrister-at-Law. "This is decidedly a clever book. We always welcome cordially any genuine effort to strike out a new line of legal exposition, not merely because such effort may more effectually teach law, but because it may exhibit a better method than we now possess of express- ing law. The author does not venture to use the term ' codification ' in speaking of the design of this book. He is con- tent if he has made a single step in advance towards simplification, and so much merit we have no hesitation in awarding to him. From the extracts we have made it is manifest that the author has followed the fashion neither of the ordinary text-book nor the plan of a digest of cases, but that he has developed a method nearly approaching to ' codifi- cation.' We have been at pains to search the book for many of the most recent cases in marine insurance, and although some of them are exactly of a character to puzzle and embarrass a codifier, Mr. Crump has dealt success- fully with them. We think we may fairly congratulate the author upon the production of a work original in design, excellent in arrangement, and as com- plete as could fairly be expected." — Law Journal. "Alphabetically arranged this work contains a number of the guiding prin- ciples in the judge-made law on this subject, which lias got into such a tangle of precedents that a much less careful digest than that under the above title would have been welcome to students as well as merchants. Mr. Crump has made a very commendable effort at brevity and clearness." — Economist. "The plan of the work differs mate- rially, and, we think, advantageously, from the ordinary text-book. We have examined several of Mr. Crump's pro- positions in order to test him on these points, and the result is decidedly in his favour. We have no hesitation in com- mending the plan of Mr. Crump's book; its use in actual practice must, of course, be the ultimate gauge of its accuracy and completeness; but from the tests that wc have applied we have little doubt that it will stand the ordeal satis- factorily." — Athenaeum. " His design is to compile a digested summary of rules, tersely expressed and easy of reference; and thoughsuch a work can never supersede treatises like those of Arnould, Phillips, or Duer, he has produced what will be a very useful manual of reference and will guide the practitioner to the sources where he will find the principles more fully developed. The work, which must have involved great labour, appears to us to have been executed with fidness, accuracy and fidelity, and its value is much increased by references not only to English and American decisions and text writers, but to the French and German law on the same subject. Considering the narrow compass within which it is comprised, we have been surprised to find how com- plete and comprehensive it appears to be; and if further experience should j ustif y the expectations which our perusal of it induces us to form, Mr. Crump will not be disappointed in his hope that he has made ' a step in advance towards simplification — not to use the term codifi- cation—of the law.' " — Solicitors' Journal. "There are many portions of it well arranged, and where the law is carefully and accurately stated." — Law Magazine. " We rejoice at the publication of the book at the head of this notice. Mr. Crump is a bold man, for he has posi- tively made an innovation. Instead of a ponderous tome, replete with obsolete law, useless authorities and antiquated quotations, we have a handy, clearly- written and well-printed book, seemingly containing the whole law on the subject, in the shape of a digest of decided cases, in the very words of the judges, and leaving nothing doubtful and misleading to beguile the reader. Mr. Crump's book seems very perfect, and is certainly very clear in its arrangement and com- plete in its details, conscientiously going into the most minute points and omitting nothing of importance." — Irish Law Times. "The subject-matter of the book in every instance is printed in large type, and the clauses followed by smaller letters of reference. This makes the work convenient for consultation, and the law cases being appended to every paragraph with quotations from the laws of foreign countries, its conciseness in the mode of explanation tends to render the author's reasons intelligible more readily than they would otherwise have been if overlaid by laborious dissertations upon the cases and effects of decisions on disputed points. Mr. Crump, we may observe, in this treatise of the law of Average and Insurance, has supplied a n iady armoury of reference." — 67i ipping ami Mercantile Gazette. MESSES. BUTTEEWOBTH, 7, FLEET STREET, E.G. 35 MAGISTERIAL WORKS BY MR. G. C. OKE (late chief clerk to the lord mayor of London). Oke's Magisterial Synopsis; a Practical Guide for Magistrates, their Clerks, Solicitors and Constables ; comprising Summary Convictions and Indictable Offences, with their Penalties, Punishments, Procedure, &c, alpha- betically and tubularly arranged: with a Copious Index. Twelfth Edition, much enlarged. By Thomas W. Saunders, Esq., late Recorder of Bath, and now one of the Metropolitan Police Magistrates. In 2 vols. 8vo. 60*. cloth, 68*. half-calf, 70*. calf. • ' Twelve editions in twenty- eight years say more for the practical utility of this work than any number of favourable reviews. Yet we feel bound to accord to the learned Recorder of Bath the praise of having fully maintained in the present edition the well-earned reputa- tion of this useful book. The many im- portant statutes passed since the eleventh edition appeared, only four years since, and which either impose new duties upon or modify the old law administered by Justices of the Peace, have been care- fully incorporated in the present work. Among these we may notice in the legis- lation of the last session alone the Acts concerning Cruelty to Animals, Drugging of Animals, Elementary Education, In- dustrial and Provident Societies, Mer- chant Shipping, the Poor Law, Salmon Fishing, and Wild Fowl Protection. A copious Index of over 100 pages offers every facility of reference which can be desired, in addition to the alphabetical and tabular arrangement of offences, with their penalties, punishments, and procedure." — Lav: Magazine, Feb. 1877. ' ' All we can do in reviewing a new edition of a work, on the general plan of which the profession has justly con- ferred so distinguished a mark of ap- proval as is involved in a twelfth edition, is to see whether the statutes and cases which have been passed and decided within the four years which have elapsed since the last edition have been duly in- corporated. They appear, on the points on which we have tested the book, to have been noticed by Mr. Saunders with considerable care. The Index has been very greatly improved, and has become a valuable feature of the work." — Solicitors' Journal, Oct. 28th, 1S7G. " The industrious, capable and pains- taking Recorder of Bath (Mr. T. W. Saunders) has edited the twelfth edition of Oke's Magisterial Synopsis. The law administered by magistrates, like almost every other branch of our jurisprudence, goes on growing almost every day of the legal year, and a new edition of such a work as this every few years means no small amount of labour on the part of the editor. We arc glad to see that Mr. Saunders has bestowed great care in the revision of the Index, which is now a feature in the work." — Law Times, Oct. 21st, 1876. "The first edition of this work was published in 1848, and contained 410 pages. The twelfth edition has now been published, and contains 1,579 pages. Both of these facts have their moral. The first proves how great a reward waits upon a genuine success in legal literature : the second proves what im- mense labour is cast upon the author who endeavours to win the reward. We believe the issue of twelve editions of a large law book within the space of twenty-eight years to