,^ V ::P^ I -vv VC UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBllARY ><* v-y^ LiiV/^, ^LU^- %130NVS01^ .^^^^l•LIBRARY,9/. .^^^l•LIBi ^^mmyw^ )F•CALI^U///)k. \ 3 ^^Aavyan-^\^ ■UNIVERV/, vlOSANGEia- ^rji30NVS01^ '^/^. THE LAW AND PRACTICE APPERTAINING TO OEIGIMTING SUMMONS, WITH FORMS. BY GEOEGE NICHOLS MAUCY AND J. THEODORE DODD. Of Lincoln's Inn, Barristei-s-at-Law. LONDON : HORACE COX, 10, WELLINGTON" STREET, STRAND, W.C. 1889. LONDON : PiliNTEU BV UOKACK COX, 10, WELLINGTON-STEEET, STRAND W.C. PREFACE. Haying regard to the number and importance of the applications now made to the Chancery Division of the court by Originating Summons, it has been thought that a separate treatise on that branch of the law would be acceptable to the Profession. As the subject is essentially one in which the practi- tioner must often resort to the Rules of the Supreme Court bearing thereon^ the method adopted in the present work is mainly that of annotation, though separate chapters on certain portions of the subject are also given. Part I. deals with Originatiug Summonses generally, including Order LV. Part II. comprises the statutory jurisdiction other than that referred to in Order LV., rule 2, and treats of Originating Summonses under the Vendor and Purchaser Act, 1874, the Conveyanciug Act, 1881, the Settled Land Acts, the Married Women's Property Act, &c. Appendices I. and II. contain a few rules and forms which could not conveniently be inserted in the body of the book, and Appendix III. contains the authors' forms of Originating Summons, affidavits, statements of facts, &c. As the law stands at present, sometimes the procedure by Originating Summons is found to be inapplicable because a question arises upon the will or settlement PREFACE. with reference to a legal devise, or some claim is made by a person whose rights are adverse to the trust. It would clearly be convenient, in order to save expense and to avoid multiplicity of actions, if questions relating to legal devises were capable of being determined on Originating Summons. Moreover, if persons claiming adversely could be bound by consent, this would render the present jurisdiction by Originating Summons more complete. Further, it is submitted that there is no good reason why such jurisdiction should not be extended to all cases of contract, where th.e question between the parties dejsends on the construction of a written document — subject, of course, to the power in the court or judge to order the action to be carried on with pleadings or otherwise. The great advantage of pro- ceeding by Originating Summons is, that the suitor gets his cause early before the judge at a comparatively small expense, and thus one of the principal objects of legislation, namely, the cheap and speedy adminis- tration of justice, is attained. The authors tender their ample acknowledgments to Dauieirs Chancery Practice (6th edit., by Messrs. Leonard Field, Edward Clenncll Dunn, Theodore Ribton, and "William Henry Upjohn), and to Daniell's Chancery Forms (4th edit., by Mr. Charles Burney), and also to the other learned authors whose books are referred to from time to time throughout the work. The authors have also to thank an eminent authority on Chancery pi-actice for several valuable hints with rog:ird to the forms, and also those gentlemen who have kindly lent them papers. PREFACE. Mr. William N. A. Daniel, of New Inn, a gentleman of considerable experience in the practice in Chancery •chambers, has kindly furnished nearly the whole of Chapter III. The authors' forms, which with slight alteration have been used in actual practice (a), are concrete. This it is thought will render them more useful to the young practitioner, and not less so to the experienced one, than a mere outline. Where there is no authors' form and one is contained in DanielPs Forms, a reference thereto is given. ' The subject of Originating Summons is one which has been of gradual but recently of vigorous growth. It is a difficult one to present as a whole, and the authors can only hope that this attempt to do so may prove useful. G. N. M. J. T. D. Lincoln's Inn, 27tli July, 1889. (a) Except Forms 63, 75, and 76. TABLE OF CONTENTS. page. Table of cases ... ... ... ... ... ... • • . xv Addenda xxv PART I. CHAPTER. I. Introductory... ... ... ... ... ... ... 1 II. Outline of the subject 4 III. Concise view of the i^ractice before the judge or chief clerk ... ... ... ... ... ... ... 8 IV. Parties 13 Y. Evidence 27 (1) Discovery, Order XXXI., rr. 12-28 27 (2) Admissions, Order XXXII 33 (3) Evidence generally, Order XXX YII. ... ... 35 (4) Order XXXVIII 40 VI. Applications and proceedings at chambers (Order LIV., rr. 1-10) 49 VII. Order LV., rr. 1, 2 (Chambers in the Chancery Division) VIII. Administrations and trusts, foreclosure and redemption (Order L v., rr. 3-19) ... IX. Order LV., rr. 20 to end ... X. Appointment of new trustees XI. Interpleader ... XII. Appeals (1) From chambers (2) From orders made in court (3) To House of Lords XIII. Time (Order LXIV.) XIV. Costs 53 79 102 121 138 143 143 147 154 155 158 XV. Service of orders, &c. (Order LXVII.) 170 Vlll TABLE OP CONTENTS. PART II. Statutes other than those referred to in Order LV., r. 2, under which an originating summons may be ISSUED. CHAPTER. Ptig^ XVI. Vendor and Pureliaser Act, 1874, sect. 9 172 XVII. Couveyauciug Act, 1881 178 Discharge of incumbrances (sect. 5) ... ... 178 Production, &c., of title deeds (sect. 9) ... ... 180 Married women (sect. 39) ... ... ... ... 181 Infant's land (sect. 42) 186 XVIII. Settled Land Acts 188 S. L. Rules 234 Note as to title, &c., of summons ... ... ... 239 S. L. GoA-ernment forms ... ... ... ... 240 XIX. Married Women's Property Act, 1882 251 XX. Miscellaneous .statutes 277 1 . Arbitration and award ... ... ... ... 277 2. Burial Acts 277 3. Consolidated Fund (Permanent Cliarges Redemp- tion Act), 1873 279 4. County Courts Act, 1888 281 5. Defence Acts, 1842, 1860, and 1864 287 6. Forfeiture for Treason and Felony Abolition Act, 1870 287 7. Housing of the Working Classes Act, 1885 ... 288 8. Improvement of Land Acts ... ... ... 289 9. Inferior courts, removal from ... ... ... 290 10. Land Charges, Registration, and Searches Act, 1888 290 11. Land Registry Act, 1862 291 12. Land Transfer Act, 1875 292 13. Mortgage Debenture Acts, 1865, 1870 292 14. Mortmain and Charitable Uses Act, 1888 ... 293 15. National Debt (Conversion) Act, 1888 297 16. National Debt Redemption Act, 1889 305 17. Newcastle Chapter Act, 1884 306 18. Parochial Charities (City of London Act), 1883.. 306 19. Polehamptou Estates Act, 1885 306 20. Railway Companies Act, 1867 306 21. Stannary Court 307 22. Trade Marks Acts, 1883 to 1888 308 TABLE OF CONTENTS. APPENJ)ICES. APPENDIX I. No. OF Form. f'wS'e 1. Order as to Supreme Court Fees, 1884 (extract) ... ... 317 2. Supreme Coui-t Fuuds Rules, 1886, &c. (extract) with Appendix consistinfi^ of : ... ... ... ... ... 318 (a) Lodgment scliedule ; (b) Payment schedules ; (c) Combined lodgment and payment schedules. 3. R. S. C. Guardianship of Infants Act, 1886 325 APPENDIX 11. 1. Affidavit for entry of apiiearauee as guardian ... ... 327 2. Consent of trustee to act, and certificate verifying same ... 327 3. Advertisement of Originating Summons by way of substi- tuted service ... ... ... ... ... ... ... 327 4. Originating Summons (R. S. C, 1883, form) 328 5. Certificate of no prior application ... ... ... ... 329 6. Titles to Originating Summons, &c., new regulations as to 329 APPENDIX 111. Complete Set of Forms under Order LY., rr. 3, 4, from ISSUING O. S. TO Final Judgment in House of Lords. 1. Originating Summons... 2 . Plaintiff's affidavit in support 3. Order made thereon ... 4. Notice of appeal 5. Order of the Court of Appeal 6. Petition of appeal to House of Lords 7. Notice of appeal to House of Lords... 8. Case of the appellant ... 9. Case of the respondent 10. Appendix to case 11. Judgment of the House of Lords 12. Originating Summons for appointment of guardian of person and estate, and allowance for maintenance out of corpus ... ... ... ... ... ... ... 344 .. 334 .. 335 .. 336 .. 336 .. 337 .. 337 .. 338 .. 338 .. 341 .. 343 .. 344 TABLE OF CONTENTS. No OF Form. i'aj/e 13. Consent of guardiau to act ... ... ... ... 34-5 14. Affidavit of fitness of j)roposed gv;ardian ... ... 346 15. Affidavit iu support of summons, Form 12 ... 346 16. Affidavit by resjjondent to summons, Form 12 ... 348 17- Order made on summons. Form 12 ... ... ... 349 18. Originating Summons for appointment of guardian of person and estate, and for maintenance and other piirposes ... ... ... ... ... ... ... 351 19. Statement of facts 353 Forms of Originating Summons and other Proceedings under Order LV., r. 8, or rr. 3, 4, combined. 20. O. S. by a surviving executor for determining questions of law and construction arising upon a will ... ... 356 21. Statement of facts in support of summons, Form 20 358 2 2 . Affidavits in support of summons, Form 20 ... 361 23. O. S. by two out of three trustees and executors against a third, who was also a beneficiary, for determining questions of construction and administration arising upon a will ... ... ... ... ... ... 365 24. Statement of facts in support of summons, Form 23 366 25. O. S. by a surviving trustee and executor for determining questions of construction and of law arising upon a will 371 26. Statement of facts in support of summons, Form 25 371 27. Affidavit filed in support of summons, Form 25 ... 373 28. O. S. by two trustees against the third, who was also a beneficiary, and other beueficiai'ies, for determining questions of construction and of law arising upon a will 375 29. Certificate that no further argument was required.. 376 30. Notice of appeal 377 31. 0. S. by two out of three executors against a third, who was also a legatee, and against other beneficiaries, for determining questions of construction and of law arising upon a will ... ... ... ... ... 378 32. Affidavit filed in support of summons. Form 31 ... 379 33. O. S. by one executor against another, who was also a legatee, and against a creditor, for the pm-pose of determining the validity of a claim against a testator's estate ... ... ... ... ... ... ... 380 34. Affidavits filed on hearing of summons, Form 33 381 TABLE OF CONTENTS. XI No. OF Form. page 35. 0. S. by the trustees and executors against beneficiaries, for tlie determination of certain questions of fact and construction arising under a will ... ... ... 384 36. Order made upon the first hearing of s'.immons, Form 35 386 37i O. S. by the trustees and executors against beneficiaries, for the determination of certain questions of constriic- tion and of law arising under a will ... ... ... 387 38. O. S. by a surviving executor and trustee against benefi- ciaries, for the determination of certain questions of construction arising under a will ... ... ... 388 39. O. S. by one trustee and executor against another, who was also a beneficiary, and other beneficiaries, for the determination of certain questions of construction, fact, and law arising with reference to the estates of three deceased persons ... ... ... ... ... 389 40. 0. S. by the trustee of a settlement against the cestuis que trust, for the determination of certain questions of construction and administration arising under the trusts of a settlement ... ... ... ... ... 391 41. 0. S. by the trustee of settlement against the cestuis que triost, for the determination of a question of construc- tion and administration arising under the settlement 392 42. O. S. by a residuary legatee for life and cestui que trust and her husband against the surviving trustee and executor of a will for accounts and inquiries and payment ... ... ... ... ... ... ... 393 Forms of Originating Summons and other Proceedings under Order LV., r. 5a, for Foreclosure, &c. 43. O. S. by an equitable mortgagee of leaseholds by memo- randum and deposit of deeds ... ... ... ... 394 44. Affidavits in support of summons, Form 43 ... 395 45. O. S. by an equitable mortgagee of leaseholds by memo- randum and deposit of deeds ... ... ... ... 397 46. O. S. by first mortgagees of freeholds mortgaged by demise for a long term where the eqviity of redemp- tion had been settled ... ... ... ... ... 397 47. Affidavit in sujjport of summons. Form 46 ... 398 48. Ditto 400 49. Ditto 404 50. Ditto 404 Xll TABLE OP CONTENTS. No. OF Form. pcige 51. Minutes of order referred to iu summons, Form 46 404 52. O. S. by first mortgagee iu possession of freeholds against the mortgagor and the purchaser of the equity of redemption of part of the iiroperty, the plaintiff seeking to consolidate ... ... ... ... ... 405 53. Order made on summons, Form 52 ... ... ... 406 54. O. S. by first mortgagees of freeholds against the piu'- chaser of the equity of redemption and second mort- gagees ... ... ... ... ... ... ... 407 55. Ordinary summons for leave to amend siimmons. Form 54 408 56. Ordinary summons for leave to prosecute foreclosure action, notwithstanding ■winding-up proceedings 408 57. O. S. by first mortgagees against second mortgagees of part of the property comprised in the action, Form 52, who were discovered after the order for foreclosui'e had been made ... ... ... ... ... ... 409 58. Order made on summons, Form 57 ... ... ... 410 59. O. S. by first mortgagees of freeholds and copyholds against a second mortgagee ... ... ... ... 411 60. Afiidavit in support of summons. Form 59 ... ... 411 61. O. S. to enforce a charging order ... ... ... ... 413 62. Order made on summons, Foi'm 01 .. . ... ... 414 New Trustees. 63. O. S. for the appointment of new trustees and vesting order under Order LY., r. 13a. ... ... ... ... 415 Vendor and Purchaser Act, 1874. 64. 0. S. hj a purchaser under the Vendor and Purchaser Act, 1874 416 65. Statement of agreed facts to accompany summons, Form 64 417 Additional Forms binder the Settled Land Acts, (a) 66. Summons by a tenant for life of full age for appointment of trustees of the settlement ... ... ... ... 418 67. Affidavit of tenant for life filed in support of sum- mons, Form 66 ... ... ... ... ... 419 68. Consent of trustee to act, and verification thereof 420 69. Affida^ntof fitness of trustee 421 (o) For the statutory forms, see mtte, p. 240 et seq. TABLE OF CONTENTS. XIU No. OF Form. page 70. Sumiuous by au iufaut absolutely entitled, for appoint- ment of trustees of the settlement, &e. ... ... 422 71. Oi'der made on summons, Foi'm 70 ... ... ... 422 72. Summons by au infant absolutely entitled, for appoint- ment of persons to exercise powers of the Act on behalf of the infant ... ... ... ... ... 423 73, Order upon summons, Form 72 ... ... ... 424 74. Summons by infants absolutely entitled to shares of part- nership land, for appointment of trustees of settle- ment, &c 424 75. Siimmons by quasi-tenant for life to exercise the powers of S. L. A., 1882, sect. 63 425 76. Summons by tenant by the curtesy for appointment of trustees of the settlement ... ... ... ... 425 77. Summons by rector for application and investment of money paid in by a sanitary authority in respect of glebe lands taken under the Public Health Act, 1875, in improvements and redemption of land tax ... ... 426 77a. Variation where it is believed that the fund in court will be nearly spent ... ... ... ... ... ... 428 LIST OE TEXT BOOKS CITED, WITH ABBREVIATIONS EMPLOYED. Anmial Practice, 1888-1889. Browue and Theobald ou Railways, 2iid edit. Brown's Copyhold Enfranchisement Acts. Chitty's Equity Index, 4th edit., by Hirst. Chitty's Forms, 12th edit. Cliitty's Statutes. Clarke and Humphry on Sales of Land. Clerke and Brett, Convej-aucing Acts, 2nd edit. Coote on Mortgages, 5th edit. Cordery on Solicitors, 2nd edit. Daniell's Chancery Forms, 4th edit., by C. Burney (cited as Dan. F.) (a) Danieirs Chancery Practice. 6th edit, (cited as Dan.). Dart's Vendors and Purchasers, 6th edit. Davidson's Settlements, 3rd edit. Ellis's Trustees' Guide to Investments, 2nd edit. Elphinstone and Clark on Land Registration and Searches Act, 1888. Fislier on Mortgages, 4th edit. Geare's Investment of Trust Funds, 2nd edit. Hamilton on the Trustee Acts. Holt on the Land Transfer Act, 1875. Indermaur's Manual of Practice, 5th edit. Lawson on Trade Marks. Rawson's Pocket Law Lexicon. Lewin on Trusts, 8th edit. Marcy's Epitome of Conveyancing Statutes, 4th edit. Mitcheson's Charity Commission Acts. Mitford (Lord Redesdale) on Pleading, 5th edit., by J. W. Smith, Morgan's Chancery Acts and Orders, 6th edit. Morgan and Wurtzburg on Costs. Scriven on Copyholds, 6th edit. Setou on Decrees, 4th edit. Steer's Parish Law, 4th edit., by Macnamara. Tyssen on Charitable Bequests. Yaizey on Settlements, Yaizey's Precedents. Walker and Elgood on Administration Actions. White and Tudor's Leading Cases in Equity, 4th edit. Williams on Executors, 8th edit. Wilson's Judicature Acts, 7th edit. Wolstenholme and Turner ou Conveyancing Acts, 4th edit. (a) Except where otherwise expressly stated, references to Dan. F. are to the Forms in that work, not to the pages. TABLE OF CASES. A. Abram v. Aldridge ; Re Ald- ridge page 74 Acton and Brentford Railway Company, Re 63 Adams, Re 127 Adams' Trusts, Re 137 Agg-Gardner, Re 174 Aldred, Be 161 Aldred's Etate, Ee 67 Aldridge, Re ; Abram v. Ald- ridge 74 Alexander V. Burnhill 260 Alexander v. Calder ; Re Wil- son 93 Alford, Re ; Hunt v. Parry ... 73 Allaway v. Oakley ; Re Powell 233 Allen, Re ; Simes v. Simes 69, 83, 121 Allen V. Norris ; Re Norris ... 124 Allen V. Taylor ; Re Gyhon ... 93 Alphege. Ex parte Parson of St. ' 55 Ambler's Trusts, Re 133 Anderson v. Browne ; Re Browne 263 Andrews v. Barnes 159 Andrews, Re ; Edwards v. Dewar 258 Andrews v. Salmon 16 Anon (74 L. T. 208) 201 Anonymous Case, Re (85 L. T. 410) 267 Arabin's Trusts, Re 252 Arbenz' Application, Re ... 312 Arden, Re 126, 421 Armstrong, Re ; Ex parte Boyd 273 Armstrong, Re Emma ; Ex parte Gilchrist 255, 259, 273 Arnison v. Smith 149 Arnold, Re 57 Askew V. Woodhead 68 Aspinall to Powell and Schole- field 175 Aston, Re page 133 Atkinson, Re ; Atkinson v. Bruce 189, 223, 228 Attorney-General v. Llewellyn 144 Australian Wine Importers Limited and Mason, Re ; Re the Trade Mark "Golden Fleece" 311, 313 Axford u. Eeid 256, and Addenda. Aylesford's S. E., Re Earl of 191, 213 Ayres, In the Goods of 256, 275 Ayscough V. BuUer 14 B. Backhouse v. Alcock 47 Backhouse v. Cliarlton 394 Bahin v. Hughes 257 Bailey, Re 260 Baker, Re ; Connnell v. Baker 47 Baker t'. Baker 267 Barber, Re 124 Barber, Re ; Burgess v. Vinni- combe 77 Bareham, Re 68 Barker, Re 54, 56, 58 Barnard, Re ; Edwards v. Bar- nard 84 Barr Haden'.s S. E 225 Barr v. Harding 91 Bartlett v. Eees 405 Bates V. Moore 54 Batten v. Wedgwood Coal and Iron Company 161 Beaumont's S. E., Re 214 Beckett v. Tasker ...257, 259, 273 Bentley, Re ; Wade v. Wilson 230 Berkeley's Will, Re Earl of . . . 67 Berners v. BuUeu Smith ; Re Bullen Smith 17, 89 Berridge, Re 83 Besley v. Besley 14, 18 Be.st V. Applegate 91 XVI TABLE OP CASES. Bethlehem, Re l^nge 205 Bethlehem and Bridewell Hos- pitals, 54, 55, 56, 64, 65, 205, 210 Biddei" r. Bridges 41 Bio-nold's Settlement Triasts 124 Billing V. Brogden ; Re Brog- den 124 Bilston, Ex parte Peri^etual Curate of 64 Blake, Re 131, 132 Bhike, Re ; Pughe-Jones v. Blake 93 BL.nchard, Re 124. 126 Blyth and Young, Be ...- 3,176 Bolton Estates Act, 1863, Re, 211, 227, 228 Bond v. Walford 81 Biirthwick v. Eansf ord 94 Boswell I'. Gurney ; Re Sum- mers 116 Bousfield r. Dove ; Re Dove... 119 Bower v. Smith 274 Boycott, iie 76 Boyd, Ex parte ; Tte Armstrong 273 Bracken, Re 381 Bradford, E.v parte Mayor of ; Re Hargreave's Trust ... 64 Bradish r. EUames 291 Brandram, Re 54 Breed's Will, Ee 74 Briant, Re ; Poulter r. Shackel 84 Bridge, Re; Franks i'. Worth 81 Broadwater Estate, Re the 205, 207, 221 Broadwood's Trusts, Re ... 55 Brocklebank and Company v. The King's Lynn Steamship Company 162 Brogden, Re ; Billinff v. Brog- den 124 Brooking v. Skewis 90 Browne's Will, Re J. B., 195, 214, 215, 239 Brown v. Burdett 165 Brown v. Rye 90 Browne, Re ; Anderson v. Browne 263 Buckley's Trusts, Re 73 Buclarte. Trustees of 57 Flood's Trusts, Re 185 Flower and Metropolitan Board of Works. i?e 174 Foster, Be 137 Foster r. Abrahams 21G Fowlers Trusts, Be 125 Fox v. Dalby 203 Frant-ke, Be : Drake and Co. r.Fran^ke ... 86, 91 Franklyn's Mortgagees, 7ii'e ... 128 Franks v. Worth ; Be Bridge 81 Frascr r. Brescia Steam Tram- ways Company 164 Fraser and Co. v. Ehrensperger and Eckenstein 277 Freeman's Settlement Trusts, Re 124 Frewin, Be ; Fre^^■in v. James 202 G. Galland r. Burton ; BeFawsitt, 3, 148, 177 Gaitskell, a Lunatic 231 Grandy v. Macauley ; Be Gar- nett 82 Gardiner's Trusts, Be ... 124, 133 Gardinei-, Be ; Ex parte Coul- Bon 259 Gardiner, Be ; Jones v. Gardiner 23, 88 Gardner's Trusts, Be 123 Garnett.Orme, and Hargreavea' Contract, Be 218 Gai nett. Be ; Gandy v. Macauley 82 Gee V. Bell 87, 91 George. Ite 73 Genese, Be ; Ex parte District Bank of London 260 Gibbons' Trust; Be John, 122, 130 Gibson v. Way ; Be Currey ... 83 Gibson v. Way (No. 2) : Be Currey page 83, 182, 183, 184 Gilchrist, Ex parte ; Be Emma Armstrong 255,259, 273 Giles, Be 60, 83, 161 Gill, Be; Smith t'. Gill ... 82, 83 Gisborne t'. Gisbome 95 Gladstone, Be ; Gladstone v. Blumenthal 81, 86 Glanville, Be ; Ellis v. Johnson 258 Glenton and Saunders to Haden 174 Glouce.-terthire Banking Com- pany r. Phillips 257 Gold and Norton's Contract, Be 174 " Golden Fleece " Trade Mark, Be ; The Australian Whie Importers Limited and Mason 311, 313 Goldring r. Lancaster ; Be Ormston 165 Goodbariie i'. Fothergill ; Be Harker 150 Gordon' s Settlement Trusts, Re 89 Cough's Trusts, Be 68 Go wan v. Broughton 159 Grafton r. Weston 164 Gray r. The Metropolitan Rail- way Company 173 Great Northern Eailway and Sanderson, Be 180 Groat Western Railway Com- pany, Ex parte ; Be Gough's Trusts 68 Gregson's Trusts, Be, 124,132, 133 Green v. Biggs 394 Greenville Estate, Be 229 Griffiths, Be 69 Griffiths' Will, Be 212 Grundy r. Bnckridge 126 Gunston v. Maynard 257 Gwatkin v. Dowling ... 92, 93, Gyhon, Be ; Allen v. Taylor ... 93 H. Haden'sS. E 216 Haden's (Barr) S. E 225 Hale and Clark (or Smyth), Be 189 Hale and Smyth's Contract, Be 222 Hall, Be 84 Hall's Settlement Trusts ...126 Hall, Be; Hall v. Hall 95 Hall V. Bromley ; Be Hughes 127 Hanbury's Trusts, Be 210 Hancock r. Hancock 273 TABLE OP CASES. XIX Hansen V. Maddox ...page 142 Harding r. Sutton 254 Hardwidge, iie 146 Harker, Re ; Goodbarne v. Fothergill 150 Hargreaves' Trust, Re ; Ex 2)rt We Mayor of Bradford ... 64 Hargreave's and Thompson's Contract, Re 175 Harloe r. Harloe 160 Harri-5' Settled E.state, Re ... 2.")2 Harris y Harford 182, 184 Harrison's Settlement Trusts, Re 135 Harrison v. Harrison 258 Harrison, Re ; Re Little's Will 183, 184 Harrison v. Harrison ; Re Little's Will 186 Harrop's Settled Estate, Be, 211, 215, 216, 217 Hart ('. Vnilleuimer ; Re How- land 85 Hartmont y. Poster 53 Hastie v. Hastie 149 Hatten v. Russell ...210. 218, 219, 220 Hawksworth, Be 272 Haworth, Eg 57 Haynes, Re; Kemp v. Haynes 223 Hayter, Be 84 Hazle's S. E., Re ... 191, 195, 223, 227 Heatley t'. Newton 146 Hellard (or Hillard) v. Moody ; Re Ridge 194, 233 Herbert, Re 76 Hctherington's Trust, Be ... 136 Hewitt's Settlement Trusts, Re 124 Hickley v. Strangways ; Re Strangways ... 190, 221, 228 Hicks I'. May ; Re Metcalfe ... 110 Higgins and Percival, Be ... 175 Hill I'. Grant ; Be Dickson ... 73 Hirst V. Proctor 41 Hislop V. Richmond 128 Hoare, Be Rolls 123 Hodges I'. Hodges 182, 183 Holland v. Worley 163 HoUoway v. Cheston ... 144, 145 Home, Be ; JS'.t jjnrfe Home ... 260 Homfray, Be, in the Goods of 254 Hooley v. Fountain ; Be Potts 61 Hopper's Trusts, Be 122 Horace, The 164 Home's S. E., Be ... 221, 228, 233 Horner v. Whitechapel Board of Works IHige 161 Horwood, Be 126 Hotchkin's S. E., Be 207 Houghton Estate, Be, 202, 205, 214, 220, 232 Household, Be ; Household v. Household 82 Howe Machine Company, Be ; Fountain's claim 102 Howland, Be ; Hart v. Vuille- uimer 85 Howson's P.dicy, Be ... 125, 266 Hudson V. Osgerby 164 Hughes, Be ; Hall v. Bromley 127 Hulme, Be 134 Hume, Be, aperson of unsound mind 45, 127 Hunt V. Austin ; Ex parte J. N. Mason 50 Hunt r. Hunt 267 Hunt V. Parry ; Be Alford . . 73 Hurst V. Hurst 160 Hutchinson, Be ; Hutchinson ('.Norwood 101 Hyde v. Benbow 126 I. levens. Be 254 Inderwick, Be 76 Isaac, Be ; Jacob i\ Isaac . . . 258 Jackson and Oakshott, Be ... 174 Jackson and Woodburn, Be ... 174 Jacob I'. Isaac ; Be Isaac . . . 258 James, Be 221,227,239 James t'. Barraud 256 Jellard, Be 89 Jellard's Trusts, Be 55 Jennings v. Jordan 405 Jesus College, Cambridge, Ex parte 64 Johnson and Tustin, Be, 173, 176 Johnson and Weatherall, Be .. 76 Johnson, Be, Manchester and Liverpool Banking Com- pany c. Beales Addenda Johnson i\ Evans 90 Johnson V. Pease 160 Johnstone's Settlement, Be ... 190 Johnstone t'. Brown 257 Jone.s, Be 190, 221, 227 Jones, Be ; a Soli'itor 76 Jones, Be Griffiths 76 Jonesi'.Chennell ; BeChennell 149 XX TABLE OP CASES. Jones I'. Gardiner ; Re Gardi- ner pof/e 23, 88 Jones r. Hawkins ; Re Stocken 94 Jordan, Re; Kino V. Pickard... 185 Judkin's Trusts, Re 73 Jupp, Be; Jupp tJ. Buckwell... 254 K. Kane's Trusts, i?e 132, 217 Kay, Re : Littlehales v. Light- foot 122 Keeley's Trust, Re 131, 135 Keith r. Day 91 Kellock, i?e 75 Kelson r. Ellis ; Re Ellis ... 82 Kemp's S. E., Re 216 Kemp V. Harper ; Re Haynes. . 223 Keunard, Re 291 Kennaway, Re 217 King V. Chamberlayn 177 Kino r. Pickard ; Re Jordan .. 185 Knatclibull's S. E., Re 200 Knight's Trust, Re 131 KnowlesS. E., Re 126, 239 L. Lacey, Re Lacon v. Tyrell Lake and Taylor's Mortgage, Re Lamb's Trusts, Re Lambert's Estate, Re V. Lambert . . . Lamotte. Re ... Landfield"s Settled Land, Re . Landfield, Re ; Landfield v. Landfield Lands at West Ham, Re (Car- penters" Company) Land Transfer Act, Re, The .. Lane r. Lane; Re Llewellyn.. La Trinidad Limited v. Browne 38, Leggott V. Western Leigh, Re Leighton v. Price; Re Price, 217, 229 Leinster's, S. E., Re Duke of 197 n, 201 Levin v. Levin ; Re Levy ... 42 Levy, Re ; Levin v. Levin ... 42 Lewis, Re ; Lewis i'. Williams, 14G, 148 Lewis I'. James 48 Lightbody's Trusts, Re... 124, 133 Lilwall's Settlement Trusts, Re, 182 180 .. 124, 133 Stanton ... 252, 254 123 183 83 63 292 93 40 413 67 Lindsell v. Powers ; Re Power page 86 Little. Re; Harrison v. Harri- son 186 Little's Will, Re 182,184 Littlehales v. Lightfoot ; Re Kay 122 Llewellin. Re 218 Llewellin, Re ; Llewellin v. Williams 213, 221, 223 Llewellyn. Re ; Lane v. Lane... 93 Lloyd. Re ; Edwards v. Lloyd. 203', 217 Lloyd's Trusts, Re 131 Lofthouse. Re. an Infant, 73, 82, 95 London, i> jijfo-fe Mayor of, 2, 64 London, E.c parte Mayor and Corporation of; Re Sion College 144 London and North- Western Eailv^ay and Midland Rail- way. Ex parte : Re Samuel Smith 202, 216 Lowe r. Fox 252, 256 Lowther v. Bentinck 74 Lnmb r. Osburn 40 Lydney Wigpool Ore Company V. Bird 163 Lyon i\ Morris and another ; Mutual Loan Fund Associa- tion, claimants ... 140, 141 Lyt^on's S. E., Re 202, 210 Lytton's Will ; Re Bulwer, 205, 207 M. Maberley, Re ; Maberley v. Maberley 201,202, 211 Mace's Trusts, Re 137 McCormac. Ex parte ; Re Trench's Trust 261 McGarry r. Wliite and Wife... 257 McGrah v. Cartwright 326 Mackenzie's Trusts, Re, 189, 202, 211, 219, 223, 225 Maddison r. Pye 160 Madgwick, Re 56 Magdalen College, Oxford, Re 67 Maid:^tone and Ashford Rail- way, Ex parte 56, 60 Malcdlm r. Hodgkinson ... 162 Mancliester and Liverpool Banking Company v. Beales; Re Johnson Addenda Manchester andLiverpoolBank V. Parkinson 91 TABLE OF CASES. XXI Manchester Val de Travers Paving Co. Limited v. Slagg and others page 144 Mander v. Harris ; Re March, 251, 254 Mansel's Settled Estates, Re 222 Mansel, Re; Rhodes w. Jenkins 150 Mansel v. Clanricarde ; Mansel V. Norton 48 March, Re ; Mander v. Harris, 251, 254 Marlborong-h's Settlement, Re; Duke of Marlborough v. Marjoribanks, ..201.202, 214, 224 Marlborough, Duke of, v. Sar- toris 220 Marsland r. Hole 153 Martin, Re; Dier v. Martin ... 118 Martyn, Ee 133 Mason, Ex parte; Hunt v. Austin 50 Mason's Claims, Re Drew ... 292 Massey 1'. Allen 161 May and Harcourt, Re 277 May u. Dowse 57 May v. Newton, 17, 23, 24, 106, 107 Meacock, Re • Meacock v. Mea- cock 298 Meager v. Pellew 257 Medland, Re; Eland v. Med- land 84:, and Addenda Medlock, Re ; Euffle v. Med- lock 73 Mercers' Company, Ex parte The 68 Mersey Eailway Company ; Re 307 Metcalfe, Re ; Hicks v. May. . 110 Middleton, Re ; Thompson v. Harris 160 Miles V. Harrison 160 Milford Haven Eailway and Estate Co. v. Mowatt Re Lake and Taylor's Mort- gage 180 Mills, Re 67 Mills' Estate, Be 55 Mills, Re ; Mills v. Mills 94 Mills' Trust, Re 128 Mills V. Fox 71 Mitchell, Ee 313 Monckton to Gilzean . . . 174 Moore, Re 124 Morgan, Re 227 Morgan v. Byre 257 Morris's Settlement, Re 121 Moseley v. The Victoria Rubber Company ...page 164 Moss's Triists, Ee ...126,136, 137 Munns and Longden, Re 76, 145 Musgrave v. Sandeman 184 Myles V. Burton 251, 257 N. National Funds Assurance Comi^any, Re 150 Navan and King's Court Rail- way Company, Re 201 Naylor and Spendla's Con- tract, Re 177, 197 Nesbitt's Trusts, Ee ... 132, 136 Neville v. Baker and Wife ... 258 Newcastle, Re Duke of 190, 191, 194, 196, 211, 22.5, 229 New Hamburg and Brazilian Eailway Company, 2?'3 ... 139 Newton v. Sherry Ill Nicholls r. Morgan 257 Nicholson's Trusts, Re 126 " Normal " Trade Mark, Re... 313 Norman, Re 76 Norris, Re; Allen v. Norris 121 Northampton Coal, Iron, and Waggon Company v. Mid- land Waggon Company .. 144 North Molton Mining Com- pany, Re 308 Norwich Town Close Estate Charity, Re 97 O. 90 394 Re O'Kelly y. Culverhouse Oldham !'. Stringer Olive, Re ; Olive v. Wester man Onslow's Settlement, Plowden v. Gayfcrd Orange and Wright's Contract, Re 174 Orde, Re 126, 133, 421 Ormerod, Re John Sharpies ... 123 Ormston, Re ; Goldring v. Lancaster 165 116 274 Osborne to Rowlett Otway V. Otway Outwin's Trusts, Re Owen, Re 176 258 256 123 Owen V. Edwards, Re Edwards 107 Packman and Moss, J?e 176 Paget's S. E., Re ...195,223,227 XXll TABLE OF CASES. Paine' s Trusts, Be pctge 136 Falliser v. Gurney 255 Parker and Beech's Contract, Re Parker's Will Trusts, Be 60, Pai-kes to Searles, JSe a Cou- reijance from Parrolt, Re ; Walter v. Parrott Pairy, Be ...216,227,235, Partington, Re ; Partington i'. Allen Patching v. Barnett Patching v. BuU ... Paul V. Price Peace r. Waller Peach's Settlement, Re 111 83 292 84 239 80 ... 160 ... 179 ... 257 ... 257 Addenda Pearson, Be 123 Penny v. Penny 160 Pepper, Be ; Pepper v. Pepper, 20, 89 Perks tJ. Mybred 257 Petty V. Daniell 53 Phelp's Settlement Tru.sts, Be 124 Phillips V. Phillips 271 Phillip.5, Be 70 Phillips i'. Andrews 107 Piatt V. Mendel 405 Plowden v. Gayford ; Be On- slow's Settlement 274 Pickard v. Wheater ; Be Robin- son 82 Pike t;. Fitzgibbon 251 Pilling's Trusts, Be 127 Pitt r. White 75 Pollard, Be 76 Poole's Settlement 225 Popple and Barratt's Contract, Be 173 Potter, Be 217 Potts, Re ; Hooley v. Fountain 61 Poulter V. Shackel ; Be Briant 84 Powell, Be : Allaway v. Oakley 233 Powell r. Nevitt 100 Powers, Be ; Lindsell v. Powers 86 Price, In the Goods of Amelia 254 Price, Re ; Leighton v. Price, 217, 229 Price, Be ; Stafford v. Stafford 253 Price, Be ; Williams w. J e:ikins 160 Prim V. Smith 290 Primrose, Be 127 Prynne, Be 258 Prynoes Settlement, Re.,.131, 135 Pughe Jones v. Blake; Be Blake 93 Pybus, Be 76 Pye I'. P>o 40 Q- Queade's Trusts, Be, jxi^e 251, 273 E. Eackstraw's Trusts, Be 127 Raebiirn r. Andrews 162 Randall, Be 151 Eathmines Drainage Act, Be 211 Ray's Settled Estates, Be, 219, 230 Reading v. School Board for London 139 Reg. r. Brittleton 267 Eeg. V. Lord Mayor of London 267 Eeidr. Eeid 261 Eepublic of Costa Eica v. Er- langer 161, 162 Ehodes, Be 54,55 Ehodes r. Dawson 162 Ehodes r. Dawson, Rush, and Co 142 Rhodes r. Jenkins ; Be Mansel 150 Richardson, Be T., 291 Riddell I'. Erring-ton 252 Ridge, Be; Hellard i'. Moody, 194, 233 Roberts, Be ; Evans v. Thomas 140, 141 Robinson, Be ; Pickard v. Wheater 82 Robinson [• Robinson 72 Roper. Be; Roper v. Doucaster, 259, 261 Round r. Turner 203 Rouse, Be ; Rouse v. Trible... 146 Row I'. Row 160 Rudd, Be 202 Ruffle r. Medlock; Be Med- lock 73 Rutland's Settlement, Be Duke of 191, 217 Sabin's S. E 193 St. Alphcge, Ex i)arie Par- son of 55 St. Edmvind the King and Martyr, Be the Parish of . . . 306 St. John Bat)tist College, Ox- ford, F.r piirti' 61 Salisbury. Be Marquis of ... 173 Sampson and Wall, Infants, Re 70, 71 Sarum, Be Bishop of 127 Savile v. Couper 136, 137 Sawyer and Baring's Contract, Re 174 Scanlan, Be 72 TABLK OP CASES. XXlll . . 70 196, 222 ... 221 Scott r. Cumberland j^af/elSO, 160 Scott V. Morley, 252, 255,256, 257, 269 Scott V. Sbarpe ; Be Sharpe ... 6 Scotto V. Heritage 90 Seagrave'a Trusts, Re, 183, 185 Seaton v. Seaton Sebright' s S. E , Re Sebright v. Thornton Seroka v. Kattenberg and Wife, 251, 257 Severance v. Civil Service Sup- ply 258 Seyton v. Satterthwaite ... 266 Shafto's Trust, Re 129, 131 Shakespear, Re ; Deakin v. Lakin 255, 259 Sharp V. Lush 25, 109 Sharpe, Re ; Scott v. Sharpe 6 Sheppard's Settlement Trusts, Re 123, 131 Simes v. Simes ; Re Allen, 69, 83, Simon v. McAdam Sion College, Re ; Ex 'parte Mayor and Corporation of London Skinner r. Skinner Smart I'. Tranter Smith, Re Samuel ; Ex parte London and North-Western Railway and Midland Rail- way Company 202, 216 Smith V. Gill; Re Gill ... 82, 83 121 90 144 72 254 175 51 273 132 252 144 Smith and Stott Smith V. Watts ; Re Watts . . . Smith V. Whitelock Somerset, Re Somerset, Re Duke of; Thynne V. St. Maur Somerville, Re ; Downes v. Somerville Soutar's Policy Trust, Re, 266, 275 Sparrow, Re 123 Spettigue's Trusts, Re 164 Stafford's Charity, Re 56 Stafford v. Stafford ; Re Price 253 Staines, Re ; Staines v. Staines 82 Stamford's Estate, Re Lord, 207, Stanton v. Lambert ; Re Lam- bert's Estate 252, Starr-Bowkett B. B. Society (163rd) and Sibun's Con- tract 174, and Addenda Stead r. Hardaker 160 224 254 Stedman, Re ; Coombe v. Vin- cent page 75 Stephens v. Lord Newborough 168 Sterry (Castle), Re Trusts of, 126, 421 Stevens v. Thompson ; Re Thompson 258 Stocken, Re ; Jones r. Haw- kins 94 Stockton Iron Furnace Com- pany, Re 148 Stogden, Re 76 Stonor's Trusts, Re 273 Strangways, Re ; Hickley v. Strangways 190,221,228 Strathmore, Re 67 Sudeley's S. E., Re Lord ... 201 Suffolk V. Lawrence 84 Summers, Re ; Boswell v. Gurney 116 Symonds r. Hallett 267 T. Tallatire's Trusts, Re 182 Tamplin V. Miller 183 Taylor, Re 231 Taylor v. Poncia ... 225, 226, 233 Tempest v. Lord Camoys 124, 216 Tennant, Re 189, 211 Tetley v. Griffith 255 Thackwray and Young's Con- tract, Re 175 Thatcher's Trusts 73 Thomas v. Elsom ; Re Elsom 144 Thomas v. Williams .. 191, 192 Thompson, Ex 2^arte 184 Thompson, Re (Solicitor) ... 76 Thompson, Re (S. L. A.) 195, 223 Thompson, Re ; Stevens v. Thompson 258 Thompson to Ringer 175 Thompson v. Harris ; Re Middleton 160 Thompson v. Krise 251 Thompson V. Wright 139 Threlfall r. Wilson 258 Thynne's Settlement, Re Lord John 214 Thynne v. St. Maur ; Re Duke of Somerset 252 Tidswell, Re; Tidswell v. Viney 260 Tippetta and Newbould's Con- tract, Re ... 177 Tomkins v. Colthurst 159 Tomlinson, The Goods of ... 254 XXIV TABLE OF CASES. Tomlinson v. Land and Finance Corporation Limited ... jin^e 142 Toogood, Re 60 Torrance, Re 183,184 Trench's Trust, Re ; Ex parte McCormac 261 Trethewy r. Helyar 159 Tuckett's Trusts, Ee 302 Tuff and Nottino-hani, Re ...200 Tuffnell V. Nichols 405 Turcan, Re 81 Tumbull V. Forman 251, 257, 259 Turner and Skelton, Re 174 Turner I'. Dan cey 161 Tweedy, Ee ... 54, 69, 78, 121 U. Upton i\ Brown Vicat, Re ... ... 118 123, 134 W. Waddell's Contract, Re 174 Wade V. Bentley ; Re Bentley 230 ■\Vade i'. Wilson 394 Walker, Re 202 Walker, Re, and Re Jackson... 82 Walker, Re ; Walker v. Walker 82 Walker and Hughes, Re... 129, 130 Walter v. Parrot ; Re Parrot 84 Warburg, Ex "parte ; Re Whalley 147 Waring and Colley's Settle- ment 184 Warren, Re 183, 185 Warren, Re ; Weadon v. Reading 86 Watford Burial Board, Ex imrte The 278 Watts, Re; Smith i;. Watts... 51 Weadon v. Reading ; Re Warren 86 Weldhen v. Scattergood . . . 252 Weldon v. De Bathe 251, 256, 267 Weldon v. Neal 252 Weldon v. Winslow 251, 256, 275 Wells, Re 189,217,229,424 West Devon Great Consols, Rs 308 Weston V. Levy 91 Whaley v. Busfield ; Re Bus- field 1,50, 89 Whalley, Re ; Ex parte War- burgh 147 Wheelwright v. Walker (No. 1) 189, 190, 191, 218, 220 Wheelwright v. Walker (No. 2) 216 Whitaker, Re; Christian v. Whitaker 273 Whitaker v. Van der Swipen 255 Wicks V. Wicks ; Re Wicks ... 24 Wilcock, Re 132,216,217 Wilding V. Bolder 124 Wilkins, Re ; Wilkina v. Rotherham 159 Williams' Trusts, Re 127 Williams v. Jenkins ; Re Price 160 Williamson v. North Stafford- shire Railway 1 64 Willock r. Noble 253 Wihon, a Lunatic, Re 126 Wilson, Re ; Alexander v. Calder 93 Winter, Re 292 Witten, Re 72 Wood, Re 185 Wood I'. Weightman Ill Woodbridge, Re 146 Wright, Re 215, 217 Wright's Trusts, Re 185 X., Re X. Y. .. 176 Yardley, fe prrr/e Vicar of ... 65 Yielding and Westbrook, Re 175 Young and Harston's Con- tract, Re 175 ADDENDA. Page 84. — Re Medland ; Eland v. Medland is now reported on appeal in 41 Ch. Div. 476, and 60 L. T. Eep. N. S. 851. Pages 96 and 121.— Rule 13a is annulled by R. S. C, June, 1889 (published in W. N. 29, June, 1889, Sujjp.), and the following rule ia substituted for it: — Okder LY., Rule 13a. 1. In all cases in which the court has jurisdiction to appoint new trustees upon petition, an application maybe made to a judge in chambers by summons, and thereupon new trustees may be appointed : and by the same or by any subseqiient orders to be made on the same or any other summons for the purpose, such vesting and other consequential orders may be made as the court has jurisdiction to maJce upon petition for the appointment of new trustees. Every such summons shall be intituled in the same manner as the petition seeking the like relief ought to have been, and shall be served upon the same persons upon whom the petition ought to have been served. The material new portion of the rule is here given in italics. The effect is to declare that vesting orders may be made on summons in connection with appoint- ments of new trustees. This follows the practice in Re Morris's Settlement, cited at p. 121, 2>ost. It was held in Re Peach's Settlement (87 L. T. 185) that where a new trustee had been appointed out of court, the court could not make a vesting order otherwise than on petition or motion in an action. Page 99. — Rule 15a is annulled by R. S. C, June, 1889, and the following rule is substituted for it. Order LY., Rule 15a. 2. No order appointing a new trustee, or for general administration, or for the execution of a trust, or for accounts or inquiries concerning the property of a deceased person or other property held upon any trust or concerning the parties entitled thereto, and no vesting or other order consequential on the appointment of new trustees, shall be made except by the judge in person. The new portion of the rule is given in italics. Page 146. — As to time for motion before judge in court to discharge order on further consideration made in chambers, see Re Johnson ; The Manchester and Liverpool District Banking Company (W. N., Aug. 10, 1889, p. 162 ; 87 L. T. 273). Page 161. — The court has jurisdiction, on an O. S. under Order LV., r. 3, to order costs to be paid out of the estate, although all the beneficiaries were not served {Re Medland ; Eland v. Medland, 41 Ch. Div. 476; 60 L. T. Eep. N. S. 851). c ADDENDA. Page 166. — Order LXV. The words in square brackets in rule 18, p. 166, post, were annulled, but reinstated by R. S. C, June, 1889. Page 166. — Eule VJh i.s annulled and re-enacted in the same words. Page 166. — Rule 19c is annulled, and the following rule substituted. The new portion is indicated by italics, and there are also some verbal variations. Order LXV., Rule 19c. 5. The solicitor having the carriage of the order shall leave at the office of the pi'oper taxing officer within seven days {or such further time as the taxing officer may allow for reasons to be certified by him), after the order was signed entered or otherwise perfected, a copy of it and (annexed to such copy) a statement containing the names and addresses of the parties appearing in person, and of the solicitors of the parties not appearing in person, and in case of default no costs of drawing and copying the bill, nor of attending the taxation, shall be allowed to the solicitor so failing. Page 167. — Rule 19fZ is annulled, biit re-enacted in the same words. Page 168. — Rule 27a, Reg. 38 (a) and (6) are annulled, and the following substituted : Order LXV., Rule 27. Regulation 38a. 8. If in any case in which a taxation is directed with a view to the pay- ment of tlie costs out of a fund or estate (real or personal), or out of the assets of a company in liquidation, the costs shall have been increased by unnecessary delay or by improper, vexatious, or unnecessary proceedings, or by other misconduct or negligence, or if from any other cause the amount of the costs shall be excessive liaving regard to the value of the fund, estate, or assets to which they relate, or other circumstances, the taxing officer shall allow only such an amount of costs as would have l)een incurred if the litigation had been propei-ly conducted, and shall assess the same at a gross sum, and shall (if necessary) apportion the amount among the parties. The jirovis ions as to the review of taxations shall apply to allowances and certificates under this rule. It will be observed that the words referring to the opinion of the taxing master {post, p. 169) are omitted, and that the words in italics are new. These changes are favourable to the solicitor. Order LXV., Rule 27. Regulation 38b. 9. If on tlie taxation of a bill of costs payable out of a fund or estate (real or personal), ov out of the assets of a company in liquidation, the amount of tlie professional c;hargos {a) contained in tlio bill is reduced by a sixth ])art, no costs sliall bo allowed to the solicitor leaving the bill for taxation for drawing and copying it, nor for attending the taxation. The R. S. C, May, 1889, are annulled by the R. S. C, June, 1889. Page 174. — The Ki^rd Starr Bowkeft li. B. S. and Siban's Contract is now fully reported in 60 L. T. Rep. N. S. 8U. The case was affirmed by the Court of Appeal, on July 30 (87 L. T. 272 ; W. N. 1889, p. 157.) (a) The words •' exclusive of disbursements " {post, p. 169) are here omitted. ADDENDA. XXVli Page 189, line 10, for "488" read "211." Page 191, line 10, after " gives " insert " a tenant for life." Pages 202, 224. — Cardigan v. Curzon Howe (C. A.) is now also reported in 60 L. T. Rep. N. S. 723. Page 256. — Axford v. Reid (C. A.) is now also reported in 60 L. T. Rep. N. S 726. Page 309. — It was here stated that some new trade mark rules were expected shortly to appear. They will be found in W. N., Aug. 3, 1889, Supp. p. 360, and 87 L. T. 279. Besides other alterations new rules are substituted for T. M. Rules 29, 30. Four clear day's notice of every application to the court under sect. 90 of the Patents, &c.. Act, 1883, for rectification of the register of trade marks, shall be given to the Comptroller (r. 46a). ORIGINATING SUMMONS. T^j^.:EtT I. CHAPTER I. INTRODUCTOEY. The following extract from the judgment of Mr. Justice iChitty^ in the case of Re Busfield ; Whaley v. Busjield 1(54 L. T. Rep. N. S. 220; 32 Ch. Div. 125; 55 L. J. 467, Ch. ; 34 W. R. 372) forms a fitting introduction to the subject of the present work. '' An Originating Summons first arose under 15 & 16 Origin. Vict. c. 86, s. 45, and was confined to the simple case of an order for the administration of the personal estate of a dead man. This provision was left untouched until the Orders of 1883 were issued, which for the first time dealt with the Chancery Consolidated Orders of 1860 as a whole. " An Originating Summons is now issued under Order Order LV. LV. of the Rules of 1883. This order has greatly enlarged the scope of an Originating Summons, and made it applicable to new subjects, as, for instance, the execution of trusts. By the Orders of December, 1885, the scope has been still further extended. The main difference between a writ of summons and an Originating summons is, that in the one case the proceedings are in court, and there are or may be pleadings, whereas in the ORIGINATING SUMMONS. Statutes. Jurisdiction. Lands Clause; Act. Definition of Originating' Summons. other case the proceedings are in chambers, and there are no pleadings." It should be added that during the period which elapsed between the passing of 15 & 16 Vict. c. 86 (1852), and the Rules of 1883, numerous statutes were passed, authorising the decision of various questions in a summary way, under which proceedings were originated by a summons which may be styled an Originating Summons. As examples of such statutes we may mention the Vendor and Purchaser Act, 1874, the Conveyancing Act, 1881, and the Married Women's Property Acts, 1870 (sect. 9) and 1882 (sect. 17). It would seem that, except under a statute or rule, there is no jurisdiction to dispose of matters by Origi- nating Summons (.see Order LV., r. 2) ; so that it is necessary, before commencing proceedings by this form of process, to consider whether there is a statute or rule giving authority for the purpose. In Ex parte Mayor of London (49 L. T.Rep. N. S. 437 25 Ch. Div. 384; 53 L. J. 6, Ch. ; 32 W. R. 87) an endeavour was made to show that rule 2 (7) of Order LV., which orders certain applications under the Lands Clauses Consolidation Act, 1845, to be disposed of in chambers by the judges of the Chancery Divi- sion, was ultra vires, as the L. C. C. Act itself expressly directs a petition to be presented. The power of making the rules was very fully discussed, and it was held that the sub-rule in question was valid. By sect. 100 of the Judicature Act, 1873 (36 & 37 Vict. c. GO) " action " is defined as meaning (unless there is anything in the subject or context repugnant thereto), in the construction of that Act, '^ a civil proceeding com- menced by writ, or in such other manner as may be prescribed by rules of court, and shall not include a criminal proceeding by the Crown." INTRODUCTORY. And by Order LXXI., r. 1, the provisions of tlie above section of the Judicature Act are made applicable to the rules, and ** Originating Summons^' is declared to mean (unless there is anything in the subject or context repugnant thereto) "a summons by which proceedings are commenced without writ/^ Accordingly it was held by the Court of Appeal, in Re Fawsitt ; Galland v. Burton (53 L. T. Rep. N. S. 271 ; 30 Ch. Div. 231; 54 L. J. 1131, Ch. ; 34 W. R. 26), that an Originating Summons taken out under Order LV., r. 3, is " a civil proceeding commenced other- wise than by writ in manner prescribed by a rule of court," and is consequently an action within the meaning of sect. 100 of the Judicature Act, 1873; and that therefore an order made upon such a summo^^s is appealable at any time within one year from its date, and that the appeal must not be brought within twenty- one days under Order LVIII., r. 15. This decision seems to apply to every Originating Summons taken out under Order LV. Before the Rules of 1883 it was held that an appeal from a summons under the V. & P. Act, 1874, s. 9, must be brought within the twenty- one days, as such a summons was then " a matter not being an action " within Rules of Court, 1875, Order LVIII., r. 9 : (Z?e Blyth and Young, 41 L. T. Rep. N. S. 746 ; 13 Ch. Div. 416 ; 28 W. R. 266, C. A.; Daniell's Ch. Pr. 1385.) Note. — As to appeals from orders on summonses taken out in an administration action, see Re Comptori (27 Cb. Div. 392 ; 51 L. T. Eep. N. S. 277 ; 33 W. R. 160). B ^ ORIGINATING SUMMONS. CHAPTEE II. OUTLINE OF THE SUBJECT. Applications The words '^Originating Summons" are principally by Originat- ing Summons byOriginat-^ suggestive of Order LV., rr. 3, 4; R. S. C. 1888, owing to tlie large number of such summonses taken out under those rules or one of them ; but the numerous applica- tions under rules 2 and 5 a of the same order, the former being principally under Acts of Parliament, and the latter relating to foreclosure and redemption, must not be overlooked. To these must be added the jurisdiction to appoint new trustees recently conferred by Order LV., r. 13 a, 19th Dec. 1888, j)o.yf, p. 96, and the appli- cations under special Acts of Parliament, such as the Vendor and Purchaser Act, 1874, the Settled Land Acts> the Married Women's Property Act, 1882, the Con- veyancing Act, 1881, the County Courts Act, 1888, the Land Charges Act, 1888, the Mortmain and Chari- table Uses Act, 1888, and other statutes, all of which are dealt with in the subsequent portion of this work. Here, too, may be mentioned a summons for the advice of a judge, under sect. 30 of 22 & 23 Vict, c. 35 (a), but orders thereunder are usually made by petition, and it is conceived that, having regard to Order LV., r. 3 {jwsi, p. 79), such applications will in future be rare. For the practice thereon see Morgan, p. 102 ; Dan. p. 2232 ; Wilson, p. 392, and for form of originating summons, see Dan. F. 2181. The three main questions which present themselves to the mind of the practitioner in connection with Origi- (a) See Order LV., r. 19 ; Wilson, 392. OtJTLINR OF THE SUBJECT. nating Summonses are (1) Is that mode of proceeding applicable to tlie case ? (2) If so, who are the proper parties to the summons ? and (3) What evidence will be required in support of it ? The first question will^ it is believed, be readily answered from the present work, and in the index under the head of " Originating Summmons" will be found a list of applications which can be made thereby. The question of parties is fully dealt with in Chapter Parties. iy.,pod, p. 13. It may be well here to state that the court has no general power to dispense with service on persons interested, or to appoint anyone to represent them ; or at least if it has such power it is not in the habit of exercising it. In disposing of matters in the absence of parties the court usually acts in pursuance of some order or Act applicable to the circumstances of the case. Evidence is treated of in Chapter V., post, p. 27. Evidence. As to service of an Originating Summons see Order Service. LIV., r. 4, post, p. 49, and as to proceedings to be taken, if it is not served within seven clear days before the return thereof, see Order LV., r. 22, post, p. 103. As to amendment of an originating summons see Amendment. Chapter III., post, p. 10, and Order LIV., r. 3, post, p. 49. The hearing of any application (including, of course. Adjournment, an originating summons) may be adjourned from time to time upon such terms as the court or judge shall think fit : (See Order LII., r. 7; Wilson, p. 389.) As to adjournments from chambers into court see Order LIV., r. 9, post, p. 51. Causes or matters may be transferred from one judge Transfers and to another of the Chancery Division by an order of the consoUdation. Lord Chancellor. (6) (a) Order XLIX., r. 1. 