be without prece- dent in the history of legal literature, and we are quite sure that the result has in this case not at all exceeded the merit of the work. It will be remembered that the first eleven editions were issued by Mr. Oke himself; so that, although he lived too brief a time for his friends and for the public good, yet time was given him to establish his own reputa- tion, and to gain the prize for which he strove. The new edition now before us has been brought out under the super- intendence of Mr. Saunders, the Recorder of Bath, whose name is well known in legal literature. Mr. Saunders has for many years made many of the subjects which fall within the scope of magisterial jurisdiction his special study, and we are not at all surprised that he should have been selected to cany on the work of Mr. Oke. Although only four years have elapsed since the eleventh edition of the work appeared, and although the new editor was in no wise called upon to recast the form or manner of the work, or to change in any way the nature of its contents, yet it must not be su; that his task has been at all limited to the mere lending of his name to the new edition imperatively required by the ex- haustion of the former issue. The list of statutes passed since 1872, and having near relation to magisterial work, is far from small; and, as we have often had occasion to observe, the provisi every Act of Parliament designed to im- prove the sanitary and social condition 6f the community derive their compulsory force from the summary procedure taken before justices. A host of acts with these salutary objects have been passed 1872, and all those have been introduced into the work, and put in their pi places, so that they can be found, as wanted, by justices, justices' clerks and solicitors." — Lav: Journal, Nov. 18, 1876. 3G LAW WORKS PUBLISHED BY MR. OKE'S MAGISTERIAL WORKS— eontd. Oke's Magisterial Formulist; being a Complete Collection of Forms and Precedents for practical use in all Cases out of Quarter Sessions, and in Parochial matters, by Magistrates, their Clerks, Attornies and Constables. Fifth Edition, enlarged and improved. By Thomas W. Saunders, Esq., late Recorder of Bath, and now one of the Metropolitan Police Magistrates. 8vo. 38s. cloth, 42s. half-calf, 43s. calf. recommendation. Although all will join with the present editor in lamenting that the public can no longer com- mand the services of the accurate and experienced author, yet we see no reason to think that they will suffer through the duty of re-editing this valuable collection of forms haviug de- volved upon Mr. Saunders, who seems to have performed his task with the care and accuracy which he has accustomed us to expect from him. His labour has not been a light one, for, as he points out, recent legislation has not only added to the already wide field of magisterial duties, but has also, by the process of consolidation, as well as by considerable substantive alterations, varied the neces- sary forms. These changes have been duly followed, and the work, which was last edited in 1868, may now be relied upon as a safe and complete guide in the matter it relates to." — Solicitors'* Journal, April 29th, 1876. "The last edition of this very useful work was published in 1868, since which time, in addition to numerous amending and consolidating acts bearing upon magistrates' law, other important sta- tutes have come into effect. New forms, applicable to these and other acts, have been prepared with much care by the learned editor of the present edition (Mr. Saunders) , while those which have become inapplicable have been elimi- nated. Besides the table of contents, a table of statutes, connected with the forms, has been added, and an unusually copious index leaves nothing to be de- sired by those who have to administer the branch of the law to which Oke's Magisterial Formulist relates." — Law Magazine, August, 1876. "In Mr. Saunders' preface will he found an enumeration of statutes which were not even in embryo at the time when Mr. Oke brought out the last edition of his valuable Formulist. He has had to create just as Mr. Oke created when he wrote his book. This of course has necessitated the enlargement and remodelling of the Index. No work, probably, is in more use in the offices of magistrates than Oke's Formulist. That it should be re- liable and comprehend recent enactments is of the very first importance. In select- ing Mr. Saunders to follow in the steps of Mr. Oke the publishers exercised wise discretion, and we congratulate both author and publishers upon the complete and very excellent manner in which this edition has been prepared and is now pre- sented to the profession." — Law Times, March 4th, 1876. " The duty of editing anew the Magis- terial Formulist has fallen upon the Re- corder of Bath, whose experience and in- dustry ought to furnish a guarantee that in his hands a work of so much value and celebrity will not lose any of its former attributes. There is not a member of this most important and intelligent class of men (magistrates' clerks) who has not learned to look upon Oke's Formulist as a trusty friend and safe guide in the moment of need, and who will not wel- come an edition which embraces the novel matter required by fresh legisla- tion. When we find that 900 pages are occupied with these forms, and that the index alone consists of 100 pages, we can form some idea of the task which Mr. Saunders has undertaken, the perform- ance of which ought to add to his re- pute." — Law Journal, March 4th, 1876. "This well-known work stands no longer in any need of introduction or Oke's Fishery Laws. — Second Edition by Bund. Just jiubUshcd, j>ost Sro. os. cloth. A Handy-Book of the Fishery Laws; containing the Law as to Fisheries, Private and Public, in the Inland Waters of England and Wales, and the Freshwater Fisheries Preservation Act, 1878. Systematically arranged, with the Acts, Decisions, Notes, and Forms. By Geoege C. Oke, Author of "Tho Magisterial Synopsis" and "Formulist," "The Laws of Turnpike Roads," etc., etc. Second Edition, by J. W. W 7 illis Bund, M.A., LL.B., of Lincoln's Inn, Barrister- at-Law, Chairman of the Severn Fishery Board. " This is a second edition of Mr. Oke's book on the Fishery Laws, edited by Mr. Willis Bund. It is a capital and, as it professes to be in its title, a handy- book on fishery law ; for, by simply turning to the index, the inquirer who MR. OKE'S MAGISTERIAL WORKS- Oke's Fishery Laws— contd. -contd. may be perplexed upon any point of fishery law can find his case state I in a condensed and simple form which will probably tell him all he wishes to know. i lonsidering how very diffuse fishery law is, and the number of Acts of Parliament it now involves, the compressing of it into so small a space has been done wonderfully well.' — The Field. "This is an extremely useful little work, and one which should be read by every English and Welsh angler." — Publishers'' Circular. ' ' This is a most comprehensive, not to say thoroughly exhaustive, compendium upon the laws of the private and public fisheries in the inland waters of England and Wales, and appears at a period when its usefulness, as a handy-book of refer- ence, cannot but find full appreciation by every one having an interest either directly or otherwise in the important matters upon which it treats. Indeed it appears at a time when the question of fishery law has assumed a greater im- portance than formerly, and, as an in- dependent treatise, it ought to make its way on to the shelves of every angling preservation society and anglers' club in the United Kingdom. A whole chapter is given to the Fresh Water Fisheries Act of 1878."