6 ORIGINATING SUMMONS. In a memorandum dated lOtli Nov., 1875, set oufe at L. Rep. 1 Ch. Div. 41, the practice is thus stated by Lord Justice James : ** The Lord Chancellor would direct the traasfer of any action on a written application to his secretary, accompanied by the written consent of all parties. Where all parties did not consent the application must be made to the Lord Chancellor in court." As to an Originating Summons being an action, see ante, p. 3. A particular application in any cause or matter may by the direction of the Lord Chancellor be heard and disposed of by any judge of the High Court who shall consent so to do, to whatever division or judge such cause or matter may have been assigned : (Order XLIX., r. 4; Wilson, p. 369.) Any judge of the Chancery Division may, at the request or with the consent of any other judge of that division before whom a cause or matter is pendiug, hear such cause or matter, or any application therein, and for that purpose it shall not be necessary that any order for transfer shall be made or consent of the parties obtained : (Order XLIX., r. 4a; Wilson, p. 369.) When an order has been made by any judge of the Chancery Division for the administration of the assets of any testator or intestate, the judge in whose court such administration shall be pending has power to order the transfer to such judge of any cause or matter pending in any other court or division brought or continued by or against the executors or administrators of the testator or intestate whose assets are being so administered : (Order XLIX., r. 5; Wilson, p. 370.) The application for transfer may be made ex parte : (see Re Sharps-, Scott v. Sharpe, W. N. 1884, p. 28; and see Wilson, p. 370.) When any summons under Order LV., rr. 3 and 4, OUTLINE OF THE SUBJECT, has been marked with the uame of a judge other than the judge by rule 11 of the same Order prescribed, such last-mentioned judge shall^ unless cause shall appear to him to the contrary, without any further consent, order the transfer to such judge of the summons so improperly marked : ;Order XLIX., r. 6; Wilson, p. 370.) For Order LV., r. 11, see post, p. 95. Causes or matters pending in the same division may Consolidation. be consolidated by order of the court or a judge in the manner in use before the commencement of the Judica- ture Act, 1873, in the Superior Courts of Common Law : (Order XLIX., r. 8 ; Wilson, p. 370.; As to the passing of the Order, see Chapter III., Order. post, p. 12. As to service of the Ordei', see Chapter XV., post, and as to " Time " generally see Chapter XIII., post. Time. As to costs, see Chapter XIV., post. Cost The Order of the Court or judge upon Originating Appeals. Summons is subject to appeal. As to appeals from chambers, see Chapter XII., Part I., post. As to appeals from orders made in court see same Chapter, Part II., post, and as to appeals to the House of Lords, see same Chapter, post. ORIGINATING SUMMONS. CHAPTER III. CONCISE VIEW OF THE PRACTICE BEFORE THE JUDGE OR CHIEF CLERK. Issuing the An Originating Summons is prepai-ed on Judicature summons. paper (foolscap). Skelciton forms can be procured at the Law Courts or from a Law stationer. For tlie purpose of issuing the summons, two copies are required, one of which must be impressed with a ten shilling stamp, {a) The two copies are then presented at the Writ Department in the Central Office of the Royal Courts of Justice. The stamped copy is retained and the other one is returned to the solicitor, sealed aud marked with the reference number and the name of the judge to whom the matter is assigned. The summons has then to be taken to the chambers of the judge aud a copy lodged Avith the chief clerk, who will give an Certificate of appointment to hear the application. At the same time a*' ^ication (where the application is under Order LV. r. 21, post p. 103) a certificate (form of which can be obtained at the Law Courts) signed by the solicitor himself or by a member of his firm, that no prior application has been made to effect the same object, aud that the proceedings have no connection with any other cause or matter, has to be lodged at the judge's chambers, (h) The return of the appointment on the summons is regulated by Order LIV. r. 4. (c). Service of The summons is served by giving a true copy to the summons. (rt) See order as to Supreme Court fecB, 1884, Appemlix I., iiost. (h) For form of such certificate, see Appendix II., post. (c) See post, p. 49. CONCISE VIEW OF THE PRACTICE). respondent, the original being produced at the same time. (a). Before any respondent can be heard upon the summons Appearance, he must have entered an appearance and given notice thereof, in accordance with Order LV., r. 23 {b). The appearanceis entered in the Appearance Department of the Central Office in the manner and form prescribed by Order XII. rr. 8 to 13 (c). A fee of two shillings is paid on entering appearance for any respondent {d). Due notice should be given to the respondent or his Notice to pro- solicitor to produce any documents, such as a probate, ^^^' letters of administration, or settlement, which may be required at the hearing. On the return of the summons the chief clerk of the Return of judge will enter the evidence adduced in support of the application, and any that may be filed in answer or opposition thereto, and will, if necessary, appoint a time . for closing the evidence. evidence. When the evidence is deemed completed, the chief Hearing, clerk will either deal with the application himself (unless it is one which must necessarily go before the judge) or when he has satisfied himself that the pro- ceedings are right for the judge, will adjourn the matter either to the judge in chambers or into court, according to the importance of the subject and the circumstances of the case. If the matter be adjourned to the judge in chambers, the parties must state whether or not the apphcation will be attended by counsel. The judge's Counsel, list must then be watched by the parties or their solicitors as in some of the judges' chambers no further intimation is given when the matter will be heard. If counsel attend, proper briefs must be delivered. (a) See further as to service, post, p. 50. (b) See post, p. 103. (c) See Wilson, p. 158. (d) See order as to Supreme Court fees, 1884, post. 10 ORIGINATING SUMMONS. Statement of facts. Amendment of summons. Some of the judges (Mr. Justice Chitty for instance) require, upon the adjournment to them, a short state- ment of the facts of the case to be lodged in chambers by the appHcant's solicitor. This can be copied on judi- cature paper. Sometimes it is printed, and when a number of copies are requii'cd this is believed to be as cheap as copying. For forms of such statement of fact see Appendix III., po.s-i. It not infrequently happens that a summons requires amendment, for which purpose, if after service, leave must be obtained from the chief clerk or judge as the case may be. A formal order is not usually necessary. Leave having been obtained, the applicant's solicitor will amend his original summons — for convenience, this is generally done in red ink — and also the chief clerk's copy, and will obtain from him his fiat, authorising the official at the Writ Department to seal the amendments. On this fiat a fee of three shillings is paid by adhesive stamp, (a) The summons is then taken to the Writ Department, and the amendments are sealed, a proper praxipe (form of which can be obtained at the LaAv Courts) being left, on which a fee of five shillings by adhesive stamp is paid (h). The amended summons is then served on the respon- dent, or if an appearance has been entered through a solicitor then on the solicitor. Any amendment or alteration to be made before service in an Originating Summons in the Chancery Division must, according to the Central Office Rules, 1884 (Wilson, p. 707 and Annual Prac. 1091), be made on the fiat of a master, and before procuring such fiat the prcecipe for the amendment or alteration must be initialed by the chief clerk, but as a matter of practice (a) See order ns to Supreme Court fees, 1884. Appendix I., jiost. (b) Order as to Supreme Court fees, 1884. ^ost. I CONCISE VIEW OP THE PRACTICE. 11 the chief clerk's fiat aloue is sufficient to authorise such amendment. Should the matter be adjourned into court the appli- Adjournment cant's solicitor should take the summons to the official having charge of the lists and satisfy himself by inspec- tion of the cause-book that the summons has been set down, or if not, what further is required to effect that object. If the matter is decided by the chief clerk or by the Drawing up judge in chambers the summons will be left with the chambers. chief clerk, together with the evidence and other papers which he may require, who will indorse a memorandum on the summons of the order made, and this must be taken by the applicant's solicitor, or the solicitor of the party having the conduct of the order, as the case may be, to the proper registrar of the day who is indicated in the endorsement to bespeak the draft of the order. If, however, the order is made by the judge in court, Drawing up , ' . . , -, . •■,•, T n 1 • ^, order made in the solicitor who draws it up will lodge his counsel s court. brief with the evidence and other necessary papers with the registrar of the day on which the order was pro- nounced. The draft order is usually issued in the course of two or three days. If the order is one of any difficulty or upon which any question or dispute arises an appointment can be obtained before the registrar, of which due notice must be given by the party obtaining it ; and upon such appointment the draft will be settled. If no question or difficulty arises the parties can meet at the registrar's and approve the draft by signing their names upon it. It is then left with the registrar who, if there are deahngs with any fund in court, or on which the paymaster has to act, will Fundincomt. prepare and issue a proof print, which must be settled and approved by the parties in the same way as the draft order. The proof print is then left with the registrar who, in two days, will issue the fair print, which is 12 OtllGINATtNa StJMMONS. ■ examined by the solicitor of the party having the con- duct of the order, and after being properly stamped is left by him with the registrar to be passed and entered. If no printed order is necessary the registrar will issue the engrossment in a couple of days to the solicitor of the party having the conduct of the order, who will give notice of an appointment to pass. This is usually done by the solicitors of the parties meeting at the registrar's chambers, and signing the order which, when properly stamped, is left with the registrar who will pass and enter it, and in two days it can be obtained from him com- pleted. By order as to Supreme Court Funds, 1884, jpost, the stamp, on entering an order made on the hearing of an Originating Summons, unless otherwise provided, is ten shillings. PARTIES. 1 3 CHAPTER IV. PARTIES. As already stated, ante, p. 3, an Originatiug Summons under Order LV., r. 3, is an action within the meaning of that word in sect. 100 of the Judicature Act, 1873; and as a rule (subject to express provisions in particular General rule cases, as for instance under Order LV., r. 3, j^ost, p. 79) ^^ *° P*"*^>^'- the R. S. C. 1883, as to parties as well as the principles of law applicable thereto, will apply to parties to an Originating Summons, but some special rules on this head are laid down by Order LV., r. 5, j^ost, p. 87, as to summonses taken out under rr. 3, 4, of that Order (which see). Apart from all technicalities two main points are to be borne in mind: (1) that no man's rights ought to be adjudicated upon behind his back, and (2) that the court is unwilling to decide questions between some only of the parties interested, as a decision so given would be no bar to future litigation on the same point between the others : (see Mitford (Lord Redesdale) on Pleadings, 5th edit., by J. W. Smith, p. 190 ; and for a valuable note on parties under the old law prior to 1847, see p. 398, et seq., of that work. For a discussion of the subject generally, see Dan. 194-306.) The Judicature Acts and rules thereunder have ren- dered the question of parties less important than formerly, but it is still not infrequently a perplexing one especially to the young practitioner. The practice on the subject as regards Originating Summons can hardly be considered as settled. As most of the rules of Order XVI., have some bearing on the 14 ORIGINATING SUMMONS. matter, it has been thought better to print the whole of the Order (except the rules as to third party proce- dure), although some of such rules obviously do not relate to Originating Summons. The rules most in point are, (8) " Trustees/' 'post, p. 15 ; (9) '^ Numerous per- sons/' post, p. 16 ; and (32) " Class unknown or difficult to ascertain/' post, p. 22. Order XVI.— (R. S. C. 1883.) (a) Parties. 1. Generally. Joinder of 1. All persous may be joined as plaintiffs in whom the p am 1 s. pigiit, to any relief claimed is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment. But the defendant, though unsuccessful, shall be entitled to his costs occasioned by so joining any person who shall not be found entitled to relief, unless the court or a judge in disposing of the costs shall otherwise direct. Wrong plain- 2. Where an action has been commenced in the name of the wrong* person as plaintiff, or where it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a judge may, if satisfied that it has been so commenced through a bond fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as may be just. See Besley v. Besley (37 Ch. Div. 648 ; 58 L. T. Rep. N. S. 510; 57 L. J. 464, Ch. ; 36 W. R. 604) ; and Ayscough v. Bullar (W. N., 1889, p. 81). (a) For valuable annotations on the rules under this order, see Wilson, p. 172, et se(^. ; and Annual Piac, p. 20-1, et set/. tiff PARTIES. 15 3. Where in an action any person has been improperly or unnecessarily joined as a co-plaintiff, and a defendant has set up a counterclaim or set-off, he may obtain the benefit thereof by establishing his set-off or counterclaim as against the parties other than the co-plaintiff so joined, notwithstanding the misjoinder of such plaintiff or any proceeding consequent thereon. 4. All persons may be joined as defendants against Joinder of whom the right to any relief is alleged to exist, whether jointly, severally, or in the alternative. And judgment may be given against such one or more of the defendants as may be found to be liable, according to their respec- tive liabilities, without any amendment. 5. It shall not be necessary that every defendant shall be interested as to all the relief prayed for, or as to every cause of action included in any proceeding against him ; but the court or a judge may make such order as may appear just to prevent any defendant from being embar- rassed or put to expense by being required to attend any proceedings in which he may have no interest. 6. The plaintiff may, at his option, join as parties to Persons sever ,1 • 1 1 ,^ 1 1 ^lly ^^ jointly the same action all or any oi the persons severally, or nabie. jointly and severally liable on any one contract, includ- ing parties to bills of exchange and promissory notes. 7. Where the plaintiff is in doubt as to the person Doubt as to from whom he is entitled to redress, he may, in such p'^''"'°" manner as hereinafter mentioned, or as may be prescribed by any special order, join two or more defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be deter- mined as between all parties. 8. Trustees, executors, and administrators may sue and Trustees and executors, be sued on behalf of or as representmg the property or estate of which they are trustees or representatives, with- out joining any of the persons beneficially interested in the trust or estate, and shall be considered as represent- 16 ORIGINATING SUMMONS. Numerous persons. Practice on Originating Summons. ing such persons ; but the court or a judge may, at any stage of the proceedings, order any of such persons to be made parties either in addition to or in lieu of the previously existing parties. For an able note on this rule see Anm;al Prac. pj). 272-274. Obviously this rale can have but little application to an Originating Summons under Order LV., r. 3 {2^ost, p. 79) where the trustees, executors, or administrators are plaintiffs or defendants, upon an application with reference to the internal affairs of their trust, ex- cept perhaps Avhere tlie interests of unborn cestuis que trust have to be protected. If, however, any of the l)eneficiaries have settlec their shares or the like, the rule would apply so as to save the neees-j sity of joining the persons beneficially interested under the sub- settlement. 9. Where there are numerous persons having the same interest in one cause or matter, one or more of sucl persons may sue or be sued, or may be authorised by the' court or a judge to defend in such cause or matter, on behalf or for the benefit of all persons so interested. This rule is a very useful one, and is acted upon in applications by Originating Summons. No hard-and-fast rule has been laid down as to how many persons constitute a *' numerous " class. It is believed that on one occasion it was suggested from the bench that the number should not be less than ten. The practice under this rule on Originating Summons varies. The most formal plan is for the jjlaintifl' after the Originating Sununons has been iss\;ed to apply by ordinary summons in the action already commenced by Originating Summons for an order authorising the defendant or defendants who are members of the numerous class to defend the action on l)ehalf of all the persons in the same interest with themselves (see Andreivs v. Salmon, W. N. 1888, p. 102 ; corrected ih. p. 176, Avhicli, however, was an action commenced by writ). Sometimes an order of the kind is asked for by the Originating Summons, aiul the coui't or judge at the hearing makes the order accordingly. Another, and perhaps tlie most usual mode of proceeding, is to apply for the representation order when the Originating Summons first conu'S before the judge or chief clerk. In every case (here slu^uld be evidence by affidavit showing that PARTIES. 17 there are numerous persons having the same interest in one cause or matter. The form of order (according to May v. Newton, 56 L. T. Rep. Numerous N. S. 140; 34 Cli. Div. 349; 56 L. J. 313, Ch. ; 35 W. R. 363), ^l*^^^- where one of a uumei'ous class is sued as defendant is, " it appearing that the residuary legatees " (or whatever the class may be) " ai'e numerous, and that A. is one of such class order that A. do defend in the cause " (or matter) " on behalf or for the benefit of all jiersons so interested." The following extract from the instructive judgment of Mr. Justice Kay in the same case lias au important bearing on this rule : " Wlien one of the class is plaintiff suing the trustee on behaK of all the class, it would seem, from the language of rules 9 and 40, that such an order is not absolutely necessary, because I presume the practice was considered established that one might sue on behalf of all, so as to bind the class. But, as under rule 40, the jixdge may direct notice of the judgment or order to be served on the others in such a case, and only tliose so served are bound under the terms of that rule, it seems proper, in order to bind absent parties, to obtain his direction ; and if they are numerous, although repre- sented by a plaintiff suing ou their behalf, it would be better to obtain an order that the plaintiff or some other member of the class should rejireseut them." The court has no general jurisdiction to declare that the parties Absent to an action sufficiently represent absent parties. Thus, in Ee P^-rties. Bullen-Smith ; Berners v. Bullen- Smith (57 L. T. Eep. N. S. 924 ; W. N. 1887, p. 231), which was an Originating Summons taken out by trustees of a will to determine the testator's domicile, he left a widow and four children, the widow and three children were parties to the summons, but the remaining child was in Calcutta. The value of the estate was large. Mr. Justice Kay held, that, though he might entertain the summons in the absence of such child, he could not bind him by any order. Accordingly, leave was given to serve a writ upon him, claiming a declaration as to domicile together with notice of motion. But, subsequently Mr. Justice Kay consented to hear the summons ou the absent son (who was of age) being made a party to the summons, and appearing by counsel : (58 L. T. Rep. N". S. 578.) Of course, the mere fact that a person is out of the jurisdiction is no reason why he shoidd not be made a defendant to au Originating Summons, in-ovided there is any solicitor in this country authorised to enter an appearance for him. 10. Subject to tlie provisions of tlie Acts and these Probate . "; . , . . actions. rules, m all Probate actions the rules as to parties, m 18 ORIGINATING SUMMONS. Defect of parties. Adding parties. Alteration of parties. Adding dant. use in the Court of Probate previously to the com- mencement of the principal Actj shall continue to be in force. 11. No cause or matter shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The court or the judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiifs or as defendants, be struck out, and that the names of any parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added. No person shall be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under any disability, without his own consent in writing thereto. Every party whose name is so added as defendant shall be served Avith a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party, shall be deemed to have begun only on the service of such writ or notice. See Besley v. Besley (37 Ch. Div. 648; 68 L. T. Rep. N. S. 510; 67 L. J. 464, Ch. ; 36 W. R. 604) ; and BTjrne v. Broivn (W. N. 1889, p. 19 ; 86 L. T. 258). 12. Any application to add or strike out or substitute a plaintiff or defendant may be made to the court or a judge at any lime before trial by motion or summons, or at the trial of the action in a summary manner. defen- 13. Where a defendant is added or substituted, the plaintiff shall, unless otherwise ordered by the court or a PARTIES. 19 judge, file an amended copy of and sue out a writ of summons, and serve sucli new defendant witli such writ or notice in lieu of service thereof in the same manner as original defendants are served. 2 . Partners. 14. Any two or more persons claiming or being Tartnera liable as co-partners may sue or be sued in the name of ^"^"^ the respective firms, if any, of which such persons were co-partners at the time of the accruing of the cause of action ; and any party to an action may in such case apply by summons to a judge for a statement of the names of the persons who were, at the time of the accruing of the cause of action, co-partners in any such firm, to be furnished in such manner, and verified on oath or other wise, as the judge may direct. Provided that, in the case of a co-partnership which has been dissolved, to the knowledge of the plaintiff, before the commencement of the action, the writ of summons shall be served upon every person sought to be made liable. 15. Any person carrying on business in the name of a Apparent firm apparently consisting of more than one person may be sued in the name of such firm. 3. Persons under Disability. 16. Infants may sue as plaintiffs by their next friends, Infauts. in the manner heretofore practised in the Chancery Division, and may, in like manner, defend by their guardians appointed for that purpose. Married women Married may sue and be sued as provided by the Married Women's Property Act, 1882. As to Married Women, see cases cited in Chapter XIX., post. 17. Where lunatics and persons of unsound mind not Lunatics, so found by inquisition might respectively before the passing of the Principal Act have sued as plaintiffs or would have been liable to be sued as defendants in any c 2 20 ORIGINATING SUMMONS. Appearance of infants. action or suit^ they may respectively sue as plaintiffs in any action by their committee or next friend according- to the practice of the Chancery Division, and may in like manner defend any action by their committees or guar- dians appointed for that purpose. lu Re Pepper; Pepper v. Pepper (50 L. T. Rep. N. S. 580; 53 L. J. 1054, Ch. ; 32 W. R. 765 ; W. N. 1884, p. 141) it was decided that the rules as to ser^'ice of writs on persons of unsound mind not so found applied to ori^nating summons. 18. An infant shall not enter an appearance except by his g'uardian ad litem,. No order for the appointment of such guardian shall be necessary, but the solicitor apply- ing to enter such appearance, shall make and file an affidavit in the form No. 8 in Appendix A., Part II., with such variations as circumstances may require. For Form, see A^jpendix II., post. 19. Every infant served with a petition or notice of motion, or summons in a matter, shall appear on the hearing thereof by a guardian ad litem in all cases in which the appointment of a special guardian is not pro- vided for. No order for the appointment of such guar- dian shall be necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last rule mentioned. 20. Before the name of any person shall be used in any action as next friend of any infant, or other party, or as relator, such person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the central office, or in the district registry if the cause or matter is proceeding therein. 21. In all causes or matters to which any infant P®"°° °°*^"' or person of unsound mind^ whether so found by inquisi- sition or not, or person under any other disability, is a party, any consent as to the mode of taking evidence or as to any other procedure shall, if given with the consent Next friend, &c. Consent by PARTIES. 21 of the court or a judge by the next friend, guardian, committee, or other person acting on behalf of the person under disabiHty, have the same force and effect as if such party were under no disability and had given such consent. Provided that no such consent by any committee of a lunatic shall be valid as between him and the lunatic unless given with the sanction of the Lord Chancellor or Lords Justices sitting in Lunacy. 4. Proceedings hy or against Paupers. 22. Any person may be admitted in the manner here- Panper tofore accustomed to sue or defend as a pauper on proof that he is not worth 25Z., his wearing apparel and the subject-matter of the cause or matter only excepted. 23. A person desirous of suing as a pauper shall lay a Coimeel's case before counsel for his opinion whether or not he has opj^io"!- reasonable grounds for proceeding. 24. No person shall be permitted to sue as a pauper unless the case laid before counsel for his opinion, and his opinion thereon, with an affidavit of the party, or his solicitor, that the case contains a full and true statement of all the material facts to the best of his knowledge and belief, shall be produced before the court or judge or proper officer to whom the application is made, and no fee shall be payable by a pauper to his counsel or solicitor. 25. A person admitted to sue or defend as a pauper No court fees, shall not be liable to any court fee. 26. Where a person is admitted to sue or defend as a Assignment ., , . -, .J. •_ of counsel pauper the court or a judge may, it necessary, assign a and solicitor, counsel or solicitor, or both, to assist him, and a counsel or solicitor so assigned shall not be at liberty to refuse his assistance unless he satisfies the court or judge that he has some good reason for refusing. 27. Whilst a person sues or -defends as a pauper no No fees, person shall take, or agree to take, or seek to obtain 22 ORIGINATING SUMMONS. Signature of solicitor. Solicitor's duty. Costs. \n like .1* gaar- '\.S. 580; f!j) it was persons , lUS. of from him any fee^ profit^ or reward, for the conduct of his business in the court, and any person who ta>°s, or agrees to take, or seeks to obtain any such i reward shall be guilty of a contempt of court. 28. If any person admitted to sue or dt pauper gives, or agrees to give, any such fe reward, he shall be forthwith dispaupered, an be afterwarfl". ojitted again in the same a or defei^ ' ihe nipper. 29. ^••^luot^'- q£ motion shall be served o issui 'is'^d ) petition shall be presented, oi rfcept by any ^.^rson admitted to sue or defend as a pai otuient of for the discharge of his solicitor, unless it i; -,ir apply- his solicitor. ^}p ^^ 30. It shall be the duty of the solicitor assigned ' Ju a person admitted to sue or defend as a pauper to take care that no e 3e is served, or summons issued, or petition preseni , without good cause. 31. Costs ordered to be paid to a person admitted to sue or defend as a pauper shall, unless the court or a judge shall otherwise direct, be taxed as in other cases. represent. 5. Administration and Execution of Trusts. Heir, next of 32. In any case in which the right of an heir-at-law Person ^^ *^® next of kin or a class shall depend upon the con- appointed to struction which the court or a judge may put upon an instrument, and it shall not be known or shall be difficult to ascertain who is or are such heir-at-law or next of kin or class, and the court or judge shall consider that in order to save expense or for some other reason it will be convenient to have the questions of construction determined before such heir-at-law, next of kin, or class shall have been ascertained by means of inquiry or otherwise, the court or judge may appoint some one or more persons to represent such heir-at-law, next of kin, PARTIES. 23 or class^ and the judgment of the court or judge in the presp'"'^'? of such persons shall be binding upon the heir- under of kin^ or class so represented. II such ooserved that this rule ouly applies where the class are such COL 1' it is difficult to ascertain them. COmmittt ^ under this i-ule will be the same as uuder rule 9. -, , I summons, see Dan. F. 139. f order, see Appendix III., 2^ost. -Lord Ur jould not be applied if all the ^^t> ' " of the class ued (see Re Gardiner ; Jones ' . • W. N. . but it is apprehended that unless ■■j.cvers. d such Of) A,_ an ascertained by judicial inquiry or b;^^' Li , lence ot precluded from acting uuder this rule, toiore ac( . . . ■ • that h '■ residuary legatee or next of kin entitled to a Administra- 1 • r order for the administration of the personal y. _r- of ,) deceased person, may have the same without serving the remaining residuary legatees or next of kin. See May v. Newton, supra, p. 17. , "^i, 34. Any legatee interested in a le^ y charged upon real estate, and any person interested in the proceeds of real estate directed to be sold, and who may be entitled to a judgment or order for the administration of the estate of a deceased person, may have the same without serving any other legatee or person interested in the proceeds of the estate. 35. Any residuary devisee or heir entitled to the like judgment or order, may have the same without serving any co-residuary devisee or co-heir. 36. Any one of several cestuis que trust under any Order for deed or instrument entitled to a judgment or order for ^^®g^g °° ° the execution of the trusts of the deed or instrument, may have the same without serving any other cestui que trust. 37. In all cases of actions for the prevention of waste Protection of or otherwise for the protection of property, one person ^^°^^ ^■ may sue on behalf of himself and all persons having the same interest. 24 ORIGINATING SUMMONS. Administra- tion order. Court may- add parties. Notice of order to bind persons. 38. Any executor^ administrator, or trustee entitled thereto may liave a judgment or order against any one legatee, next of kin, or cestui que trust for the administra- tion of the estate or the execution of the trusts. In suits ill equity only those who have proved the will need sue (see Williams ou Executors, 8th edit., p. 1920) ; aud only those who have acted need be sued {ib. 2021) ; and see Annual Pract. p. 273. 39. The court or a judge may require any person to be made a party to any action or proceeding, and may give the conduct of the action or proceeding to such person as he may think fit, and may make such order in any particular case as he may think just for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matters in question. 40. Wherever, in any action for the administration of the estate of a deceased person or the execution of the trusts of any deed or instrument, or for the partition or sale of any hereditaments, a judgment or an order has been pronounced or made — (a.) Under Order XV. ; (6.) Under Order XXXIII. ; (c.) Affecting the rights or interests of persons not parties to the action ; the court or a judge may direct that any person interested in the estate or under the trust or in the hereditaments, shall be served with notice of the judg- ment or order ; and after such notice such persons shall be bound by the proceedings in the same manner as if they had originally been made parties, and shall be at liberty to attend the proceedings under the judgment or order. Any j^erson so served may, within one month after such service, ^.pply to the court or judge to dis- charge, vary, or add to the judgment or order. See May v. Neicton, ante, p. 17 ; Be Wicks ; Wichs v. WicTcs W. N. (88), 9. PARTIES. 25 41. It shall not be necessary for any person served Person served •with notice of any judgment or order^ to obtain an order ^' attend for liberty to attend the proceedings under such judg- ment or order^ but such person shall be at liberty to attend the proceedings upon entering an appearance in the Central Office in the same manner, and subject to the same provisions, as a defendant entering an appear- ance. A person attending proceedings will not be entitled to his costs of so doing unless expressly ordei'ed: (S/iorp v. Lusli, 10 Cli. Div. 468 ; 48 L. J. 231, Cli. ; 27 W. R. 528.) But if there is a question to be argued he will usually be allowed his costs of attending the hearing on further consideration : {Sharp v. Lush.) 42 . A memorandum of the service upon any person of Memorandum p , . -, -, . . 1 °* service. notice of the judgment or order m any action under rule 40 shall be entered in the Central Office upon due proof by affidavit of such service. 43. Notice of a judgment or order served pursuant to Title of rule 40 shall be entitled in the action and there shall be endorsed thereon a memorandum in the Form No. 28 * in Appendix G. 44. Notice of a judgment or order on an infant or Infant, &c. person of unsound mind not so found by inquisition shall be served in the same manner as a writ of sum- mons in an action. 45. In any cause or matter to execute the trusts of a Heir not a will it shall not be necessary to make the heir-at-law a ^'^^ ^' party, but the plaintiff shall be at liberty to make the heir-at-law a party where he desires to have the will established against him. 46. If in any cause, matter, or other proceeding it No per.?onal "^ 1 T J J representa- shall appear to the court or a judge that any deceased tjyg. (a) Wherever an asterisk is placed against a reference to a form in these Orders it indicates that such form has not been inserted in the pre- sent work, on the ground either that it is a form which practitioners are not in the habit of copying from the appendix to the rules or is not of sufficient general utility. 26 ORIGINATING SUMMONS. person wlio was interested in the matter in question has no legal personal representative, the court or judge may- proceed in the absence of any person representing the estate of the deceased person, or may appoint some person to represent his estate for all the purposes of the cause, matter, or other proceeding on such notice to such persons, if any, as the court or judge shall think fit, either specially or generally by public advertisement, and the order so made, and any order consequent thereon, shall bind the estate of the deceased person in the same manner in every respect as if a duly consti- tuted legal personal representative of the deceased had been a party to the cause, matter, or proceeding. It is well settled that where general administratiou is sought, a legal personal representative of the testator or intestate in the action, duly appointed by the Probate Division, is required : (see Doiodeswell v. Dowdeswell, 38 L. T. Rep. N. S. 828 ; 9 Ch. Div. 294, 304 ; 48 L. J. 23, Ch.,- 27 W. R. 241.) Claims in 47. In any cause or matter for the administration of administra- •■\,,[--i tion. tiie estate or a deceased person, no party other than the executor or administrator shall, unless by leave of the court or a judge, be entitled to appear either in court or in chambers on the claim of any person not a party to the cause or matter against the estate of the deceased person in respect of any debt or liability. The court or , a judge may direct or give liberty to any other party to the cause or matter to appear, either in addition to or in the place of the executor or administrator, upon such terms as to costs or otherwise as they or he shall think fit. As to change of parties by death, bankruptcy, assignment, &c., see Order XVII., rr. 1-10; Wilson, p. 193-197; Annual Prac, p. 331-340. See further, as to " Parties," Order L V., r. 5, post, j). 87, and rules 40-43, post. EVIDENCE. 27 CHAPTER V. EVIDENCE. Paet I. The leading rules and principles of evidence are tlie Evidence same on applications by Originating Summons as in ^^^®^^ ^^ other civil proceedings. As has already been stated, ante, p. 3, an Originating Summons under Order LY,, r. 3, is an action within the meaning of sect. 100 of the Judicature Act, 1873 (36 & 37 Vict. c. 66) and of the Kules, and by the same section " pleading '' includes a summons. This being so, the orders and rules as to " discovery and inspection^' (Order XXXI.), admis- sions (Order XXXII.), " evidence generally''' (Order XXXVII.), and '^ affidavits and depositions" (Order XXXVIII.) will in a great measure apply to the pro- cedure by Originating Summons. Such of the same orders and rules as are more immediately applicable to the subject in hand are set forth in the present work, with annotations. The evidence on Originating Summons is usually taken by affidavit, and is subject to cross-examination ; but, as will be seen, there is power to take the evidence viva voce, " in any cause or matter where it shall appear necessary for the purposes of justice " : (see Order XXXVII., r. 5, post, p. 37.) See also Order LV., rr. 16 and 17, post, as to the power of a chief clerk to summon witnesses, &c. As to evidence in particular cases some assistance may be derived from the " Forms " of affidavits, post, Appendix III. Order XXXI. [R. S. C, 1883J. Rules 1 to 11 of this order relate to discovery by interrogatories, Discovery. 