— The Fishing Gazette. Oke's Handy Book of the Game Law ; containing the whole Law as to Game, Licences and Certificates, G-un Licences, Poaching Prevention, Trespass, Rabbits, Deer, Dogs, Birds and Poisoned Grain, Sea Birds, Wild Birds and Wild Fowl, and the Rating of Game throughout the United King- dom. Systematically arranged, with the Acts, Decisions, Notes and Forms. Third Edition. By J. W. Willis Bund, M.A., LL.B., of Lincoln's Inn, Esq., Barrister-at-Law; Vice -Chan-man of the Severn Fishery Board, and author of " The Law relating to Salmon Fisheries in England and Wales," &<$. &c. Post 8vo. 14s. cloth. "The task of bringing out a third edition has fallen upon Mr. Bund. Several important statutes bearing upon the subject have been passed since 1863, and manj- important decisions given by the courts. With these the author has dealt in a careful and complete manner, and on the whole he seems to have suc- ceeded in maintaining the j ust reputation of the work." — Law Journal. " The changes in the law by statute and the reported cases to the end of 1876 are duly noted. Notwithstanding Mr. Bund's modest estimate of his labour, we think he sustains the reputation of the author." — Laic Times. ' • The present publication has, we are happy to say, fallen into the able hands of Mr. Willis Bund. In conclusion, we may observe that the present edition of the above work will be found by legal men or others who require any reliable information on any subject connected with the Game Laws, of the greatest practical utility, and that landed pro- prietors, fanners and sportsmen will find 4 Oke's Game Laws' an invaluable addi- tion to their libraries, and an easy means of enlightening themselves on a subject which closely affects them." — Land and Water. "This is a new and revised edition of a most useful handy-book." — Hell's Mes- senger. "Mr. Bund's digest of the new laws passed since the death of Mr. Oke is admirable. The editor in the present instance deserves unqualified praise, for, by-way of assisting the reader, there is the contents table showing the particular matters dealt with under each separate chapter, an alphabetical list of cases cited with the page in which they may be found, a table of statutes referred to with their pages, and a most comprehen- sive index." — Worcester lit raid. " Under the competent care of Mr. Bund, Messrs. Butterworth have issued a third edition of Oke's excellent handy- book upon the Game Laws. Since the last edition was published such new measures as the Gun License Act, the Wild Birds Preservation Act, the Sea Birds Preservation Act, and others in the same direction have been passed. Of these full cognizance is taken in the new issue. Signally comprehensive and exact is the information supplied, and the volume is an indispensable companion, not only to country gentlemen and magis- trates, but to all dealers in game and every person possessing agun." — Hamlin/ Times. April 22ml, 1877. "A book on the Game Laws, brought up to the present time, and including the recent acts with regard to wild fowl, ice, was much needed, and Mr. Willis Bund has most opportunely supplied the want by bringing out a revised and enlarged edition of the very useful handy-book of which the late Mr. Oke was the author " — The Laid. 38 LAW WOEKS PUBLISHED BY MR. OKE'S MAGISTERIAL \NORKS-contd. Oke's Law of Turnpike Roads; comprising the whole of the General Acts now in force, including those of 1861 ; the Acts as to Union of Trusts, for facilitating Arrangements with their Creditors, as to the interference by Railways with Roads, their non-repair, and enforcing contributions from Parishes, &c, practically arranged. "With Cases, copious Notes, Forms, and an elaborate Index, &c. By Geokge C. Oke. Second Edition. 12mo. 18s. cloth. Oke's Laws as to Licensing Inns, 1874, &c. &c. ; containing the Licensing Acts, 1872 and 1874, and the other Acts in force as to Alehouses, Beer-houses, Wine and Refreshment-houses, Shops, &c, where Intoxicating Liquors are sold, and Billiard and Occasional Licences. Systematically arranged, with Explanatory Notes, the authorized Forms of Licences, Tables of Offences, Index, &c. Second Edition, by W. C. Glen, Esq., Barrister-at-Law. Post 8vo. 10*. cloth. "Mr. Glen has done his work well. He has made the book of 1872 available as a book of reference in 187-1. It is very fortunate that there is a well indexed treatise to refer to." — Law Journal. " Mr. Oke has brought out by far the best edition of the act, or perhaps we should say a treatise on it. Everything appears to be given which can by possi- bility be required, and the forms are abundant." — Law Times. " The book will no doubt at once take its place as the recognized guide for those who have to do with licensing law. The table of offences is especially valuable." — Solicitors' Journal. Grant's Bankers and Banking Companies.— 3rd Ed. Continued to 1876. By R. A. Fisher. 8vo. 28s. cloth, 33s. calf. GBANT'S TKEATISE ON THE LAW EELATING TO BANKERS AND BANKING COMPANIES. Third Edition. With an Appendix, containing the Statutes in force, and Supplement, to 1876. By R. A. Fisher, Esq., Judge of County Courts. "Eight years sufficed to exhaust the second edition of this valuable and standard work, we need only now notice the improvements which have been made. We have once more looked through the work, and recognize in it the sterling merits which have acquired for it the high position which it holds in standard legal literature. Mr. Fisher has an- notated all the recent cases." — Lcav Times. " Prior to the publication of Mr. Grant's work on this subject, no treatise containing the required information ex- isted ; and, since its appearance, such important alterations respecting banks aud bankers have been introduced, that the work needed in many parts entire reconstruction and arrangement. The last two editions have been entrusted to the care of the gentleman whose name is attached to the work. Mr. Fisher's name is in itself a guarantee that his duties of editor have been ably and con- scientiously performed. In this respect we can assure those interested in the subject of this book, that they will in no respect be disappointed ; obsolete and immaterial matter has been eliminated, and the present edition presents the existing law of bankers and banking companies as it at present exists." — Justice of the Peace. "It is eight y ears since Mr. Fisher published the second edition of this prac- tical book, and it now appears again re- edited by the same hand. Its steady sale shows that the public for whom it is written have recognized the kindness that was meant them, and makes a more elaborate recommendation superfluous. We must add, however, that the addi- tions to the work, and the alterations in it which Mr. Fisher has made, are, as far as we can judge, real improvements, and that he has not failed to follow out the recent cases. The book used with care will no doubt be of great practical service to bankers and then - legal ad- visers." — Solicitors'' Journal. MESSRS. BUTTERWOKTH, 7, FLEET STREET, E.C. 39 Fry's Specific Performance of Contracts. 8vo. 16s. cloth. A TEEATISE ON THE SPECIFIC PERFORMANCE OF CONTRACTS, including- those of Public Companies, with a Preliminary Chapter on the Provisions of the Chancery Amendment Act, 1858. By Edwabd Fey, B.A., of Lincoln's Inn, Esq., one of Her Majesty's Counsel (now the Hon. Sir Edward Fry, one of the Judges of Her Majesty's Supreme Court of Judicature). Coombs' Manual of Solicitors' Bookkeeping. 8vo. 10s 6d. cloth. A MANUAL of SOLICITORS' BOOKKEEPING : comprising Practical Exemplifications of a Concise and Simple Plan of Double Entry, with Forms of Account and other Books relating- to Bills, Cash, &c, showing their Operation, giving Instructions for Keeping, Posting and Balancing them, and Directions for Drawing Costs, adapted to a large or small, sole or partnership business. By W. B. Cooiibs, Law Accountant and Costs Draftsman. %* The various Account Books described in the above System, the forms of which are copyright, may be had from the Publishers at the prices stated in the work, page 274. Hertslet's Treaties on Trade and Tariffs. In royal 8vo. TREATIES and TARIFFS regulating the Trade between Great Britain and Foreign Nations, and Extracts of the Treaties between Foreign Powers, containing "Most Favoured Nation" Clauses applicable to Great Britain in force on the 1st January, 1875. By Edwaed Heetslet, Esq., C.B., Librarian and Keeper of the Papers of the Foreign Office. Part I.