28 ORIGINATING SUMMONS. a practice wliich is rarely, i£ ever, resorted to in applications by- Originating Summons. But by Order LY., r. 16, jjost, p. 99, the chief clerk has power, when so directed by the judge, to examine parties and witnesses upon interrogatories. 12, Any party may, without filing any affidavit, apply to tlie court or a judge for an order directing any other party to any cause or matter to make discovery on oath of the documents which are or have been in his posses- sion or power, relating to any matter in question therein. On the hearing of such application the court or judge may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the cause or matter, or make such order, either generally or limited to certain classes of docu- ments, as may, in their or his discretion, be thought fit. Application to As a proceeding commenced by Originating Summons is " a cause Originating ^j, matter," there seems to be no reason why this rule should not apply to such a summons, though probably it would not often be necessary to resort to it. For annotations on this rule see Wilson, p. 258, and Annual Pract. p. 487. 13. The affidavit, to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which, if any, of the documents therein mentioned he objects to produce, and it shall be in the Form No. 8 * in Appendix B., with such variations as circumstances may require. Production. 14. It shall be lawful for the court or a judge, at any time during the pendency of any cause or matter, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such cause or matter, as the court or judge shall think right; and the court may deal with such documents, when produced, in such manner as shall appear just. Tliis rule is applical)lc to Originating Summons .- (see Dan. 982 ; and for annotations Wilson, p. 260, and Annual Prac, p. 492.) EVIDENCE. 29 15. Every party to a cause or matter shall be eDtitled, Notice to at any time, by notice iu writing, to give notice to any ^"^° otlier party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his solicitor, and to permit him or them to take copies thereof ; and any party not complying with such notice shall not afterwards be at liberty to put any such docu- ment in evidence on his behalf in such cause or matter, unless he shall satisfy the court or a judge that such document relates only to his own title, he being a defendant to the cause or matter, or that he had some other cause or excuse which the court or judge shall deem sufficient for not complying with such notice : in which case the court or judge may allow the same to be put in evidence on such terms as to costs and otherwise as the court or judge shall think fit. 16. Notice to any party to produce any documents Form of referred to in his pleading or affidavits shall be in the Form No. 9 * in Appendix B., with such variations as circumstances may require. 17. The party to whom such notice is given shall. Compliance within two days from the receipt of such notice, if all the documents therein referred to have been set forth by him in such affidavit as is mentioned in rule 13 or if any of the documents referred to in such notice have not been set forth by him in any such affidavit, then within four days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the docu- ments, or such of them as he does not object to produce may be inspected at the office of his solicitor, or in the case of bankers^ books or other books of account, or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce. 30 OEIGINATING SUMMONS. Non-compli- ance with notice. and on what ground. Sucli notice shall be in tlie Form No. 10 * in Appendix B., witli such variations as circum- stances may require. 18. If the party served with notice under rule 1 7 omits to give such notice of a time for inspection or objects to give inspection^ or offers inspection elsewhere than at the office of his solicitor^ the judge may, on the application of the party desiring it, make an order for inspection in such place and in such manner as he may think fit ; and, except in the case of documents referred to in the pleadings or affidavits of the party against whom the application is made, or disclosed in his affidavit of documents, such application shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. 19. An order upon the lord of a manor to allow limited inspection of the court rolls may be made on the application of a copyhold tenant supported by an affidavit that he has applied for inspection, and that the same has been refused. Objection to discovery. It is conceived that this application would not be by Originating Summons. That is, it would either be by ordinary summons in a pending matter, or by independent application for mandamus : (See Scriven on Coj)yholds, Gtli edit., 369.) 20. If the party from whom discovery of any kind or inspection is sought, objects to the same, or any part thereof, the court or a judge may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the cause or matter, or that for any other reason it is desirable that any issue or question in dispute in the cause or matter should be determined before deciding upon the right to the discovery or inspection, order that EVIDENCE. 31 such issue or question be determined first, and reserve the question as to the discovery or inspection. 21. If any party fails to comply with any order to Non-compli- answer interrogatories, or for discovery or inspection of order^or documents, he shall be liable to attachment. He shall prcecipe for that purpose, in the Form No. 21,* in Appendix G., EVIDENCE. 39 and containing the name or firm and the place of busi- ness or residence of the solicitor intending to sue out the same, and, where such solicitor is agent only, then also the name or firm and place of business or residence of the principal solicitor, shall in all cases be delivered and filed at the central office. 27. A writ of subpoena shall be in one of the Forms Form. 1 to 7 * in Appendix J., with such variations as circum- stances may require. 28. Where a subpoena is required for the attendance /S«Zj/)cena in (• • , p , 1 r> 1 • • 1 1 chambers. 01 a Witness tor the purpose oi proceedmgs m chambers, such subpoena shall issue from the central office upon a note from the judge. See Order LY., rr. 16 and 17, post. 29. Every subpccna other than a subpoena duces tecum Several shall contain three names where necessary or required, onrsHfopcena but may contain any larger number of names. 30. No more than three persons shall be included in one subpoena duces tecum, and the party suing out the same shall be at liberty to sue out a subpoena for each person if it shall be deemed necessary or desirable. 31. In the interval between the suing out and service Corrections, of any subpoena the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ re-sealed upon leaving a corrected prce.cipe of such sid)poena marked with the words " altered and re-sealed," and signed with the name and address of the solicitor suing out the same. 32. The service of a subpoena, shall be effected by deli- Service, vering a copy of the writ, and of the indorsement thereon, and at the same time producing the original writ. 33. Affidavits filed for the purpose of proving the Affidavits of sGrvic© service of a subpoena upon any defendant must state when, where, and how, and by whom, such service was effected. 40 ORIGINATING SUMMONS. Time. Affidavit and cross-exami- nation. 34. The service of any subpoena shall be of no validity if not made within twelve weeks after the teste of the writ. Rules 35 to 38 relate to perpetuating testimony, aud rules 39 to 51 relate to the examination o£ ■witnesses before examiners of the court, and it is not considered that these rules or the remaining rules of this order, which are not hereinbefore set forth are suffi- ciently materia] to the subject in hand to be inserted here. Part IV. Order XXXVIII. (R. S. C. 1883.) 1. Affidavits and Depositions,, 1. Upon any motion^ petition, or summons evidence may be given by affidavit ; but the court or a judge may, on the application of either party, order the attendance for cross-examination of the person making any such affidavit. As already stated, the evidence upon Originating Summons is usually given by affidavit. This rule is silent as to where the cross-examination should take place. It is usually before an examiner : (see Dan. 636 ; and La Trinidad Limited v. Browne, ante, p. 38.) But it is suggested in the Annual Pract., p. 581, that it may be taken before the court itself, or before an examiner, citing Dan. 637, n., and see ante, p. 36. In Lumb v. Osburn (W. JST. 1884, p. 218), a deponent who resided at Leeds was ordered to be cross-examined on his affidavit before a registrar of the County Court, but in Pye v. Pye (W. N. 1885, p. 175) Mr. Justice Chitty refused leave to cross-examine before a district registrar, and said that the plaintiff must either take one of the examiners of the court down to Birkenhead, or bring the deponents to London, which would probably be the least expensive Title of afB davit. 2. Ever}^ affidavit shall be intituled in the cause or matter in which it is sworn ; but in every case in which there are more than one plaintiff or defendant, it shall be sufficient to state the full name of the first plaintiff or defendant respectively, and that there are other plaintiffs EVIDENCE. 41 or defendants, as the case may be; and the costs occasioned by any unnecessary prolixity in any such title shall be disallowed by the taxing officer. 3. Affidavits shall be confined to such facts as the Contents of witness is able of his own knowledge to prove, except on affidavits, interlocutory motions, on which statements as to his belief, with the grounds thereof, may be admitted. The costs of every affidavit which shall unnecessarily set forth matters of hearsay, or argumentative matter, or copies of or extracts from documents, shall be paid by the party filing the same. This rule is not observed with absolute strictness in practice. For instance, in proving births and marriages in accordance with a well known rule of evidence, the affidav-it is not infrequently made by a member of the family who was not present on the occasion. With regard to documents it is not uncommon to set fo'i'th parts of them in order to make the rest of the affidavit intelligible, and it is apprehended that this would not be "unneces- sarily " setting forth extracts from documents. In referring to letters received by a dej)onent, such letters should be merely made exhibits to the affida^'it, but in dealing with letters ^vritteu by the deponent it is usual to set forth copies in the affidavit. The rule as to unnecessarily setting forth extracts from documents was enforced in Hirst v. Proctor (W. N. Jan. 24, 1882, p. 12), by making the offending parties pay the costs of the affidavits, which inchided such exti'acts. As to the importance of stating grounds of belief, see per Lord Selborne in Bidder v. Bridges (50 L. T. Rep. N. S. 287, 289 ; 26 Ch. Div. 1, 8). 4. Affidavits sworn in England shall be sworn before a judge, district registrar, commissioner to administer oaths, or officer empowered under these rules to administer oaths. 5. Every commissioner to administer oaths shall express the time when and the place where he shall take any affidavit, or the acknowledgment of any deed, or recognisance; otherwise the same shall not be held authentic, nor be admitted to be filed or enrolled without the leave of the court or a judge ; and every such com- 42 ORIGINATING SUMMONS. missioner shall express the time when, and the place where, he shall do any other act incident to his office. Before whom 6. All examinations, affidavits, declarations, affirma- sworn tions, and attestations of honour in causes or matters depending in the High Court, and also ackhowledgments required for the purpose of enrolling any deed in the Central Office, may be sworn and taken in Scotland or Ireland or the Channel Islands, or in any colony, island, plantation, or place under the dominion of Her Majesty in foreign parts, before any judge, court, notary public, or person lawfully authorised to administer oaths in such country, colony, island, plantation, or place respectively, or before any of Her Majesty's consuls or vice-consuls in any foreign parts out of Her Majesty's dominions ; and the judges and other officers of the High Court shall take judicial notice of the seal or signature, as the case may be, of any such court, judge, notary public, person, consul, or vice-consul, attached, appended, or subscribed to any such examinations, affidavits, affirmations, attes- tations of honour, declarations, acknowledgments, or to any other deed or document. Form. 7. Every affidavit shall be drawn up in the first person, and shall be divided into paragraphs, and every para- graph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. Every affidavit shall be written or printed bookwise. No costs shall be allowed for any affidavit or part of an affidavit substantially departing from this rule. For annotations on Rules 4 to 7, see Wilson, pp. 321, 322, and Annual Pract. 583-585. 8. Every affidavit shall state the description and true place of abode of the deponent. If the deponent is a party to the action it is usual to refer to him as plaintiff or defendant, as the case may be, in addition to his ordinary description. See Dan. F., p. 4, note (e). " Stock Exchange" is an insuflBcient address: {Be Levy; Levin v. Levin, 60 L. T. Rep. N. S. 317 ; 37 W. R. 396). EVIDENCE. 43 9. In every affidavit made by two or more deponents Jurat, the names of the several persons making the affidavit shall be inserted in the jurat, except that if the affidavit of all the deponents is taken at one time by the same officer it shall 'be sufficient to state that it was sworn by both (or all) of the '^ above-named " deponents. 10. Every affidavit or other proof used in Admiralty actions shall be filed in the Admiralty Registry : every affidavit used in Probate actions shall be filed in the Probate Registry : every affidavit used on the Crown side of the Queen^s Bench Division shall be filed in the Crown Office Department : every affidavit used in a cause or matter proceeding in a district registry shall be filed there : and every other affidavit used shall be filed in the Central Office. There shall be [endorsed on (a)] every affidavit a note showing on whose behalf it is filed, and no affidavit shall be filed or used without such note, unless the court or a judge shall otherwise direct. 11. The court or a judge may order to be struck out Scandalous from any affidavit any matter which is scandalous, and may order the costs of any application to strike out such matter to be paid as between solicitor and client. 12. No affidavit having in the jurat or body thereof Interlineation any interlineation, alteration, or erasure, shall without leave of the court or a judge be read or made use of in any matter depending in court unless the interlineation or alteration (other than by erasure) is authenticated by the initials of the officer taking the affidavit, or, if taken at the central office, either by his initials or by the stamp of that office, nor in the case of an erasure, unless the words or figures appearing at the time of taking the affidavit to be written on the erasure are rewritten and (a) The words in brackets were substituted for " appended to " by E. S. C, December, 1885. 44 ORIGINATING SUMMONS. Defects waived. signed or initialled in the margin of the afl&davit by the officer taking it. Illiterates and 13, Where an affidavit is sworn by any person who appears to the officer taking the affidavit to be illiterate or blind, the officer shall certify in the jurat that the affidavit was read in his presence to the deponent, that the deponent seemed perfectly to understand it, and that the deponent made his signature in the presence of the officer. No such affidavit shall be used in evidence in the absence of this certificate, unless the court or a judge is otherwise satisfied that the affidavit was read over to and appeared to be perfectly understood by the depo- nent. 14. The court or a judge may receive any affidavit sworn for the purpose of being used in any cause or matter, notwithstanding any defect by misdescription of parties or otherwise in the title or jurat, or any other irregularity in the form thereof, and may direct a memo- randum to be made on the document that it has been so received. 15. In cases in which by the present practice an original affidavit is allowed to be used, it shall before it is used be stamped with a proper filing stamp, and shall at the time when it is used be delivered to and left with the proper officer in court or in chambers, who shall send it to be filed. An office copy of an affidavit may in all cases be used, the original affidavit having been pre- viously filed, and the copy duly authenticated with the seal of the office. 1 G. No affidavit shall be sufficient if sworn before the solicitor acting for the party on whose behalf the affidavit is to be used, or before any agent or correspon- dent of such solicitor, or before the party himself. 17. Any affidavit which would be insufficient if sworn before the solicitor himself shall be insufficent if sworn before his clei'k, or partner. Stamping. Not to be sworn before party's soli- citor. EVIDENCE. 45 18. Where a special time is limited for filin g affidavits Time, no affidavit filed after tliat time shall be used, unless by leave of the court or a judge. 19. Except by leave of the court or a judge no order Orders made ex parte in court founded on any affidavit shall be ^^ P"**'^- of any force unless the affidavit on which the application was made was actually made before the order was applied for, and produced or filed at the time of making the motion. 19a. The consent of a new trustee to act shall be suffi- consent of ciently evidenced by a written consent signed by him, ^^^ trustee. and verified by the signature of his solicitor. Form I. in the Appendix hereto shall be used with such variations as circumstances may require, and may be cited as Form 29 in Appendix L. This rule was added by R. S. C, Dec, 1885, No. 14. For this form see post, Appendix II. Where a new trustee is appointed in Chancery as well as in Lunacy his consent to act may be verified in manner provided by this rule. Secus, where the order is made in lunacy only : {Be Hume, a person of unsound mind, 56 L. T. Rep. N. S. 351 ; 35 Ch. Div. 457, C. A.) "Appointment of new trustees" is dealt with in Chapter X., post. 2. Affidavits and Evidence in Chambers. 20. The party intending to use any affidavit in support Notice to use of any application made by him in chambers in the '^^^i^^i*- Chancery Division shall give notice to the other parties concerned of his intention in that behalf. 21. All affidavits which have been previously made and Affidavits pre- read in court upon any proceeding in a cause or matter """^^^'y '^^°^- may be used before the judge in chambers. This, of course, means in the same cause or matter. As to read- ing evidence taken in another ca^^se or matter, see Order XXXVII., r. 3, ante, j). 36. 22. Every alteration in an account verified by affidavit Alterations. 46 ORIGINATING SUMMONS. to be left at chambers sball be marked witb the initials of the commissioner or officer before whom the affidavit is sworn, and such alterations shall not be made by erasure. 23. Accounts, extracts from parish registers, particu- lars of creditors' debts, and other documents referred to by affidavit, shall not be annexed to the affidavit, or referred to in the affidavit as annexed, but shall be referred to as exhibits. 24. Every certificate on an exhibit referred to in an affidavit signed by the commissioner or officer before whom the affidavit is sworn shall be marked with the short title of the cause or matter. CroBS-exami- nation 3. Trial on Affidavit. 25. Within fourteen days after a consent for taking evidence by affidavit as between the parties has been given, or within such time as the parties may agree upon, or the court or a judge may allow, the plaintiff shall file his affidavits and deliver to the defendant or his solicitor a list thereof. 26. The defendant, within fourteen days after delivery of such list, or within such time as the parties may agree upon, or the court or a judge may allow, shall file his affidavits and deliver to the plaintiff or his solicitor a list thereof. 27. Within seven days after the expiration of the last- mentioned fourteen days, or such other time as aforesaid, the plaintiff shall file his affidavits in reply, which affi- davits shall be confined to matters strictly in reply, and shall deliver to the defendant or his solicitor a list thereof. 28. When the evidence is taken by affidavit, any party desiring to cross-examine a deponent who has made an affidavit filed on behalf of the opposite party may serve upon the party by whom such affidavit has been filed a EVIDENCE. 47 notice in writing, requiring the production of tlie depo- nent for cross-examination at the trial, such notice to be served at any time before the expiration of fourteen days next after the end of the time allowed for filing affidavits in reply, or within such time as in any case the court or a judge may specially appoint; and unless such deponent is produced accordingly, his affidavit shall not be used as evidence unless by the special leave of the court or a judge. The party producing such deponent for cross- examination shall not be entitled to demand the expenses thereof in the first instance from the party requiring such production. 29. The party to whom such notice as is mentioned in the last preceding rule is given shall be entitled to compel the attendance of the deponent for cross-examination in the same way as he might compel the attendance of a witness to be examined. 30. When the evidence under this order is taken by Printing, affidavit, such evidence shall be printed, and the notice of trial shall be given at the same time after the close of the evidence as in other cases is by these rules provided after the close of the pleadings : provided that other affidavits may be printed if all the parties interested con- sent thereto, or the court or a judge so order : provided also that this rule shall not apply in the Probate, Divorce, and Admiralty Division to default actions in rem, or references in actions, or actions for limitation of liability, unless the Court or a judge shall otherwise order. Rules 25, 26, and 27 of tliis order do not apply to the evidence on Originating Summons, but apparently by force of Order XXXYII., r. 21, ante, p. 38, rule 28 of this order applies to affidavits filed subsequent to the hearing or trial of any cause or matter (which includes a proceeding commenced by Originating Summons) : (see Backhouse v. Alcock, 52 L. T. Rep. N. S. 342; 28 Ch. Div. 669; Be Baher ; Connell v. Baher, 52 L. T. Rep. N. S. 421 ; 29 Ch. Div. 711 ; but see Concha V. Concha, 55 L. T. Rep. N. S. 522 ; 11 App. Gas. 541.) " The 48 ORIGINATING SUMMONS. practice as to the examination, cross-examination, and re-examina- tion of witnesses is to be the same both at the trial and at any other stage of the action": {Per Kay, J. in Mansel v. Clanricarde ; Mansel v. Norton, 53 L. T. Rep. N. S. 496, 498.) It is not the practice to print affidavits for use on the hearing of an Originating summons. The court views with some suspicion lengthened cross-examinations before examiners. The fact that a cross-examination on an affidavit is not concluded does not prevent the court from looking at the affidavit: {Lewis v. James, 54 L. T. Rep. N. S. 260, 0. A.) APPLICATIONS AND PROCEEDINGS AT CHAMBERS. 49 CHAPTER VI. ORDER LIV. (R. S. C, 1883). Applications and Proceedings at Chambers. 1. General. 1 . Every application at cliambers not made ex j)nrte Summons, shall be made by summons. By sect. 39 of the Judicature Act, 1873 (36 & 37 Vict. e. 66) it is Jurisrliction enacted that, " Any judge of the said High Court of Justice may, '" chaml.eiF. subject to any rules of court, exercise in court or in chambers all or any part of the jurisdiction by this Act vested in the said High Court in all such causes and matters, and in all such proceed- ings in any causes or matters as before the passing of this Act might have been heard in court or in chambers respectively by a single judge of any of the courts whose jurisdiction is hereby transferred to the said High Court, or as may be directed or authorised to be so heard l^y any rules of court to be hereafter made. In all such cases any judge sitting in court shall be deemed to constitute a court." 2. Every application for payment or transfer out oi Ex parte court made ex jmrte, and every other application made ^^^ ^'^^ *°"' ex 'parte in vrhich the judge or proper officer shall think fit so to require, shall be made by summons. For examples of ex parte applications see Annual Pract. xxnder this rule. 3. Summonses shall not be altered after they are sealed Alteration of , , summons. except upon application at chambers. An Originating Summons can usually be amended upon ex parte application at chambers without formal order, see Dan. 969, and for forms see Dan. F. 1082 and 1083. See also ante, p. 10. 4. An originating summons, where service is neces- Service of sary, shall be served seven clear days before the return thereof. Every other summons shall be served two clear summons. 50 OEIGINATING SUMMONS. days before the return thereof, unless in any case it shall be otherwise ordered. An Originating Summons ought to be served personally (see Dan. p. 970) ; as nearly as may be in the manner prescribed for tlie personal service of a writ of summons (see Order LXVII., r. 5, 2-)ost, Chapter XV.) As to service of writ of summons, including substituted service and ser^^cc on particular defendants, see Order IX. ; Wilson, 145. In Hunt V. Austin ; Ex parte J. N. Mason (47 L. T. Rep. N. S. 300; 9 Q. B. Div. 598 ; 51 L. J. 455, Q. B. (0. A.),) substituted service of a summons was allowed; and see Dan. p. 971. And in an unreported case of Chambers and another v. Gascoyne (advertised in the Times of the 11th Aug. 1888) substituted service of an Originating Summons was allowed by advertisement in the Times and Standard newspaiDers. For form of advertisement see Appx. II. 2')ost. The Coui't cannot give leave to serve an Oi'iginating Summons out of the jurisdiction : (see Be Busfield ; Whaley v. Busfield, 54 L. T. Rep. N. S. 220 ; 32 Ch. Div. 123 ; 55 L. J., 467, Ch. ; 34 W. R. 372, C. A. See furthermost, pp. 88, 89.) Proceedings 5. Where any of the parties to a summons fail to ex 'parte. attend, whether upon the return of the summons, or at any time appointed for the consideration or further con- sideration of the matter, the judge may proceed ex, 'parte, if, considering the nature of the case, he think it expedient so to do ; no affidavit of non-attendance shall be required or allowed, but the judge may require such evidence of service as he may think just. 6. Where the judge has proceeded ex parte, such pro- ceedings shall not in any manner be reconsidered in the judge's chambers, unless the judge shall be satisfied that the party failing to attend was not guilty of wilful delay or negligence ; and in such case the costs occasioned by his non-attendance shall be in the discretion of the judge, who may fix the same at the time, and direct them to be paid by the party or his solicitor before he shall be permitted to have such proceeding reconsidered, or make such other order as to such costs as he may think just. APPLICATIONS AND PEOCEEDINGS AT CHAMBERS. 51 7. Where a proceeding in chambers fails by reason of Costs through the non-attendance of any party, and the judge does not "°^-^**'^^^section Share in fund for payment out of a share amounting to less than 1000/. in a fund ^'^^^ lOOOL wliieh exceeds lOOOZ. : {May v. Dowse, W. N. 1884, p. 122.) In Drake \. Greaves (55 L. T. Rep. N. S. 353) a summons for payment oiit of 207Z., part of a sum of 2420Z. was allowed, but it is necessary to observe that there had been a previous petition in that case. In Be Arnold (W. N. 1887, ]3. 122, cited in 83 L. T. 234) Mr. Petition.s Justice North allowed costs of petition for payment out of 447L allowed. Bank of England Stock, though the nominal vahie was less than lOOOL, on the ground that the costs of Originating Summons and the statement of facts which the chief clerk woiild require would be practically the same as co.sts of a petition. Where cash and securities together exceeded lOOOZ., a petition was held proper : {Be Haworth, W. N. 1885, p. 48.) Where the sum paid in was lOOOL, but accrued interest whicli had not been credited brought the amount above 1000?., costs of petition were allowed : [Ex parte Trustees of Finshury and City of London Savings Bank, W. N. Axig. 7, 1886,' p. 150.) In Be Earl De Grey's Entailed Estate (;84 L. T. 116 ; W. N. 1887, p. 241) the sum paid in was only 362L, and the tenant for life had contracted with a builder for the erection of two new cottages in substitution for those taken by the company. He presented a petition for payment oiit on his undertaking to apply it. Mr. Justice North ordered the money to be paid out on production of an affidavit that half the contract price had been expended, and allowed costs of petition as in Be Arnold. Money had been j)aid into court by executors under the Trustee Relief Act, to the credit of an account entitled " In the matter of the trusts of the sale moneys of certain real estate formerly belong- iug to E., deceased, and subject to the trusts of a certain royal warrant dated the 6th Aug. 1861." The fund had originally Ijeen about 1500L On an application by summons under Order LV., 600L, part of the fund, was ordered to be paid out, but as to the remainder, the summons stood over for further evidence as to the death of an annuitant. The further evidence having been obtained the application was renewed, the summons asking for payment out of the balance to the applicant. It was held by Mr. Justice Kay (who pointed out that the fund originally exceeded 1000?.) that the case was not within Order LV. at all, and the application ought to be made by petition and not by summons : {Be Evan Evans, 54 L. T. Rep. N. S. 527.) 58 ORIGINATING SUMMONS. As to bringing funds into court generally see the Supreme Court Funds Rules, 1886 (a) ; Wilson, 724 et seq. ; and see also Seton, 79 ; Dan. 1748. As to payment, transfer, and delivery out generally, see S. C. F. Rules, 1886, and Seton, 100 ; Dan. 1790. On bespeaking all orders dealing with funds in court the pay- master's certificate of the fund must be left with the registrar : (Seton, 101-2.) The exact amount of money to be raised, and amoiint and description of the securities to be dealt with, must be stated in the certificate : (Seton, 105.) Interest. (3.) Applicatious for payment to any person of the dividend or interest on any securities standing to the credit of any cause or matter, whether to a separate account or otherwise. These applications are by ordinaiy summons. For forms see Dan. F. 1759 et seq. This sub-rule applies to securities of whatever amount. As to payment of dividends, &c., see S. 0. F. Rules, 1886 ; Wilson, 724 et seq. ; Seton, 91 ; and Dan. 1792. Legacy Duty (4.) Applications under 36 Geo. 3, c. 52, s. 32 (the Legacy Duty Act) in all cases where the money or securities in court do not exceed 1000/., or lOOOZ. nominal value. Tliese applications are by originating summons, unless an order has been previously made in the matter, Lu which case an ordinary summons will snfiice : {see Dan. F., p. 938, note x ; and for forms see Dan. F. 2152.) " In Be Coore (W. N. 1883, p. 169; 76 L. T. Nov. 24,1883, p. 61) Mr. Justice Chitty held t\mi 2>etition was necessary on application for advancement where tlie money, paid in under the Legacy Duty Act, exceeded lOOOL In Be Barker [an Infant) the chief clerk had made an order in chambers for transfer out of court of a fund exceeding lOOOZ. paid in under the above-mentioned Act. Proof of identity and attainment of age was given. The registrar doiibted whetlier there was jurisdiction in chaml^ers, and Mr. Justice Pearson pre- ferred to make the order on motion as provided by the above Act (W. N. 1884, p. 237). (a) It was not considered necessary to encumber this work with these rules, but a few of them will bo found in Appendix I., 'posl. CHAMBERS IN THE CHANCERY DIVISION. 59 Payment in. The above Act (a) enables payment in of legacies, or residues, belonging both to infants and persons beyond seas. The duty is to be paid before payment in, and then payment in is a discharge to the person paying, as to the money paid in. The Act (sect. 32) provided that, if the money was improperly paid in, the court could dispose of it on petition, and also provided for cases of payment of too much or too little duty. The above rule autliorises summons in lieu of petition in cases within its scope. If the money amounts to 40L, it will be invested, on request (without an order), in Government securities (fe), and accruing dividends, when they amount to lOL will be invested : (see S. C. F. Rules, r. 73.) Where the legacy, or share of residue, consists of cash, the direc- tion for payment in will be given on production to the Chancery Pay Office of the Inland Revenue certificate of payment of duty : (see Dan. 2200.) Where it is in stock, an order, usually made in chambers, on ex i^arte summons, is necessary : (Dan. 2200.) The summons will be entitled in the matter of the Act, 36 Geo. 3, c. 52, and of A. B., an infant, or of C. D., a person beyond seas, as the case may be. Payment out. The application for payment out may be made in cases within this sub-section by 0. S., or where an order has already been made, by ordinary summons (see Dan. F., p. 938, note x.) The application will be supported by an affidavit of the identity of the applicant with the person to whose account the fund is standing ; and if the fimd was paid in by reason of his infancy, it must, on the applica- tion to pay it out, be shown that he was of full age, but no evidence of the legacy duty having been paid need be produced : (Dan. 2201, Wms. Petitions, 46.) (5.) Applications under 10 & 11 Vict. c. 96, and Trastee Eelief 12 & 13 Vict. c. 74 (the Trustee Relief Acts) in all cases ^''*^- where the money or securities in court do not exceed iOOO/., or lOOOZ. nominal value. The first application under this sulj - rule is by originating summons. (a) For text of sect. 32 of Act, see Wms. Exs., Part III., Book III., cap. iv., s. 5 ; 16., Book V., 7th edit., pp. 1407, 1578, 8th edit., 1413 ; Chitty Stat., vol. 2, p. 947 ; Morgan, p. 51. (b) The provision in 36 Geo. 3, c. 52, s. 32, which required investment in consols, and certificate, is repealed by Chancery Funds Act, 1872. 60 ORIGINATING SUMMONS. Subsequent applications are by ordinary summons : (see Dan. F., p. 889, note p.) For forms see Dan. F. 2053. For texts of these Acts see Lewin on Trusts (Appendix) and Morgan, p. 50. It is pi-esumed tliat in complicated applications for payment out under these Acts, a petition may be presented notwithstanding this rule. For a petition has frequently Iseen allowed in applications for payment out of money paid in under the L. C. C. Acts, and as Mr. Justice Chitty stated, in Ex parte Maidstone and Ashford Railway Company (25 Ch. Div. 168, 172; 49 L. T. Rep. N. S. 777), " There is no distinction to be drawn between the nature of an application for payment out under the L. C. C. Act, and of a similar apijlication under any other of the Acts specially men- tioned." When a fund paid into court under the Trustee Relief Act, 1847, exceeds lOOOL, and there has been no prior application in the matter of the fund, a petition, and not a summons, is the proper mode of applying, under Order XL VI., w. 12 and 13, Rules of Court, 1883, for a stop-order on the fund so paid in : {Re Toogood, 56 L. T. Rep. N. S. 703.) This foUows in effect Day's Trusts (49 L. T. Rep. N. S. 499), which was decided upon the older vules, which made 300?. the limit of value. It was admitted by counsel in that case that subsequent orders might be made on summons. Trustees who needlessly pay money into court may be deprived of their costs : (Dan. 2080.) Tnistees ought not to pay in under this Act if the only difficulty is infancy, for in such case they can pay in under the Legacy Duty Act. So also they ought not to pay money into court when the only question with reference to it can be decided upon originating summons : (Re Giles, 55 L. J. 695, Ch. ; 34 W. R. 712 ; Imt, see Re Parkers Will Trusts, 60 L. T. Rep. N. S. 83; 39 Ch. Div. 303; 58 L. J. 23, Ch. ; 37 W. R. 313, C. A.) In Re Giles it was held by Mr. Justice Kay that where a difficulty arose as to who were entitled as next of kin to shares of residue, and the trustees paid such shares into court under the Triistee Relief Act, the trustees were wrong in so doing, as their proper course would have been to take out an originating summons under Order LV. ; whereupon an incpiiry as to the next of kin would have been directed. His Lordship said that, had Order LV. been longer in operation, he should have made the trustees personally pay the costs of payment in, which . were about 211. "We cite a portion of the judgment as indicating the duty of trustees in cases of not infrequent occurrence: "A case maybe imagined where the residue CHAMBERS IN THE CHANCERY DIVISION. 61 is divisible into tweh^e shares, aud one of the shaves lapses. Ave the persons entitled to the othev eleven shares to wait until a very difficnlt inquiry as to the next of kin entitled to the twelfth share is worked out ? But then I think the answer to that is simple. They need not wait. It is easy euoiigh for the trustees to ascer- tain approximately the amount of the shares, aud to set apart a fund to answer and pay the costs of ascertaining the next of kin ; or if any difficulty should arise, then the trustees can come to the court at once, aud ask the conrt to ascertain the fund for them, or tell them what they ought to pay over, or if they ought to pay over anything, and thus act by the direction and under the sanction of tlio court. It is quite easy to do that by means of an originating summons under Order LV." It was held in this case that the costs of ascertaining the " next of kin " must come out of the general residue. It was held in Re Potts : Hooley v. Fountain [W. N. 1884, J). 106) that, when a question arises on the terms of a wiU, the costs of determining it must come out of the general residue, and that executors must protect themselves by reser\ang a sum sufficient for payment of costs. Practice on Payment in. " All trustees, executors, administrators, or other persons having in their hands any moneys belonging to any trust whatsoever, or the major part of them," may, '" on filing an affidavit shortly describing the instrument creating the trust according to the best of their knowledge and belief, pay the same " into court : (10 & 11 Vict. c. 96, s. 1). It is paid to the account of the Paymaster- General " In the matter of the particular trust (describing the same by the names of the parties as accurately as may be for the purpose of distinguishing it) -."(ib.) Similarly trustees, &c., or the major part of them, having annuities or stock of tho Bank of England, or the East India Company, or South Sea Company, or any Government or Parlia- mentary securities, standing in their names or in the names of deceased persons of whom they are representatives, may transfer the same into court : {ib.) No order is needed in cases within this section, where the fund consists of cash, but secus in the case of stock : (see Morgan, p. 52.) By 12 & 13 Vict. c. 74, the court may order payment or transfer into court of any moneys, stock, funds, or securities, where the major part of trustees, executors, or administrators desire to transfer or pay in, Init cannot obtain concurrence of the other or others of them . Any person who becomes by force of circumstances a trustee, is 62 ORIGINATING SUMMONS. a trustee -^ithiu the meaning of the Act, and so is a mortgagee who has sold under his power : (Dan. 2067.) The scope of the Act has been enlarged by the Judicature Act, 1873, s. 25 (6) authorising payment in in conformity with the above Acts in certain cases. Lodgments " When a trustee or other person desires to lodge funds in coiu't under Trustee iu tlie Chancery Division under the Act 10 & 11 Yict. c. 96, he shall annex to the affidavit to be filed by him pursuant to the said Act a schedule in the same printed form as the lodgment schedule to an order, setting forth : — (a.) His own name and address : {b.) The amount and description of the funds proposed to be lodged in court : (c.) The ledger credit in the matter of the particular trust to which the funds are to be placed : (d.) A statement whether legacy or succession duty (if chargeable) or any part thereof has or has not been paid : (e.) A statement whether the money or the dividends on the securities so to be lodged in court, and all accumulations of di^ndends thereon, are desired to be invested in any and what description of Government securities, or whether it is deemed unnecessary so to invest the same. An office copy of such schedule is to be left with the paymaster :" (S. C. F. Rules, 1886. r. 4].) When it is stated that investment is desired in any description of Government securities the jiaymaster shall invest the money if and when it amounts to 40L, or so soon as the dividends amoiuit to lOL If the money is less than 40Z., but not less than lOZ. the jmymaster will place it on deposit unless there is a " statement " that it is deemed unnecessary to do so, or notice is given him of an order or intended application to the court : (S. C. Fimd Rules, r. 74). Practice on Payment out. The summons for payment out will be entitled in the matter of the Trustee Relief Act or Acts (as the case may be), and in the matter of the particular trust. The application will be supported by affidavit, which should take up the history of the trust from the point where the trustee's affidavit left off and supplying any defi- ciencies therein. Burial and marriage certificates, &c., should be made exhibits. For cases see Dan. 2065-2085 ; Wms. Pet. 34. The application is not usually made by the trustee, but by some person entitled. All persons interested in the money or securities, and the person who paid in, must be served. But where the application is for payment of income merely to a tenant for life, it is not usual to serve the remaindermen: (Dan. 2075, 6; Seton, 498.) CHAMBERS IN THE CHANCERY DIVISION. 63 (6.) Applications under 9 & 10 Vict. c. 20 (the Parlia- Parliamcn- mentary Deposits Act)/' any other Act relating to par- ^^f ^°^'°'*'*^ liamentary deposits/' for investment, payment of divi- dends, and payment out of court. The words iu inverted couunas were added by the Rules of December, 1885. First applications under this snb-nile are by originating sum- mons : (see Dan. F., p. 900, uote^.) For forms see Dan. F. 2077. It has been pointed out by a jiulge (79 L. T. 303), that there is no limit of lOOOL here ; but in Ee Acton and Brentford Railway Com- pany (78 L. T. 149; Dec. 27, 1884, p. 150), Mr. Justice Chitty held, that where the svims were over lOOOZ., the application should be by petition as " a safer and more convenient mode of procedure." In the earlier case (79 L. T. 303) a petition was presented, because the money was paid in under other Acts, and that case was i)rior to the Rules of 1885. But the same j)rinciples apply as in the case of applications under the L. C. C. Act; and, though a petition may properly be ijresented where the case is complicated and the sum considerable, the mere fact that the sum was over lOOOZ. would not render it prudent to proceed by petition. For text of 9 & 10 Vict. c. 20 and notes thereon, see Browne & Theobald, 338, 2nd edit. For practice see Dan. 2130. By the Board of Trade Rules, 1886, under the Tramways Act, 1870 (33 & 34 Vict. c. 78), all apiilications under such rules to the Supreme Court of Judicature are to be made in a summary manner by summons at chambers. (7.) Applications for interim and permanent invest- L. C. C. Act. ment, and for payment of dividends under the Lands Clauses Consolidation Act, 1845, and any other Act [passed before Aug. 14, 1855], whereby the purchase money of any property sold is directed to be paid into court. This rule must be read with the words in brackets omitted, by virtue of No. 20 of the Rules of December, 1885. First applications under this sub-rule are by originating summons. For forms see Dan. F. 2093 et seq. In Re Lands at West Ham. lately belonging to the Carpenters' Company (76 L. T., Nov. 24, 1883, p. 60), Mr. Justice Kay held, , that an application for payment out did not fall within this rule, and 64 ORIGINATLNG SUMMONS. Petition allowed. S. L. Act. Payment in. a petition was allowed accordingly. The amount of money with reference to which the application was made was not stated, if it had been less than ]000L the case would apj)arently have fallen within sub -rule (2). Although the L. C. C. Act, 1845, contains an express enactment that applications for investment of money paid in under that statute must be made by petition (sect. 70), yet summons is now the proper mode of application for investment under that Act ; and where a petition was presented for that purpo.se, only the costs of a sum- mons were allowed: [Ex parte Mayor of London, 25 Ch. Div. 385 ; 49 L. T. Rep. N. S. 437 ; 53 L. J. 6, Ch. ; 32 W. R. 87.) "Where two suras were in court belonging to a perpetual curacy, one only under lOOOL, having been paid in by a railway company, and application for reinvestment was made by petition, the Company was ordered to j^ay half the costs of petition, such costs not to exceed the costs of a summons adjourned to the judge in chambers : [Ex 'parte Perpetual Curate of Bihton, 37 W. R. 460 ; W. N. 1889, p. 17). On an application by petition that funds in court much exceeding 1000/., being purchase money of lands taken under the L. C. C. Act, might be paid to the petitioners by instalments, they undertaking to apply it in building, it was held that this was not really an appli- cation for investment under sub-sect. (7), but was a species of pay- ment out, and that a petition was proper. Mr. Justice Kay said it was a case which had slipped in between the rules of the order : {Ex parte Jesus College, Cambridge, 50 L. T. Rep. N. S. 583; W. N. 1884, p. 37.) So where an application was made for payment out of 1330Z. for building purposes and investment of the balance (770L) in the Three per Cents, the entire sum of 2100Z. having been paid in under the L. C C Act, it was held that the application was properly made by petition : {Re Hargreave's Trust ; Ex parte Mayor of Bradford, 58 L. T. Rep. N. S. 367.) And in Be Bethlehem (30 Ch. Div. 541 ; 53L. T. Rep. N. S. 558; 54 L. J. 1143, Ch.) Mr. Justice Ohitty allowed costs of a petition notwithstanding this sub-rule. In many cases, in consequence of the passing of the Settled Land Act, 1882, money which would have previously been paid into court under the L. C. C. Act, may now be i^aid to the "trustees of the settlement " under the Settled Land Act. Where there are no such trustees it would frequently be cheaper for the promoters to arrange with the tenant for life for the appointment of such trustees, and so save the expenses of pa^-ment into court and the costs of the surveyors requii'ed by the L. C. C. Act. Where, however, the land is not " settled land," or for any reason the pi'ocedui'c under the L. C. C. Act is followed, by sect. 69 CHAMBERS IN THE CHANCERY DIVISION. 65 thereof, purcliase money or oompeusatioii payable to persons under disability amounting to 2001. or more, is paid into the bank, i.e., the Law Courts Branch of the Bank of England. The money is placed " in the books at the Pay Office to tlie credit of ex parte the promoters of the undertaking, in the matter of tlie special Act (citing it), and some words shall be added in each case briefly expressive of the nature of the disability to sell and convey, by reason of which the money shall be so paid in, which particulars shall be stated in the request for the direction for the lodgment : " (S. C. Funds Rules 1886, r. 39.) By sect. 69 the money dej)Osited is to remain in court until Modes of applied to some one or more of the f olloAving purposes : — investment. (a.) "In the purchase or redemption of the land tax, or the dis- charge of any debt or incumbrance affecting tlie land in respect of which such money shall have been paid, or affect- ing other lands settled therewith to the same or the like uses, trusts, or purposes ; or {b.) " In the purchase of other lands to be conveyed, limited, and settled upon the like uses, trusts, and purx^oses, and in the same manner as the lauds, in respect of which such money shall have been paid, stood settled ; or (c.) " If such money shall be paid in respect of any buildings taken under the authority of this or the special Act, or injured by the proximity of the works, in removing or replacing such buildings, or substituting others in their stead, in such manner as the Court of Chancery shall direct ; or id.) " In payment to any party becoming absolutely entitled to such money." The above modes of application of the money are now extentled S. L. Act. by sect. 32 of the Settled Land Act, 1882, under which the money may be invested or applied as capital money under that Act : (see sects. 21 and 25.) The procedure is to be under the L. C. C. Act : (see S. L. A., s. 32, 230st.) Reading sect. 32 of the Settled Land Act, 1882, and sect. 69 of the Lands Clauses Act together it has been decided that money paid in for corporation or charity lands {Re Byron s Charity, 48 L. T. Rep. N. S. 515 ; 23 Ch. Div. 171 ; 53 L. J. 152, Ch. ; 31 W. R. 517 ; Be Bethlehem and Bridewell Hospitals, 53 L. T. Rep. N. S. 558) or for land belonging to a rector or vicar in right of his benefice {Ex parte Vicar of Yardley, not reported) may be invested or apijlied as capital money under S. L. A. For the cases on S. L. A. see Chapter XVIII. on that Act, post. "With reference to buildings, it may be remarked that the general Buildings. J? 66 ORIGINATING SUMMONS. Investment AflBdavit of Title. rule is that the money is not paid out of court till the buildings are completed. The usual j)lan is to make a contract with some l)uilder or other person to execute the work for a specified sum, but where this is impracticable it is suggested that an " outside " estimate should be made, and that the judge should J3e asked to sanction the expenditure of such sum, not exceeding the estimate, as may be necessary, on tlie proposed Avork before it is commenced ; the f oi'mal order for payment out being made after completion of the work. The money is applied upon an order of the Chancery Division, made on petition (or, in cases within these rules, on summons) of " the party who would have been entitled to the rents and profits of the lands, in respect of which such money shall have been deposited;" and, until such application, it may, upon like order, be invested in the purchase of Three per Cent. Consols, Three per Cent. Reduced, or Government or real securities, and the income paid to the party entitled to the rents (sect. 70). Tlio National Debt (Conversion) Act, 1888 (51 Vict. c. 2), made provision for conversion of New Three per Cent. Stock into stock of a lower denomination, and provided facilities for conversion of Consols and Reduced Annuities into stock of a lower denomination. And by sect. 25, sub. -sect. (2). of the Act, in any Act passed before the passing of the Act references to any stock liable to be converted or exchanged in pursuance of that Act, may, if the stock is so con- verted or exchanged, he construed as references to the new stock created under that Act. See also Chapter XX., j^ost. Money paid into court under the Lands Clauses Act, is " cash under the control of the court," williiu tli" meaning of 23 & 24 Vict. c. 38, s. 10, and the General Order of Feb. 1, 1861, and may be in- vested in any of the securities sanctioned by the court : Ex parte St. John Baptist College, Oxford (48 L. T. Rep. N. S. 331 ; 22 Ch. Div. 93 ; 52 L. J. 268, Ch.) As to what securities are sanctioned by the court, see Chapter XVIII., notes to sect. 21 of S.L.A. 1882, ^^osf. The application for investment (wliether permanent or interim) is made by the tenant for life, or party who would have been en- titled to the rents and profits of the land, and is served on the promoters. In both cases an affidavit of title in accordance with Order LII., r. 18, is required. That Order is as follows : " In the case of applications under Acts of Parliament directing the purchase money of any property sold to be paid into court, any persons claiming to 1)0 entitled to the money so paid in, must make an affidavit not oidy verifying their title Imt also stating that they are not aware of any right in any other person, or of any claim made by any other person, to the sum claimed or to any part thereof, or, if the petitioners are aware of any such right or CHAMBERS IN THE CHANCEEY DIVISION. 67 claim, they must in such affidavit state or refer to and except the same." If possible this affidavit must be made by the claimant, but where this is impracticable through illness or incapacity, an affidavit by his solicitor or trustee has been taken instead : (see Dan. 2147.) In case of a large public body an affidavit of title is not required : Be Magdalm College, Oxford (42 L. T. Rep. N. S. 822 ; W. N. 1880, p. 150), but see Be Byron's Charihj (W. N. 1883, p. 67), reported on other points in 48 L, T. Rep. N. S. 51.5 ; 23 Cli. Div. 171. When the petition or summons is for investment in land, it need Service, not 1)6 served on the remainderman ; but where the money is to be spent in erecting buildings or other improvements, it would seem that the remainderman should be served or his consent be obtained : {Be Leigh, 25 L. T. Rep. N. S. 644 ; L. Rep. 6 Ch. App. 887 ; 40 L. J. 687, Ch. ; 19 W. R. 1105 ; and Seton on Decrees, 1424. But see Be Aldred's Estate, 46 L. T. Rep. N. S. 379; 21 Ch. Div. 228; 51 L. J. 942, Ch. ; 30 W. R. 777, and Be Earl De Grey's Entailed Estate, W. N. Dec. 17, 1887, p. 241 ; 84 L. T. 116.) Purchase money or compensation, if not exceeding 200/., may be Smill ^^umr paid to trustees, to be applied without order as if paid into court (sect. 71) ; and if not exceeding 20Z. may be paid to the party entitled to the rents and profits for his own use (sect. 72). Compensation exceeding 20/., payable to tenant for life under contract, is to be i^aid into the bank or to trustees as aforesaid ; but the court or trustees may allot him a portion as compensation for inconvenience, &c. (sect. 73). It would appear that in an application under this section the remainderman should be served or be a co-petitioner {Be Strath- more, 18 Eq. 339 ; Be Collis, 14 L. T. Rep. N. S. 352 ; W. N. 1866, p. 167) ; but see Be Earl of Berkeley's Will, L. Rep. 10 Ch. App. 56; 31 L. T. Rep. N. S. 531 ; 44 L. J. 3, Ch. ; 23 W. R. 195. The L. C. C. Act (s. 80) provides that the costs in case of money Coats, deposited in the bank " under the provisions of this or the special Act, or an Act incorporated therewith," shall be paid by the pro- moters, except in cases of certain wilful refusal or neglect, on the part of the landowner, and except costs occasioned by " adverse litigation." Also the costs of only one application for re-invest- ment in land is allowed, unless it appears to the court tliat it is for the benefit of the parties interested in the moneys that the same should be invested in purchase of lands in different sums and at different times. The recent decision of tlie Court of Appeal in Be Mills (55 L. T. Rep. N. S. 465; 34 Ch. Div. 24; 56 L. J. 60. Ch. ; 35 W. R. 65), F 2 68 ORIGINATING SUMMONS. to the effect that the Judicature Acts aud Rules do uot enable the court to order costs to be paid by persons who before the Acts came into operation could not have been ordered to j)ay them, renders the cases which show when sect. 80 of the L. C. C. Act is to be deemed incorporated with the special Act of considerably greater importance than formerly. For now the doctrine which was understood to have been laid down in Ex parte The Mercer's Covqyany, 10 Ch. Div. 481), that it was inuuaterial to consider whether any statute passed before the Judicature Acts made any express provision as to the costs of particular proceedings, must be considered overruled. The tendency of the decisions under this section is to put a restrictive construction upon the words " adverse litigation." Thus the promoters are liable to i^ay the costs occasioned by administra- tion or similar proceedings ; class inquiries which are necessary for distribution of the fund ; costs of dispute between tenant for life aud remainderman as to how much of the fund belonged to each ; and of inquiry as to what is due on a mortgage {Eden v. Thompson. 2 H. & M. 6 ; Ashew v. Woodhead, 14 Ch. Div. 27 ; 42 L. T. Rep. N. S. 567 ; 49 L. J. 320, Ch. ; 28 W. R. 874 : Be Bareham, 17 Ch. Div. 329 ; 29 W. R. 520 ; but see Ex parte Great Western Bailway Company ; Be Gough's Trusts (49 L. T. Rep. N. S. 495 ; 24 Ch. Div. 569 ; 32 W. R. 147). (a) Trustee Acts. (8.) Applications under the Trustee Acts 1850 and 1852 {h) in all cases where a judgment or order has been given or made for the sale, conveyance, or transfer of any stock, or of any hereditaments, corporeal or incorpo- real, of any tenure or description, whatever may be the estate or interest therein. These applications are l)y ordinary summons. For forms, see Dan. F. 1340 and 2067. It will be observed that the class of vesting orders obtainable under this sub-rule in chambers is veiy limited ; but where a petition has been presented under the Trustee Act, 1850, the judge has power to direct particular portions of the matters before him to be disposed of in chambers. Thus where an order had been made on petition to appoint new trustees, with liberty to apply at chambers for an order to vest the trust estate in them when appointed, and a subse- («) The foregoing is but a bare outline of the practice under the Lands Clauses Act. For fuller information, see Morgan, 24-48; Dan. 2137-2171 ; Seton, 1415-14.50. (h) 13 & 14 Vict. c. GO ; 15 & 10 Vict. c. 55. CHAMBERS IN THE CHANCERY DIVISION. 60 queut order was made in chambers aiipointhig tlie new trustees, and declaring that the right to call for a transfer of, and to transfer into their own names, a sum of India Four per Cent. Stock, "may" vest in the new trustees, it was held that the judge had jurisdiction to make the order on summons in chambers : {Re Tweedy, 52 L. T. Rep. N. S. 65 ; 28 Ch. Div. 529 ; 54 L. J. 331, Ch. ; 33 W. R. 313 ; Ct. of App.) In this case Fry, L.J. said it was very desirable that the matters which require consideration " should in the first instance come before judges with the assistance of coxmsel " (52 L. T. Rep. N. S. 67) ; and see Be Allen ; Simes v. S., post, p. 83 ; and Chapter X. on " Appointment of Ncav Trustees," ^^osf. For text of the Trustee Acts see Lewin on Trusts, 8th edit., Appendix Nos. 3 and 4 ; Morgan, ]). 61-94. (9.) Applications on behalf of infants under 1 Will. 4, Infants. c. 6b, ss. ]2, 16^ and 17, where the infant is a ward of court, or the administration of the estate of the infant, or the maintenance of the infant is under the direction of the court. These applications are by ordinary summons, as the court is already seised of the matter. For forms see Dan. F. 2156. By this Act (1 Will. 4, c. 65) the court may sanction : («.) Surrender by infant tenant of his lease and acceptance of new lea«e (sect. 12, Dan. 2203). This applies to a case where the infant is only beneficially entitled, the legal estate being in a trustee : (Be Qriffi^tlis, 53 L. T. Rep. N. S. 262 ; 29 Ch. Div. 248.) [h.) Acceptance by infant landlord of a surrender of a renewable lease and execution of a new lease (sect. 16, Dan. 2205). (c) Lease of infant's laud, including a mining lease (sect. 17, Dan. 2206). For cases and practice, see Dan. 2203-2209 ; Seton, 742-745. These provisions are of less consequence than formerly by reason of the Settled Laud Act, 1882 (45 & 46 Vict. c. 38), s. 60, which enables " trustees of the settlement " to exercise the statutory powers of a "tenant for life," who is an infant; and if there are no such trustees authorises the court to appoint a person to exercise such statutory powers ; and by reasou of the joint effect of sects. 59-60 of the same Act, which together enable the court to appoint a person to act on behalf of an infant absolutely entitled as though he were a tenant for life. 70 ORIGINATING SUMMONS. And see seet. 41 of the Couveyancing Act, 1881, aud the uote by Messrs. Wolsteiihohue and Tumor thereon. Infants' (10.) Applications under 18 & 19 Vict. c. 43, for the Settlements, settlement of any property of any infant on marriage. These applications ai"e by Originating Summons, unless the infant is a Avard of court. For forms see Dan. F. 1403. This Act enables infants, males aged twenty, and females seven- teen, to make binding settlements with the sanction of the court. The apj^>lication is made by the infant or his or her guardian ; if there be no guardian the court may require one to be appointed or not as it shall think fit, and it may require any person interested in the property to be served (sect. 3). For text of Act see Chitty's Statutes, vol. 3, p. 541, and for cases see Dan. 1136 ; Seton, 765. The summons will be entitled " In the matter of A. B., an infant, by C. D., his [or hei'] next friend [or guardian], and in the matter of the Act 18 & 19 Vict. c. 43," intituled " An Act to enable infants, with the approbation of the Court of Cliancery, to make binding settlements of their real aud personal estate on marriage : " (see Dan. F., p. 597.) As to the necessary evidence see rule 26 of this order, j^ost, p. 104. The initiative as to the terms of settlement comes from the parties or their friends. If the proposals are approved, directions are given for preparation of the settlement, sometimes the convey- ancing counsel to the court is employed, and sometimes this is dis- pensed with In Be Saijpson and Wall, Infants (50 L. T. Rep. N. S. 435; 25 Ch. Div. 482 ; 32 W. R. 617, C. A.), it was held that under this Act (18 & 19 Vict. c. 43) a settlement of an infant's j^roperty may be made on the occasion of liis or her marriage after the marriage has taken place. This was folloAved in Re Phillijys (56 L. T. Rep. N. S. 144). The same Act has removed the disability of infancy only, so that in a case not falling within 20 & 21 Vict. c. 57, or the M. W. P. Acts, a post-nuptial settlement by a female ward of court of her reversionary interest in personalty will not be binding, or deprive lier of lier right by survivorship, if the interest does not fall into possession during the coverture : (see Buclcmaster v. BucTc- master, 56 L. T. Rep. N. S. 795; 35 Ch. Div. 21, C. A.; and repoi-ted as Beaton v. Seaton, 13 App. Cas. 61, H. of L. ; 58 L. T. Rep. N. S. 565.) CHAMBERS IN THE CHANCERY DIVISION. 71 But the House of Lords declined to decide wlietlier the Act applied to a post-nuptial settlement, or Avlietlier Be Sampson and Wall {ubi sup.) was rigidly decided on the above point. In Mills V. Fox (57 L. T. Rep. N. S. 792 ; 37 Ch. Div. 153) it was held that an infant was bound by a misstatement of fact made in the proposals for settlement on her behalf. In De Stacpoole v. Be Stacpoole (58 L. T. Rep N. S. 382; 37 Ch. Div. 139) the costs of all parties to the settlement (including the costs of the husband) Avere ordered to be paid out of the corpus of the funds which were to be transferred to the trustees. For cases and practice see Dan. 1136 ; Seton, 765 ; Davidson's Settlements, 3rd ed., Appendix, pp. 651, 653; Yaiscy on Settle- ments, 62. As to the form of settlement sanctioned, see Davidson's Settle- ments, 3rd edit., p. 891 et seq. ; Vaisey on Settlements, "Pre- cedents," 159. 11. Applications under the Copyhold Acts respecting copyhold any securities or money in court. Notice of any such '^°*'^- application is not to be given to the Copyhold Commis- sioners, unless the judge shall so direct. First applications under this sub-rule are by originating sum- mons. For forms see Dan. F. 2166. In certain cases, as where the lord of the manor is under dis- ability, the consideration money for enfranchisement is payable into court: (see S. 0. Funds Rules, 1886, rr. 30 and 40. By the Settled Land Act, 1882, s. 48, the old " Copyhold Com- missioners," in common with the Inclosure Commissioners and the Tithe Commissioners, became "the Land Commissioners for England." Their address is 3, St. James's-square, and a courteous public body they are. As to these Acts, see Dan. 2212-2215 ; Seton, 1467-1470. An important amending Act was passed in 1887 (50 & 51 Yict. c. 73) : see Brown's Copyhold Enfranchisement Acts, 1888. 12. Applications as to the guardianship and mainte- Guardians— ATs-intGiiiiiCG nance or advancement of infants. — Advaiice- mcnt. Gwardianshii For forms see Appendix III., post, and Dan. F. 1371, 1386, 1389. An ordinary application for the appointment of a guardian of tlie 72 ORIGINAfING SUMMONS, pcrsou or estate of an infant where no action is pending, or where the infant is not a party to the action is liy Originating Summons ; but Avhere the infant is a party to such action, then by ordinary summons : (see Dan. F., p. 580, note c.) For the evidence required see Order LY., r. 25, j^ost, p. 104. For the practice and cases see Dan. 1113 ; Seton, 718 ; Simpson on Infants, 223 ; and notes to Eyre v. Countess of Shaftesbury (2 W. & T. L. C. 693 ; 6th edit.). The law relating to guardianship and custody of infants was considerably altered by the Guardianshii) of Infants Act, 1886 (49 & 50 Vict. c. 27). The rights of the mother were much luore fully recognised than heretofore, l)oth with reference to herself becoming guardian (sect. 2) and appointing a guardian (sect. 3). Also she may apply to the court, without next friend, for order as to custody of and access to the infant (sect. 5). The guardian api)ointed under this Act is to have the same powers over the estate and the person, or over the estate as the case may be, as a guardian appointed by will or otherwise has under 12 Car. 2, c. 24, or other- Avise (sect. 4). And the court may remove a testamentary guardian, or guardian under this Act (sect. 6). Applications under this Act are to 1)C made in such manner as may be pi-escribed by rules of court. In pursuance of power contained in the Act, rules thereunder were issued on Dec. 17, 1887. They may be cited as " The Rules of the Supreme Court, Guardianship of Infants." A copy of them Avill be foiind in Appendix I. hereto, post, also in W. N. of Feb. 4, 1888. Rule 2 is as follows : " Any application under the Act may be made as follows : " (a.) Where there is pending any action, or other proceeding, by rea on whereof the infant is a ward of court, then by a summons in such action or pi'oceeding, and in the matter of the infant. " [h.) Where tliere is not pending any such action, or other pro- ceeding as aforesaid, then l)y an originating summons in the matter of the infant." In Be Witten (57 L. T. Rep. N. S. 336 ; W. N. 1887, 167), on petition by a mother under sect. 5 of this Act to obtain the custody of her infant son, aged ten, on the ground of misconduct of the father, the court made the order witlioiit fixing any limit of age during which the infant might remain in custody of the mother. For orders under sect. 7 see Skinner v. Skinner (13 P. D. 91) ; and Robinson v. Robinson (57 L. T. Rep. N. S. 118). In Re Scanlan (40 Ch. Div. 200, 59 L. T. Rep. N. S. 599), it was Chambers in the chaNcei^y division. 73 decided that this Act had not introduced any change iu the rule that children ought to be brought up in the religion of their father. Maintenance. For forms see Appendix III., post, and Dan. F. 1386. An application for maintenance is made by ordinaiy summons if an action or matter affecting the infant is pending, otherwise by Originating Summons. The summons should be served on the persons having control of or being interested in the fund out of which maintenance is to be provided : (see Dan. 1126.) It must be borne iu mind that, if an order is sought adversely to a third party, it is not sufficient to entitle the si^mmons in the matter of the infant : (see Re Lofthonse, an Infant, 53 L. T. Rep. N. S. 174; 29 Ch. Div. 921, 932; 54 L. J. 1087, Ch., C. A.) In such a case the infant should be made plaintiff by next friend, and the adverse party defendant. For the evidence required iu support of the ai)plication see Order LV. r. 25, 2^ost, p. 104. And for practice generally see Dan. 1122 ; Dan. F., p. 586. Since the Conveyancing Act, 1881 (44 & 45 Vict. c. 41) s. 43, applications to the court for maintenance orders ai'e presumably less frequent than formerly. Under that section trustees may apply the income of an infant's property for his maintenance, without any application to the court. An Originating Summons would be a proper mode of obtaining the opinion of the court as to whether sect. 43 applied to a particular case : (see Re Dickson ; Hill v. Grant, 52 L. T. Rep. N. S. 707 ; 29 Ch. Div. 331 ; 54 L. J. 510. Ch.) The following list of cases upon that section may be useful : JuclMns Trusts (50 L. T. Rep. N. S. 200 ; 25 Ch. Div. 743) ; Thatchers Trusts (26 Ch. Div. 426) ; Re Dickson; Hill v. Grant, 52 L. T. Rep. N. S. 707 ; 29 Ch. Div. 331). And see Re Medlock ; Ruffle Y. Medlock (54 L. T. Rep. N. S. 828; W. N. 1886, p. 111). For cases on the prior Act, 23 & 24 Vict. c. 145 (Lord Cranworth's), see Re Cotton (33 L. T. Rep. N. S. 720; 1 Ch. Div. 232; and Re George (37 L. T. Rep. N. S. 204; 5 Ch. Div. 839), which are discussed in 78 L. T. 110 and 83 L. T. 75 ; and iu Re Buckleys Trusts (48 L. T. Rep. N. S. 109 ; 22 Ch. Div. 583). As to maintenance out of accumulations, see also Re Collins ; Collins V. Collins (55 L. T. Rep. N. S. 21 ; 32 Ch. Div. 229 ; Re Alford; Hunt v. Parry, 54 L. T. Rep. N. S. 674; 32 Ch. Div- 383). Advancement. For forms, see Appendix III., post, and Dan. F. 1389. 74 ORIGINATING SUMMONS. lu a petition for payment to an infant of certain sums by way of advancement, out of a sum exceeding lUOO/. in court, the sum having been paid in under the Legacy Duty Act (36 Geo. 3, c. 52), a question arose whetlier the proper procedure in the matter was by summons in cliambers, as being an application for advancement of an infant, or by petition, having regard to the Rules of the Supreme Court 1883, Order LV., r. 2, sub-sects. 4, 12, and to the fact that the sum in court exceeded lOOOZ. Held, that sub-sect. 4 must be treated as an extension of the i^ractice under Consolidated Order XXXY., r. 1, and consequently the present matter was beyond the jurisdiction of chambers, and that the proper ])rocedure was by petition and not by summons in chambers ; and that the effect of sub-sect. 12 was to extend the jurisdiction of cliambers so as to cover all cases which were not expressly excepted, like the present one, by sub-sect. 4: {Be Coore, 76 L. T. 61, Chitty, J., Nov. 10, 1883; W. N. 1883, p. 169.) As to the j)owers of trustees under an advancement clause, see Lowther v. Bentinch (31 L. T. Rep. N. S. 719 ; 19 Eq. 166 ; 44 L. J. N. S. 197, Ch.) ; Be Breed's Will (1 Ch.'Div. 226). It is a power to he exercised as a rule in the early life of its object: {Be Alclrid(je; Abravi v. Aldridge, 54 L. T. Rep. N. S. 827.) As to the practice generally see Dan. 1127. Management. i^^') Applicatious connected witli the management of property. As to management of infants' proiierty see Dan. 1128-1131 ; Seton, 733-744. See also Conveyancing Act, 1881 (44 & 45 Vict. e. 41), s. 42. Sales. (14.) Applicatious for or relating to the sale by auction, or private contract of property, and as to the manner in which the sale is to be conducted, and for payment into court and investment of the purchase money. As a rule the applications here referred to would l)e by ordinary summons. For forms see Dan. F. 1286 and 1329. As to sales by the court, see Dan. 1071 ; Seton, 1391-1413, 1684- 1685 {add.). Note the enlarged powers given to the court by Order LI., r. 1 A, R. S. C, Dec. 1885, which is as follows : " In all cases where a sale, mortgage, partition, or exchange is ordered, the court or a judge shall have power, in addition to the powers already existing. CHAMBERS IN THE CHANCERY PIVISION. 75 with a view to avoiding expense or delay, or for other good reason, to authorise the same to be carried out, either as at present — (a) by laying proposals before the judge in chambers for his sanction ; or (6) by pi'oceedings altogether out of coui*t, any moneys produced thereby being paid into court or to trustees, or otherwise dealt with as the judge in chambers may order." And by Order LI., r. 3 A, no order for the payment of purcliase money into court shall be necessary, but a direction for that purpose signed by the chief clerk shall be sufficient authority for the Pay- master-General to receive the money. Kay, J.: "Whenever I make an order for sale out of court, I require three things — namely, that the reserved bid should be fixed bj'' the chief clerk, that the auctioneer's remuneration should be similarly fixed, and that the purchase money should be paid directly into court. The directions as to the auctioneer's remuneration, as well as the reserved bid, must be mentioned in the order : " {Pittv- White, 57 L. T. Rep. N. S. 650 ; W. N. 1887, p. 217 ; followed in Be Stedman ; Coomhev. Vincent, 58 L. T. Rep. N. S. 709 ; W. N. 1888, p. 119.) (15.) All applications under 6 & 7 Vict. c. 73 (not Taxation, being applications for orders of course), for the taxation and delivery of bills of costs, and for the delivery by any solicitor of deeds, documents, and papers. These applications will be by originating summons. For forms, see Dan. F. 2024. Where a petition was needlessly presented, only costs of a sum- mons were allowed : (Be Kellock, 56 L. T. Rep. N. S. 887 ; 35 W. R. 695.) The above-mentioned Act is the Solicitors Act, 1843. A solicitor cannot bring action for costs until one calendar month after sending in signed bill. The party chargeable may during the month get an order of course to tax the bill. After the month either party may obtain a reference to taxation, but not after verdict in any action for the solicitor's demand, or after twelve months after deliveiy of the bill, except under " special circumstances." Under sj)ecial circumstances taxation may be ordered f^fter jjay- ment, pi'ovided the aj)plication to tax be made within twelve calendar months after payment : (sect. 41 ; Dan. 1999.) It is apprehended that by " orders of course " in the above rule is meant orders usually obtained on petition of course; i.e., where taxation is applied for (a) within one calendar month after delivery ; or (6) after that time, but within twelve months after delivery of the biU, and before verdict for the bill, or payment. 76 ORIGINATING SUMMONS. Where an agreement lias been made for the remuneration of a solicitor (as may be done under the Attorneys and Solicitors Act, 1870, 33 & 34 Vict. c. 28, or the Solicitors' Remuneration Act, 1881, 44 & 45 Vict. c. 44), if the solicitor alleges that the remunera- tion was for non-professional work, the imrty chargeable cannot obtain the common ex parte order for taxation. The Solicitors' Remuneration Act, 1881, s. 8, has not altered the practice on this point: (Re Inclerwick, 50 L. T. Rep. N. S. 221; 25 Ch. Div. 279.) The question of retainer may be raised on the common order to tax as to particular items, but not as to the whole bill : (Re Herbert, 56 L. T. Rep. N. S. 522 ; 34 Ch. Div. 504.) But where a solicitor obtains the common ex parte order the client is not bound by the allegation of retainer contained in the petition, and therefore may object to eveiy item in the bill. Con- sequently it is no objection to the common order, when ol)tained by a solicitor, that he knew that the client disputed his retainer as to the whole bill : [Re Jones, a Solicitor, 57 L. T. Rep. N. S. 26; 36 Ch. Div. 105.) As to what is delivery of bill, see Re Thompson (30 Ch. Div. 441 ; 53 L. T. Rep. N. S. 479). As to the jurisdiction of the Queen's Bench Di\nsion to order delivery of bill, see Re Pollard (20 Q. B. Div. 656, C. A.). As to power of the court under its general jurisdiction to tax part of a bill, see Re Johnson and Weatherall (37 Ch. Div. 433 ; 58 L. T. Rep. N. S. 692). As to special circumstances justifjnng taxation after twelve mouths from delivery of bill, see Seton,610 ; Dan. 2021 ; Re Norman, (16 Q. B. Div. 673 ; 54 L. T. Rep. N. S. 143 ; 55 L. J. 202, Q. B. ; 34 W. R. 213, C. A.) ; Re Pyhus (35 Ch. Div. 568; 57 L. T. Rep. N. S. 362). As to special circumstances justifying taxation after payment, see Re Boycott (29 Ch. Div. 571; 52 L. T. Rep. N. S. 482, C. A.) ; Re Lacey (25 Ch. Div. 301 ; 49 L. T. Rep. N. S. 755, C. A.); Re Eludes and Tamer (W. N. 1888, p. 68); Re Griffith Jones (50 L. T. Rep. N. S. 434 ; 53 L. J. 965, Ch. ; 32 W. R. 350, C. A.) ; Re Chowne (.52 L. T. Rep. N. S. 75, C. A.) ; Re W. Eley (57 L. T. Rep. N. S. 253 ; 37 Ch. Div. 40) ; Re Miinns and Longden (.50 L. T. Rep. N. S. 356 ; 32 W. R. 657 ; W. N. 1884, p. 117) ; Re Norman (16 Q. B. Div. 673, nbi sup.). What is payment, see Re Griffith Jones (uhi supi.) ; Re Stogdon (W. N. 1887, p. 9 ; 56 L. T. Rep. N. S. 355 ; 56 L. J. 425, Ch. ; 51 J. P. 565). A judge may allow a solicitor to commence action within the mouth where the i^arty chargeable is likely to quit England, become CHAMBERS IN THE CHANCERY DIVISION, 77 baukrupt, or take other steps likely to defeat or delay the solicitor' claim : (38 & 39 Vict. c. 79, s. 2 ; Dan. 1997.) Taxation may be ordered on ap]>licatiou of a person liable to pay or who shall have paid the bill, although he is not the person chargeable: (6 & 7 Vict. c. 73, s. 38; Dan. 1997, 2019.) Thus a mortgagor or lessee who pays for the lease may obtaiu taxation, also where a trustee, executor, or administrator has become chargeable, taxation may be ordered (if the judge think fit) on the application of a party interested in the property out of which the bill may be paid: (sect. 39; Dan. 1998, 2019.) See Be Chowne (52 L. T. Rep. N. S. 75). Applications under this Act to refer a bill to be taxed and settled, and for the delivery of such bill and for the delivery up of deeds, documents, and papers shall be made in the matter of such solicitor (sect. 43). It need not be entitled in the matter of the Act : (Dan. 2005.) (a) (16.) Applications for orders on the further considera- Further tion of any cause or matter where the order to be made consideration. is for the distribution of an insolvent estate, or for the distribution of the estate of an intestate, or for the distribution of a fund among creditors or debenture holders. These applications will be by ordinary siunmons. For form of summons and minutes on furtlier consideration where the estate is insolvent, see Dan. F. 1432 and 1433. "Where there is a question to be argued which will prol)ably have to come into court, a plaintiff is justified in bringing on the further consideration of an action to administer an insolvent estate in court notwithstanding this rule, as expense is thereby saved : (see Be Barber ; Burgess v. Vinnicome, 31 Ch. Div. 665.) As to setting down causes on further consideration see Order XXXVI., r. 21. (17.) Applications for time to plead, for leave to amend pleadings, for discovery and production of docu- ments, and generally all applications relating to the conduct of any cause or matter. These applications must obviously be made by ordinary summons. (n) The foregoing is but a slight outline of the practice as to taxation of costs. For fuller information, see Dan. 1993 ; Morgan, 1 ; Seton, 604; Cordery on Solicitors, 2nd ed., p. 251 et seg. power. 78 ORIGINATING SUMMONS. General (18_) Such other matters as the judge may think fit to dispose of at Chambers. In Re Evan Evans (54 L. T. Rop. N. S. 527) it was argued that the court coi;lcl order pajniieut out of a sum less than 1000/., part of a sum originally exceeding 1000/., under this general rule, but Mr. Justice Kay. declined to accede to tliis view, stating that such view of the rule would justify tlio court in abi'ogating all the previous sub-rules of this order. And see Be Tweedy (52 L. T. Rep. N. S. 63, 67, ante, p. 69. i4^7L,/( ADMINISTRATIONS AND TRUSTS. 79 CHAPTER A^III. ADMINISTRATIONS AND TRUSTS.— [FORP]- CLOSURE AND REDEMPTION.] Order LV., R.S.C. 1883, rr. 3-19. 3. The executors or administrators of a deceased Administra- person or any of them, and the trustees under any deed trusts!*" or instrument or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, next of kin, or heir-at-law or customary heir of a deceased person, or as cedxii que trust under the trust of any deed or instrument, or as claiming by assignment or otherwise under any such creditor or other person as aforesaid, may take out, as of course, an Originating Summons returnable in the chambers of a judge of the Chancery Division for such relief of the nature or kind following, as may by the summons be specified and as the circumstances of the case may require (that is to say), the determination, without an administration of the estate or trust, of any of the following questions or matters : — (a.) Any question affecting the rights or interests of the person claiming to be creditor, devisee, legatee, next of kin, or heir-at-law, or cestui que trust : {h.) the ascertainment of any class of creditors, legatees, devisees, next of kin, or others : (c.) the furnishing of any particular accounts by the executors or administrators or trustees, and the vouching (when necessary) of such accounts : [d.) the payment into court of any money in the 80 ORIGINATING SUMMONS. hands of the executors or administrators or trustees : (e.) directing the executors or administrators or trustees to do or abstain from doing any par- ticular act in their character as such executors or administrators or trustees : (/.) the approval of any sale, purchase, compromise, or other transaction : (f/.) the determination of any question arising in the administration of the estate or trust. For forms of Originating Sixmmous iiuder this rule and rule 4 see Appendix III., ^osi. The words in brackets in the heading of this chapter were added iu Dec. 1885, when the scope of the rules was enlarged accordingly. Rule 3. The power given by this rule of obtaining relief without administration has been Avidely exercised. Numerous wills have been construed, and difficult points of law have been determined ; declarations as to rights made, and directions as to duty given. As relief is usually sought under several of the sub-sections of this rule, and as the rejiorted decisions upon particular sub-sections as distinguished from the whole rule are rare, it has not been considered necessary to attem^jt to classify the cases under any particular sub-section. Advantages of It is to be inferred, from the following remarks of Mr. Justice Originating Stirling, in Re Partington ; Partington v. Allen (57 L. T. Rep. N. S. Sumtrons 660), that the court is disposed to encoiirage applications by trustees \inder this rule : " There are certainly a immber of cases from wliicli I do not desire to dissent in any way, in which it has been held that the advice of a solicitor or tlie opinion of counsel does not indem- nify trustees. If a trustee is distriljuting a fund, and any difficulty arises as to the persons wlio may be entitled, he can have recourse to the court, and lie would l)e completely indemnified by the order of the court. If, under those circumstances, he chooses to rely on the advice of a solicitor or the opinion of counsel, he gets no indemnity, and he must take the consequences of so doing. The same remark applies to many other acts of trustees, and the facili- ties wliidi are now given by the present practice to trustees, for coming and obtaining tlie opinion of tlie court as to matters in the administration of the trust, are so great that, in that class of cases, the rule to which I have referred is not in tlie least likely to be relaxed." ADMINISTRATIONS AND TRUSTS. 81 A question which arose early under this and tlio following rulo was how far relief under them could be obtained against trustees personally. See the cases on this point under rule 4. It is often advisable to ask by the summons not only specific questions under rule 3, but also, if necessary, for general adminis- tration under rule 4, as that enlarges the jurisdiction of the court upon the summons. The difficulty or importance of a case is no reason for refusing to When aum- deal with it on Originating Summous. But in heavy matters mons. the court would probably look indulgently upon proceedings com- menced by writ or special case. In Bond v. WaJford (54 L. T. Rep. N. S. 672; 32 Ch. Div. 238; 55 L. J. 667, Ch.), which was an action for cancelling a settlement, where there was considerable complication, Mr. Jus- tice Pearson said, " I wish to add that I think this was not a proper case for an Originating Summons, and the parties were justified in bringing an action." Rule 3 is only intended for decision of such questions as would have arisen on administration of the trusts of a will or settlement. The court cannot, under such rule, decide a mere legal question between heir and devisee, which would not before the making of Order LY.. have required an administration suit, and serving the executor, who is not a necessary j)arty, will not give the court juris- diction : {Be Carlyon ; C. v. C, 56 L. T. Rep. N. S. 151 ; 56 L. J. 219, Ch. ; 35 W. R. 155 ; Be Bavies, 58 L. T. Rep. N. S. 312 ; 38 Ch. Div. 210 ; 57 L. J. 759, Ch. ; 36 W. R. 587.) And Mr. Justice Kay held, in Be Bridge ; Franlcs v. Worth (56 L. T. Rep. N. S. 726 ; 56 L. J. 779, Ch. ; 35 W. R. 663 ; W. N. 1887, p. 120), that the court had no jurisdiction on an Originating Summons, under rule 3, to determine a question affecting a person claiming adversely to the will of a deceased person, even though he consented to be bound. And see Be Gladsto7ie, post, -p. 86. " Order LV. is not an order conferring jurisdiction, but merely regulating the mode in which questions are to be brought before the court. If a person, who is served with an Originating Summone in a matter not falling within a, b, c, d, e, f, and g, of Order LV.. objected to the jurisdiction, and did not appear, the court would not go on ; but where the i^arty has appeared and has taken the decision of the court, it would be wrong to let him take the objection when the matter comes before ^the Court of Appeal. Of course, it is open for the judge to say, in any particular case, that the subject-matter is not a proper one] to be brought before it on Originating Sum- mons : " {Be Turcan, 58 L. J. 101, Ch. Ct. of App.) Trustees were allowed to advance capital to tenant for life, who G 82 ORIGINATING SUMMONS. was himself a trustee, to enable him to stock and cultivate a farm which could not be let at a remunerative rent : {Be Household ; H. V. H., 27 Ch. Div. 553 ; 51 L. T. Rep. N. S. 319.) Where an ap])licatiou is made to the court (about a proposed purchase) to exercise the discretion of trustees, the court will act very cautiously : (Be Walker ; W. v. W., 77 L. T. 268.) in Be Garnett ; Gandy v. Macaulay (50 L. T. Rep. N. S. 172; on apxK'al, 31 Ch. Div. 1), the Court set aside a release, but Lord Justice Cotton pointed out that no objection had been urged to this mode of proceeding. In Be Ellis ; Kelson y. Ellis (59 L. T. Rep. N. S. 924 ; 37 W. R. ■91 ; W. N. 1888, j). 