— Austri t. 7s. Gd. cloth. Part II.— Turkey, 15* cloth. Part III.— Italy, 15* cloth' Part IT. China, 10s. cloth. "This is one of a series of valuable ment dealing with our commercial re- works bearing on the trade of England lations with Tvaksy."— Standard. and foreign nations, the present instal- Fulton's Manual of Constitutional History. Post 8vo. 7s. 6d. cloth. A MANUAL OF CONSTITUTIONAL HISTORY, founded upon the Works of Hallam, Creasy, May and Broom, comprising all the fundamental Principles and the leading cases in Constitutional Law. By Foekest Fultox, LL.B., B.A., University of London, and of the Middle Temple, Esq., Barrister-at-Law. "Copious use has been made by Mr. tory with which we are acquainted."— lultonof all the leading authorities on Irish Lata 7 the subject, and he writes clearly and "The general reader will be much mtelligiDly. There is a full and care- pleased with the chapters on the privi- ruuyprepared index."— Law Times. leges of parliament." — Standard. •■ W e can fairly say the book is well •• A good reference book, as well as a done, and the object of aulmg the student book that ought to be read in the first in his first entry on the wide field of Con- instance straight through."— John stitutioiial Law and History is attained." " The author has spared no pains, and rJi C r t'' \ has succeeded in the somewhat difficult Mr. 1 idton appears to have taken task of presenting the results of a wide great pams to make it thoroughly useful range of reading in a well-digested form and reliable."— CivUS tte. Mr. Fulton may be congratulated upon "For practical information and for the verv successful accomplishment of a student's purposes Mr. Fulton's is by far by no means easy task: bis hook sup- the best Manual of Constitutional His- plies a felt want.*— Tublic Opinion 40 LAW WOKKS PUBLISHED BY Davis's Law of Registration and Elections. One small 12nio. vol. 15a. cloth. MANUAL OF THE LAW and PEACTICE OF ELECTIONS AND REGISTRATION. Comprising all the Statutes, with Notes and Intro- duction, and a Supplement containing- the Cases on Appeal down to 1869, the Rules relating to Election Petitions, and a complete Index to the whole Work. By James Edwaed Davis, Esq., Barrister-at-Law, Author of "Manual of Prac- tice and Evidence in the County Courts," &c. The Supplement may be had separately, price 3s. sewed. Trower's Church Building Laws, 1874. Post 8vo. 9s. cloth. THE LAW OF THE BUILDING- OF CHUECHES, PAE- SONAGES, and SCHOOLS, and of the Division of Parishes and Places. By Chaeles Francis Teowee, M.A., of the Inner Temple, Esq., Barrister-at-Law, late Fellow of Exeter College, Oxford, and late Secretary of Presentations to Lord Chancellor Westbury. " We may pronounce it a useful work. siastical commissions, and such like It contains a great mass of information matters, about which the public, and of essential import, and those who, as notably the clerical public, seem to know parishioners, legal advisers, or clergy- but little, but which it is needless to say men, are concerned Avith glebes, endow- are matters of much importance." — Soli- nients, district chapelries, parishes, eccle- citors'' Journal. Latham's Law of Window Lights. Post 8vo. 10s. cloth. A TEEATISE on the LAW of WINDOW LIGHTS. By Feancis Law Latham, of the Inner Temple, Esq., Barrister-at-Law. "This is not merely a valuable addi- "His arrangement is logical, and he tion to the law library of the practitioner, discusses fully each point of his subject, it is a book that every law student will The work, in our opinion, is both per- read with profit. It exhausts the subj ect spicuous and able, and we cannot but of which it treats." — Law Times. compliment the author on it." — Law Journal. Michael & Will's Gas and Water Supply.— 2nd edit. 8vo., 25s. cloth. THE LAW relating to GAS and WATEE: comprising the Eights and Duties, as well of Local Authorities as of Private Companies in regard thereto, and including all Legislation to the close of the last Session of Parliament. Second Edition. By W. H. Michael and J. SniEESS Well, of the Middle Temple, Esquires, Barristers -at -Law. "The Law of Gas and Water by Messrs. to gas and water supply." — Law Times. Michael and Will has reached a second "The collection of all the acts into edition, and the authors tell us that they one volume has long been required, but have not only brought the law down to it was no light task, and therefore we the present time, but they have re- were not surprised to tind it not done written a considerable portion of the sooner. Messrs. Michael and Will, who text, particularly with reference to gas. are barristers-at-law, were reserved for When the first edition appeared we ex- the work, and no one can truthfully say pressed an opinion that the work had they have not acquitted themselves well, been executed with care, skill and ability. All the legislation to the close of the last This edition is a decided improvement session is included. The book is invalu- on the first, and therefore we need add able to any one interested in the supply nothiug now. It is a work which has of the two fluids, and this value is en- probably found its way into the hands hanced by an index for reference of of all interested in the practical applica- nearly eighty pages." — The Metro- Wow of the Acts of Parliament relating politan. MESSRS. BUTTERWORTII, 7, FLEET STREET, E.C. 41 Saunders' Law of Negligence. One vol. post 8vo. 9s. cloth. A TKEATISE on the LAW APPLICABLE to NEGLIGENCE. By Thomas W. Sau>*ders, Esq., Barrister-at-Law, Recorder of Bath. " The hook is admirable ; while small in bulk, it contains everything that is necessary, and its arrangement is such that one can readily refer to it. Amongst those who have done good service, Mr. Saunders will find a place." — Law Magazine. ' ' In the useful little volume now before us he has gathered the whole law of negligence. All his works are distin- guished by painstaking and accuracy. This one is no exception ; and the subj ect, which is of very extensive interest, will insure for it a cordial welcome from the profession." — Law Times. "The references to the cases are given much more fully, and on a more rational system than is common with text-book writers. He has a good index ; he has produced a work which will facilitate reference to the authorities." — Solicitors 1 Journal. " As a work of reference the book will be very welcome in the office of the soli- citor or in the chambers of the barrister." — Morning Advertiser . "A short and clear treatise like the present on the law relating to the subject ought to be welcomed. It is a moderate size volume, and makes references to all the authorities on the question easy." — Standard. "It is a great advantage to the legal profession to find all the law of negli- gence collected and arranged in a manual of reasonable size. Such is Mr. Saunders' book." — Public Opinion. "A serviceable and seasonable treatise on the law of negligence, by Thomas W. Saunders, Esq., Recorder of Bath." — Telegraph. "A careful treatise on a branch of law which is daily acquiring importance. The manual before us is a useful treatise." — Echo. Ingram's Law of Compensation,— 2nd Edit, by Elmes. Post 8vo. 12s. cloth. COMPENSATION TO LAND AND HOUSE OWNERS: being a Treatise on the Law of the Compensation for Interests in Lands, &c. payable by Railway and other Public Companies ; with an Appendix of Forms and Statutes. By Thomas Dxjnbae Ingram:, of Lincoln's Inn, Esq., Barrister-at-Law. Second Edition. By J. J. Elites, of the Inner Temple, Esq., Barrister-at-Law. " We say at once that it is a work of great merit. It is a concise, clear and complete exposition of the law of com- pensation applicable to the owners of real property and railway and other companies." — Law Magazine. " Whether for companies taking land or holding it, Mr. Ingram's volume will be a welcome guide. With this in his hand the legal adviser of a company, or of an owner and occupier whose property is taken, and who demands compensation for it, cannot fail to perform his duty rightly." — Law Times. "This work appears to be carefully prepared as regards its matter. This edition is a third larger than the first ; it contains twice as many cases, and an enlarged index. It was much called for, and doubtless will be found very useful to the practitioner." — Law Magazine {second notice). Hertslet's Commercial Treaties. 13 vols. 8vo. 16/. 17s. boards. HERTSLET'S TREATIES of Commerce, Navigation, Slave Trade, Post Office Communications, Copyright, &c, at present subsisting between Great Britain and Foreign Powers. Compiled from Authentic Docu- ments by Edward Heetslet, Esq., C.B., Librarian and Keeper of the Papers of the Foreign Office. %* Vol. 1, price 12s.; Vol. 2, price 12s.; Vol. 3, price 18s.; Vol. 4, price 18s.; Vi>l. 0, price 20s.; Vol. 6, price 25s.; Vol. 7, price 30s.; Vol. 8, price 30s.; Vol. 9. price 30s.; Vol. 10, price 30s.; Vol. 11, price 30.*. ; Vol. 12. price 40s.; Vol. 13, price 12.V. cloth, mag he had separately to complete sett. Vol. 12 includes an Judex of Subjects to the Twelve published Volumes, which Index is also sold separately, price 10s. cloth. 42 LAW WORKS PUBLISHED BY Cutler's Law of Naturalization. 12mo. 3s. 6d. cloth. THE LAW OF NATUEALIZATION ; as Amended by the Acts of 1870. By John Cutlee, B.A., of Lincoln's Inn, Barrister-at-Law, Editor of "Powell's Law of Evidence," &c. to our countrymen resident abroad, as well as to foreigners resident in this country." — Public Opinion. ' ' The book is a model of what a treatise of its kind should be." — Sunday Times. "A very convenient hand-book to the law of naturalization, as amended by the Acts of 1870."— Weekly Times. "To anyone not having much previous acquaintaucewith the subject, who wishes for a general sketch of the law affecting aliens, as it was, and as it is now, this book will be useful." — Solicitors' 1 Journal. "It has been carefully compiled, and the authorities referred to are accurately cited."— Pall Mall Gazette. " The author's position as Professor of English Law and Jurisprudence is a guarantee of his legal competence, whilst his literary abilities have enabled him to clothe his legal knowledge in language which laymen can understand without being misled by it."— John Bull. " Sir. Cutler, in the work before us, lucidly explains the state of the law pre- vious to the recent statute, and shows the alterations produced by it, so that a careful perusal of this book will enable the reader fully to comprehend the pre- sent state of the law upon this most im- portant subject." — Justice of the Peace. " This little work will be found of use Hunt on Frauds and Bills of Sale. Post 8vo. 9s. cloth. THE LAW relating to EEAUDULENT CONVEYANCES, under the Statutes of Elizabeth and the Bankrupt Acts : with Remarks on the Law relating to Bills of Sale. By Aethtte Joseph Hunt, of the Inner Temple, Esq., Barrister-at-Law, Author of "The Law relating to Boundaries, Fences and Foreshores." "This work is calculated to be of service to the profession. Mr. Hunt has brought to bear upon the subject a clear- ness of statement, an orderliness of arrangement and a subtlety of logical acuteness which carry him far towards a complete systematization of all the cases. Neither has his industry been lacking : the cases that have arisen under the Bankruptcy Act, 1869, and under the Bills of Sale Act have been carefully and completely noted up and disposed of by him in their appropriate places. The index also is both accurate and careful and secures much facility of reference to the various matters which are the sub- jects of the work." — Imiv Magazine. "Though smaller in size, Mr. Hunt's book deals with fraudulent conveyances under the Bankruptcy Acts, a subject which Mr. May in his work left almost untouched, although his book has the undoubted merit of being the first to break fresh ground in treating fraudu- lent conveyances in a separate volume. In reviewing that book last year we took occasion, while praising the industry and care with which it was compiled, to re- mark on the obscurity of its style. In this respect its younger rival has con- siderable advantage. Mr. Hunt's book is as readable as a treatise on so technical a subject can well be made. Mr. Hunt's arrangement of his materials follows an orderly and intelligible plan. The index is apparently carefully prepared, and the table of cases shews that none of the recent cases have been overlooked. Mr. Hunt has produced a really useful book unencumbered by useless matter, which deserves great success as a manual of the law of fraudulent dispositions of pro- perty." — Law Journal. ' ' The author has collected with industry and care the authorities bearing on the question he has undertaken to deal with. The matter is conveniently broken up, and the reader is assisted by a good index." — Solicitors'' Journal. Wright's Law of Conspiracy. 8vo. 4s. cloth. THE LAW of CKIMINAL CONSPIRACIES and AGREE- MENTS. By R. S. Weight, of the Inner Temple, Barrister-at-Law, Fellow of Oriel Coll., Oxford. MESSRS. LUTTERWORTH, 7, FLEET STREET, E.C. 43 Lawrence on Partition. 8vo. 8s. cloth. THE COMPULSORY SALE OF REAL ESTATE under the POWERS of the PARTITION ACT, 1868. As Amended by the Partition Act, 1876. By Philip Hexey Lawrence, of Lincoln's Inn, Esq., Barrister- at-Law. " In this volume Mr. Lawrence treats and the means by which, under it, per- of a variety of important questions con- sons may now maintain a suit for the nected with the compulsory sale of real sale of land. The whole subject is ably estate under the Partition Act, 1876. treated, and the book contains, amongst The author has done his work very other things, a valuable selection of fairly. We may remark of the type leading cases on the subject." — Justice that it is particularly clear and legible." of the Peace. Luir Journal. "The book is written in a clear and "Mr. Lawrence is evidently acquainted perspicuous style, and will well repay with his subject. He explains the state perusal." — Law Examination Journal. of the law previous to the statute of 1868, Forbes on Savings Banks. 1 vol. 12mo. 7*. Gd. cloth. THE LAW RELATING- TO TEUSTEE AND POST OFFICE SAVINGS BANKS, with Notes of Decisions and Awards made by the Bar- rister and Registrar of Friendly Societies. By Ueqtthaet A. Foebes, of Lincoln's Inn, Esquire, Barrister -at -Law. Holland on the Form of the Law. 8vo. 7s. Qd. cloth. ESSAYS upon the FOEM of the LAW. By Thomas Erskixe Hollastd, M.A., Fellow of Exeter College, and Chichele Professor of Inter- national Law in the University of Oxford, and of Lincoln's Inn, Barrister-at- Law. Brandon's Law of Foreign Attachment. 