217), where an Originating Summons was taken out by beneficiaries, asking that, notwithstanding a release which had been executed to tlie trustees, the trustees might be ordered to render an account, thus in effect claiming to have the release set aside, it was held, by Kay, J., that the case was not one which should be heard on Originating Summons. In Be Lofthouse (53 L. T. Rep. N. S. 174; 29 Ch. Div. 921) the Court of Appeal held that an order for maintenance could not be made contrary to wishes of trustees who claimed to exercise their discretion on a summons entitled merely in the matter of the infant, and said that sucli order could only be made on action — commenced by writ or Originating Summons. Neither this Order nor Order LI., r. 1, gives a power of sale where none previously existed, but leave was given to amend the Originating Summons asking for sale, by entitling it under the Settled Land Act, 1882, and a reference to chambers to appoint trustees was directed, so that a sale could be effected : (-Be Bobin- son; Pickard v. Wheater (53 L. T. Rep. N. S. 865 ; 31 Ch. Div. ^47 ; and see Be Staines ; Staines v. Staines, 33 Ch. Div. 172.) A question of legitimacy was decided on an application for maintenance in Be Walker and Be Jackson (53 L. T. Rep. N. S. 661). Although the court could not upon Originating Summons, prior to Order LV., r. 13a, post, p. 96, appoint new trustees and make a vesting order under the Trustee Acts [Be Gill ; Smith v. G., 53 L. T. Rep. N. S. 623 ; 34 W. R. 134 ; W. N. 1885, p. 208), yet where an Originating Summons had been taken out mider Order LY., rr. 3, 4, for the general administration of an estate, if and so far as was necessary, and {inter alia) the appointment of new trustees, and all tlie persons interested were parties to the applica- tion, and an order was made upon the summons in cliambers for the api)oiutment of new trustees, and the question was raised whether the court had jurisdiction to make such an order upon an Originating ADMINISTRATIONS AND TRUSTS. 83 Summons, the registrar having objected that it had not, relying iipon Be Gill; Smith v. Gill (53 L. T. Rep. N. S. 623); it was held that that case was distiuguisliable, the summons in the present case being an action within sect. 100 of tlie Judicature Act, 1873, and all the parties interested in the appointment being before the court, it could make the order upon the summons under its general jurisdiction : {Re Allen ; Simes v. 8., 56 L. T. Rep. N. S. 611; 56 L.J. 779, Ch.) A trustee ought not to pay money into court where the only question at issue can be decided on Originating Summons : {Be Giles, 81 L. T. 80; 55 L. J. 695, Ch.) (See page 60 above.) But see Be Parlcer's Will Trusts (60 L. T. Rep. N. S. 83 ; 39 Ch. Div. 303 ; 58 L. J. 23, Ch. ; 37 W. R. 313.) At the same time it must not be supposed that Originating Summons is always a cheaper mode of proceeding. It wiU often be cheaper to have an administration action than to take out a large number of Origi- nating Summonses : {see Be Berridge, cited in 84 L. T. 148). In Be Currey ; Gibson v. Wmj (54 L. T. Rep. N. S. 665 ; 32 Ch. Div. 361), with the view of carrying out an agreement of com- promise, the Court removed a restraint on anticipation on the property of married women. See also id. (No. 2) (56 L. T. Rep. N. S. 80 ; W. ]Sr. 1887, p. 28.) Apparently when application to remove such a restraint is made in a pending action or proceeding, it need not be entitled in the matter of the Conveyancing Act, 1881 : (see Dan. 2315, and Be Landfield ; Landfield v. Landfield, 30 W. R. 377.) Mr. Justice North, in March 1887, referred to the fact that in a certain class of cases the procedure by Oi'iginating Summons was not convenient. Thus where trustees asked by Originating Summons whether they would be justified in postponing sale of a hotel which the testator directed to be sold, he said that, as often happened in cases of this kind, he was placed in great difficulty as to matters with which he should have no difficulty in dealing if he were executing the trusts of the will in an action brought for that purpose. He could not give the trustees the same discretion as he should himself have in such an action. He then only allowed postponement of sale for a very limited time. In another case, on the same day, his Lordship condemned the growing j)ractice of attempting in proceedings of this kind to induce the court to express general opinions upon very insufficient evidence, and to do in fact tliat which ought not to be done in chambers : (31 Sol. J., March 5, 1887, p. 295.) Rule 3 (e) of Order LY., only relates to the doing or abstaining Sub sect. (e). G 2 84 ORIGINATING SUMMONS. from doing by trustees of" some act within the scope of their trusts. A.u(l an Originating- Summons ought not to be taken out under that rule for the purpose of obtaining a direction to trustees to do or abstain from doing an act which is outside the scope of their trusts: {Suffolk v. Latvrence, 32 W. R. 899 ; W. N. 1884, p, 158.) This was an application by a trustee in bankruptcy of a cestui que trust, to compel the trustees of tlie will to concur in a sale of pro- perty under an order of the court in a partition action, and to abstain from putting the estate to the expense of a partition. Mr. Justice Pearson declared that he " was bound to protect the court from Originating Summonses of this description," and dismissed the application with costs. In an administration action by a beneficiary, asking for the usual accounts and inquiries where the defendants were the executors of the sole trustee of two wills under which the plaintiff claimed, and it was alleged that the deceased trustee had received the rents and furnished no accounts, Mr. Justice Kay declined to make any order such as would render the estate liable for any costs over and above fcuch as coiild be thrown on the defendants in their capacity of re- presentatives of the deceased tinistee, in the event of the action ijeing made necessary by any default on their part, and he directed the plaintiff to make a written apiilication to the defendants to furnish the reqitisite accounts, when, if they neglected to furnish the same so far as might be in their power, the order asked for would be made at their cost : (Re Hayter, 32 W. R. 26.) Issue of summons under rule 3 is not to affect power of trustees, &c., more than is necessary : (Rule 12 ; and see Be Hall, 51 L. T. Rep. N. S. 901.) Semhle, it is not proper for a joint creditor of partnership firm to take out Originating Summons for administration of estate of deceased partner, but he shoidd bring an action in the ordinary way : (Be Barnard ; Edwards v. B., 32 Ch. Div. 447 ; 55 L. T. Rep. N. S. 40 ; 55 L. J. 935, Ch. ; 34 W. R. 782.) A settlement was approved in Be Parrot ; Walter v. P. (55 L. T. Rep. N. S. 132 ; 33 Cli. Div. 274), and see Be Briant ; Poulte)- v. Shachel (39 Ch. Div. 471 ; 59 L. T. Rep. N. S. 215 ; 57 L. J. 953, Ch. ; 36 W. R. 825.) Trustees were ordered to produce title deeds in Be Cowin ; C. v. Gravett (33 Ch. Div. 187). In BeMedland ; Eland v. Medland (86 L. T. 390 ; W. N. 1889, p. 62). an inquiry was directed what ought to be done with certain mortgages forming part of the trust funds. In Elworthy v. Harvey (60 L. T. Rep. N. S. 30; 37 W. R. 164; W. N. 1888, p. 239), where the plaintiff claimed that it might be ADMINISTRATIONS AND TRUSTS. 85 determined whether the defendant was a co-trustee with him, and that a new trustee might l)e appointed in defendant's place, it was held, that the relief could not have been granted on an Originating Summons. In Conway v. Fenton (59 L. T. Rep. N". S. 928 ; 40 Ch. Div. 512 ; 58 L. J. 282, Ch.) it was held, that the court could sanc- tion expenditure out of corpus of settled trust fimds for preserving the value of real property in the same settlement. The object of Order LV., said Mr. Justice Kekewich in that case, was "to enable trustees, or any person beneficially interested in a settlement or wdl, to come in a summary mode to the court and obtain the determination of any question, whether of adminis- tration or of law, without the necessity of an administration action. But I take it that for all jiurposes, or almost all x^urposes, the court is in precisely the same position on hearing an Oi'igi- nating Summons as if it had an administration action properly constituted before it ; and that I have precisely the same juris- diction in an Orighiating Summons as in an administration action, neither more nor less. Therefore I x^roceed as if I had an admiuis- tration now before me." Trustees of a will, made in America by a domiciled American, api)lied to the court by Originating Summons as to the construction of the investment clause of the will. The money to be invested was in England, and the trustees were English, but none of the beneficiaries were domiciled iu England. Held, that the court had no jurisdiction to make any order : {Be Howland ; Hart v. Vuilleumer, 86 L. T. March 30, 1889, p. 409.) Summonses under rule 3, the object of which is to obtain the opinion of the court or a judge upon the construction of a docu- ment, or any question of law . . . shall he brought before the judge in person : (see rule 15, post, p. 98.) 4. Any of the persons named iu the last preceding Administra- rule may in like manner apply for and obtain an order *^°^ orders, for — (a.) the administration of the personal estate of the deceased : {h.) the administration of the real estate of the deceased : (c.) the administration of the trust.' Under 15 & 16 Yict. c. 86, ss. 45 and 47, it was generally con- sidered that a defendant could not be charged with wilful default on summons : (see cases cited at Dan. 993.) And, although the 86 ORIGINATING SUMMONS. jurisdiction under this order is wider, having regard to the follow- ing decisions, it is suggested that, as a rule, where a defendant is charged with wilful default a writ should be issued. An administration summons is not a proper proceeding to obtain payment of a disputed debt, when the dispute turns on ques- tions of fact; but when the dispute is only one of law, it ought to be so decided without putting the parties to another proceeding : {Be Powers ; Lindsell v. P., 53 L. T. Rep. N. S. 647 ; 30 Ch. Div. 291.) In Be Warren ; Weadon v. Beading (76 L. T. 460; W. N. 1884, p. 112 ; 19 L. J. N. 0. April, 1884, p. 51) Mr. Justice Kay declined to deal with an application by Originating Summons, whereby it was sought to recover personalty alleged to have been wrongfully paid away by executors by mistake, as an adjourned summons, but directed it to go into the general list. In Be Chaiwian ; Fardell v. Chapman (54 L. T. Rep. N. S. 13 ; W. N. 1886, }). 17) the summons asked (a) that a sum of stock standing in the names of trustees might be transferred into court ; {b) that a mortgage deed for securing lOOOL, part of the testator's estate, might be deposited in court ; (c) that the trustees might be ordered to pay into court 7099Z. 12s. 3d., part of testator's estate im^Droperly used by them ; (d) proper accounts ; and (e) adminis- tration so far as necessary for the purposes aforesaid. Mr. Justice Kay ordered the trustees to pay the moneys into court, to transfer the investments into court, aud to deposit the mortgage deed in court ; also the usual accounts, administration, and execution of the trusts. In Be Gladstone ; Gladstone v. Blumenthal (W. N. 1888, p. 185) where an Originating Summons was taken out for the purpose of deciding a point on the construction of a creditor's deed, and the plaintiff, though a beneficiary under the deed, was claiming against it, it was held by Mr. Justice North that there was no jurisdiction to decide the matter on Originating Summons. But apparently the judge expressed an opinion on the construction of the deed. Whei'e proceedings for administration are commenced by Origi- nating Summons, an application for the appointment of a receiver can be made in the action either in court (by motion) or in cham- bers (by summons) at any time, whether before or after the trial, or the hearing at chambers, which is equivalent to the trial : (Be FrancTce ; Drake and Co. v. Francke, 58 L. T. Rep. N. S. 305 ; W.N. 1887, p. 69.) In this case proceedings were begun by writ, and on the same day as the writ was issued the plaintiffs applied for and obtained the appointment of a receiver and manager of the business of the ADMINISTRATIONS AND TRUSTS. 87 deceased, and a receiver of Ms residuary jjersonal estate. Notwith- standing this application, Mr. Justice North hekl that the proceed- insfs should have commenced by Originating Summons, and only allowed costs of an Originating Summons ; and see Gee v. Bell (56 L. T. Rep. N. S. 305 ; 35 Ch. Div. 160). Orders for general administration, or for the execution of a trust are to be made by the. judge in person. See rules of Dec, 1885, amending rule 15 of Order LV., 2^ost, j). 99. 5. The persons to be served with the summons under whom to the last two preceding rules in the first instance shall be ^®^^^- the following ; (that is to say,) — A. Where the summons is taken out hj an executor or administrator or trustee, — (a.) for the determination of any question, under sub-sections (a-.), (e.), (/.), or {g.) of rule 3, the persons, or one of the persons, whose rights or interests are sought to be affected : (6.) for the determination of any question, under sub-section (6.) of rule 3^ any member or alleged member of the class : (c.) for the determination of any question^ under sub-section (c.) of rule 3, any person interested in taking such accounts ; {d.) for the determination of any question, under sub-section (r?.) of rule 3, any person interested in such money : (e.) for relief under sub-section (a.) of rule 4, the residuary legatees, or next of kin, or some of them : (/.) for relief under sub-section (b.) of rule 4, the residuary devisees^ or heirs, or some of them : (g.) for relief under sub-section (c.) of rule 4, the cestuis que trust, or some of them : {h.) if there are more than one executor or adminis- trator or trustee, and they do not all concur in taking out the summons, those who do not concur : 88 ORIGINATING SUMMONS. B. Where the summons is taken out by any person other than the executors, administrators, or trustees, the said executors, administrators, or trustees. It will be observed that iu applications by an executor, adminis- trator, or trustee under rule 3, it is only requisite to serve one of the beneficiaries, and in similar apiDlicatious under rule 4 it is only requisite to serve some of the beneficiaries. On the other hand, iu applications by any person other than the executors, administrators, or trustees, it is only necessary to serve the said executors, adminis- trators, or trustees. But by rule 6, iJost, p. 92, the court or judge may direct such other persons to be served as they or he may think fit. N'otwithstauding the language of rule 5 it is not the usual practice of the court to decide questions under this order unless all persons interested are parties to the summons, or are sufficiently rejjresented by such parties. As already pointed out at pp. 16, 17, under Order XVI., r. 9, iu the case of numerous persons having the same interest, the court or judge may make an order authorising one or more of such persons to defend on behalf of aU; and under Order XVI., r. 32, where an heir-at-law, or next of kin, or class, are unknown or difficult to ascei'tain, an order may be made appointing some person or persons to represent such heir-at-law, or next of kin, or class. See ante, p. 22. For the practice to obtain these orders see notes to Order XVI., r. 9, ante, p. 16, and to Order XVI., r. 32, ante, p. 22 ; and as to parties generally, ante, p. 13 et seq. Where the executors, administrators, or trustees are defendants, the strictly proper course is not to join any other person as defen- dant in the first instance, but to apply in chambers, in the action commenced by the Originating Siimmons, for directions as to what other persons should be served with the summons : (see Re Gardiner ; Jones v. Gardiner, W. N. 1887, p. 59.) And it is believed that Mr. Justice Kay requires this course to be adopted. But where the executors, administrators, or trustees are plaintifEs it is conceived that the best plan is to make all persons interested defendants in the first instance, unless (a) there are numerous persons having the same interest ; or (b) there is an heir-at- law, next of kin, or class, unknown or difficult to ascertain, iu either of which cases application should be made for a representa- tion order as aforesaid. ADMINISTRATIONS AND TPaiSTS. 89 Service of an Originating Summons out of the jurisdiction cannot Out of juris- be allowed : {Re Busfield ; Whaley v. Busfield, 54 L. T. Rep. diction. N. S. 220; 32 Ck Div. 123; 55 L. J. 467, Cli. ; 34 W. R. 372, C. A. ; and Re Bullen Smith ; Berners v. Bullen Smith, 57 L. T. Rep. N. S. 924.) Consequently in applications for payment out of court, even where the fund is under lOOOL, if any of the respondents are out of the jurisdiction it may be necessary to proceed by petition, as apparently that can be served out of the jurisdiction : (see Colls V. Robins, 55 L. T. Rep. N. S. 479 ; W. N. 1886, p. Ill) ; Re Gordon's Settlement Trusts (84 L. T. 45 ; W. N., Nov. 12, 1887, p. 192), but those cases were not followed by North, J., in Re Jellard {60 L. T. Rep. N. S. 83 ; 39 Ch. Div. 424). On appeal, it appearing that the order sought by the petition was only for caiTy- ing into fuU effect an order which had been obtained by the respon- dents, the Court of Aj)peal, without deciding that leave was neces- sary, gave leave to serve the petition on the solicitors who had presented the former petition. There is no objection to a person out of the jurisdiction being plaintiif in an Originating Summons. As to service on persons of unsound mind, see Re Pep'per ; Fepper v. Pepper (50 L. Rep. N. S. 580; 32 W. R. 765). 5a. Any mortgagee or mortgagor, whether legal or Foreclosure, equitable, or any person entitled to or having property redemption, subject to a legal or equitable chai'ge, or any person having the right to foreclose or redeem any mortgage, whether legal or equitable, may take out as of course an Originating Summons, returnable in the chambers of a judge of the Chancery Division, for such relief of the nature or kind following as may by the summons be specified, and as the circumstances of the case may require ; that is to say, — Sale, foreclosure, delivery of possession by the mort- gagor, redemption, reconveyance, delivery of possession by the mortgagee. Note. — Add to the heading of Order LV., part 2, the words " Foreclosure and Redemption.'^ This rule and 5b wei*e added by the rules of December, 1885. For forms of Originating Summons, &c., xinder this rule, see Appendix III., post. 90 ORIGINATING SUMMONS. With reference to this rule it should be l)oriie iu miud that by 51 & 52 Yict. c. 43, s. 67 (which is now substituted for 28 & 29 Vict. c. 99, 8. 1) the County Courts have jurisdiction in aU actions " 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 500 L" County Court. And if a plaintiff commences i^roceediugs in the High Court where the mortgage does not exceed 5001. he incurs the risk of obtaining only such costs as he would have obtained in the County Court. In Scotto v. Heritage (15 L. T. Rep. N. S. 349 ; 3 Eq. 212 ; 36 L. J. 123, Ch.), which was a suit to foreclose a mortgage for 50Z. where plaintiff and defendant lived more than twenty miles apart, Yice-Chancellor Malins held that the jurisdiction of the High Court was concurrent with that of the County Courts, aud that the j)laintifl was entitled to the ordinary costs. That case was followed by Sir George Jessel in Brown v. E/ye (29 L. T. Rep. N. S. 872; 17 Eq. 343; 43 L.J. 228, Ch.) where the mortgage was for 50/. and the jjarties resided more than twenty miles apart. But in Simon v. McAdam (6 Eq. 324), where the mortgage was for 40Z. and the parties lived at the same place, Vice- Chancellor Malins held that the plaintiff was entitled only to such costs as he would have obtained in the County Court ; and that case was followed by Vice-Chaucellor Bacon in Crozier v. Dowsett (53 L. T. Rep. N. S. 592 ; 31 Ch. Div. 67 ; 55 L. J. 210 ; 34 W. R. 267) where the mortgage was for 65Z. 18s. \0d. and the parties lived at the same place. As to the new County Courts Act see post. Chapter XX. In an order for foreclosure in the case of an equitable mort- gage it is usual and necessary to order the defendant to convey the mortgaged property to the plaintiff. Riile 5a is silent on this point, but, as it expressly mentions equitable mortgages, it is conceived that the judge would order such a conveyance on Originating Sum- mons. Rule ha appears to apply, however complicated or difficult the case may be, ?iiii\. prima facie, if a plaintiff proceeds by writ instead of by summons, he will only be allowed summons' costs : {0^ Kelly v. Culverhouse, 82 L. T. 284 ; W. N. 1887, p. 36.) Unless he claims a personal judgment against the mortgagor : (see Brooking v. SJcewis, 58 L. T. Rep. N. S. 73 ; W. N. 1887, p. 250.) In Johnson v. Evans (60 L. T. Rep. N. S. 29 ; Sol. J., Dec. 1, 1888, p. 75) a question arose as to what costs should be allowed successful plaintiff's in a redemption suit, where the relief might have been obtained by summons. The plaintiffs who were execu- ADMINISTRATIONS AND TRUSTS. 91 tors of a mortgagor had tendered to the defendants, the mortgagees, previous to the action being commenced, the amount due on the mortgage. The defendants did not dispute the amount, but one of them declined to reconvey, alleging that the plaintiffs had not proved their title to redeem. This action for redemption was then brought, and at the trial the plaintiffs proved their tender and their title by oral evidence, and recovered judgment. Kekewich, J. held, that the plaintiffs vrere entitled to such costs only as v^^oiild have been incurred on an Originating Summons xiuder Order LY., r. 5 («), contested by the defendants and attended by counsel in chambers, including the costs of vt^itnesses examined in court. The fact that a receiver is asked for is not sufficient ground for Receiver, proceeding by writ instead of by Originating Summons : [Gee v- Bell, 56 L. T. Rep. N. S. 305 ; 35 Oh. Div. 160 ; 56 L. J. 718, Ch. ; 35 W. R. 805; Barr v. Harding, 58 L. T. Rep. N. S. 74; W. N. 1887, p. 251.) When the plaintiff mortgagee took out Originating Summons against the defendants, the mortgagor and second mortgagee, for redemption or foreclosure, and in chambers the usual order was made, the Court on motion ajipointed a receiver : ( Weston v. Levy, W. N., April 2, 1887, p. 76.) A receiver can be appointed in chambers at any time after the Originating Summons has been served : (see Be FrancJce ; Brahe v. Francke, W. N. 1888, p. 69, ante, p. 86, which was an administra- tion action.) A mortgagee who has obtained a foreclosure judgment nisi by Originating Summons under this rule, may, on default of payment by the mortgagee, obtain a judgment for foreclosure absolute and for delivery of jDOSsession of the mortgaged property, even though the summons does not expressly ask for the delivery of possession : {Best V. A2?plegate, 57 L. T. Rep. N. S. 599 ; 37 Ch. Div. 42, fol- lowing Lacon v. Tyrell, W. N. 1887, p. 71), and see Manchester and Liverpool Bank v. Parkinson (60 L. T. Rep. N. S. 258 ; W. N., Feb. 9, 1889, p. 27.) In Keith V. Day (60 L. T. Rep. N. S. 126 ; 39 Ch. Div. 452 ; 58 L. J. 126, Ch. ; 37 W. R. 242, C. A.) where a summons for fore- closure asked for delivery of possession, and the usual foreclosure order was made without any direction as to possession, after order for foreclosure absolute, i^laintiff moved for an order on defendant to deliver up possession : Held, that such order ought to be made without putting i^laintiff to a new action for the purpose. In an action, commenced by Originating Summons by mortgagees, to enforce their security, an order was made directing the usual account and sale of a part of the i^roperty, and afterwards an order for sale of 92 ORIGINATING SUMMONS. Whom to serve. auotlier part was made. The sales were effected, aud proceeds paid into court. It became necessary to sell a further part on which persons not before the coiart had a prior charge. It was held that the first order was a final judgment, aud that new joarties could not be brought in by amendment: {Gtoatkin v. Doivling, 84 L. T. 81; W. N. 1887, p. 208.) bh. The persons to be served with the summons under the last preceding rule shall be such persons as under the existing practice of the Chancery Division would be the proper defendants to an action for the like relief as that specified by the summons. For parties to actions concerning securities, see Fisher on Mortgages, vol. 2, 3rd edit. p. 883 et seq., and 4th edit. p. 811 ; and Coote on Mortgages, vol. 2, p. 1086 et seq., 5th edit. ; and Seton, vol. 2, part 1, p. 1050. 6. The court or a judge may direct such other persons to be served with the summons as they or he may think fit. As to parties, see ante, -p. 13. 7. The application shall be supported by such evidence as the court or a judge may require^ and directions may be given as they or he may think just for the trial of any questions arising thereout. There is no hard-and-fast rule as to e\adence in these cases Where there is no dispute about the facts the court accepts some- thing short of sti'ict evidence. Certificate evidence of births, maiTiages, and deaths would not usually be required unless the question was who were the next of kin, or the like. Whenever it is intended to deal with a fund in court strict evi- dence must be adduced. And when the i^roperty is large it may be allowable to prove the facts strictly, but in other cases some- thing short of strict evidence may be filed in the first instance, leaving tlie court or judge to call for further evidence if requisite. See further, chapter on Evidence, ante, p. 27, aud forms of affidavits, Appendix III., post. Judgment. 8. It shall be lawful for the court or a judge upon Evidence. ADMINISTRATIONS AND TRUSTS. 93 sucli summous to pronounce such judgment as the nature of the case may require. After final judgmeut new parties cannot be brought in by amend- ment: {GwatMnv. Doiding, W. N. 1887, p. 208.) 9. The court or a judge may give any special direc- tions touching the carriage or execution of the judgment, or the service thereof upon persons not parties, as they or he may think just. 10. It shall not be obligatory on the court or a judge to pronounce or make a judgment or order, whether on summons or otherwise, for the administration of any trust or of the estate of any deceased person, if the questions between the parties can be properly deter- mined without such judgment or order. This rule applies to actions commenced before the rules came into oi^eratiou : (Re Llewellyn ; Lane v. Lane, 25 Ch. Div. 66 ; 49 L. T. Rep. N. S. 399.) This rule ajiplies even when infants are interested, and it does not follow, because an infant is interested, that administration proceedings should be allowed at the expense of the estate : [Re Blake ; Pughe Jones v. Blahe, 53 L. T. Rep. N. S. 302 ; 29 Ch. Div. 913; 33 W. R. 886, Ct. of App.) In this case Be Wilson ; Alexander V. Calder (28 Ch. Div. 457 ; 54 L. J. 487, Ch. ; 33 W. R. 579) was " explained." Under this rule, " where there are questions which cannot properly be determined without some accounts and inquiries or directions, which would form part of an ordinary administration decree, then the right of the party to have the decree or order is not taken away ; but the court may restrict the order simply to those points which will enable the question which requires to be adjudicated upon to be settled :" (per Cotton, L.J. in Be Blahe ; Pughe Jones v. Blahe, supra.) As to the costs of proceedings for administration, see the same case. Where an action was brought against trustees for administration of a trust in which they were chai'ged with breaches of trust, an application by the plaintiff under Order XY., r. 1, for accounts and inquiries, some of which were directed to the alleged breaches of trust, was refused, the court exercising its discretion under Order LV., r. 10 : {Be Gyhon ; Allen v. Taylor, 29 Ch. Div. 834 ; 53 L. T. Rep. N. S. 539 ; 54 L. J. 945, Ch. ; 33 W. R. 620.) 94 ORIGINATING SUMMONS. The court will uot make an order under this rule on a summons taken out in an action where the point raised on the summons is one which should properly be determined at the trial of the action : {Bortliwich v. Ransford, 28 Ch. Div. 79; 54 L. J. 569, Ch.; 33 W. R. 161.) The court will avoid making a general administration decree where practicable, but a doubt has been suggested whether any decree short of one for general administration would l)ind creditors : {Be Mills ; Mills V. Mills, W. N. 1884, p. 21.) This difficulty however, is in a great measure met by Order LV., r. 10a, below. Where a testator directed his trustees to commence an admini- stration action, they took out an Originating Summons under Order L v.. r. 3, for directions, and it was held that they were bound to commence proceedings, but that it was unnecessary to have a full administration order : {Re Stocken ; Jones v. Hawkins, 59 L. T. Rep. N. S. 425 ; 38 Ch. Div. 319, C. A. ; 57 L. J. 746, Ch.) General administration was considered necessary for the protec- tion of executors where there were questions involving considerable complication, although the debts were small, and the real and per- sonal estate of considerable value, in Re Dickinson ; Dickinson v. Walker (W. N. 1884, p. 199). 10a. Upon an application for administration or execu- tion of trusts by a creditor or beneficiary under a will, intestacy, or deed of trust, wliere no accounts or insuffi- cient accounts have been rendered, tlie court or a judge may, in addition to the powers already existing — a. Order that the application shall stand over for a certain time, and that the executors, adminis- trators, or trustees in the meantime shall render to the applicant a proper statement of their accounts, with an intimation that if this is not done they may be made to pay the costs of the proceedings : b. When necessary, to prevent proceedings by other creditors, make the usual judgment or order for administration, with a proviso that no proceed- ings are to be taken under such judgment or order without leave of the judge in person. This rule was added by the Rules of December, 1885. ADMINISTRATIONS AND TRUSTS. 95 11. When any summons under Rules 3 oi* 4 of this Marking Order has been taken out^ every subsequent summons ^^™*^^^'^ ^®* relating' to the same estate or trust shall be marked with the name of the judge, to whom^ for the time being, the matter is assigned, and in case any such subsequent summons shall be marked with the name of another judge it shall be the duty of the executors, administra- tors, or trustees, to apply for the transfer to such first- mentioned judge of such subsequent summons. 12. The issue of a summons under Rule 3 of this Powers of Order shall not interfere with or control any power or '''^^^^'^^^s- discretion vested in any executor, administrator, or trustee, except so far as such interference or control may necessarily be involved in the particular relief sought. In Be Hall : Hall v. Hall (51 L. T. Rep. N. S. 901 ; 54- L. J. 527, Cli. ; 33 W. R. 508 ; W. N. 1885, p. 17), on the 20th May, 1883, judgineut was given in the action under Order LY., r. 3, R. S. C, not directing a general execution of the trusts of the will, but directing certain inquiries, among which was an inquiry whether any and what persons had been appointed new trustees, and whether any and what proceedings should be taken for the appointment of new trustees of the said will. By deed dated the 21st Dec. 1884, the defendant, in exercise of the power given him by the Conveyancing Act, 1881, appointed A. B. a trustee of the said wUl jointly with himself. It was held that the pi'oper course would haA'e been for the defendant not to have filled up the vacancies in the trusteeship without an application to the court in cliambers stating that he intended to appoint A. B., and if it was found that there was no objection to his appointment it would have been approved. After a decree for administration a trustee cannot exercise his powers without the sanction of the court : (see Lewin on Trusts, 617, 8th edit.) As to how far the court will interfere with a discretion given to trustees, see Gisborne v. Gishorne (2 App. Cas. 300 ; 36 L. T. Rep. N. S. 564 ; 46 L. J. 556, Ch. ; 25 W. R. 516) ; and Be Lofthouse (29 Ch. Div. 921 ; 53 L. T. Rep. N. S. 174 ; 54 L. J. 1087, Ch. ; 33 W. R. 668.) 13. Any application to a judge in chambers under Charitable trusts. 96 ORIGINATING SUMMONS. New trustees. the Charitable Trusts Act, 1853, section 28, shall be made by summons. These applications are by Origiuating- Summons. For forms, see Dan. F. 2041 et seq. [13a. In all cases in which the court has jurisdiction to appoint new trustees upon petition, an application may be made to a judge in chambers by summons, and new trustees thereupon appointed. The summons shall be intituled in the same manner as the petition ought to have been, and shall be served upon the same persons upon whom the petition ought to have been served.] Tliis rule was added by the Rules of December, 1888. See this rule fully treated of, 2J0st, Chai^ter X. 14. No order made under the Act in the last preced- ing rule {'i) mentioned by the judge in chambers shall be subject to appeal where the gross annual income of the charity has not been declared by the Charity Commis- sioners for England and Wales to exceed 100/., unless the judge by whom such order may have been made shall certify that such appeal ought to be permitted either absolutely or on such terms as the judge may think fit to impose. Order LV., Rules 13 and 14. Section 28 of the Charitable Trusts Act 1853 (16 & 17 Vict. c. 137) declares that " where the appointment or removal of any trustee, or any other relief, order, or direction relating to any charity of which the gross annual income for the time being exceeds thirty pounds, shall be considered desirable, and such appointment, removal, or other relief, oi'der, or direction might now {i.e., on the 20th Aug. 18-53) be made or given by the Coiirt of Chancery, in resj)ect either of its ordinary, or its special, or statutory jurisdiction, or by the Lord Chancellor intrusted with the care aud commitment of the custody of lunatics," any person authorised in that behalf by a certificate of the Charity Commissioners (or the Attorney-General) may apply in chambers to the Master of the Rolls, or a Vice- Chancellor (now a judge of the Chancery Division), who may make (a) i.e. rule 13, above. ADMINISTRATIONS AND TRUSTS. 97 the necessary orders, or direct an action to be commenced : (see Mitclieson on the Charity Commission Acts, 131 ; Dan. 2047.) On a summons under this section the court has jurisdiction to decide the question whether the property which is the subject of the summons is liehl upon a charitable trust or not : {Re Norwich Town Close Estate Charity, 60 L. T. Rep. N. S. 202 ; 40 Cli. Biv. 298 ; 37 W. R. 362, C. A.)' The Palatine Chancery Court of Lancaster has concurrent juris- diction as to charities within its jurisdiction whose gross income exceeds 301. : (16 & 17 7ict. c. 137, s. 29.) The Act extends to City of Loudon Charities under (as well as- over) 30?. (sect. 30) ; but see restrictions contained in sect. 40 of the City of London Parochial Charities Act 1883 (46 & 47 Vict, c. 36) ; Mitcheson, 351. The County Court has jurisdiction where the gross annual income does not exceed 501. : (16 & 17 Vict. c. 137, s. 32, amended by 23 & 24 Vict. c. 136, s. 11.) No judge under this Act has jurisdiction to try the title to any property as between the charity and any person claiming adversely to the charity, or to tiy or determine any question as to the exist- ence or extent of any charge or trust : (16 & 17 Vict. c. 137, s. 41.) Applications under these Acts may be made by the Attorney- General, a trustee or trustees of the charity, or two or more inhaljitants of any parish or place within which the charity is administered or apj)licable : (16 & 17 Vict. c. 137, s. 43.) The Charity Commissioners have power to certify cases to the Attorney- General, who may then institute proceedings in chambers or otherwise : (16 & 17 Vict. c. 137, s. 20.) It will be seen that, except in proceedings by the Attorney- General, the certificate of the Charity Commissioners is essential in I)roceedings under 16 & 17 Vict. c. 137, s. 28. As to when such certificate is necessary in proceedings relating to charities taken otherwise than under this statute, see 16 & 17 Vict. c. 137, ss. 17, 18 ; Dan. 2039-2041 ; Mitcheson, 100-107. For form of application to the Charity Commissioners, for such certificate, see Mitcheson, 107. It may be mentioned that an application for payment out of court of money belonging to a charity, paid in imder the L. C. C. Acts, or the Trustee Relief Acts, does not require the previous certificate of the Charity Commissioners. SeeTyssen on " Charitable Bequests,' 539-541. As to procedure, see Dan. 2049, 2050. For forms, see Dan. F. 2041-3. Applications to the court under the Charitable Trusts Act, 1853. H 98 ORIGINATING SUMMONS. are often rendered needless by the Charitable Trusts Act, 1860 (23 & 24 Vict. c. 136), sect. 2, under which the Charity Commis- sioners may (subject to appeal), on the api^lication of persons who are authorised to make apjilications to the court under the former Act, make effectual orders, such as the judge in chambers could have made, " for the appointment or removal of trustees of any charity, or for the removal of any schoolmaster or mistress or other officer thereof, or for or relating to the assui'ance, transfer, pay- ment, or vesting of any real or personal estate belonging thereto, or entitling the official trustees of charitable funds or any other trustees, to call for a transfer of, and to transfer any stock belonging to such estate, or for the establishment of any scheme for the administration of any charity." This power is subject to limitations where the gross annual income of the charity is over bOl., exclusive of land or buildings used exclusively for the charity (23 & 24 Vict. c. 136, s. 4; 32 & 33 Vict. c. 110, s. 5), and in con- tentious cases (23 & 24 Vict. c. 136, s. 5) ; but see Re Burnham (L. Rep. 17 Eq. 241 ; 29 L. T. Rep. N. S. 495 ; 43 L. J. 340, Ch. ; 22 W. R. 198.) And as to the powers of the Charity Commis- sioners generally, see Re Campden Charities (18 Ch. Div. 310; 45 L. T. Rep. K S. 152 ; 50 L. J. 646, Ch. ; 30 W. R. 496, C. A.) 3. Powers and Duties of Chief Clerks. Duties of 15, The iudsres of tL.e diancery Division to wliom chief clerks. j -^ '^ ^ chambers are attached^ shall have power, subject to these rules, to order v^hat matters shall be heard and investi- gated by their chief clerks, either with or without their direction, during their progress ; and what matters shall be heard and investigated by themselves, and particularly if the judge shall so direct, his chief clerks shall take such accounts and make such inquiries as have usually ' been taken and made by the chief clerks, and the judge shall give such aid and directions in every such account or inquiry as he may think fit, but subject to the right hereinafter provided for the parties to bring any parti- cular point before the judge ; \^ provided that no judgment or order for general administration shall he made under rule 4 of this Order or otherwise hy a chief clerh.'] The proviso printed in italics is repealed by R. S. C, 1885, being 15a below. ADMINISTRATIONS AND TRUSTS. 99 As to adjotimments from the chief clerk to the judge, see ante, p. 9. 15a. The proviso at the end of Order LY.^, r. 15, is hereby annulled and the following proviso is substituted therefor : Provided, that no order for general administration or Judge in for the execution of a trust, or for accounts or inquiries P^^son. concerning the property of a deceased person, or other property held upon any trust, or the parties entitled thereto, shall be made except by the judge in person : Provided also that summonses under rule 3 of this Order, the object of which is to obtain the opinion of the court or a judge upon the construction of a document or any question of law, and any application for the appointment of a provisional liquidator, and applications for substi- tuted service and for service out of the jurisdiction shall be brought before the judge in person. This rule was added by the Rules of December, 1885. 16. Each chief clerk shall, for the purpose of any pro- Powers of ceedings directed to be taken before him, have full power to issue advertisements, to summon parties and witnesses, to administer oaths, to require the production of docu- ments, to take affidavits and acknowledgments, other than acknowledgments by married women, and when so directed by the judge to examine parties and witnesses, either upon interrogatories or viva voce, as the judge shall direct. 17. Parties and witnesses summoned to attend before Summons to a chief clerk shall be bound to attend in pursuance of the ^ °° ' summons, and shall be liable to process of contempt in like manner as parties or witnesses are liable thereto in case of disobedience to any order of the court, or in case of default in attendance, in pursuance of any order of the court or of any writ of suhiocena ad testificandum, and all persons swearing or affirming before any chief clerk H 2 100 OEIGINATING SUMMONS. Computation. Acoountantp. shall be liable to all such penalties, punishments, and consequences for any wilful and corrupt false swearing or affirming contained therein, as if the matters sworn or affirmed had been sworn and affirmed before any other person by law authorised to administer oaths, to take affidavits, and to receive affirmations. "A chief clerk's summons for a person to atteud for examination does not come within the words ' any order of the court or writ of subpoena ad testificanduin ' in rule 17 of Order LY. . . . It is quite immaterial that the defendant is a i>arty to the action, inas- much as he is summoned to be examined only as a witness, and consequently must be dealt with as a witness, and not otherwise. The words of the rule have to be read distributively. The defen- dant's disobedience is not disobedience to an order of the court. It seems to me, therefore, that the proper course will be for an order to be made, under rule 13 of Order XXXVII., for the defendant to attend, at his own expense, before tlie chief clerk to be examined on a day to be fixed l)y the registrar. If he does not attend there will then be no difficulty in obtaining a writ of attachment against him. The defendant must pay the costs of this motion :" {Poivell v. Nevitt, 55 L. T. Eep. N. S. 729.) As to evidence generally, see p. 27 et seq. 17a. Any chief clerk shall have power, without any transfer of the cause or matter, to take any business of any other chief clerk, unless the judge to whose chambers any such chief clerk may be for the time being attached shall otherwise direct. This rule was added by R. S. C, December, 1885. 18. The court or judge may direct any computation of interest or the apportionment of any fund, to be certified by the chief clerk, and to be acted upon by the Pay master- General or other person without further order. 4. Assistance of Experts. 19. The judge in chambers may, in such way as he thinks fit, obtain the assistance of accountants, mer- ADMINISTRATIONS AND TRUSTS. 10] chants, engineers, actuaries, and other scientific persons the better to enable any matter at once to be determined, and he may act upon the certificate of any such person. The fact that an accountant is employed does not lessen the court fees: {see Be Hutchinson ; Hutchinson v. Norwood, 50 L. T. Rep. N. S. 486 ; W. N. 1884, p. 35 ; 32 W. R. 392.) 102 ORIGINATING SUMMONS. CHAPTER IX. ORDER LV., R. S. C. 1883, RULES 20 TO END. 5. Summonses in Chainhers. 20. An Originating Summons shall be in the Form No. 25 in Appendix L, with such variations as circum- stances may require. It shall be prepared by the appli- cant or his solicitor, and shall be sealed in the central office, and when so sealed shall be deemed to be issued. The person obtaining the summons shall leave at the central office a copy thereof, which shall be filed and stamped in the manner required by law. For form see post, Ap]Deudix II., aud for the authors' forms of Origmatiiio" Summons, see Appendix III., post. And for official notice as to the titles to Originating Summonses see post. Appendix II. By direction of the judges of the Chancery Division issued the 19th Nov., 1885, befoi-e an Originating Summons is sealed under the next rule, the plaintiif's or applicant's solicitor is required to certify that no proceedings have been taken and no previous application made to effect a similar object and (unless marked for a particular judge under Order Y., r. 9, sub-sect, e.) that the summons does not relate to any other matter assigned to any judge of the said court so as to be conveniently dealt with by the same judge. For form of such certificate see post. Appendix II. By additional office rules settled by the Practice Masters, March, 1884 :— " Originating Summonses in tlie Chancery Division are to be issued in the same manner as writs of summons. The stamp denot- ing the fee is to be put on the copy filed and the original sealed and delivered to the party issuing, but no other duplicates or copies for service are to be sealed. " All other Originating Summonses are to be issued in the sum- mons and order department in tlie same manner as ordinary sum- numses for chambers." SUMMONSES IN CHAMBERS. 103 For "Parties" see ante, p. 13, "Evidence," ante, p. 27, and "Service," ante, p. 49. By R. S. 0. May, 1887 :— " Originating Summonses maybe sealed and issued in tlie district registries of Liverpool and Maucliester respectively, and appear- ances thereon shall be entered in the same respective registries ; and the provisions of the Rules of the Suijreme Court and in particular of Order LV., rr. 20 and 23, shall be ajiplied accordingly." 2 1 . The day and hour for attendance under an Origi- Time for nating Summons shall be left to be added, after the seal- ®^^^^^- ing thereof, in the margin or at the foot of the same, and shall be there inserted when such day and hour shall have been fixed at the chambers of the judge to whom the matter is assigned by the chief clerk, who shall mark the summons with the seal used in such chambers. 22. Where from any cause an Originating Summons Short notice may not have been served upon any party seven clear days' before the return thereof, an indorsement may be made upon the summons, and upon a copy thereof stamped for service appointing a new time for the parties not before served to attend at the chambers of the judge, and such indorsements shall be sealed at the judge's chambers, and the service of the copy so indorsed and sealed shall have the same force and effect as the service of an Originating Summons, and where any party has been served before such indorsement, the heai'ing thereof may, upon the return of the summons, be adjourned to tbe new time so appointed. 28. The parties seiwed with an Originating Summons Appearance, shall, before they are heard in chambers, enter appear- ances in the central office and give notice thei*eof. 24. The summons by the chief clerk requiring the witnesses, attendance of parties, witnesses, or others shall be in the ^°- Form No. 1* in Appendix L., with such variations as the circumstances of the case may require. 104 ORIGINATING SUMMONS. Evidence. Settlements. Guardian ad litem. G. Proceedings relating to Infants. 25. Upon applications for the appointment of guar- dians of infants and allowance for maintenance the evidence shall show — (a.) The ages of the infants ; [h.) The nature and amount of the infants^ fortunes and incomes ; (r.) What relations the infants have. See the subject of guardians aud uiaiuteuance fully discussed ante, pp. 71-74. 26. Upon applications to obtain the sanction of the court to infants making settlements on marriage under 18 & 19 Vict. c. 43, evidence shall be produced to show — (a.) The age of the infant; (6.) Whether the infant has any pareuts or guardians; (c.) With whom or under whose care the infant is livings and if the infant has no parents or guar- dians^ what near relations the infant has ; {d.) The rank and position in life of the infant and parents ; (e.) What the infant's property and fortune consist of; (/.) The agOj rank, aud position in life, of the person to whom the infant is about to be married ; (g.) What property, fortune, and income, such person has ; {h.) The fitness of the proposed trustees, and their consent to act; The proposals for the settlement of the property of the infant, and of the person to whom such infant is pro- posed to be married, shall be submitted to the judge. See tlie subject of iufauts' settlements discussed ante, p. 70. 27. At any time during the proceedings at any judge's chambers under any judgment or order, the judge may, if he shall think fit, require a guardian ad litem to be SUMMONSES TO PROCEED. 105 appointed for any infant or person of unsound mind not so found by inquisition, who has been served with notice of such judgment or order. 7. Documents to be left at Chamhers. 28. In all cases of proceedings in chambers under any Copy order, judgment or order, the party prosecuting the same shall leave a copy of such judgment or order at the judge's chambers, and shall certify the same to be a true copy of the judgment or order as passed and entered. 29. Whenever any matter is adjourned from the court Adjournment, to chambers, or any directions are given in court to be acted upon at chambers, whether upon a matter adjourned into court from chambei's, or upon any other occasion, without an order being drawn up, a note signed by the registrar, stating for what purpose such matter is adjourned to chambers, or the directions given, shall be procured from the registrar and left at chambers. 30. A note stating the names of the solicitors for all Solicitors, the parties, and showing for which of the parties such solicitors are concerned, shall be left at chambers with every judgment or order. 31. A copy of every certificate of the central office of Certificate, entry of a memorandum of service of notice of a judg- ment or order, and of every appearance entered by a person served with such notice to attend the proceedings, certified by the solicitor, shall be left at chambers. 8. Sumvion.ses to j^roceed. 32. Every judgment or order directing* accounts or Accounts and inquiries to be taken or made shall be brought into the incLuiries. judge^s chambers by the party entitled to prosecute the same within ten days after the same shall have been passed and entered, and in default thereof any other party to the cause or matter shall be at liberty to bring in the same, and such party shall have the prosecution 106 ORIGINATING SUMMONS. Summons to proceed. Deed settled by judge. of such judgment or order unless tlie judge shall other- wise direct. 33. Upon a copy of the judgment or order being left, a summons shall be issued to proceed with the accounts or inquiries directed, and upon the return of such summons the judge, if satisfied by proper evidence that all necessary parties have been served with notice of the judgment or order, shall thereujDon give directions as to the manner in which each of the accounts and inquiries is to be prosecuted, the evidence to be adduced in support thereof, the parties who are to attend on the several accounts and inquiries, an) the time within which each proceeding is to be taken, and a day or days may be appointed for the further attendance of the parties, and all such directions may afterwards be varied, by addition thereto or otherwise, as may be found necessary. Persous iuterested in an estate the sul^ject of au administration action to wliicli they have not been made parties, and whose rights or interest may he aii'ected hy an order directing accounts and inquiries, are not hound by the proceedings under that order — at any rate where they ought to be served — unless they are served with notice of the order, or an order has been made appointing a member of their class to represent them in the action : (May v. Newton, 34 Ch. Div. 347 ; 56 L. T. Rep. N. S. 140) ; and see ante, p. 17. 34. Where by a judgment or order a deed is directed to be settled by the judge in chambei's in case the parties differ, a summons to proceed shall be issued, and upon the return of the summons the party entitled to prepare the draft deed shall be directed to deliver a copy thereof, within such time as the judge shall think fit, to the party entitled to object thereto, and the party so entitled to object shall be directed to deliver to the other party a statement in writing of his objections (if any) within eight days after tlie delivery of such copy, and the pro- ceeding shall ho adjourned until after the expiration of the said period of eight days. SUMMONSES TO PROCEED. 107 By the Judicature Act, 1884. (47 & 48 Yict. c. 61), s. 14, if a person refuses to comply with au order to execute a document, the Court has power to uomiuate a persou to execute the same. lu re Edwards ; Owen v. Edwards (W. N. 1885, p. 74; 33 W. R. 578), the chief clerk was appointed to execute a mortgage under this enactment. 35. Where, upon the hearing of the summons to pro- Dispensing with servi of notice. ceedj it appears to the judge that by reason of absence, ^^*^ service or for any other sufficient cause, the service of notice of the judgment or order upon any party cannot be made or ought to be dispensed with, the judge may, if he shall think fit, wholly dispense with such service, or may at his discretion order any substituted service or notice by advertisement or otherwise in lieu of such service. Having regard to sub-sect. 3 of sect. 4 of the Partition Act. 1876, the court has no jurisdiction under this rule to dispense with service of notice of the jiidgment in a partition action except on the imperative terms of publishing advertisements .- {PhilliiJs v. Andrews, 56 L. T. Rep. N". S. 108 ; W. N. 1887, p. 15.) And see 3Iay v. Neivton, 34 Ch. Div. 347 ; 56 L. T. Rep. N. S. 140, supra. 36. If on the hearing of the summons to proceed it Absence of shall appear that all necessary parties are not parties to ^^^ ^^^' the action or have not been served with notice of the judg- ment or order, directions may be given for advertisement for creditors, and for leaving the accounts in chambers, but the adjudication on creditors^ claims and the accovints are not to be proceeded with, and no other proceeding is to be taken, except for the purpose of ascertaining the parties to be served, until all necessary parties shall have been served, and are bound, or service shall have been dispensed with, and until directions shall have been given as to the parties who are to attend on the proceedings. 37. The course of proceeding in chambers shall Procedure in ordinaidly be the same as the course of proceeding in court upon motions. Copies, abstracts, or extracts of or 108 ORIGINATING SUMMONS. from accounts, deeds, or other documents and pedigrees and concise statements shall, if directed, be supplied for the use of the judge and his chief clerks, and where so directed, copies shall be handed over to the other parties. But no copies shall be made of deeds or documents where the originals can be brought in unless the judge shall otherwise direct. 9. 8u7ninons Book. 38. At the time auy summons is obtained, an entry thereof shall be made in " the Summons Book,^' stating the date on which the summons is issued, the name of the cause or matter, and by what party, and shortly for what purpose such summons is obtained, and at what time such summons is returnable. Lists. 39. Lists of matters appointed for each day shall be made out and affixed outside the doors of the chambers of the respective judges ; and, subject to any special direction, such matters shall be heard in the order in which they appear in such lists. 39a. Matters coming before the chief clerks shall, unless the judge otherwise directs when ready for hearing, be entered in daily lists, and taken in their order on such lists ; and every matter commenced shall be continued until completion, subject to such adjourn- ments as the chief clerk shnll for good cause and upon such terms as to costs or otherwise, as he shall think fit, ccnsider necessary. This rule was added by Rules of December, 1885. 10. Attendancef' Eepresenta- 40. Where, upon the hearing of the summons to proceed, or at any time during the prosecution of the judgment or order, it appears to the judge, with respect to the whole or any portiun of the proceedings, that the interests of the parties can be classified, he may require ATTENDANCES. 109 tte parties constituting eacli or any class to be repre- sented by tlie same solicitor, and may direct what parties may attend all or any part of the pi'oceedings, and where the parties constituting any class cannot agree upon the solicitor to represent them, the judge may nominate such solicitor for the purpose of the proceedings before him, and where any one of the parties constituting such class declines to authorise the solicitor so nominated to act for him, and insists upon being represented by a different solicitor, such party shall personally pay the costs of his own solicitor of and relating to the proceedings before the judge, with respect to which such nomination shall have been made, and all such further costs as shall be occasioned to any of the parties by his being represented by a different solicitor from the solicitor so to be nominated. For form of summons for a classification order, see Dan. F. 1163. It will be observed that this rule only applies to pi'oceedino^s after judgment. Where, in an administration action, the parties beneficially interested in the estate appeared by several solicitors, but were unable to agree as to wliich solicitor should represent the whole class in the proceedings under the judgment, the court under this rule appointed the official solicitor to the suitor's fund to represent the class : {Be Docwra ; Docwra v. Faith, W. IsT. 1884, p. 174 ; affirmed Ct. of App., ih., p. 232. See comment in 79 L. T. 277.) To entitle a person interested in an administration action to the costs of attending proceedings in chambers under the decree, he must attend by special leave of the judge ; and, if he attends under the common order of course and without special leave he may be ordered to pay in addition to his own costs the extra costs occasioned by his attendance : {Sharp v. Lush, 10 Ch. Div. 468 ; 48 L. J. 231, Ch.; 27 W. R. 528.) But he may be aUowed the costs of attending the hearing on further consideration, if there is a question to be argued : {lb.) As to " Parties " generally, see ante, j). 13. 41. Whenever in any proceeding before a judge in Distinct chambers the same solicitor is employed for two or more ^° ^"^ °^^' parties, such judge may at his discretion require that no ORIGINATING SUMMONS. party's own expense. any of the said parties shall be represented before him by a distinct solicitor, and adjourn such proceedings until such party is so represented. Attendance at 42. Any of the parties other than those who shall have been directed to attend may attend at their own expense, and upon paying the costs, if any, occasioned by such attendance, or, if they think fit, they may apply by summons for liberty to attend at the expense of the estate, or to have the conduct of the action either in addition to or in substitution for any of the parties who shall have been directed to attend. 43. An order is to be drawn up on a summons to be taken out by the plaintiff or the party having the con- duct of the action, stating the parties who shall have been directed to attend and such of them (if any) as shall have elected to attend at their own expense, and such order is to be recited in the chief clerk's certificate. Drawing up of order. Advertise- ment. 11. Advertisements for Creditors and Claimants. 44, Where a judgment or order is given or made, whether in court or in chambers, directing an account of debts, claims, or liabilities, or an inquiry for heirs, next of kin, or other unascertained persons, unless otherwise ordered, all persons who do not come in and prove their claims within the time, which may be fixed for that pur- pose by advertisement, shall be excluded from the benefit of the judgment or order. See riile 57, j^ost. A creditor may come in at any time as long as there are assets undistributed : (see Be Metcalfe ; Hichs v. May, 41 L. T. Rep. N. S. 572 ; 13 Ch. Div. 236, C. A.) See further Morgan, 499. 45. Where an advertisement is required for the pur- pose of any proceeding in chambers, a peremptory advertisement, and only one, shall be issued, unless for any special reason it may be thought necessary to issue ATTENDANCES. 11] a second advertisement or fui-tlier advertisements, and any advertisement may be repeated as many times and in such papers as may be directed. 46. The advertisement for claimants shall be prepared Preparation of by the party prosecuting the judgment or order, and n^gnt. submitted to the chief clerk for approval, and when approved shall be signed by him, and such signature shall be sufficient authority to the printer of the Gazette to insert the name. The words " for claimants " were supplied by R. S. C, December. 1885. 46a. The advertisement for creditors shall be prepared and signed by the solicitor of the party prosecuting the judgment or order; and such signature shall be sufficient authority to the printer of the Gazette to insert the same. This rule was added by R. S. C, December, 1885. In Wood V. WeigUman (26 L. T. Rep. N.S. 385 ; 13 Eq. 436) it was stated by Lord RomiUy, M.R., that the court never allowed an estate to be distributed without notice being" inserted in the London Gazette, and that they generally required an advertisement to be inserted in the Times. And that when an estate was administered of a testator in the country the notice was also inserted in some newspaper having a local circulation in the neighbourhood : (see also Dan. 995.) If there is any reasonable ground for supposing that there is a claimant residing in a foreign country, or in one of our colonies, the notice shoidd be advertised there also : (see Newton v. Sherry, 45 L. J. 257, C. P. ; 24 W. R. 371 ; 34 L. T. Rep. N". S. 251 ; 1 C. P. Div. 256.) 47. Advertisements for creditors and other claimants Advertise- shall fix a time within which each claimant, not being a creditor, is to come in and prove his claim^ and within which each creditor is to send to the executor or adminis- trator of the deceased, or to such other party as the judge shall direct, or to his solicitor, to be named and described in the advertisement, the name and address 112 ORIGINATING SUMMONS. Office copies. Evidence of claim Production of security. Examination of claims. of such creditor and tlie fall particulars of his claim, and a stateuient of his accouut and the nature of the security (if any) held by him. Such advertisements shall be in one of the Forms No. 2* and 3*, in Appendix L., with such variations as the circumstances of the case may require. At the time of directing such advertisement a time shall be fixed for adjudicating on the claims. 48. Claimants filing affidavits shall not be required to take office copies, but the person who examines the claims shall take office copies and produce the same at the hearing", unless the judge shall otherwise direct. As to cross-examining a claimant upon his affidavit see Cast v. Poyser (26 L. J. N". S. 353, Ch. ; 3 Jur. N. S. 38.) 49. No creditor need make any affidavit nor attend in support of his claim (except to produce his security) unless he is served with a notice requiring him to do so as hereinafter provided. 50. Every creditor shall produce the security (if any) held by him before the judge at such time as shall be specified in the advertisement for that purpose, being the time appointed for adjudicating on the claims, and every creditor shall, if required, by notice in writing (Form No. 4*, in Appendix L.) to be given by the executor or administrator of the deceased, or by such other party as the judge shall direct, produce all other deeds and documents necessaiy to substantiate his claim before the judge at his chambers at such time as shall be specified in such notice. 51. In case any creditor shall direct or refuse to comply with the last preceding rule, he shall not be allowed any costs of proving his claim unless the judge shall otherwise direct. 52. The executor or administrator of the deceased, or such other party as the judge shall direct, shall examine the claims of creditors sent in pursuant to the CLAIMS. 113 advertisement, and shall ascertain, so far as he is able, to which of such claims the estate of the deceased is justly liable, and he shall, at least seven clear days prior to the time appointed for adjudication, file an affidavit (Form No. 5*, in Appendix L.), to be made by such executor or administrator, or one of the executors or administrators, or such other party, either alone or jointly with his solicitor or other competent person, or otherwise, as the judge shall direct, verifying a list of the claims (Form No. 6*, in Appendix L.), the par- ticulars of which have been sent in pursuant to the advertisement, and stating to which of such claims, or parts thereof respectively, the estate of the deceased is in the opinion of the deponent justly liable, and his belief that such claims, or parts thereof respectively, are justly due and proper to be allowed, and the reasons for such belief. 53. In case the judge shall think fit so to direct, the making of the affidavit referred to in the last preceding- rule shall be postponed till after the day appointed for adjudication, and shall then be subject to such directions as the judge may give. 54. Where on the day appointed for hearing the Adjournment, claims any of them remain undisposed of, an adjourn- ment day for hearing such claims shall be fixed, and where further evidence is to be adduced, a time may be named within which the evidence on both sides is to be closed, and directions may be given as to the mode in which such evidence is to be adduced. 55. At the time appointed for adjudicating upon the Allowing claims of creditors, or at any adjournment thereof, the claims, judge may, in his discretion, allow any of the claims, or any part thereof respectively, without proof by the creditors, and direct such investigation of all or any of the claims not allowed, and require such further particulars, information, or evidence relating thereto as T 114 ORIGINATING SUMMONS. he may think fit, and may, if he so think fit, require any creditor to attend and prove his claim, or any part thereof, and the adjudication on such claims as are not then allowed shall be adjourned to a time to be then fixed. 56. Notice (Form No. 7*, in Appendix L.) shall be given by the executor or administrator, or such other party as the judge shall direct, to every creditor whose claim, or any part thereof, has been allowed without proof by the creditor, of such allowance, and to every such creditor as the judge shall direct to attend and prove his claim or such part thereof as is not allowed by a time to be named in such notice (Form No. 8,* in Appendix L), not being less than seven days after such notice, and to attend at a time to be therein named, being the time to which the adjudication thereon shall have been adjourned, and in case any creditor shall not comply with such notice, his claim, or such part thereof as aforesaid, shall be disallowed. 57. After the time fixed by the advertisement no claims shall be received (except as hereinbefore provided in case of an adjournment), unless the judge at chambers shall think fit to give special leave, upon application made by summons, and then upon such terms and conditions as to costs and otherwise as the judge shall think fit. 58. A creditor who has come in and established his debt in the judge's chambers under any judgment or order shall be entitled to the costs of so establishing his debt, and the sum to be allowed for such costs shall be fixed by the judge, unless he shall think fit to direct the taxation thereof ; and the amount of such costs, or the sum allowed in respect thereof, shall be added to the debt so established. See Morgan, 502-.3. List of claims. 59. A list of all claims allowed shall, when required INTEREST. 115 by the judge, be made out and left in the judge's chambers by the person who examines the claims. 60. Where any judgment or order is made for pay- Notice to ments by the Paymaster- General to creditors, the party creditors, whose duty it is to prosecute such judgment or order shall send to each such creditor or his solicitor (if any) a notice (Form No. 9*, in Appendix L.), that the cheques may be received from the Paymaster- General, and such party shall, when required, produce such judgment or order and any other papers necessary to enable such creditors to receive their cheques and get them passed. 61. Every notice by this order required to be given to creditors or other claimants shall, unless the judge shall otherwise direct, be deemed sufficiently given and served if transmitted by the post prepaid to the creditor or other claimant to be served according to the address given in the claim sent in by him pursuant to the adver- tisement, or in case such creditor or other claimant shall have employed a solicitor, to such solicitor according to the address given by him. 12. Interest. 62. Where a judgment or order is made directing an Interest when account of the debts of a deceased person, unless other- f*'^^^^^^- wise ordered, interest shall be computed on such debts as to such of them as carry interest after the rate they respectively carry, and as to all others after the rate of four per cent, per annum from the date of the judgment or order. 63. A creditor whose debt does not carry interest, who comes in and establishes the same before the judge in chambers under a judgment or order of the court or of the judge in chambers, shall be entitled to interest upon his debt at the rate of four per cent, per annum from the date of the judgment or order out of any assets which may remain after satisfying the costs of the cause or I 2 116 ORIGINATING SUMMONS. matter, the debts establislied, and the interest of such debts as by law carry interest. In an action for administration of the estate of a person who has died insolvent since the commencement of the Judicature Act, 1875, a creditor on the estate whose debt carries interest is only entitled to interest up to the date of the judgment for administration which, by virtue of sect. 10 of that Act, is equivalent to an adjudication in bankruptcy for this purpose : {Be Summers ; Boswell v. Gurney, 13 Ch. Div. 136 ; 27 W. R. 865.) latereat on 64. Where a judgment or order is made directing an icies. account of legacies, interest shall be computed on such legacies after the rate of four per cent, per annum from the end of one year after the testator^s death, unless otherwise ordered, or unless any other time of payment or rate of interest is directed by the will, and in that case according to the will. In Be Olive; Olive v. Westet-man (50 L. T. Rep. N. S. 355; W. N. 1884, p. 81 ; 53 L. J. 525, Ch. ; 32 W. R. 608), where a tes- tator who died in 1876, by will made in 1875, directed certain legacies to be paid within four years after his decease, it was held that the legatees were entitled to be paid interest as from one year after the testator's death. 13. Certificates of the Chief Clerk, Concise certi. 65. The directions to be given for or touching any proceedings before the chief clerk shall require no par- ticular form, but the result of such proceedings shall be stated in the shape of a concise certificate to the judge. It shall not be necessary for the judge to sign such certificate, and unless an order to discharge or vary the same is made, the certificate shall be deemed to be approved and adopted by the judge. 66. The certificate of the chief clerk shall not, unless the circumstances of the case render it necessary, set out the judgment or order or any documents or evidence or reasons, but shall refer to the judgment, or order, docu- ments, and evidence or particular paragraphs thereof, so CHIEF cleek's ceetificate. 117 that it may appear upon what the result stated in the certificate is founded. 66a. The certificate shall, when the judge shall so direct^ be prepared by the solicitor of one of the parties, who shall obtain an appointment to settle the certificate, and shall give notice of such appointment to the other parties. No summons to settle the certificate of the chief clerk shall hereafter be issued. This rule was added by Rules of December, 1885. 67. The certificate of the chief clerk shall be in the Form. Form No. 10*, in Appendix L., with such variations as the circumstances may require, and when prepared and settled shall be transcribed in such form, and within such time as the Chief Clerk shall require, and shall be signed by the Chief Clerk either then or (if necessary) at an adjournment to be made for the purpose. 68. Where an account is directed, the certificate Account how shall state the result of such account, and not set the s*a,ted. same out by way of schedule, but shall refer to the account verified by the affidavit filed, and shall specify by the numbers attached to the items in the account which, if any, of such items have been disallowed or varied, and shall state what additions, if any, have been made by way of surcharge or otherwise, and where the account verified by the affidavit has been so altered that it is necessary to have a fair transcript of the account as altered, such transcript may be required to be made by the party prosecuting the judgment or order, and shall then be referred to by the certificate. The accounts and the transcripts (if any) referred to by certificates shall be filed therewith, or retained in chambers and subsequently filed, as the judge in chambers may direct. No copy of any such account shall be required to be taken by any party. 69. Any party may, before the proceedings before Eeferenop to the Chief Clerk are concluded, take the opinion of the J^*^^*** 118 ORIGINATING SUMMONS. Transmission of certifi- cates. Discharge of certificate. judge upon auy matter arising in the course of the pro- ceedings without any fresh summons for the purpose. This confirms the practice as laid down in Upton v. Brown, 47 L. T. Rep. N. S. 289; 20 Ch. Div. 731 ; 30 W. R. 817, C. A. 70. Every certificate, with the accounts (if any) to be filed therewith, shall be transmitted by the Chief Clerk to the Central Ofiice to be there filed, and shall thenceforth be binding on all the parties to the pro- ceedings unless discharged or varied upon application by summons to be made before the expiration of eight clear days after the filing of the certificate, provided that the time for applying to dischai'ge or vary certificates to be acted upon by the Paymaster-General without further order, or certificates on passing receivers' accounts, shall be two clear days after the filing thereof. Where the Chief Clerk had made his certificate that the sum mentioned in it should be paid by the defendants for occupation rent of premises held by them, and before the eight days from the date of filing the certificate had elapsed, the defendants took out a summons to vary it. A motion on the part of the plaintiff, asking for leave to be given to the receiver to distrain, or for security from the defendants, was ordered to stand over, to come on with the defendants summons to vary {Craven v. Ingham, 58 L. T. Rep. N. S. 486 ; W. N. 1888, p. 83). Here the decision in Douthwaite V. Spensley (18 Beav. 74) was followed. " No step in the cause founded on the certificate can be taken until the expiration of the time for applying to discharge or vary it : " (Dan. 1153 citing D outhwaite v. Spensley, ubi sup. ; and see Morgan, 505). 71. The judge may, if the special circumstances of the case require it, upon an application by motion or summons for the purpose, direct a certificate to be dis- charged or varied at any time after the same has become binding on the parties. In Be Martin ; Dier v. Martin, W. N. 1884, p. 112, it was held that special circumstances were sufficiently shown by affidavit. On an application ui)on the further consideration of an action for an extension of the time, under this rule for applying to vary a finding in the chief clerk's certificate after the eight days, it was FURTHER CONSIDERATION. 119 held that the applicant should take out a summons for the purpose. The application was granted as there had been a slip and " special circumstances were shown by affidavit" : {Be Dove ; Bousjielclv. Dove, 27 Ch. Div. 687 ; 53 L. J. 1099, Ch. ; 33 W. R. 197.) 14. Further GonsiderQ,tion. 72. Where any matter oriffinatinff in chambers shall. Further at the original or any subsequent hearing, have been ad- ^'^^^^ eramon. journed for further consideration in chambers, such matter may, after the expiration of eight days and within fourteen days from the filing of the chief clerk^s certificate, be brought on for further consideration by a summons, to be taken out by the party having the con- duct of the matter, and after the expiration of such four- teen days by a summons, to be taken out by any other party. Such summons shall be in the form following : — " That this matter, the further consideration whereof was adjourned by the order of the day of , 18 , may be further considered,^' and shall be served six clear days before the return. Provided that this rule shall not apply to any matter the further con- sideration whereof shall, at the original or any subse- quent hearing, have been adjourned into Court. 15. Registering and Drawing up of Orders in Chambers. 73. Notes shall be kept of all proceedings in the Record in judge's chambers with proper dates, so that all such proceedings in each cause or matter may appear con- secutively, and in chronological order, with a short statement of the questions or points decided or ruled at every hearing. 74. Order LV., r. 74, is hereby annulled, and the Drawing up following rule shall stand in lieu thereof : — Orders made ^ in chambers to be acted on by the Paymaster-General shall, unless the judge otherwise directs, be drawn up by the registrar, but every other order made in chambers shall, unless the judge otherwise directs, be drawn up by 120 ORIGINATING SUMMONS. the chief clerk to whom^ according to the distribution of business the cause or matter in which such order is made belongs ; and all orders drawn up by the regis- trars shall be entered in the same manner as orders made in open court. This rule was added by the Rules of December, 1885. The annulled rule 74 was as follows : — 74. The judge may direct any order made in chambers to he drawn up hy the Registrars, and any such order shall be entered in the same manner as orders made in open court. Evidence of 74^^ jj^ the case of orders to be drawn up by the chief order. clerks as in the last preceding rule mentioned, an order signed by a Chief Clerk, or a note or memorandum endorsed on the summons upon which any such order is made, and signed or initialed by a chief clerk, shall be sufficient evidence of the order having been made. This rule was added by the rules of December, 1885. Forms. 75. The forms Nos. 11* to 24* in Appendix L. shall be used for the respective purposes therein mentioned, with such variations as circumstances may require. APPOINTMENT OF NEW TRUSTEES. 121 CHAPTER X. APPOINTMENT OF NEW TRUSTEES. 'The subject of this chapter has been brought within the scope of Originating Summons by the new rules of Dec. 1888, Rule 11 of which is as follows : Oeder LV., r. 13a. Id all cases in which the court has jurisdiction to New trustees. appoint new trustees upon petition, an application may he made to a judge in chambers by summons, and new trustees thereupon appointed. The summons shall be intituled in the same manner as the petition ought to have been, and shall be served upon the same persons upon whom the petition ought to have been served. The above rule was made on the 19th Dec. 1888, and came into operation on the 11th Jan. 1889. The rules then made may be cited as the railes of the Supreme Court, December, 1888, or each rule may be cited by the heading thereof with reference to the Rules of the Supreme Court 1883 (rule 15 of Dec. 1888). It is noticeable that the above rule is silent as to vesting orders. Hitherto the class of such orders obtainable in chambers has been very limited : (see Order LY., r. 2 (8), ante, p. 68; and Be Tweedy, 52 L. T. Rep. N. S. 65 ; 28 Ch. Div. 529 ; 54 L. J. 331, Ch. ; 33 W. R. 313). In Be Morris's Settlement (60 L. T. Rep. N. S. 96 ; 37 W. R. 317 ; W. N. 1889, p. 31), it was decided by Mr. Justice Chitty that on an application for the appointment of new trustees under the above rule, the court had jurisdiction to make a vesting order, but "that in a complicated case a petition for the appointment of new ■triistees and a vesting ox'der may be presented, and the costs thereof would be allowed. In Be Allen ; Simes v. Shnes (56 L. T. Rep. N. S. 611 ; 56 L. J. 779, Ch.), upon an Originating Summons asking for general administration and for the appointment of new trustees all the persons interested being parties to the application, it was held that the court had power in exercise of its general jurisdiction to 122 ORIGINATING SUMMONS. order such appoiutmeut. But new trustees cannot be appointed upon ordinary summons in an action : {Be Kay ; Littlehales v. Lightfoot, W. N., April 13, 1889, p. 80.) Applications to the court for the appointment of new trustees have been much less frequent since the Conveyancing Act, 1881, owing to the power to appoint new trustees conferred by sect. 31 of that Act (for which se'eposi, j). 128). The subject is here dealt with imder the following heads : 1. The Trustee Acts, 1850 and 1852. 2. Grounds for application to the court. 3. Who appointed and how many. 4. Practice. 5. Conveyancing Acts, 1881 and 1882. 6. Bankruptcy Act, 1883. The Trustee Acts, 1850 and 1852 (13 & 14 Vict. c. 60 AND 15 & 16 YlCT. c. 55). Sect. 32 of 13 & 14 Yict. c. 60, is as follows :— "And be it enacted that vv^henever it shall be expedient to appoint a new trustee or new trustees, and it shall be found inexpedient, difficult, or impracticable so to do without the assistance of the Court of Chancery, it shall be lawful for the said Court of Chancery to make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees/^ By the Trustee Act, 1852, s. 9, such order may be made " whether there be any existing tnistee or not at the time of making such order." The trustees will have tlie same rights and powers as if appointed in a suit (Trustee Act, 1850, s. 33). The court may make vesting orders as to lands (sect. 34) and stock (sect. 35, amended by Trustee Act 1852, s. 6). For vesting order including property accidentally omitted from former order, see Be Hopper's Trusts, 54 L. T. Rep. N. S. 267 ; 34 W. R. 292 ; W. N., Marcli 6, 1886, p. 40. Grounds for Application to the Court. It is now improper to ai)ply to the court to ai)point trustees uidess there is some reason Ijeyond the absence of an express power in the instrument creating the trust : {Be John Gihhoiis Trusts^ 45 L. T. Rep. N. S. 756.) APPOINTMENT OP NEW TRUSTEES. 123 Apjilication to the Chancery Division of the court may still be necessary in the following cases : (1) Where the power to appoint new trustees is A'ested in a lunatic : (see Be Sparrow, L. Rep. 5 Ch. App. 662.) But in Be Sheppard's Settlement Trusts, W. N. 1888, p. 234, Stii-liug, J. held that, where a power of ajipointing new trustees was vested in a husband and wife, and they were living apart, and were unable to agree in the selection of new trustees, the legal personal representatives of the last surviving trustee were entitled to exercise the power conferred by sect. 31 of the Conveyancing Act, 1881, on the ground that the persons nominated to appoint new trustees were not " able and willing " to act in the exercise of the power. (2) Where the trustee has absconded, and cannot be found. (3) Where a vesting order is required to complete the appointment, as, for instance, where a trustee has been out of the United Kingdom for more than twelve months, and the trust funds consist of Consols. Where a vesting order is required as to any property vested in a lunatic trustee, application must as a rule be made to the Lord Chancellor or to the Lords Justices of Appeal in Chancery having jurisdiction in Imiacy (see sects. 3-6 of the Trustee Act, 1850), but in Be Gardners Trusts (40 L. T. Rep. N. S. 52 ; 10 Ch. Div. 29) it was decided that when a sole trustee of unsound mind was out of the jurisdiction, the Chancery Division can make a vesting order. If it should be necessary to apply to the court for the appoint- ment of new trustees merely on the ground that a trustee was of unsound mind, the application should be made in lunacy only : (see Be John Sharpies Ormerod, 32 L. T. Rep. O. S. 153 ; 3 De G. & J. 249 ; Be Owen, 4 Ch. App. 282.) In Be Lamotte (4 Ch. Div. 325), and Be Bolls Hoare (W. N. 1888, p. 94), where a surviving trustee is lunatic, and it is necessary to apply to the court for the appointment of new trustees and a vesting order, as a rule it is suf&cient to apply in lunacy only ; but if one of several trustees is lunatic, or if anything in the nature of administration of a trust is necessary the apijlication should be intituled in the Chancery Division as well as in lunacy : (see Be Pearson, 37 L. T. Rep. N. S. 299; 5 Ch. Div. 982; and Be Currie, 10 Ch. Div. 93.) It must be taken as settled that where new trustees have been duly appointed under a power the court will not reappoint them with a view to making a vesting order, which will not sever the joint tenancy : see Be Vicat (54 L. T. Rep. N. S. 891 ; 33 Ch. Div. 103, C. A.), and Be Dewhirsfs Trusts (55 L. T. Rep. N. S. 427 ; 33 Ch. Div. 416, C. A.), in effect overruling Be Pearson [sup.) on this point, and Be Dalgleish (4 Ch. Div. 143). Where a person is paralytic and unable to speak, read, or write^ 124 ORIGINATING SUMMONS. but is not suffering from any mental disease, the petition should not be presented in lunacy but in the Chancery Division : see Be Barber (58 L. T. Rep. N. S. 756 ; 39 Ch. Div. 187) ; and see Be Phelfs Settlement Trusts (54 L. T. Rep. N. S. 480 ; 31 Ch. Div. .351 ; 55 L. J. N. S. 465, Ch. C. A.) The 32nd section of the Act does not give the court jurisdiction under the Act to displace a trustee who is desirous of continuing in the trust : (see Be Blanchard, 4 L. T. Rep. N. S. 426 ; 3 De G. r. & J. 131). But it enables the court to appoint a new trustee in the place of a trustee permanently residing abroad without his consent: (-Be Bignold's Settlement Trusts, 26 L. T. Rep. N. S. 176 ; 7 Ch. App. 223.) For the case of a bankruj)t trustee see post, p. 137. See further Morgan, p. 79 et seq., and Hamilton on the Trustee Acts, p. 51 et seq. Who Appointed, and how many. As a rule the court wiU not appoint a cestui que trust, to be a trustee, and near relatives of cestuis que trust are also objectionable. Lewin on Trusts, 8th edit., p. 665, and Wilding v. Bolder (21 Beav. 222). But see Tempest v. Lord Canioys (58 L. T. Rep. N. S. 221 ; W. N. 88, p. 17), and Be Lightbody's Trusts (52 L. T. Rep. N. S. 40 ; 33 W. R. 452 ; W. N. 1885, p. 3). The court refused to appoint a solicitor, who was son of and partner with the continuing solicitor trustee : {Be Norris, Allen v. Norris, 51 L. T. Rep. N. S. 593 ; 27 Ch. Div. 333 ; 63 L. J. N. S. 913, Ch. ; 32 W. R. 955.) As to appointing persons out of the jurisdiction to be trustees, and allowing trustees a commission under special circumstances, see Be Freeman s Settle7nent Tr^ists (57 L. T. Rep. N. S. 798 ; 37 Ch. Div. 148; 36 W. R. 71.) In Be Hewetfs Settlement Trusts (83 L. T. July 30, 1887, p. 240) under s^jecial circumstances the court appointed the solicitor on the record to be a trustee. In Be Brogden ; Billingv. Brogden (W. N. 88, p. 238; 86 L. T. 106), Mr. Justice North consented to appoint three persons to be trustees who were nominated by the Trustees, Executors, and Securities Corporation Limited, but declined in any way to recognise the company. Under sect. 32, the court has power to appoint an additional trustee, even thougli there is no vacancy in the trustee- ship : Be Gregson's Trusts, 34 Ch. Div. 209 ; (see also Be Moore, 21 Ch. Div. 778); but, semble, this is not so imder sect. 31 of the Conveyancing Act. The court usually keeps iip the original number of trustees : {Be Critchley, 83 L. T. 167; Be Lamb's Trusts, 28 Ch. Div. 77; 54 L. J. Ch. 107 ; 33 W. R. 163 ; Be Gardiner's Trusts, 55 L. T. APPOINTMENT OF NEW TRUSTEES. 