8vo. 14s. cloth. A TEEATISE upon the CUSTOMAEY LAW of FOEEIGN ATTACHMENT, and the PRACTICE of the MAYOR'S COURT of the CITY OF LONDON therein. With Forms of Procedure. By Woodthoepe Beaxdox, Esq., of the Middle Temple, Barrister-at-Law. Smith's Bar Education. Svo. 9s. cloth. A HISTORY of EDUCATION for the ENGLISH BAB, with SUGGESTIONS as to SUBJECTS and METHODS of STUDY. By Philip Anstie Smith, Esq., M.A., LL.B., Barrister-at-Law. 44 LAW WORKS PUBLISHED BY Gaches' Town Councillors and Burgesses Manual. Post 8vo. Is. cloth. THE TOWN COUNCILLOKS and BUEGESSES MANUAL, a Popular Digest of Municipal and Sanitary Law, with information as to Charters of Incorporation, and a Collection of useful Forms especially adapted for newly Incorporated Boroughs. By Louis Gaches, L.L.M., B.A., of the Inner Temple, Esq., Barrister-at-Law. Heales's History and Law of Pews. 2 vols. 8vo. 16s. cloth. THE HISTOEY and LAW OF CHUECH SEATS or PEWS. By Alfred Heat.es, F.S.A., Proctor in Doctors' Commons. " Great pains have evidently been " For original research and faithful taken in the compilation of this work, labour in verifying references no other which exhibits throughout an immense writer can lay any claim to come any- amount of research and a careful arrange- where near Mr. Heales." — Solicitors 1 ment of cases and extracts." — Laiv Ma- Journal, gazme. Smith's Practice of Conveyancing. Post 8vo. 6s. cloth. AN ELEMENTAEY VIEW of the PEACTICE of CONVEY- ANCING in SOLICITORS' OFFICES ; with an Outline of the Proceedings under the Transfer of Land and Declaration of Title Acts, 1862, for the use of Articled Clerks. By Edmund Smith, B. A. , late of Pembroke College, Cambridge. Attorney and Solicitor. Tomkins and Jencken's Modern Roman Law. 8vo. 14s. cloth. COMPENDIUM OF THE MODEEN EOMAN LAW 7 . Founded upon the Treatises of Puchta, Von Vangerow, Arndts, Franz Mcehler and the Corpus Juris Civilis. By Frederick J. Tomkins, Esq., M.A., D.C.L., Author of the "Institutes of Eoman Law," Translator of "Gaius," &c, and Henry Diedrich Jencken, Esq., Barristers-at-Law, of Lincoln's Inn. Tomkins' Institutes of Roman Law. Part I. royal 8vo. (to be completed in Three Parts) 12*. cloth. THE INSTITUTES OF THE EOMAN LAW. Paet I. The Sources of the Roman Law and its external History to the decline of the Eastern and "Western Empires. By Frederick J. Tomkins, M.A., D.C.L., Barrister-at-Law, of Lincoln's Inn. Gaius's Roman Law, by Tomkins and Lemon. Complete in 1 vol. 8vo. 27s. cloth extra. THE COMMENTAEIES of OAIUS on the EOMAN LAW: with an English Translation and Annotations. By Frederick J. Tomkins, Esq., M.A., D.C.L., and "William George Lemon, Esq., LL.B., Barristers-at-Law, of Lincoln's Inn. MESSES. BUTTERWORTH, 7, FLEET STREET, E.C. 45 Slielford's Succession, Probate and Legacy Duties. 2nd Edition. 12mo. 16s. cloth. THE LAW KELATING TO THE PEOBATE, LEGACY and SUCCESSION DUTIES in ENGLAND, IRELAND and SCOTLAND, including all the Statutes and the Decisions on those Subjects : with Forms and Official Regulations. By Leonard Shelfokd, Esq., of the Middle Temple, Barrister-at-Law. The Second Edition, with many Alterations and Additions. " The book is written mainly for soli- but to make known its appearance to our citors. Mr. Shelford has accordingly readers. Its merits have been already planned his work with careful regard to tested by most of them." — Law Times. its practical utility and daily use." — "On the whole Mr. Shelford's book Solicitors' Journal. appears to us to be the best aud most "One of the most useful and popular complete work on this extremely intricate of his productions, and being now the subject." — Law Magazine. text-book on the subject nothing remains Williams's Common Law Pleading and Practice. 8vo. 12s. cloth. An INTEODUCTION to PEACTICE and PLEADING in the SUPERIOR COURTS of LAW, embracing an outline of the whole proceedings in an Action at Law, on Motion, and at Judges' Chambers ; together with the Rules of Pleading and Practice, and Forms of all the principal Proceedings. By Watkin Williams, Esq., M.P., of the Inner Temple, Barrister-at-Law. Browning's Divorce and Matrimonial Causes Practice, Post 8vo. 8s. cloth. THE PEACTICE and PEOCEDUEE of the COUET for DIVORCE and MATRIMONIAL CAUSES, including the Acts, Rules, Orders, copious Notes of Cases and Forms of Practical Proceedings, with Tables of Fees and Bills of Costs. By W. Eenst Browning, Esq., Barrister-at-Law. Davis's Criminal Law Consolidation Acts. 12mo. 10s. cloth. THE NEW CRIMINAL LAW CONSOLIDATION ACTS, 1861; with an Introduction and practical Notes, illustrated by a copious reference to Cases decided by the Court of Criminal Appeal. Together with alphabetical Tables of Offences, as well those punishable upon Summary Conviction as upon Indictment, and including the Offences under the New Bankruptcy Act, so arranged as to present at one view the particular Offence, the Old or New Statute upon which it is founded, and the Limits of Punishment ; and a full Index. By James Edward Davis, Esq., Barrister-at-Law. 46 LAW WOEKS PUBLISHED BY Collier's Law of Contributories. Post 8vo. 9s. cloth. A TREATISE ON THE LAW OF CONTRIBUTORIES in the Winding-up of Joint Stock Companies. By Robert Collier, of the Inner Temple, Esq., Barrister-at-Law. consideration of the profession." — law Journal. "There is probably no branch of the law of contracts more difficult and intri- cate than this of contribution, and the cases quoted by Mr. Collier are treated ■with great discrimination, so that the book enables a man who has not made the subject a matter of special study to advise with comparatively small trouble to himself." — Irish Law Times. " It is impossible after a perusal of the book to doubt that the author has honestly studied the subject, and has not contented himself with the practice of piecing together head notes from reports." Solicitors' Journal. " Without making any quotations for the purpose of illustrating the above re- marks, we think we are justified in com- mending this treatise to the favourable Lushington's Naval Prize Law. Royal Svo. 10s. 0>d. cloth. A MANUAL OF NAYAL PRIZE LAW. By Godfrey Ltjshington, of the Inner Temple, Esq., Barrister-at-Law. Powell's Law of Inland Carriers.— 2nd Edition. 8vo. 14s. cloth. THE LAW OF INLAND CARRIERS, especially as regulated by the Railway and Canal Traffic Act, 1854. By Edmund Powell, Esq., of Lincoln College, Oxon, M.A., and of the Western Circuit, Barrister-at-Law, Author of "Principles and Practice of the Law of Evidence." Second Edition, almost re -written. "Mr. Powell's writing is singularly the text-book on the Law of Carriers." precise and condensed, without being at — Law Times. all dry, as those who have read his ad- "The two chapters on the Railway mirable Book of Evidence will attest. and Canal Traffic Act, 1856, are quite It will be seen, from our outline of the new, and the recent cases under the pro- contents, how exhaustively the subject visions of that statute are analyzed in has been treated, and that it is entitled lucid language." — Law Magazine. to be, that which it aspires to become, Wigram on Extrinsic Evidence as to Wills. Fourth Edition. Svo. lis. cloth. AN EXAMINATION OF THE RULES OF LAW respecting the Admission of EXTRINSIC EVIDENCE in Aid of the INTERPRETATION OF WILLS. By the Right Hon. Sir James Wigram, Knt. The Fourth Edition, prepared for the press with the sanction of the learned Author, by Knox Wigram, M.A., of Lincoln's Inn, Esq., Barrister-at-Law. "In the celebrated treatise of Sir of every judge who has had to consult James Wigram, the rules of law are it." — Lord Kingsdown, in a 1'rirg stated, discussed and explained in a Council Judgment, July 8th, 1858. manner which has excited the admiration MESSES. BUTTERWORTH, 7, FLEET STREET, E.G. 47 Wills on Circumstantial Evidence.— 4th Edit. 8vo. 10s. cloth. AN ESSAY on the PELNCIPLES of CIRCUMSTANTIAL EVIDENCE. Illustrated by numerous Cases. By the late William Wills, Esq. Fourth Edition, edited by his Son, Alfred Wills, Esq., Barrister-at- Law. Aldred's Questions on Property Law. Post 8vo. 5s. cloth. ELEMENTAEY QUESTIONS on the LAW OF PROPEETY, REAL and PERSONAL, supplemented by advanced Questions on the Law of Contracts, with copious references throughout. By Philip Foster Aldred, B.C.L., Hertford College, Oxford. By the same author, post 8vo. 2s. sewed. A CHEONOLOGICAL SUMMAEY OF THE CHIEF EEAL PROPERTY STATUTES, with their more important Provisions, for the Use of Law Students. Dowell's Income Tax Laws. 8vo. 12s. 6d. cloth. THE INCOME TAX LAWS at present in force in the United Kingdom, with Practical Notes, Appendices and a copious Index. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant Solicitor of Inland Revenue. " Only men thoroughly conversant which frequently arise in reference to with the subject could have prepared it, those laws." — Solicitors' Journal. and despite Mr. Dowell' s knowledge it " We can honestly recommend Mr. must have been a heavy labour. To Dowell's work to our readers as being commissioners and all concerned in the well done in every respect. They will working of the Income Tax Mr. Dowell's find it a neatly written and complete book will be of great value." — Law history and explanation of the Stamp Journal. Duties ; and they will also find the Act " We cannot doubt that the work will of 1870 set out completely and clearly set prove of much service to persons engaged before them in a good bold type, easy of in the administration of the Income Tax reference, and supported in its utility by laws, and to the practitioner on the points a good index." — Law Magazine. Dowell's Stamp Duties and Stamp Laws. 8vo. 12s. 6d. cloth. A HISTOEY and EXPLANATION of the STAMP DUTIES, from their commencement to the present time, the past and the present State of the Stamp Laws, the System and the Administration of the Tax, Observations on the Stamp Duties in Foreign Countries; the Stamp Laws at present in force in the United Kingdom ; with Notes, Appendices and a copious Index. By Stephen Dowell, M.A., of Lincoln's Inn, Assistant Solicitor of Inland Revenue. " This is a work of some power. The felicitous and makes the subject — a rather author is evidently master of his subject. thorny one — clear and intelligible." — The style of the composition is singularly Law Times. 48 LAW WORKS PUBLISHED BY Redman's Law of Arbitrations and Awards. 8vo. 12«. cloth. A CONCISE TREATISE on the LAW of ARBITRATIONS and AWARDS, with an Appendix of Precedents and Statutes. By Joseph Haworth Redman, of the Middle Temple, Esq., Barrister-at-Law. "Mr. Redman goes straight through his task, and gives his cases at the eud of his propositions. The chief merit of the work is the singular lucidity with which the law is expounded. "We give the work all the praise which it can claim when we say that the arrangement is good, the style clear, and the work ex- haustive. There is a useful appendix of precedents and statutes, and a very good index." — Law Times. " This is likely to prove a useful hook in practice. All the ordinary law on the subject is given shortly and in a con- venient and accessible form, and the index is a good one. The book is of a portable size and moderate price, and contains a fairly complete appendix of precedents. It is likely enough that it will meet a demand both in the profession and amongst lay arbitrators." — Solicitors' Journal. "It is a concise statement of the law on the questions which are likely to arise in the course of a reference or in subse- quent proceedings which may be taken in regard to it. The precedents of awards are clearly and concisely drawn. The arrangement of chapters is conveniently managed. The law is clearly stated, and, so far as we can judge, all the important cases bearing directly on the subject are given, while the index appears reasonably copious. These facts, combined with the smallness of the volume, ought to make the book a suc- cess." — Law Journal. Clifford & Stephens's Practice of Referees Court, 1873. Two vols, royal 8vo. 3/. 10s. cloth. THE PEACTICE of the COURT of REFEREES on PRIVATE BILLS in PARLIAMENT, with Reports of Cases as to the locus standi of Petitioners during the Sessions 1867-68-69-70-71 and 72. By Frederick Clifford and Pembroke S. Stephens, Barristers-at-Law. Just published, royal 8vo. Vol. I. Part I. price 31s. Gel, Vol. I. Part II. 15s. sewed, and Vol. II. Part I. 12s. 6d. sewed. In continuation of the above, CASES DECIDED DURING THE SESSIONS 1873, 1874, 1875, 1876 and 1877 by the COURT of REFEREES on PRIVATE BILLS in PARLIAMENT. By Frederick Clifford and A. G. Rickards, Esquires, Barristers - at - Law. "The Reports are well indexed, and bring down the decided cases to the end of 1875. As to the mode in which Messrs. Clifford and Rickards have exe- cuted the work, it will be sufficient to say that these Reports are a continuance of the series of ' Clifford and Stephens's Reports,' which began in 1867, and seem to be marked by the same care and ac- curacy which have made these Reports a standard for reference and quotation by practitioners and the Court itself." — Times, March 10, 1876. " This is a volume of reports which, we think, will prove of very great use to any one practising or interested in cases before the referees. On the whole it is well done. Notwithstanding the slight defects mentioned, the book is really a very useful one, and will doubtless com- mend itself to Parliamentary practi- tioners." — Law Times. MESSES. BUTTEEWORTH, 7, FLEET STREET, E.C. 49 Thorn's County and Borough Magistrates List. Just Published in 1 vol. demy 8vo. 9s. cloth. THE COUNTY AND BOROUGH MAGISTRATES LIST and OFFICIAL AND PARLIAMENTARY REGISTER for 1878, comprising all Justices of the Peace and Deputy- Lieutenants for each Separate County and Borough in England and "Wales, vrith their Professional or Business Avocations, together -with such Appointments and Offices as they hold in any County or Borough, accompanied by their Addresses. Compiled and Edited by Adam Bisset Thom, Compiler and late Editor of " The Upper Ten Thousand." Cutler and Griffin's Indian Criminal Law. 8vo. 6*. cloth. AN ANALYSIS of the INDIAN PENAL CODE (including the Indian Penal Code Amendment Act, 1870), with Notes. By John Cutlee, B.A., of Lincoln's Inn, Barrister-at-Law, Professor of English Law and Jurisprudence, and Professor of Indian Jurisprudence at King's College, London, and Erarrai) Fuelee Geiffin, B.A., of Lincoln's Inn, Barrister- at-Law. " It may be added that the code is just men in England. It has a good index." at present out of print, so that the pro- — Law Magazine. duction of an analysis at the present "This is a work intended for students moment is especially opportune. Messrs. and for practitioners in India. Knowing Cutler and Griffin have produced a use- how well the same authors edited the ful little book, and produced it at a time Indian portion of Powell on Evidence, when it will be especially useful." — we should be content to take it on the Solicitors' Journal. faith of their reputation only. The ' ' This analysis of the Indian Penal mode of analysis is very clear and brings Code seems to have conferred a great well forward the prominent features of boon on the Indian practitioner, and the code." — Law Times. will doubtless be of use to professional Field's Regulations of the Bengal Code. One vol. royal 8vo. 42s. cloth. THE REGULATIONS OF THE BENGAL CODE, Edited, with Chronological Tables of Repeal and Amendment, and an Introduction, by C. D. Field, of the Inner Temple, Barrister-at-Law, and of H.M.'s Bengal Civil Service. Field's Table of, and Index to, Indian Statute Law. Demy 4to. 42s. cloth. A CHRONOLOGICAL TAELE of, and INDEX to, the INDLAN STATUTE-BOOK from the Year 1834, with a General Introduction to the Statute Law of India; with a Supplement bringing the work down to August, 1872. By C. D. Field, M.A., LL.D., of the Inner Temple, Barrister-at-Law, and of H.M.'s Bengal Civil Service. 50 LAW WOBKS PUBLISHED BY THE LAW EXAMINATION JOURNAL. Edited by Herbert Newman Mozley, M.A., Fellow of King's College, Cambridge; and of Lincoln's Inn, Esq., Barrister-at-Law. Price Is. each, by post Is. Id. All the back Numbers may be had. No. 37. Michaelmas, 1878.— I. Statutes of Past Sessions. II. Statutes of 1878 (Second Notice), m. Notices relating to the Intermediate Examinations to be held in 1879 and 1880. rv. Reviews of Books. V. Final Examination, November, 1878: Questions and Answers. VI. Intermediate Examination, November, 1S78 : Questions and Answers. VII. Correspon- dence and Notices. Nos. 36. Trinity, 1878.— I. Statutes of 1878 (Chapters 1 to 19 inclusive). II. Statutes of Past Sessions, including (1) The Act for the Amendment of the Law of Real Property, and (2) The Satisfied Terms Act. III. Reviews of Books. FV. Final Examination, June, 1878 : Questions and Answers. V. Intermediate Examination, June, 1878 : Questions and Answers. VI. Correspondence and Notices. Nos. 34 and 35. (Double Number, 2s.) Hilary and Easter, 1S7S— I. Statutes of 1S77 (Second Notice). FT. Regulations for Examinations under Solicitors Act, 1877. m. Digest of Cases. IV. Intermediate Examination, November, 1877 : Questions and Answers. V. Final Examina- tion, January, 187S : Questions and Answers. VI. Intermediate Examination, January, 1878: Questions and Answers. VIE. Final Examination, April, 1878: Questions and Answers. VIII. Intermediate Examination, April, 1878 : Questions and Answers. IX. Correspon- dence, &c. No. 33. Michaelmas, 1877.— I. Statutes of 1S77 (First Notice). FT. Digest of Cases. TIL Intermediate Examination, June, 1877 : Questions and Answers. IV. Final Examination, November, 1877 : Questions and Answers. V. Notices of Intermediate Examinations for 1878. VI. Correspondence and Notices. No. 32. Trinity, 1877.— I. Satisfied Terms. FT. Rules of the Supreme Court, May, 1877. HI. Digest of Cases. IV. Intermediate Examination, April, 1S77 : Questions and Answers. V. Final Examination, June, 1877: Questions and Answers. VI. Reviews of Books. VII. Correspondence and Notices. No. 31. Easter, 1S77— I. The Statutes of 1876 (Third Notice). LT. Digest of Cases. HJ. Inter- mediate Examination, January, 1877 : Questions and Answers. IV. Final Examination, April, 1877 : Questions and Answers. V. Review. VI. Correspondence and Notices. No. 30. Hilary, 1S77.— I. Statutes of 1S76 (Second Notice). H. Rules of the Supreme Court, December, 1876. IH. Digest of Cases. IV. Intermediate Examination, November, 1S76: Questions and Answers. V. Final Examination, January, 1S77 : Questions and Answers. VI. Reviews. VII. Correspondence and Notices. No. 29. Michaelmas, 1876.— I. Statutes of 1S76 (First Notice). H. Rules of the Supreme Court, June, 1876. III. Intermediate Examination, June, 1876 : Questions and Answers. FV. Final Examination, November, 1876 : Questions and Answers. V. Notices of the Inter- mediate Examinations for 1S77. VI. Correspondence and Notices. No. 28. Trinity, 1876.— I. The Rules of February, 1S7G. H. The Statues of 1875 (concluded). III. Digest of Cases. IV. Intel-mediate Examination, April, 1S76 : Questions and Answers. V. Final Examination, June, 1S76 : Questions and Answers. VI. Reviews of Books. VH. Cor- respondence and Notices. No. 27. Easter, 1876.— I. Notices for the June and November Examinations, 1876. U. Further Extracts from the Rules of November 2, 1S75. HI. Statutes of 1875 (Third Notice). IV. Digest of Cases. V. Intermediate Examination, 1876 : Questions and Answers. VI. Final Examina- tion, April, 1876 : Questions and Answers. VH. The New Law Dictionary. VHI. Reviews of Books. IX. Correspondence and Notices. No. 26. Hilary, 1876.— I. The New Rules relating to Examinations. H. The Statutes of 1875 (Second Notice). IH. Digest of Cases. IV. Intermediate Examination, Michaelmas Sittings, 1875 : Questions and Answers. V. Final Examination, Hilary Sittings, 1S76 : Ques- tions and Answers. VI. Reviews. VII. Correspondence and Notices. No. 25. Michaelmas, 1S75.— I. Statute of Fraudulent Conveyances, 13 Eliz. c. 5. H. Statutes of 1875 (First Notice). HI. Digest of Cases. FV. Intermediate Examination, Trinity Term, 1S75 : Questions and Answers. V. Final Examination, Michaelmas Term, 1S75 : Questions and Answers. VI. Reviews of Books. VH. Correspondence and Notices. No. 24. Trinity, 1875.— I. The Statute of Uses (continued). II. Digest of Cases. HJ. Inter- mediate Examination, Easter Term, 1875 : Questions and Answers. TV. Final Examination, Trinity Term, 1875 : Questions and Answers. V. A New Law Dictionary. VI. Correspondence No. 23. Easter, 1875.— I. The Statute of Uses. n. The Statutes of 1874 (Third Notice). III. Digest of Cases. IV. Intermediate Examination, Hilary Term, 1875: Questions and Answers. V. Final Examination, Easter Term, 1S75: Questions and Answers. VI. Cor- respondence and Notices. No 22. Hilary, 1875.— I. The Statute of Frauds in relation to Contracts of Sale; Sale v. Lambert and Potter v. Duffield. H. The Statutes of 1874 (Second Notice). HT. Digest of Cases. IV. Intermediate Examination, Michaelmas Term, 1874: Questions and Answers. V. Final Examination, Hilary Term, 1S75 : Questions and Answers. VI. Notice of Interme- diate Examinations for 1875. VH. Correspondence and Notices. No. 21. Michaelmas, 1874,— I. The Statutes of 1874 (First Notice), n. Digest of Cases. DTI. Intermediate Examination : Questions and Answers (T.T. 1874). FV. Final Examination : Questions and Answers (M. T. 1874). V. Review of Books. VI. Correspondence and Notices. Copies of Vol. I. of the Law Examination Journal, containing Nos. 1 to 14, with full Indexes and Tables of Cases cited, may now be had, price 16s. bound in cloth. %*' An linlcs to Vol. 2 of the LawExamination Journal, containing Nos. 15 to 28, is now issued, mi/? mag be hail separately, price 6d. si wed. Copies of Vol. 2 of the Law Examination Journal may also be had, price 15s. cloth. MESSES. BUTTEEWOETH, 7, FLEET STEEET, E.C. 51 Just published, demy 8vo., price 8s., to be continued Annually, THE SECOND ANNUAL ISSUE OF THE INNS OF COURT KALENDAR FOE 1878. Dedicated by permission to the Lord High Chancellor of Great Britain. By CHARLES SHAW, Under-Tkeasuiieb, oe the Middle Temple. Containing a Record of the Members of the English Bar, their Inns of Court Dates of Admission and Call, together with their Academical Degrees, Appointments Circuits, &c. ; Students, their Inns of Court and Dates of Admission, Fees, Modes of Admission, Keeping Terms, Preliminary Examination, Lectures, General Examina- tion, Consolidated Regulations of the Four Inns of Court, &c. ; Honours Student- ships and Exhibitions ; Lists of the Judges and Officers of the Supreme Court of Judicature, &c. &c. BAR EXAMINATION JOURNAL. EDITED BY A. D. TYSSEN, B.C.L., M.A., Sib E. K WILSON, Bart., M.A., and W. D. EDWARDS,- LL.B., Barristers-at-Law. 8ro., 3s. each, by post is. Id. Nos. 3, 6, 7, 9, 10, 11, 12, 13, 14, 15 and 16, from TRINITY TERM, 1872, to HILARY TERM, 1878. (Xo. 13 M a Double Number, price 6s., by post 6s. 2d.; Xos. 1, 2, 4, 5 $■ 8 are out of print.) Subjects of Bar Examination. Examination Papers, with the Answers. ENGLISH LAW : Constitutional Law and Legal History ; Equity ; Common Law ■ Keal Property; Jurisprudence, &c. ; General Paper. INDIAN LAW: Hindu Law; Mahomedan Law ; Penal Code; Criminal Procedure Code; Civil Procedure Code; Succession Act; General Paper. < 'Messrs^ A. D. Tyssen and W D ing ; ' and also the Questions and Answers Ldwards, Bamsters-at-Law, have edited in the Bar Examinations of Hilary Term ISo. 12, Hilary Term, 1876, of the 'Bar with lists of successful candidates, and Examination Journal' published by other information of interest to students Messrs. Butterworth. The number con- for the bar. The article on 'Law Re- tains articles of a useful character on porting' exhibits a mastery of the sub- Reading for the Bar Examination;' ject and deserves careful Btudy."— Law formation of a Law Library;' 'Report- Journal, March llth, 1876. PEARCE'S HISTORY of the INNS of COURT and CHANCERY: with Notices of their Ancient Discipline, Rules, Orders and Customs, Readings Moots, Masques Revels and Entertainments, including an Account of the Eminent Men of the Four Learned and Honourable Societies— Lincoln's Inn the Inner Temple, the Middle Temple, and Gray's Inn, &c. By Robeet R* Peabce, Esq., Bamster-at-Law. Svo. 8s. cloth. The Preliminary Examination Journal AND STUDENT'S LITERARY MAGAZINE. Edited by James Erle BENHAM, Formerly of King's College, London ; Author of " The Student's Examination Guide," &c. Now complete in 18 Numbers, containing all the Questions and Answers from 1871 to 1875, and to be had in One Vol. 8 vo., price 18s. cloth. Nos. I. to XVIII. of the Preliminary Examination Journal may also still be had at Is. each, by post Is. Id. 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