125 Rep. N. S. 261 ; 33 Ch. Div. 590.) But it sometimes increases, and under special circumstances reduces them. See Re Fowler's Trusts (55 L. T. Rep. N. S. 546 ; W. N. (1886) p. 183). Except under special circumstances it will not discharge a trustee without appoint- ing a new one in his place : {Davies v. Hodson, 32 Ch. Div. 225.) Tlie court is very unwilling to appoint a sole trustee, and it is contrary to the practice of the court to do so when a fund is to be retained for the benefit of infants : {Re Howson's Policy, W. N. (1885) p. 213, a case under the Married Womens' Property Act 1870, s. 10.) See further Morgan, p. 80 et seq. Practice, (a) Mode of aiiplication and parties. Sect. 37 of the Trustee Act, 1850, is as follows : — And be it enacted that an order under any of the Persons to hereinbefore contained provisions for the appointment of ^PP^y- a new trustee or trustees, or concerning" any lands, stock, or chose in action, subject to a trust, may be made upon the application of any person beneficially interested in such lands, stock, or chose in action, whether under dis- ability or not, or upon the application of any person duly appointed as a trustee thereof : And that an order under any of the provisions hereinbefore contained concerning any lands, stock, or chose in, action subject to a mort- gage, may be made on the application of any person bene- ficially interested in the equity of redemption, whether under disability or not, or of any person intei-ested in the moneys secured by snch mortgage. As to the persons whom the court will appoint trustees see Dan. 2118, and the note to S. L. A. s. 38, x^ost. Now an application for appointment of new trustees will be made by summons even though a vesting order be required. See ante, p. 121. For form of summons see Appendix III., post. Biit it is apprehended that circumstances might arise which (a) The order of arrangement of this section has been sug-gested by that excellent work Chitty's Equity Index, vol. 7, 4th edit., by H. E. Hirst, Esq. 126 . ORIGINATING SUMMONS. would justify the presentation of a petition, e.g., a large estate, great complication, and questions of difficulty ; or the necessity for sei-vace out of the jurisdiction, as an originating summons cannot be so served, but qucere, whether a petition imder this Act can be ; (see ante, p. 89, and Hamilton on the Trustee Acts, p. 72.) The usual rule is, that all persons beneficially interested must either join in the application or be served : (Dan. 2120 ; but see Re Blcmchard, 3 De G. F. & J. 137.) In Be Wilson, a Lunatic (54 L. T. Rep. N. S. 263 ; 31 Ch. Div. •622 ; 55 L. J. 368, Ch. C. A.) an order was made without service on a cestui que trust in Australia. It is not necessary to serve an absconding trustee : {Re Nichol- son's Trusts, W. N. March 22, 1884, p. 76 ; Hyde v. Benboiv, W. N. May 10, 1884, p. 117.) Petitions under the Trustee Acts should specifically refer to the sections of the Acts under which application is made (per Kay, J. in Re Moss's Trusts, 37 Ch. Div. 513 ; and again in Re Hall's Settlement Trusts, 58 L. T. Rep. N. S. 76; W. N. (1888), 16) :— It will be convenient to follow tliis practice in summonses. Affidavit of Fitness and other Evidence. For form of affidavit of fitness, see post. Appendix III. " Upon the appointment of a new trustee, one affidavit of fitness by a deponent whose evidence can be relied upon is sufficient, and in future we must disallow the co.sts of a second affidavit of fitness:" {Re Arden, W. N. Aug. 6, 1887, p. 166, on a petition in lunacy and chancery.) It is not sufficient for tlie deponent in an affidavit of fitness to describe himself as " gentleman :" {Re Orde, 49 L. T. Rep. N. S. 430; 24 Ch. Div. 271; 52 L. J. 832, Ch. ; 31 W. R. 801, C. A.; Re Horivood, 55 L. T. Rep. N. S. 373; W. N. 1886, p. 139.) " Public accountant " was held sufficient : {ib.) The affidavit of fitness filed in order to induce the court to appoint new trustees, should show something as to the position of the proposed trustees in respect of their pecuniary means, per Kay, J. in Re Castle Sterry's Trusts (W. N. July 28, 1888, p. 179). An affidavit of fitness made by the solicitor in the matter, is not, as a nde, sufficient: [Grundy v. BucTcridge, 22 L. J. N. S. 1007, Ch.) The fact actually giving rise to the application to the court, such as the death of a trustee should be strictly proved, but strict evidence of the other circumstances is not required: (Dan. 2123.) Where a new trustee is appointed in Chancery as well as in Ltmacy, his signature to his consent to act may be verified in APPOINTMENT OP NEW TRUSTEES. 127 manner provided by Order XXXYIII., r. 19a, ante, p. 45, and need not be verified by affidavit according to tlie old practice. Secus, where the order is made in Lunacy only : {Be Siime, a person of unsound mind, 56 L. T. Rep. N. S. 351; 35 Ch. Div. 457 ; 56 L. J. 1020, Ch. ; 36 W. R. 84, C. A.) Costs. Under sect. 51 of the Act, the court has power to order the costs io be paid out of the estate. But apparently the court has no power to order respondents to pay costs, see Re Primrose, 23 Beav. 590 ; see further Hamilton on the Trustee Acts, p. 87, et seq. Conveyancing and Law of Property Act, 1881 (44 & 45 YiCT. c. 41.) Trust and Mortgage Estates on Death. Sect. 30 of this Act provides for the devolution of trust and mortgage estates on the death of a trustee or mortgagee solely entitled, to his personal representatives. As it is sometimes neces- sary to come to the court for the appointment of new trustees, in default of there being a personal representative it is thought con- venient to cite the cases on this section. Vesting orders were made in the following cases : Re Pilling's Trusts (26 Ch. Div. 432 ; 53 L. J. 1052, Ch.) ; Re RacJcstraio's Trusts (52 L. T. Rep. N. S. 612 ; W. N. 1885, p. 73 ; 33 W. R. 659) ; Be Williains' Trusts (56 L. T. Rep. N. S. 884 ; 36 Ch. Div. 231 ; 56 L. J. 1088, Ch. ; 36 W. R. 100). In the last case the petition was served on the testator's heir. We believe that in Re Bishop of Sarum (55 L. T. Rep. N. S. 313 ; W. N. 1886, p. 140), the deaths took place before the Act so ihat the section did not apply : (85 L. T. 189.) Where laud was vested in infant heir of last surviving trustee, it was held, that infant heir must be served, and guardian ad litem was ai^pointed : {Be Adams, Kay, J., 57 L. T. Rej). N. S. 337 ; 35 W. R. 770; W. N. 1887, p. 175.) In Be Backstraw and Be Williams new trustees were appointed. In Be Pilling the Coui-t had previously aj)pointed, and then made a fresh vesting order. For discussion as to where the legal estate is, until a personal reiiresentative is appointed, see Wolst. & T., 4th edit., 82 ; Dart. «th edit., 684; 85 L. T. 189. Cofyholds. It was well settled that the Conveyancing Act, s. 30, applied to copyholds : {Be Hughes, 76 L. T. 337 ; Hall v. Bromley, 56 L. T. 128 ORIGINATING SUMMONS. Rep. N. S. 684; 35 Cli. Div. 642, 651; Hislop v. Richmond, 80 L. T. 206.) But sect. 45 of the Copyhold Act, 1887 (50 & 51 Vict. c. 73), declared that the Conveyancing Act, s. 30, should not apply to copyholds " vested in the tenant on the court rolls of any manor upon any tnist or by way of mortgage." As to this see Re Mills' Trusts (58 L. T. Rep. N. S. 620 ; 37 Ch. Div. 312 ; on appeal, 40 Ch. Div. 15; 37 W. R. 81; 60 L. T. Rep. N. S. 442); Re Franklyn's Mortgages, (W. N., Nov. 24, 1888, p. 217). Trustees and Executors. 31 . Appointment of new trustees, vesting of trust pro- perty, ^c. — (1.) Where a trustee, either original or sub- stituted, and whether appointed by a court or otherwise, is dead, or remains out of the United Kingdom for more than twelve months, or desires to be discharged from the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is incapable of acting therein, then the person or persons nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal represen- tatives of the last surviving or continuing trustee, may, by writing, appoint another person or other persons to be a trustee or trustees in the place of the trustee dead, remaining out of the United Kingdom, desiring to be discharged, refusing or being unfit, or being incapable, as aforesaid. (2.) On an appointment of a new trustee, the number of trustees may be increased. (3.) On an appointment of a new trustee, it shall not be obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees, where more than two trustees were originally appointed ; but, except where only one trustee was originally appointed, a trustee shall not be discharged under this section from. APPOINTMENT OP NEW TRUSTEES. 1 29 his trust unless there will be at least two trustees to per- form the trust. (4.) On an appointment of a new trustee any assurance or thing requisite for vesting the trust property, or any part thereof, jointly in the persons who are the trustees, shall be executed or done. (5.) Every new trustee so appointed, as well before as after all the trust property becomes by law, or by assur- ance, or otherwise, vested in him, shall have the same powers, authorities, and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust. (6.) The provisions of this section relative to a trustee who is dead include the case of a person nominated trustee in a will, but dying before the testator ; and those relative to a continuing trustee include a refusing or retiring trustee, if willing to act in the execution of the provisions of this section. (7.) This section applies only if and as far as a con- trary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument and to any provisions therein contained. (8.) This section applies to trusts created either before or after the commencement of this Act. General Principles of Construction. — " The intention is to sub- stitute the power conferred by sect. 31 for that which is conferred by sect. 27 of Lord Cranworth's Act : " {Be Walker and Hughes^ 49 L. T. Rep. N. S. 597 ; 24 Ch. Div. 698.) This section provides for all cases where there is no power in the instrument under which new trustees can be appointed : (i)er Bagallay, L. J., in Cecil v. Langdon, 51 L. T. Rep. N. S. 618 ; 28 Ch. Div. 1 ; 33 W. R. 1 ; 54 L. J. 313, Ch., C. A.). In Ee Shafto's Trusts (53 L. T. Rep. N. S. 261 ; 29 Ch. Div. 247 ; 54 L. J. 885, Ch. : 33 W. R. 728) Mr. Justice Pearson refused to construe the section so as " to be placing unnecessary difficulties in the way of a very useful statute." Appointment out of Court — Sub-sect. (1). — It is now improper k: 130 ORIGINATING SUMMONS. to apply to the court to appoint new trustees, unless there is some reason beyond the absence of an express power in the instrument creating the trust : [John Gihhons' Trusts, 45 L. T. Rep. N. S. 756.) In the particular case the court made the order, as the petition had been prepared before the Act was passed, and refusal to make the order would throw costs on the petitioners, and probably not save the trust estate. A settlement, executed in 1878, authorised husband and wife to appoint new trustees, but did not state iu what events. Held, that under Conveyancing Act, s. 31, they could a^ipoint when a trustee remained oiit of the United Kingdom more than twelve months, although this is not an event provided for by Lord Cranworth's Act. In this case Mr. Justice North said : " I think the intention of sect. 31 was that whenever a person had been nominated by the instrument creating the trust as the person to appoint new trustees, he should be the person who shoidd have the power of filling up any vacancy occurring under the proA'isions of sect. 31 : " ( Walker unci Hughes (49 L. T. Rep. N. S. 597 ; 24 Ch. Div. 698; 53 L. J. 135. Ch.) So in Re Coates to Parsons (56 L. T. Rep. N. S. 16 ; 34 Ch. Div. 370; 56 L. J. 242, Ch. ; 35 W. N. 370) the power was held to apply to the case of " going abroad," which was not one of the events mentioned in the instrument, but is mentioned in Convey- ancing Act, s. 31. In the last-mentioned case an objection was taken by a purchaser from trustees that an appointment of one of their number, under Conveyancing Act, s. 31, in the place of one gone abroad for more than twelve months was invalid, because such trustee had not joined in the appointment. Held, that tlie objection was unsustainable, " there being nothing to show that he was willing or competent to act in the exercise of the power, or even that it was known where he was : " It would seem, from this decision, that no objection can be taken to non-concurrence of a retiring trustee in the appointment of a new one under the Conveyancing Act, unless it be shown that he was willing aud competent to act. A settlement made in 1849 appointed four persons trustees, and provided that if such trustees, or any future trustees to be appointed in place of them, or any of them " as hereinafter mentioned,'' shoidd die, &c., the surviving or continuing trustees, or trustee, with the consent of X., might appoint new trustees. The original trustees died out, and the Court of Chancery some years ago appointed new trustees. Held, that the surviving trustee could now appoint under the Conveyancing Act, without the consent of X., as tlic power in the settlement came to an end when new trustees were appointed by the court: (Cecil v. Lancjdon, 51 L. T. Rep. N. S. 618 ; 28 Ch. Div. 1 ; 54 L. J. 313, Ch. ;* 33 W. R. 1, C. A. APPOINTMENT OP NEW TRUSTEES. 131 A private estate Act j)assecl iu 1869 iucorporated Lord Cran- -worth's Act, s. 27, but provided tliat every new trustee should be appointed with the sanction of the court. Held, that the qualifica- tion was gone, and that trustees could be appointed, without the court, under Conveyancing Act, s. 31 : (.Be Lloijcl's Trusts, W. N., Feb. 4, 1888, p. 20). The executors of a sole trustee can exercise the power of appoint- ing new trustees given by Conveyancing Act, s. 31 {Re Shafto's Trusts, 53 L. T. Rep. N. S. 261 ; 29 Ch. Div. 247) ; but they are not bound to exercise it (see Knight's Trusts below). Be Blake (cited below) is also an instance where the appointment of trustees might have been made out of court, yet the application to the court was considered reasonable. Absconding Trustee. — It is doubtful whether an absconding trustee is " unfit to act," so as to admit of a new trustee being appointed in his place under the Conveyancing Act, but see Be Keeley's Trusts (53 L. T. Rep. N. S. 487) and Be Prynne's Settle- ment (83 L. T. 259). Where two persons with power to appoint new trustees cannot agree, see Be Sheppard, ante, p. 123. Application to the Court held allowable. — The tenant for life of a trust fund asked the trustees (executors of a previous trustee) to execute a power of attorney enabling lier to obtain payment of dividends, and subsequently to appoint new trustees under this Act. They did not do either of these things. Accordingly the cestuis que trust presented a petition for appointing new trustees, and for transfer of stock. Held, by Mr. Justice Pearson, that the executors had conducted themselves vexatiously, and must pay costs which would have been incurred on petition for payment of dividend only, and should receive no costs ; but they were not ordered to pay the whole costs, as they, being only trustees in their capacity of executors, were not bound to exercise the power given them by the Conveyancing Act, s. 31 : {Knight's Trusts, 49 L. T. Rep. N. S. 774; 26 Ch. Div. 82.) The learned judge said there were many cases where persons who are simply representatives of a deceased trustee may be properly advised to do nothing to make themselves trustees. On an appeal with reference to the costs, the Court of Appeal gave the trustees their costs, but not costs of appeal. No question was raised as to the correctness of the judgment as to the Con- veyancing Act ; {Knight's Trusts, 50 L. T. Rep. N. S. 550 ; 26 Ch. Div. 90.) One of the two trustees appointed by the court under sect. 38 of the Settled Land Act, 1882 (45 & 46 Yict. c. 38), for the purposes of that Act, desired to retire, and an application was made to the court under the same section for the appointment of a new trustee in the K 2 132 ORIGINATING SUMMONS. place of the one so retiring. Held, tliat it was very clonbtful whether new trustees for the purposes of the Settled Land Act could be ai^iioiuted out of court under Conveyancing Act, s. 31, and the application to the court was therefore justifiable, and th& costs of it would be allowed : {Be Wilcoch, 56 L. T. Rep. N. S. 629 ; 34 Ch. Div. 508.) In Me Kane's Trust (21 L. Rej). Jr. 112) one of three trustees appointed by the court had gone to reside abroad, and the court appointed a new trustee for the purposes of the Act in his place- under the Settled Land Act, 1882, s. 38, following Be Wilcoch (56 L. T. Rep. N. S. 629 ; 34 Ch. Div. 508), a doubt having been raised whether such an appointment could be made under Conveyancing" Act, s. 31. A will, made before the Conveyancing Act, gave the power of appointing new trustees conferred by 23 & 24 Vict. c. 145, s. 27, to E. B., who was also one of the trustees. She became of unsound mind. Held, that the appointment of a new trustee in her place could be made under the Conveyancing Act by the other trustees, but under the circumstances the court directed that the appoint- ment should be made in the matter of the lunacy under sect. 137 of the Lunacy Regulation Act, 1853, and desired the committee to- make an application l^nder that Act : {Be Elizabeth Blahe, W. N., Aug. 13, 1887, p. 173.) A., by will appointed an infant one of his trustees. A petition; was presented to the court for the appointment of a new trustee in his place, on the ground that the Conveyancing Act, s. 31, which gives a i)ower to appoint in the place of a trustee who is incapable of acting in the trusts, did not apply. Pearson, J. held that the power in the Act did not apply to the case of an incapacity which the testator knew of and did not intend to prevent the trustee he appointed from acting ; and made the appointment without prejudice to the infant's applying to be reappointed when he attained twenty-one : {Be Tallatire's Trusts, 80 L. T. 26 ; W. N. Nov. 14, 1885, p. 191.) Where the settlement gave the power to the husband and wife to appoint new trustees, and the wife had obtained a judicial separation, and the husband had been for some years resident in Australia the court appointed : {Be Somerset, W. N., Juno 18, 1887, p. 122.) Stcb-sect. (2). — Semhle, that the power here])y given, on appoint- ments made out of court, to increase the number of trustees, only arises when an appointment is being made to supply a vacancy in the trusteeship. But the court, under sect. 32 of the Trustee Act, 1850, can appoint an additional trustee, although there is no vacancy : {Be Gregson's Trusts, 34 Ch. Div. 209 ; 56 L. J. 286, Ch. ; 35 W. R. 286.) In Be Nesbitt's Trusts (19 L. Rep. APPOINTMENT OP NEW TRUSTEES. 133 Ir. 509) — which we propose to cite ra connection with sect. 5 of the Conveyancing Act, 1882 — the Irish M. R. " distinguished " Re Gregson. Sub-sect. (3). — It was hekl that it was not obligatory to keep up i,he original number of trustees in Re Coates to Parsons (56 L. T. Hep. N. S. 16 ; 34 Ch. Div. 370.) Sxih-sect. (6). — It was stated by counsel in argument in Re Orde <49 L. T. Rep. N. S. 430 ; 24 Ch. Div. 271) that the Conveyancing Act, s. 31, did not appear to be applicable where all the trustees died before the testator; and the court accordingly in that case appointed trustees. See also Re Lightbodifs Trusts (78 L. T. 150; W. N., Jan. 17, 1885, p. 3). Mr. Vaizey remarks (p. 1360) that this enactment (sub-sect. (6) must have escaped notice when it was stated by counsel, and seems to have been assumed by tlie ■court, that sect. 31 is not applicable in a case where the trustees of a will have died before the testator. These cases were followed l)y Kay, J. in Re Ambler's Triists (59 L. T. Rep. N. S. 210), but T/rithout approval. Sub -sect. (7). — The model deed of trust for Wesleyan chapels j)rovides for the appointment of new trustees in events not including absence from the United Kingdom, at a formal meeting of trustees. Held, that this did not show " contrary intention," so as to exclude the Conveyancing Act in such a case of absence : {Re Coates to Parsons, 56 L. T. Rep. N. S. 16, 19 ; 34 Ch. Div. :370.) The Practice of the Court unaltered. — Where one of several trustees is of unsound mind the court will not reappoint the other trustees in the place of themselves and the lunatic trustee for the purpose of excluding the lunatic trustee from the trust ; but a new trustee must be appointed in his place. The Conveyancing Act, s. 31, is not intended to alter the j)ractice of the court : {Re Aston, 48 L. T. Rep. N. S. 195 ; 23 Ch. Div. 217.) And see Re Collyer (43 L. T. Rep. N. S. 454), and LamVs Trusts (28 Ch. Div. 77.) It should be stated that an order was made vesting the property in the continuing trustees in Re Martyn (50 L. T. Rep. N. S. 552 ; 26 Ch. Div. 745), where the fund was immediately divisible ; and in Davies v. Hodgson (32 Ch. Div. 225), where there was to be immediate payment into court ; but these were exceptional cases, and the general rule is otherwise. It is clear from the •cases that the practice, as to this point, is not altered by the Conveyancing Act, s. 31 ; and see Re Gardiner's Trusts (55 L. T. Rep. N. S. 261 ; 33 Ch. Div. 590 ; 55 L. J. 714, Ch. ; 35 W. R. 28, and the cases thei'e cited : Re Dewhirst's Trusts (55 L. T. Rep. i^". S. 427 ; 33 Ch. Div. 416 ; 55 L. J. 842, Ch. ; 35 W. R. 147, 134 OEIGINATING SUMMONS. C. A.) ; but see Re Hulme (57 L. T. Rep. N. S. 13) ; Be Vicat, Unsound Mind (54 L. T. Rep. N. S. 891 ; 33 Ch. Div. 103 ; 55 L. J. 843 n., Ch. ; 34 W. R. 645, C. A.) [Sect. 32 provides for the retirement of a tntstee without a successor being appointed where there are more than two trustees.] [Sect. 33 defines the powers of trustees appointed by the court.] 34. Vesting of trust property in new or continuing trustees. — (1.) Where a deed by wliicli a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in those per- sons, as joints tenants, and for the purposes of the trust, that estate, interest or right. (2.) Where a deed by which a retiring trustee is dis- charged under this Act contains such a declaration as is in this section mentioned by the retiring and continuing trustees, and by the other person, if any, empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the con- tinuing trustees alone, as joint tenants, and for the purposes of the trust, the estate, interest, or right to which the declaration relates. (3.) This section does not extend to any legal estate or interest in copyhold or customary land, or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share, stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner prescribed by or under Act of Parliament. (4.) For purposes of registration of the deed in any registry, the person or persons making the declaration shall be deemed the conveying party or parties, and the APPOINTMENT OP NEW TEUSTEES. 135 conveyance shall be deemed to be made by him or them under a power conferred by this Act. (5.) This section applies only to deeds executed after the commencement of this Act. A husbaud and wife having power to appoint new trustees of a marriage settlement apjjointed a new trustee in the place of one who had absconded abroad, and jointly with the continuing trustee. The trustee who had absconded declined to join in the aj)j)ointment and to execute the necessary transfer. The property subject to the trusts of the settlement consisted of policies of insurance and mortgages. It became, therefore, impracticable, having regard to Conveyancing Act, 1881, s. 34 (3), to vest such property in the trustees without the assistance of the court. A petition for a vesting order was accordingly presented, under the Trustee Acts, 1850 and 1852, by the husband and wife and the continuing trustee. Held, that the order asked for might be made, but that the petition must be amended by adding the name of the proposed new trustee as a co-petitioner : {Re Keeley's Trusts, 53 L. T. Rep. N. S. 487.) A luisband and wife, having power to appoint new trustees of a marriage settlement, appointed one in the place of a trustee who had absconded abroad and jointly with the continuing trustee. The property included mortgages. A petition for a vesting order under the Trustee Act, 1850, ss. 10, 22, was presented by the husband, wife, the continuing trustee, and the new trustee. The infant children of the marriage were not parties. Held, that the order asked for might be made, but that the trustees must be appointed to represent the interests of the infant children beneficially entitled in remainder under the settlement : [Be Prijnne's Settlement, 83 L. T. 259.) New trustees were appointed, under a power, in the place of two trustees who had become bankrupt and left the country. The trust estate consisted of a legal mortgage of real estate and shares or stock within sub-sect. (3). The court made a vesting order : {Re Harrison's Settlement Trusts, W. N., Feb. 24, 1883, p. 31.) By the Conveyancing Act, 1882 (45 & 46 Vict. c. 39), s. 5 :— (1.) Un an appointment of new trustees, a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part or parts of the trust property ; or, if only one trustee was originally appointed, then one 136 ORIGINATING SUMMONS. separate trustee may be so appointed for the first- mentioned part. (2.) This section applies to trusts created either before or after the commencement of this Act. A testator devised properties, in two different parishes, in strict settlement, in favour of different families, and appointed two trustees of the whole. One trustee having died, a petition was presented for the appointment of two new trustees to act with the surviving trustee as to one property. Held, that the court could appoint under this section, though the surviving trustee was trustee for both parties. " Tliere is nothing to prevent the sur- viving trustee being a member of two bodies of trustees, or trustee of one estate alone, and of another in conjunction with others : " {Be Paine' s Trusts, hi L. T. Rep. N. S. 323; 28 Ch. Div. 725; 54 L. J. Ch. 735 ; 33 W. R. 564). Under the trusts of a will, different i^arts of the testator's property were subject to distinct trusts, but in a certain event the trusts would coalesce. Held, that there was power in the court to appoint separate sets of trustees for the different parts of the property : [Be Hetherington s Trusts, 55 L. T. Rep. N. S. 807 ; 34 Ch. Div. 211 ; 56 L. J. 174, Ch. ; 35 W. R. 285). It was held by Mr. Justice North, on ai>plication by Originating Summons, that sub-sect. (1) authorises the appointment, by trustees, out of court, of a separate set of trustees for a part of the trust property held on distinct trusts, only when an appointment is being made of new trustees of the whole property : [Savile v. Couper, 56 L. T. Rep. N. S. 907 : 36 Ch. Div. 520 ; 56 L. J. 980, Ch. ; 35 W. R. 829.) " This decision is binding on me, even if I should have been inclined to give a wider interpretation to the section :" (per Kay, J., in Be Moss's Trusts, xibi inf.) In Be Nesbitfs Trusts (19 L. Rep. Ir. 509) it was held by the Irish Master of the Rolls, on a petition under the Trustee Acts and under the Conveyancing Acts, that C. A., sect. 5, sub-sect. (1), does not authoi-ise the appointment of a separate set of trustees for a part of the trust property held on distinct trusts, except on the appointment of new trustees of the entire property. The decision of the Master of the Rolls was affirmed on appeal, though the Court of Appeal did not decide the question of jurisdiction. In this case, the sole trustee of a will, who had acted and was in no way person- ally disqualified, wished to be discharged from the trusts of a particular fund part of the trust property, and said he would pay it into court unless new trustees of it were appointed. Under these APPOINTMENT OF NEW TRUSTEES. 137 circumstances, the Master of the Rolls held there was no " expe diency," in a legal sense, for the appointment of a new trustee, and that the case did not fall within sect. 32 of the Trustee Act, 1850, but said that he would have granted the application if he could. The judgment of the Irish Court of Appeal runs thus : " Whether there is a jurisdiction or not, we think this case is one in which we should not interfere with the oi'der of the Master of the RoUs." This decision was given before Savile v. Couper, and is therefore an independent authority for the point there decided. The Irish Master of the Rolls seems to have taken a narrower \\gw of the Trustee Act than the English court does. See Re Moss next cited. A testator appointed three persons trustees and executors for carrying out trusts of two specified sums bequeathed by him, and also the tx'usts of his real and residuary personal estate. The will contained a power of sale and power for sur^dving or continuing trustees to appoint new trustees. The will was proved by two trustees, the third renouncing. The trustees wished to be relieved from the trusts of the two sums, l^ut would continue trustees otherwise. Held, that the court under the powers of the Trustee Acts, independently of Conveyancing Act, 1882, s. 5, could allow the trustees to retire from the trusts of the sums without requiring the appointment of a new trustee to act in the tnists of the residue : {Be Moss's Trusts, 58 L. T. Rep. N. S. 468 ; 37 Ch. Div. 513). This decision does not conflict with Savile v. Couper, which only dealt with an appointment by the trustees, not by the court. The Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), s. 147. 147. Where a bankrupt is a trustee within the Trustee Act, 1850, sect. 32 of that Act shall have effect so as to authorise the appointment of a new trustee in substitu- tion for the bankrupt (whether voluntarily resigning or not), if it appears expedient to do so, and all provisions of that Act, and of any other Act relative thereto, shall have effect accordingly. In Be Foster (55 L. T. Rep. N. S. 479) a trustee was removed, although he had obtained discharge and some of the beneficiaries wished to retain him. In Be Mace's Trusts (W. N., Dec. 10, 1887, p. 232) two trustees were appointed sole trustees and the third trustee, who had become bankrupt and had absconded was removed, it being shown to be perfectly impossible to obtain a new trustee in his ^dace. They were the largest creditors of the bankrupt. See also Be Adam's Trusts (12 Ch. Div. 634). 138 ORIGINATING SUMMONS. CHAPTER XI. INTERPLEADER. Applications for relief by way of lutei-pleader are for the most part made by ordinary summons in an action already brought ; but as it is considered that under the following order such relief can be- obtained before any action is commenced (see post, j). 139), and as the mode of obtaining such relief in that case would be by Originating Summons, it has been thought necessary to include the subject in the present work. For fiUler information thereon, see Chitty Arch. 1354-1377 ;. Wilson, 429 ; Seton, 361 et seq. ; and Dan. 1515 et seq. Ordee LVII. Interpleader. 1. Relief by way of interpleader may be granted, — (a.) Where the person seeking relief (in this Order called the applicant) is under liability for any debtj money, goods, or chattels, for or in respect of which he is, or expects to be, sued by two or more parties (in this Order called the claimants) making adverse claims thereto : (6.) Where the applicant is a sheriff or other officer charged with the execution of process by or under the authority of the High Court, and claim is made to any money, goods, or chattels taken or intended to be taken in execution under any process, or to the proceeds or value of any such goods or chattels by any person other than the person against whom the process issued. As the old Interpleader Act (1 & 2 Will. 4, c. 58), and the sections of the Common Law Procedure Act, 1860 (23 & 24 Vict. c. 126) relating to Interpleader (except sect. 17) were repealed by 46 & 47 Vict. c. 49 : (see Cliitty's Arch. 1354), the practice is; now regulated by this order, by which the old practice of the Court INTERPLEADER. IS^ of Chancery is modified : (see judgment of Wills, J. in Beading v. Scliool Board for London, 54 L. T. Rep. N. S. 678; 16 Q. B. Div. 686 ; 34 W. R. 609.) Having regard to the words " or expects to be sned " in the above order, it seems that an Originating Interpleader Summons could now be issued before any action had been commenced. Sea Dan. F., p. 678 (note e) ; Chitty's Forms, p. 691 (note a) ; and Be New Hamburg and Brazilian Bailway Company (W. N. 1875, p. 239). And see Judicature Act, 1873, sect. 25, sub-sect. 6, as to a debtor or trustee, with notice of conflicting claims to a debt ; and Beading v. School Board for London; C. Hophinson and Son, claimants (supra). It has been decided that a foreigner may be served with an interpleader summons (taken out in an action) out of the jurisdiction : (see The Credits Gerundeuse Limited v. Van Weede ; 12 Q. B. Div. 171 ; 53 L. J. 142, Q. B. ; 32 W. R. 414: 48 J. P. 184.) For forms of summons, &c., see Dan. F. 1574, et seq. ; and Chitty's Forms, p. 690-704. The text of sect. 17 is as follows : — " The judgment in any such action or issue as may be directed by the court or judge in any interpleader proceedings, and the decision of the court or judge in a summary manner, shall be final and con- clusive against the parties, and all persons claiming by, from, or under them." 2. The applicant must satisfy tlie court or a judge by affidavit or otherwise — (a.) That the applicant claims no interest in the sub- ject-matter in dispute, other than for charges or costs j and (6.) That the applicant does not collude with any of the claimants ; and (c.) That the applicant is willing to pay or transfer the subject-matter into court or to dispose of it as the court or a judge may direct. As to collusion, see Thompson v. Wright (51 L. T. Rep. N, S. 634; 13 Q. B. Div. 632.) 3. The applicant shall not be disentitled to relief by Common title. reason only that the titles of the claimants have not a common origin but are adverse to and independent of one another. 140 OEIQINATING SUMMONS. Time. Summons. Stay. What order made. Summary decision. Question of law. 4. Where the applicant is a defendant, application for relief may be made at any time after service of the writ of summons. 5. The applicant may take out a summons calling on the claimants to appear and state the nature and par- ticulars of their claims, and either to maintain or relin- quish them. 6. If the application is made by a defendant in an action the court or a judge may stay all further proceed- ings in the action. 7. If the claimants appear in pursuance of the sum- mons, the court or a judge may order either that any claimant be made a defendant in any action already com- menced in respect of the subject-matter in dispute in lieu of or in addition to the applicant, or that an issue between the claimants be stated and tried, and in the latter case may direct which of the claimants is to be plaintiff, and which defendant, 8. The court or a judge may, with the consent of both claimants or on the request of any claimant, if, having regard to the value of the subject-matter in dispute, it seems desirable so to do, dispose of the merits of their claims, and decide the same in a summary manner and on such terms as may be just. A summary decision under this rule by a judge at chambers is final, and no appeal lies from such decision, and there is no power to give leave to appeal. Lyon v. Morris and another ; Mutual Loan Fund Association, claimants (57 L. T. Rep. N. S. 324 ; 19 Q. B. Div. 139 ; 56 L. J. 378, Q. B. ; 35 W. R. 707, C. A.) ; and see Be Roberts ; Evans v. Thomas (W. N. 1887, p. 231). 9. Where the question is a question of law, and the facts are not in dispute, the court or a judge may either decide the question without directing the trial of an issue, or order that a special case be stated for the opinion of the court. If a special case is stated, Order XXXIV. shall, as far as applicable, apply thereto. INTERPLEADER. 141 10. If a claimant, having been duly served with a wiien claim- T,. 1 • i 1 ■ J. • ant barred. summons calnng on nim to appear and maintain, or relinquish, his claim, does not appear in pursuance of the summons, or, having appeared, neglects or refuses to comply with any order made after his appearance, the court or a judge may make an order declaring him, and all persons claiming under him, for ever barred against the applicant, and persons claiming under him, but the order shall not affect the rights of the claimants as between themselves. 11. Except where otherwise provided by statute, the Decision judgment in any action or on any issue ordered to be ^i^gf^g ^' tried or stated in an interpleader proceeding, and the decision of the court or a judge in a summary way, under rule 8 of this Order, shall be final and conclusive against the claimants, and all persons claiming under them, unless by special leave of the court or judge, as the case may be, or of the Court of Appeal. See sect. 17 of tlie Common Law Procedure Act, 1860, and Lyon V. Morris, and Be Roberts, ante, p-p. 139, 140. 12. When goods or chattels have been seized in execu- Sheriff, &c tiou by a sheriff or other officer charged with the execu- tion of process of the High Court, and any claimant alleges that he is entitled, under a bill of sale or other- wise, to the goods or chattels by way of security for debt, the court or a judge may order the sale of the whole or a part thereof, and direct the application of the proceeds of the sale in such manner and upon such terms as may be just. 13. Orders XXXI. and XXXVI. shall, with the neces- Application sary modifications, apply to an interpleader issue ; and ^J^^^*^^^ the court or judge who tries the issue may finally dispose xxxvi. of the whole matter of the interpleader proceedings, including all costs not otherwise provided for. For Order XXXI., see ante, p. 28. Order XXXYI. relates to " Trial." 142 ORIGINATING SUMMONS. One order in •several matters. -Costs, &c. 14. Where in any interpleader proceeding it is neces- sary or expedient to make one order in several causes or matters pending in several divisions, or before different judges of tlie same division, sucli order may be made by the court or judge before whom the interpleader proceeding may be taken, and shall be entitled in all such causes or matters ; and any such order (subject to the right of appeal) shall be binding on the parties in all such causes or matters. 15. The court or a judge may, in or for the purposes of any interpleader proceedings, make all such orders as to costs and all other matters as may be just and reason- able. As to costs, see Hansen v. Maddox (12 Q. B. Div. 100 ; 50 L. T. Rep. N". S. 123 ; 53 L. J. 67, Q. B. ; 32 W. R. 183) ; Tomlinson v. Land and Finance Corporation Limited (14 Q. B. Div. 539, C. A.; 53 L. J. 561, Q. B.) ; and Rhodes v. Dawson, Rush, and Co., Claimants (16 Q. B. Div. 548 ; 55 L. J. 134, Q. B. ; 34 W. R. 241, C. A.) APPEAL, 143 CHAPTER XII. APPEAL. Part I. It is liardly necessary to say that the order of the court or a judge upon an originating summons is subject to appeal, and may be, and sometimes is, taken up to the House of Lords. As there is little, if anything, peculiar to an appeal from an order of the Court upon an Originating Summons as distinguished from any other appeal, that portion of the subject is not treated of so fully in the present work as the law and practice exclu- sively applicable to originating summons. Appeals from Chambers. Appeals from chambers are governed by sects. 49 & 50 of the Judicature Act, 1873 (36 & 37 Vict. c. 66) which are as follows : Sect. 49. No order made by the High Court of Judicature Justice or any judge thereof by the consent of parties, ^^^' or as to costs only, which by law are left to the dis- cretion of the court, shall be subject to any appeal, except by leave of the court or judge making such order. Sect. 50. Every order made by a judge of the said High Court in chambers, except orders made in the exercise of such discretion as aforesaid, may be set aside or discharged upon notice by any Divisional Court, or by the judge sitting in court, according to the course and practice of the division of the High Court to which the particular cause or matter in which such order is made may be assigned, and no appeal shall lie from any such order to set aside or discharge which no such ]41 ORIGINATING SUMMONS. motion has been made unless by special leave of the judge by whom such order was made or of the Court of Appeal. Direct from -^^ ^^ appeals from a judge in cliambers in tte Chancery- chambers to Division, the practice is not uniform. C. A. According to the judgment of Cotton, L. J., in Re Elsom, an order made by a judge of the Chancery Division personally in chambers may be appealed from direct to the Court of Appeal witliout any certificate from the judge of first instance that he does not desire to hear any further argument if such certificate has not been obtained : {Re Elsom ; Thomas v. Elsom, 6 Ch. Div. 346 ; 25 W. R. 871 ; and see Northampton Coal, Iron, and Waggon Company v. Midland Waggon Company, 38 L. T. Rep. N. S. 82 ; 7 Ch. Div. 500 ; 26 W. R. 485.) But the Court of Appeal would require to be satisfied that the judge did not desire to hear any further argument : {Re Elsom, M. R.) As a rule when parties wish to appeal from an order made in chambers, tliey should inform the judge of their intention, so that he may either adjourn the case into court for argument, or deliver a judgment which will enable the Court of Appeal to understand the reasons which have influenced his mind. lb. M. R. Tlie following is the jiractice of Mr. Justice Kay and of Mr. Justice North. If all parties concerned have been represented by counsel in chambers, and any one wishes to appeal, the chief clerk, as a rule, will give a certificate that, the case having been fully argued before the judge, he does not desire to have any further argument: (Form of Certificate, post. Appendix III., and Dan. F. 1141 ; see Attorney -General v. Llewellyn, 84 L. T. 21, Kay, J. ; and Re Sion College ; Ex parte Mayor and Corporation of London, 55 L. T. Rep. N. S. 589, 590.) If all parties have not been represented by counsel in chambers, the proper practice is to move the judge in court to discharge the order : (see sect. 50 of Judicature Act, 1873, ante, p. 143, and Re Somerville ; Downes v. Somerville, 56 L. T. Rep. N. S. 424 ; and W. N. 1887, p. 79, Kay, J.) But the in-actice of Mr. Justice Cliitty, according to the case of Holloway v. Cheston (19 Ch. Div. 516 ; 51 L. J. 208, Ch. ; 30 W. R. 120) when an appeal from chambers is desired, is to adjourn the summons into court for argument or judgment. If there is no- such adjournment, a motion should be made in court to set aside the order made in chambers. And see Manchester Val De Travers Paving Company Limited v. Slagg and others (47 L. T. Rep. N. S. 556, C.A.) APPEAL. 145 Holloway v. Cheston was not followed by Hall, V.C. in Be Butler's Wharf Company, (21 Ch. Div. 131 ; 51 L. J. 294, Cli. ; 30 W. R. 723), but it is submitted that the latter ease cannot be regarded as governing the practice of the present day. If an adjournment into court is desired, the request for it should Adjournment 1)6 made before the judge commences to hear the summons : (see ^ court. Holloway v. Cheston, supra, and Re Munns and Longden, 50 L. T. Rep. N. S. 356 ; 32 W. R. 675 ; W. N. 1884, p. 117, though sometimes an adjournment into court will be ordered during the argument. The following useful extract as to the practice in chambers is Practice in taken from the judgment of Kay. J. in Munns v. Longden, chambers. sxipra. " This is a case of some impoi-tance, as regai-ds the practice in chambers, which, simple as it is, seems to be constantly misunder- stood. It often occurs when a matter has been before the judge in chambers, and he has given his decision upon it, that he is asked to adjourn it into court. It could, as a matter of course, be adjourned before it has been heard by the judge, upon the applica- tion of either party, but afterwards there is no regular mode of adjourning it. The course theu is to apply, as provided by sect. 50 of the Judicature Act, 1873, to have the order made in chambers ' set aside or discharged upon notice by any divisional court, or by the judge sitting in court, according to the course and pi-actice of the division of the High Court to which the particular cause or matter . . . may be assigned.' The question here is, whether, the judge having heard the matter personally in chambers and made his order upon it, he can now, on a motion to charge that order, receive fiirther evidence as to the merits of the case, which was not before him when the order was made. There is, so far as I know, no authority that further evidence may be admitted under such circum- stances. I have never heard of any rule, or course of practice, itnder which it cOuld be, and the registrar, whom I have asked, tells me that he knows of none. If I were to receive this evidence now, I should be doing what no section, or order, or apparently any course of practice, warrants, and I should be the first judge to do it. When a judge has heard a summons in chambers, and given his opinion upon it, it would be dangerous after that when the weak points in the case had been brought to light to allow further evidence to be given, and even if a judge had power to allow it, he ought not, in my opinion, to do so, and in the absence of any authority or precedent I certainly will not. If it were to be open to a judge to do so, it woiild become a question not merely of dis- charging but of reviewing the order made in chambers, and before the cou.rt can admit further evidence on an application to review, it L 146 ORIGINATING SUMMONS. has to be completely satisfied that evidence could not have been given before." And see Be Bouse ; Bouse v. Trihle (59 L. T. Rep. N. S. 887 ; W. N. 1889, p. 38). It lias been decided in Heatleij v. Newton (45 L. T. Rep. N". S. 455 ; 19 Ch. Div. 326 ; 51 L. J. 225, Ch. ; 30 W. R. 72, C. A.), that a motion to a judge in court under the Judicature Act, 1873, s. 50, to dis- charge an order made by him in chambers should be made within twenty-one days from the drawing-up of the order, unless the order is simply a refusal of an application, in which case the twenty-one days must be reckoned from the refusal. Although the R. S. C. 1883, contain no express provision limiting the time within which such a motion should be made, the time prescribed by Order L VIII., r. Ih, post, p. 152, should by analogy be adopted, and the riile laid down in Heatley v. Newton {supra), as to the periods from which time is to be reckoned is to be taken as modified by analogy to the rules now in force, and it has been held that such period should be the time when the order was pronoimced, or when the appellant first had notice thereof : {Be Woodhridge, W. N. 1884, 187, Chitty, J. ; Be Hardwidge, 52 L. T. Rep. N. S. 40 ; W. N. 1884, p. 204, Kay, J. ; and see Be Lewis ; Leivis v. Willia7ns, 54 L. T. Rep. N. S. 198; 31 Ch. Div. 623 ; 34 W. R. 420). Having regard to the want of imiformity in the practice on appeals from a judge in chambers iu the Chancery Division, the practitioner is recommended to inquire of one of the principal clerks in the judge's chambers, which i)ractice is adopted there before taking steps to appeal. Part II. Appeals prom Orders made in Court. Order LVITI. — Appeals to the Court of Apjieal. 1. All appeals to tlie Court of Appeal shall be by way of rehearing^ and shall be brought by notice of motion in a summary way, and no petition, case, or other formal proceeding other than such notice of motion shall be necessary. The appellant may by the notice of motion appeal from the whole or any part of any judg- ment or order, and the notice of motion shall state whether the whole or part only of such judgment or order is complained of, and in the latter case shall specify such part. APPEAL. 147 An appeal from au order of the High Court of Ju.stice, Chancery Division (or of a judge at chambers in that division where no further argument is required by him, or where a direct appeal lies to the Court of Appeal from him, see ante, p. 144) upon originating summons is brought by notice of motion in the same manner as au apj)eal from an order in an action commenced l>y writ. For forms of notice of motion see post, Appendix III. 2. The notice of appeal shall be served upon all Service of parties directly affected by the appeal, and it shall not "° ^^^' be necessary to serve parties not so affected ; but the Court of Appeal may direct notice of the appeal to be served on all or any parties to the action or other proceeding, or upon any person not a party, and in the meantime may postpone or adjourn the hearing of the appeal upon such terms as may be just, and may give such judgment and make such order as might have been given or made if the |)ersons served with such notice had been originally parties. Any notice of appeal may be amended at any time as the Court of Appeal may think fit. In a proper case the court of Appeal has jurisdiction to make an order for substituted service of a notice of appeal, though no express provision to that effect is contained in the Rules of Court ; {Ex parte Warburg; Be Whalley, 49 L. T. Rep. N. S. 243; 24 Ch. Div. 364, C. A. 3. Notice of appeal from any judgment, whether final Length of or interlocutory or from a final order shall be a fourteen days notice, and notice of appeal from any interlocutory order shall be a four days notice. By sect. 12 of the Judicature Act, 1875 (38 & 39 Vict. c. 77) : " Every appeal to the Court of Appeal shall, where the subject- matter of the appeal is a final order, decree, or judgment, be heard before not less than three judges of the said court sitting together, and shall, when the subject-matter of the appeal is an interlocutory order, decree, or judgment, be heard before not less than two jvidges of the said court sitting together. " Any doubt which may arise as to what decrees, orders, or judg- ments are final and what are interlocutory, shall be determined by the Court of Appeal. L 2 148 OltJGINATlNG SUMMONS. '• Subject to the provisions coutaiued in this section the Court of Appeal may sit iu two divisions at the same time." It will be observed that a notice of appeal from Awy judgment, whether final or interlocutory, is a fourteen days' notice. As we have ah-eady seen, ante, p. 3, an Originating Summons taken out under Order LV., r. 3, is a civil proceeding commenced otherwise than by writ iu manner prescribed by a rule of court, and is consequently an action within the definition of that word in sect. 100 of the Judicature Act, 1873. Therefore an order dismissing such a summons is a final order (see Be Fawsitt ; Galland v. Burton, 53 L. T. Rep. N. S. 271 ; 30 Ch. Div. 231 ; 54 L. J. 1131, Ch. ; 34 W. R. 26, C. A.), and a f oiirteen days notice of appeal would be necessary. No definition is given of a final or interlocutory order. An order determining the rights of the parties would be a final order : (see Be StocMon Iron Furnace Compamj, 40 L. T. Rep. N. S. 19 ; 48 L. J. 417, Ch. ; 10 Ch. Div. 349 ; 27 W. R. 433, C. A. ; and see cases collected at Wilson, p. 445.) Speaking with some generality, orders made upon the hearing of originating summonses wordd be final orders, and a foiu'teen days notice of appeal would be necessary. But interlocutory orders may l)e made in the course of an action commenced by originating summons, as in any other action : (see Be Lewis ; Lewis v. Williams, .54 L. T. Rep. N. S. 198; 31 Ch. Div. 623; 34 W. R. 420, C. A.) 4. The Court of Appeal shall have all the powers and duties as to amendment and otherwise of the High Court, together with full discretionary power to receive further evidence upon questions of fact, such evidence to be either by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner. Such further evidence may be given without special leave upon interlocutory applications, or in any case as to matters which have occurred after the date of the decision from which the appeal is brought. Upon appeals from a judgment after trial or hearing of any cause or matter upon the merits, such further evidence (save as to matters subsequent as aforesaid) shall be admitted on special grounds only, and not without special leave of the Court. The Court of Appeal shall APPEAL. 149 have power to draw inferences of fact, and to give any judgment and make any order which ought to have been made,, and to make such further or other order as the case may require. The powers aforesaid may be exer- cised by the said court, notwithstanding that the notice of appeal may be that part only of the decision may be reversed or varied, and such powers may also be exer- cised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision. The Court of Appeal shall have power to make such order as to the whole or any part of the costs of the appeal as may be just. An appellant who wislies to adduce fnrtlier evidence on tlie hearing of an appeal sliould give to the other side notice of his intention to apply at the hearing of tlie appeal for leave to produce sixch evidence: {Hastie v. Hastie, 34 L. T. Rep. N. S. 13; 1 Ch. Div. 562 ; 45 L. J. 298, Ch. ; 24 W. R. 564, C. A.) As a rule such notice should be given along with and at the foot of the notice of appeal (see Re Chennell ; Jones v. Chennell, 38 L. T. Rep. N. S. 494; 8 Ch. Div. 492, 505; 47 L. J. 80, Ch.; 26 W. R. 595, C. A.), unless fresh witnesses have to be examined, in which case the application should be by motion previously to the hearing of the appeal : [Dicks v. BrooJcs, 13 Ch. Div. 652, C. A. ; 28 W. R. 525.) The notice should specify the grounds for adducing further evidence. For form of notice see post, Appendix III. and Dan. F. 1466. Whei'e no evidence is adduced n coui-t below, see Arnison v. Smith, 41 Ch. Div. 98, C. A. 5. If upon hearing of an appeal, it shall appear to the New trial. Court of Appeal that a new trial ought to be had, it shall be lawful for the said Court of Appeal, if it shall think fit, to order that the verdict and judgment shall be set aside, and that a new trial shall be had. 6. It shall not, under any circumstances, be necessary Cross appeal, for a respondent to give notice of motion by way of cross appeal, but if a respondent intends, upon the hearing of the appeal, to contend that the decision of the court below should be varied, he shall within the time specified 150 ORIGINATING SUMMONS. ill the next rule, or such time as may be prescribed by special order, give notice of such intention to any parties who may be affected by such contention. The omission to give such notice shall not diminish the powers con- ferred by the Act upon the Court of Appeal, but may, in the discretion of the court, be ground for an adjourn- ment of the appeal, or for a special order as to costs. 7. Subject to any special order which may be made, notice by a respondent under the last j)receding rule shall in the case of any appeal from a final judgment be an eight days notice, and in the case of an appeal from an interlocutory order a two days notice. 8. The party appealing from a judgement or order shall produce to the proper officer of the Court of Appeal the judgment or order or an office copy thereof, and shall leave with him a copy of the notice of appeal to be filed, and such officer shall thereupon set down the appeal by entering the same in the proper list of appeals, and it shall come on to be heard according to its order in such list, unless the Court of Appeal or a judge thereof shall otherwise direct, but so as not to come into the paper for hearing before the day named in the notice of appeal. An appeal must be eutered witli the proper officer of the Court of Api)eal before the clay meutioued iu the notice of appeal for the hearing, or if that day happens to be in a vacation when the office is closed, then before the next day of the sitting of the court, otherwise the resj)oudent will be entitled to have the appeal motion dismissed as an abandoned motion, although the notice of appeal was given iu time : [Re National Fimds Assurance Company, 35 L. T. Rep. N. S. 689; 4 Ch. Div. 305 ; 46 L. J. 183, Ch. ; 25 W. R. 151, C. A. ; and Re Mansel ; Rhodes v. Jenkins (38 L. T. Rep. N. S. 403 ; 7 Ch. Div. 711 ; 47 L. J. Ch. 870 ; 26 W. R. 361, C. A). But respondents will not l)e allowed to take advantage of a delay occasioned by themselves : (Re Harher ; Goodbarne v. Fothergill, 40 L. T. Rep. N. S. 408 ; 10 Ch. Div. 613 ; 27 W. R. 587, C. A.) For registrar's notice as to appeals from inteilocutory orders in certain uiatters being set down for hearing in a separate list, see W. N. 1877, p. 88, part II. APPEAL. 151 The followinof " Notice to Solicitors " was issued on the 21st Nov. 1881, as to Papers for use of the Judges of the Coiirt of Appeal. " Papers for the Judges. " The necessary papers for the use of the judges on the hearing of aijpeals must be left with Mr. Davey (the first officer of the Master of the Rolls), Lord Chancellor's private entrance, Lincoln's- inn, at least one week before the appeal is likely to appear in the daily court paper. The papers required are : Three copies of notice of appeal. Three copies of order or judgment appealed from. Three copies of pleading or other documents showing the nature of the appeal. The above papers must be put together in three sets — that is to say, one complete set for each judge." (W. N. 1881, p. 501, part 11.) In Be Randall (56 L. T. Rep. N. S. 8 ; W. N. 1887, p. 35), it was stated by the Court of Appeal that when there were three judges present, there should be three coj)ies of each material docu- ment, and costs would be allowed. 9. The time for appealing* from any order or decision Time for made or given in the matter of the winding-up of a appeal. company under the provisions of the Companies Act, 1862, or any Act amending the same, or any order or decision made in the matter of any bankruptcy, or in any other matter not being an action, shall be the same as the time limited for appeal from an interlocutory order under rule 15. 10. Where an ex parte apphcation has been refused by Ex parte the court below, an application for a similar purpose may applications be made to the Court of Appeal ex parte within four days from the date of such refusal, or within such enlarged time as a judge of the court below or of the Court of Appeal may allow. 11. When any question of fact is involved in an Facts in appeal, the evidence taken in the court below bearing on appeal, such question shall, subject to any special order, be brought before the Court of Appeal as follows : 152 ORIGINATING SUMMONS. (a.) As to any evidence taken by affidavit, by the production of printed copies of such of the affidavits as have been printed, and office copies of such of them as have not been printed : (b.) As to any evidence given orally, by the production of a copy of the judge's notes, or such other materials as the court may deem expedient. Printing 12. Where evidence has not been printed in the court CVTQGUCG below, the court below or a judge thereof, or the Court of Appeal or a judge thereof, may order the whole or any part thereof to be printed for the purpose of the appeal. Any party printing evidence for the purpose of an appeal without such order shall bear the costs thereof, unless the Court of Appeal or a judge thereof shall other- wise order. Notes. 13. If, upon the hearing of an appeal, a question ai^ise as to the ruling or direction of the judge to a jury or assessors, the court shall have regard to verified notes or other evidence, and to such other materials as the court may deem expedient. Interlocutory 14. No interlocutory order or rule from which there °^ ^^^' has been no appeal shall operate so as to bar or prejudice the Court of Appeal from giving such decision upon the appeal as may be just. Time within 15. No appeal to the Court of Appeal from any inter- must be locutory order, or from any order, whether final or inter- brought, locutory, in any matter not being an action, shall, except by special leave of the Court of Appeal, be brought after the expiration of twenty-one days, and no other appeal shall, except by such leave, be brought after the expira- tion of one year. The said respective periods shall be calculated, in the case of an appeal from an order in chambers, from the time when such order was pronounced, or when the appellant first had notice thereof, and in all other cases, from the time at which the judgment or order is signed, entered, or otherwise perfected, or, in the case APPEAL. ] 53 of the refusal of an applicatioD, from the date of such refusal. Such deposit or other security for the costs to be occasioned by any appeal shall be made or given as may be directed under special circumstances by the Court of Appeal. As to what orders are intei'lociitory and what are final, see ante, p. 148, and as to the time within wliich an appeal from an order on Originating Summons must be brought as a rule, see ante, p. 3. 15a. The time for appealing against an order made on the further consideration of a cause^ and on the hearing of a summons to vary the certificate on which such order is made, shall be the same as the time for appealing against the order on further consideration. The object of rule 15a, is to get rid of the anomaly of having two dijffiereut periods of time for appealing where a summons to vary, and further consideration were heard togetlier ; [Marsland v. Hole, 40 Ch. Div. 110 ; 59 L. T. Rep. N. S. 593 : 37 W. R. 81, ■0. A.) 16. An appeal shall not operate as a stay of execution or No stay, of proceedings under the decision appealed from, except so far as the Court appealed from, or any judge thereof, or the Court of Appeal, may order ; and no intermediate act or proceeding shall be invalidated, except so far as the Court appealed from may direct. 17. Wherever under these rules an application may be Which coiirt. made either to the court below or to the Court of Appeal, or to a judge of the court below or of the Court of Appeal, it shall be made in the first iustance to the court or judge below. 18. Every application to a judge of the Court of By motion. Appeal shall be by motion, and the provisions of Order LIT. shall apply thereto. 19. On an appeal from the High Court interest for Interest, such time as execution has been delayed by the appeal shall be allowed unless the court or a judge otherwise 154 ORIGINATING SUMMONS. orders, and the taxing officer may compute such interest without any order for that purpose. Part III. Appeals to the House op Lords. As ah'eady stated, an appeal lies from a decision of the Court of A^jpeal upon an Originating Summons in the same manner as if the action were commenced by writ. But as to " Time," see ante, p. 3. Statute. -^y ^^^^- '^ "^ *^'^^ Appellate Jurisdiction Act, 1876 (39 & 40 Vict, c. 59), " Every appeal shall be brought by way of petition to the House of Lords, praying that the matter of the order or judgment apjjealed against may be reviewed l^efore Her Majesty tlie Queen in her Court of Parliament, in order tliat the said Court may deter- mine what of right and according to the law and custom of this realm ought to lie done in the subject-matter of such appeal." Practice ^^^^ in-actice on appeal to the House of Lords is fully set forth in the Standing Orders, which can he ]jurchased for a very small sum of money; therefore it has not been thought necessary to encumber this work with them. Appendix III. 2)ost, contains forms of all the proceedings taken in an action commenced by an Originating Summons up to and including the order of the House of Lords, Avith some notes thereon, and it is believed tliat such forms, with a copy of the Standing Orders, will be a sufficient guide to the practice on this head. TIME. 155 CHAPTER XIIT. TIME. Oeder LXIV. (a) Time. 1. Where by these rules, or by any judgment or order Month, given or made after the commencement of the principal Act, time for doing any act or taking any proceeding is limited by months, and where the word ^' month " occurs in any document which is part of any legal procedure under these rules, such time shall be computed by calendar months, unless otherwise expressed. 2. Where any limited time less than six days from or Less than six after any date or event is appointed or allowed for doing ^^^' any act or taking any proceeding, Sunday, Christmas Day, and Good. Friday shall not be reckoned in the com- putation of such limited time. 3. Where the time for doing any act or taking any Simday. proceeding expires on a Sunday, or other day on which the ojQ&ces are closed, and by reason thereof such act or proceeding cannot be done or taken on that day, such act or proceeding shall, so far as regards the time of doing or taking the same, be held to be duly done or taken if done or taken on the day on which the offices shall next be open. 4. No pleadings shall be amended or delivered in the Long vaca- Long Vacation, unless directed by a court or a judge. *^°^^' (a) Orders LIX. to LXIII. relating respectively to " Divisional Courts," " Officers," " Central Office," " Registrars of the Chancery Division," and "Sittings and Vacations," and rules 9, 10, and 15 of this order relating to " Admiralty," are not sufficiently material to be inserted in the present work. 156 ORIGINATING SUMMONS. Time not reckoned. Enlarging time. Service of pleadings, &c. Exclusive and inclusive. 5. The time of the Long Vacation shall not be reckoned in the computation of the times appointed or allowed by these rules for fiHng, amending, or delivering any plead- ing, unless otherwise directed by the court or a judge. 6. The day on which an order for security for costs is served, and the time thenceforward until and including the day on which such security is given, shall not be reckoned in the computation of time allowed to plead, answer interrogatories, or take any other proceeding in the cause or matter. 7. The court or a judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms (if any) as the justice of the case may require, and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed. For full notes ou tliis nile see Wilson and Annual Practice. 8. The time for delivering, amending, or filing any pleading, answer, or other document may be enlarged by consent in writing, without application to the court or a judge. 11. Service of pleadings, notices, summonses, orders, rules, and other proceedings, shall be effected before the hour of six in the afternoon, except on Saturdays, when it shall be effected before the hour of two in the afternoon. Service effected after six in the afternoon ou any weekday except Saturday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall for the like purpose be deemed to have been effected ou the following jMonday. 12. In any case in which any particular number of TIME. 157 days, not expressed to be clear days, is prescribed by these Rules, the same shall be reckoned exclusively of the first day and inclusively of the last day. 13. In any cause or matter in which there has been no No proceed- proceedings for one year from the last proceeding had, ^^^ °^ * ^^^^ the party who desires to proceed shall give a month's notice to the other party of his intention to proceed. A summons on which no order has been made shall not, but notice of trial although countermanded shall be deemed a proceeding within this rule. 14. An application to set aside an award may be made Award, at any time before the last day of the sittings next after such award has been made and published to the parties. 158 ORIGINATING SUMMONS. Discretion of coiirt. CHAPTER XIV. COSTS. To deal exhaustively with tlie question of costs is beyond the scope of the present work. Therefore, only a few of the rules under Order LXV. bearing more immediately i;pon the subject in hand, with annotations thereon, are here given. For further information see Morgan and Wurtzburg on Costs, Dan., Seton, Wilson, and Annual Pract. And as to costs in administration actions, see Walker and Elgood. Oedbe LXV. Costs. 1. Subject to the provisions of the Acts and these Rules, the costs of and incident to all proceedings in the Supreme Court, including the administration of estates and trusts, shall be in the discretion of the court or judge ; provided that nothing herein contained shall Trustees, &c. deprive an executor, administrator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in the Chancery Division : Provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the court shall, for good cause, otherwise order. It will be observed that an executor, administrator, trustee, or moi-tgagee may be deprived of his costs if he has acted un- reasonably. As to the costs of an unnecessary administration action, see Order LV., r. 10, ante, p. 93. Solicitor and Except in a few 6j)ecial cases, a litigant is only entitled to costs Ghent costs. as between party and party. The following are the principal COSTS. 159 exceptions to that rule; (1) trustees, executors, and administrators are usually allowed their costs as between solicitor and client, including all charges and expenses properly incurred, out of tlie estate, see Morgan and Wurtzburg, p. 5 ; (2) in actions for adminis- tration or the like, if all parties are before the court, and sui juris and consent, costs are generally allowed as between solicitor and client ; (3) in a creditor's action for administration, if the estate is insuffi- cient to pay all the creditors in full, the plaintiff is entitled to costs as between solicitor and client, see Morgan and Wui'tzburg, p. 202, and cases there cited ; (4) the plaintiff in a legatee's administration action, when the estate is insufficient after payment of debts to pay the legacies in full, is entitled to his costs as between soli- citor and client : {Be WilMns ; Wilkins v. Rotherham, 27 Cli. Div. 703 ; 33 W. R. 42) ; (5) the costs of an application to strike out from any endorsement or pleading unnecessary or scandalous matter, may be ordered to be paid as between solicitor and client : (see Order XIX., r. 257.) But the High Court has, in matters of eqiiitable jurisdiction, a general and discretionary power to award costs as between solicitor and client to a successful party : {Andreios V. Barnes, W. N. 1888, p. 146 ; 58 L. T. Rep. N. S. 748. 0. A.) A question which frequently arises in administration actions (and Costs out of the majority of apx^lications by originating summons are connected personal with actions of that class) is, out of what fund the costs ought to be ])aid ? The rule is, that the costs should be paid ont of the general personal estate, that is in effect out of the residue ; (see Morgan and Wurtzburg, pp. 165, 166.) If a testator bequeaths his residuary personal estate to several persons, one of whom pi'e- deceases him, and thereby his share lapses, the costs of a suit for the administration of the testator's estate woidd be payable out of the residue generally, and not primarily out of the lapsed share : (see Trethewy v. Helyar, 4 Ch. Div. 53 ; 46 L. J. 25, Ch. ; and Fenton v. Wills, 3 L. T. Rep. N. S. 373 ; 7 Ch. Div. 33 ; 47 L. J. 191, Ch. ; 26 W. R. 139 ; but, contra, Gowan v. Brougliton, 31 L. T. Rep. N. S. 533 ; 19 Eq. 77 ; 44 L. J. 275, Ch. ; 23 W. R. 332 ; and Scott v. Cumberland, 31 L. T. Rep. N. S. 26 ; 18 Eq. 578 ; 44 L. J. 228, Ch. ; 22 W. R. 840.) If the residuary personal estate is insufficient to pay the costs of an administration suit, the deficiency must be made up by the pecuniary legatees in priority to the residuary devisees : {Tomkins V. CoUhurst, 33 L. T. Rep. N. S. 591 ; 1 Ch. Div. 626 ; 24 W. R. 267 ; and Farquharson v. Floyer, 35 L. T. Rep. N. S. 355 ; 3 Ch. Div. 109 ; 45 L. J. 750, Ch.) If the residuary personalty, after payment of the debts, is in- Personalty sufficient to pay the costs of the suit, the deficiency must be borne by insufficient, the specifically bequeathed personalty and specifically devised realty, 160 ORIGIXATING SUMMONS. and the residuary realty rateahly according to value : {Johnson v. Pease, 19 Eq. 96 ; Macldison v. Pye, 32 Beav. 658 : but see obser- vations of Malins, Y. C. on that case in Scott v. Cumberland, supra ; Stead V. Hardnker, 15 Eq. 175; 42 L. J. Ch. 317 ; 21 W. R. 258; Hurst V. Hurst, 28 Ch. Div. 159 ; 54 L. J. Ch. 190; 33 W. R. 473 ; Ee Price ; Williams v. Jenkins, 54 L. T. Rep. N. S. 416 ; 31 Ch . Div. 485; 55 L. J. -501, Ch. ; 34 W. R. 291; contra. Bow v. Boio, 7 Eq. 414 ; and Scott v. Cumberland, supra.) Keal and I'l applications dealing with the real and personal estate of a personal testator, the rule in Patching \. Barnett (45 L. T. Rep. N. S. 292; estate. 51 l J. 74, Ch.) followed in Be Middleton : Thompson v. Harris (C. A.) (46 L. T. 359 ; 19 Ch. Div. 5-52 ; 51 L. J. 273, Ch. ; 3a W. R. 293), must be borne in mind. In Patching v. Barnett, Jessel, M. R. presiding in the Court of Appeal said : " I think it important to say that in the administration of the real and personal estate, the modern rule is that the costs exclu- sively occasioned by the administration of the real estate are thrown upon the real estate, so that the general costs of the suit are borne by the personal estate. What I will call ' the increased costs arising from administering the real estate,' are as a rule thrown upon the real estate, and the courts have been in the habit for several years past of apportioning those costs at the hearing instead of throwing upon the taxing master the very difficult task of ascertaining how miich of each bill of costs made out by the solicitors has been occasioned exclusively by the real estate administration, and how much by the personal estate administration. Tliat rule has been found to be very convenient, and to save great cost, great delay, and great difficidty in the taxing office. The judge, as a rule, knows more about the suit, and is better able to apportion the costs — to say nothing of his superior knowledge of law — than the taxing master, and it has been my habit for years past, whenever requested to do so, to apportion the costs, and to give some aliquot sum which is to the best of my judgment a fair proportion to be paid." If a testator directs that his testamentary expenses are to be paid out of a particidar fund, that fimd ^^-ill have to bear the costs of an action for administration in exoneration of the general estate : (see Morgan and Wui-tzburg, p. 172 ; and Miles v. Harrison, 30 L. T. Rep. N. S. 190 ; 9 Ch. App. 316 : 43 L. J. 585, Ch. ; 22 W. R. 441. Testamentary " Testamentary expenses," include the costs of an administration expenses. suit (Harloe v. ' Harloe, 33 L. T. Rep. N. S. 247 ; 20 Eq. 471 ; 44 L. J. 512. Ch. ; 23 W. R. 789 ; Penny v. Penny, 40 L. T. Rep. N. S. 393 ; 11 Ch. Div. 440 ; 48 L. J. 691, Ch.), but do not include costs of an action to administer the real estate : (see Patching v. Barnett, supra.) COSTS. 161 The costs of determining- questions of construction of a will fall Construction on the whole residue, and not on the particular part of the estate of will, with reference to which the question arises, therefore it may be advisable in some cases to delay distribution of the residue till the question of construction has been determined ; but this delay might be avoided by setting apart a fund to meet the probable costs : (see Re Giles, p. 60, ante.) When the estate is deficient, trustees and legal personal repre- sentatives are entitled to be paid their costs, charges, and expenses in priority to other parties : {Dodds v. TuJce, 50 L. T. Rep. N. S. 320 ; 25 Ch. Div. 617 ; 53 L. J. 598, Ch. ; 32 W. R. 424 ; and Turner v. Dancey, 9 Beav. 339 ; and see Batten v. Wedgwood Coal and Iron Company, 52 L. T. Rep. N. S. 212 ; 28 Ch. Div. 317 ; 54 L. J. 686, Ch. ; 33 W. R. 303.) Although, as between an infant and his next friend, the latter Infant, will, as a rule, be allowed his costs as between solicitor and client, if tlie infant is only entitled in reversion, party and party costs only will be immediately paid, the next friend having liberty to apply for the difference between those costs and costs as between solicitor and client, when the fund comes into possession : {Damant v. Hennell, 55 L. T. Rep. N. S. 182 ; 33 Ch. Div. 224 ; 34 W. R. 774 ; Be Burton, W. N. 1887, p. 160 ; Be Aldred, W. N. 1888, p. 82.) As to whether the costs should be taxed at once as between solicitor and client, or party and party, the last three cases are con- flicting. 6. In any cause or matter in whicli security for costs Security for is required^ tlie security shall be of sucli amount, and be ^°^ *" given at sucli times, and in such manner and form, as the court or a judge shall direct. The ordinary cases in which security for costs may be required are — (1.) Where the plaintiff or all the plaintiffs permanently reside Eesidence abroad, as distinguished from being tliex'e on a visit : (Bepublic o/^-broad. Costa Bica v. Erlanger, 35 L. T. Rep. N. S. 19; 3Ch. Div. 62; 45 L. J., 743, Ch. ; 24 W. R. 955, C. A.). And such security may extend to past as well as future costs : {Massey v. Allen, 41 L. T. Rep. N. S. 788 ; 12 Ch. Div. 807 ; 48 L. J. 692, Ch. ; 28 W. R. 243.) But apparently security will not be required if the plaintiff has substantial proj)erty in this country : [Ebrard v. Gassier, 52 L. T. Rep. N. S. 63 ; 28 Ch. Div. 232 : 54 L. J. 441 ; 33 W. R. 287, C. A.) By the Judgments Extension Act, 1868 (31 & 32 Vict. c. 54). when a judgment has been obtained in England, a certificate of such judgment can be registered in the pi'oper office in Scotland, M 162 ORIGINATING SUMMONS. and the court in Scotland can issue process on such judgment. As the origin of the rule requiring secui-ity for costs was that, if a verdict were given against the plaintiff, he was not within the reach of our law so as to have jirocess served upon him for costs, a plaintiff resident in Scotland or Ireland cannot be required to give security for costs : (Baeburn v. Andrews, 30 L. T. Rep. N. S. 15 ; L. Rep. 9 Q. B. 118 ; 43 L. J. 73, Q. B. ; 22 W. R. 489 ; and Dan. p. 80, note (a) ; and Dan. F., p. 838, note (c). And see Be Howe Machine Company ; Fountaine's Claim, 86 L. T. 390 ; 41 Ch. Div. 118, C.A. 2. Where a limited company is plaintiff or pursuer in any action, suit, or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that, if the defendant be successful in his defence, the assets of the company will be insufficient to pay his costs, reqi;ire sufficient security to be given for such costs, and may stay all proceedings until such secm*ity is given : (sect. 69 of the Companies Act, 1862.) 3. Neither poverty nor even insolvency is a gi-oiind for requiring security for costs: {Cowell v. Taylor, 53 L. T. Rep. N. S. 483; 31 Ch. Div. 34; 55 L. J. 92, Ch. ; 34 W. R. 24, C. A.; and Bhodes V. Dawson, 16 Q. B. Div. 548 ; 55 L. J. 134, Q. B. ; 34 W. R. 241, C. A.) But if owing to banknqitcy proceedings the plaintiff is not the real plaintiff, but is a person whose name is used by some one behind him, apparently security for costs may be ordered : [Malcolm V. Hodgkinson, L. Rep. 8 Q. B. 209 ; 21 W. R. 360 ; and see BrocMebank and Company v. The King's Lynn Steamship Com- pany (38 L. T. Rep. N. S. 489; 3 C. P. Div. 365; 47 L. J. 321, C.P. ; 27W. R. 94; and Be Carta Para Mining Company, 19 Ch. Div. 457 ; 30 W. R. 117 ; and the comments on those cases in Bhodes v. Dawson, supra.) For other cases in which secm-ity for costs may be ordered, see Morgan and Wurtzburg, p. 7, et seq. ; Wilson, 479 ; and Annual Pract. It will be observed that the amount of security is in the discre- tion of the court : (see Bepublic of Costa Bica v. Erlanger, supra.) 6a. A plaintiff ordinarily resident out of the jurisdic- tion may be ordered to give security for costs, thougli he may be temporarily resident within the jurisdiction. This rule was added by R. S. C, Dec, 1885. 7. Where a bond is to be given as security for costs, it shall, unless the court or a judge shall otherwise COSTS. 163 direct, be given to the party or person requiring the security, and not to an officer of the court. 8. In causes and matters commenced after these rules Lower scale. come into operation, solicitors shall be entitled to charge and be allowed the fees set forth in the column headed " lower scale " in Appendix N.* in all causes and matters, and no higher fees shall be allowed in any case, except such as are by this Order otherwise provided for; and in causes and matters pending at the time when these rules come into operation, to which the higher scale of costs previously in force was applicable, the same scale shall continue to be applied. 9. The fees set forth in the column headed " higher H'lher sca^e. scale " in Appendix N.* may be allowed, either gene- rally in any cause or matter, or as to the costs of any particular application made, or business done, in any cause or matter, if, on special grounds arising out of the nature and importance, or the difficulty or urgency of the case, the court or a judge shall, at the trial or hearing, or further consideration of the cause or matter, or at the hearing of any application therein, whether the cause or matter shall or shall not be brought to trial or hearing or to further consideration (as the case may be), so order; or if the taxing officer, under directions given to him for that purpose by the court or a judge, shall think that such allowance ought to be so made upon such special grounds as aforesaid. The cases in whicli costs are allowed on the higher scale are rare. For an instance of such costs being allowed on an Originating Summons, see Re Chaytor's Settled Estate Act (50 L. T. Rep. N. S. 88 ; 25 Ch. Div. 651; 5.3 L. J. 312, Oh. ; 32 W. R. 517). Costs on the higher scale were also granted in the following aationa:— Holland v. Worley (50 L. T. Rep. N. S. .526; 26 Ch. Div. 578) ; Lydney Wigpool Iron Ore Comi^any v. Bird (54 L. T. Rep. N. S. 242, 245; 31 Ch. Div. 328, 340; 55 L. J. 383, Ch. ; 34 W. R. 437) ; Davies v. Davies (56 L. T. Rep. Rep. N. S. 401, 406; 36 Ch. Div. 359 ; 56 L. J. 481, Ch. ; 35 W. R. 697, only subsequent to M 2 164 ORIGINATING SUMMONS. reply) ; Moseley v. The Victoria Rubber Company (57 L. T. Rep. N. S. 142, 148). Leave was given to tlie taxing master to tax on higher scale if he thought fit in : — Fraser v. Brescia Steam Tramways Company (56 L. T. Rep. N. S. 771). They were refused in the following actions: — Williamson v. Noi-th Staffordshire Railway (55 L. T. Rep. N. S. 452 ; 32 Ch. Div. 399; 55 L. J. 938, Ch. C. A.) ; Hudson v. Osgerby (50 L. T. Rep. N. S. 323 ; 32 W. R. 566 ; W. N. 1884, p. 83) ; Grafton v. Weston (51 L. T. Rep. N. S. 141, 144) ; The Cardiff Steamship Company v. John Barwich (53 L. T. Rep. N. S. 56, 59) ; Horner v. Whitechapel Board of Worlcs (54 L. J. 151, Ch.) ; The Horace (50 L. T. Rep. N. S. 595 ; 9 P. Div. 86 ; 53 L. J. 323, P. ; 32 W. R. 755) ; and on petition in Re Spettigue's Ti-usts (W. N. 1884, p. 6 ; 32 W. R. 385). Higher scale on special grounds. Solicitor liable to pay costs person- ally. 10. Upon any I'eference to a taxing officer to tax a bill of costs o£ a solicitor for the purpose of ascertaining the amount due to such solicitor in respect thereof from the person to be charged therewith, if such bill shall include charges for business done in any cause or matter, the taxing officer may allow the fees set forth in the column headed '' higher scale " in Appendix N.* in respect of such cause or matter, or in respect of any particular application made or business done therein, if on such special grounds, as are in the last preceding rule men- tioned, he shall think that such allowance ought to be so made. 11. If in any case it shall appear to the court or a judge that costs have been improperly or without any reasonable cause incurred, or that by reason of any un- due delay in proceeding under any judgment or order, or of any misconduct or. default of the solicitor, any costs properly incurred have nevertheless proved fruitless to the person incurring the same, the court or judge may call on the solicitor of the person by whom such costs have been so incurred to show cause why such costs should not be disallowed as between the solicitor and his client, and also (if the circumstances of the case COSTS. 165 shall require) why the solicitor should not repay to his client any costs which the client may have been ordered to pay to any other person^ and thereupon may make such order as the justice of the case may require. The court or judge may, if they or he think fit, refer the matter to a taxing officer for inquiry and report ; and direct the solicitor in the first place to show cause before such taxing officer, and may also, if they or he think fit, direct or authorise the official solicitor of the Supreme Court to attend and take part in such inquiry. Such notice (if any) of the proceedings or order shall be given to the client in such manner as the court or judge may direct. Any costs of the official solicitor shall be paid by sach parties, or out of such funds as the court or a judge may direct ; or, if not otherwise paid, may be paid out of such moneys (if any) as may be provided by Par- liament. See Srown v. Burdett (58 L. T. Rep. N. S. 571 ; 37 Ch. Div. 207, C. A.) as to the wide scope of this rule, and Me Ormston Goldring v. Lancaster (58 L. T. Rep. N. S. 74 ; 36 W. R. 216, and W. N. 1887, p. 251 ; lb. 1888, p. 152; 85 L. T. 155, C. A.) as to costs of useless inquiries. See also Brown v. Burdett (No. 2) (60 L. T. Rep. N. S. 520; 40 Ch. Div. 244, C A.) as to costs allowed by taxing master as between a solicitor and his client not being conclusive of the amoun which court wiU allow out of estate. 13. Where the court or a judge appoints one of the Guardian solicitors of the court to be guardian ad litem of an *^ ^'^t^^- infant or person of unsound mind, the court or judge may direct that the costs to be incurred in the perform- ance of the duties of such office shall be borne and paid either by the parties or some one or more of the parties to the cause or matter in which such appointment is made, or out of any fund in court in which such infant or person of unsound mind may be interested, and may give directions for the repayment or allowance of such 166 ORIGINATING SUMMONS. Reference to taxation. costs as tlie justice and circumstances of the case may require. 18. Every reference for tlie taxation of costs in the Chancery Division shall be made to the taxing master in rotation ; [or in such manner or order as the Lord Chan- cellor may from time to time direct] provided that in any case where there shall have been any former taxa- tion in the same cause or matter, or in any summons under Order LV., rr. 3 or 4, relating to the same estate or trust, the reference shall be to the taxing master before whom such former taxation took place. The words in brackets were added by R. S. C. May, 1889. these rules see W. N. May 11, 1889, p. 231. For Order LY., r. 3, see p. 79, and r. 4, ]). 85, ante. For 19. The taxing masters shall be respectively assistant to each other, and in the discharge of their duties ; and, for the better despatch of the business of their respective ofl&ces, any taxing master may tax or assist in the taxa- tion of a bill of costs which has been referred to any other taxing master for taxation, and for ascertaining what is due in respect of such costs, and in such case shall cer- tify accordingly. 19a. The following warrants in the office of the taxing masters of the Chancery Division shall be abolished : Warrant on leaving, warrant to bring in, and warrant to tax. This rale was added by R.S.C., Dec. 1885. 196. The proper officer, by whom any order directing a taxation of costs shall be drawn up, shall certify upon the order the date on which it was signed, entered, or otherwise perfected. 19c. Should the solicitor having the carriage of the order fail in leaving at the office of the proper taxing master within seven days after the order was signed, entered, or otherwise perfected, a copy of it, and COSTS. 167 (annexed to such copy) a statement containing' the names and addresses of the parties appearing in person and of the solicitors of the parties not appearing in person, no costs of taxation shall be allowed to the solicitor so failing. 19d. On the copy of the order being left with the taxing master he shall forthwith send by post to the parties appearing in person, and to the solicitors of the parties not appearing in person a notice fixing a date before which the bills, the taxation whereof is directed by the order shall (with all necessary papers and vouchers) be left for taxation, and a subsequent date on which the taxation shall be proceeded with. Rules 196, 19c, and 19d were added byR. S. C, May, 1889, in substitution for former rules 19&, 19c, and Idd annulled. 19e. The taxation shall, if possible, be continued Adjournment without interruption till completed ; but if adjourned for ° any reason, notice of the adjournment shall be sent by the taxing master by post to any solicitor not present at the time of the adjournment whose attendance he may desire at the next appointment. 19g. Any solicitor who shall fail to leave his bill of Penalty for costs (with the necessary papers and vouchers) within taxation the time or extended time fixed by the taxing master for that purpose, or who shall in any way delay or impede the taxation shall, unless the taxing master otherwise directs, forfeit the fees to which he would otherwise be entitled for drawing his bill of costs, and for attending the taxation, and the taxing master may also, if he shall think fit, exercise all or any of the powers vested in him by regulations (28) and (55) of this Order. 19h. In every bill of costs the professional charges shall be entered in a separate column from the disburse- ments, and every column shall be cast before the bill is left for taxation. Rules 19e, 19^, and 19^ were added by R. S. C. Dec. 1885. 168 ORIGINATING SUMMONS. Costs out of a ftind. 27. (9.) As to evidence, such just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence, and the attendance of witnesses, are to be allowed. As to evidence on applications by Originating Summons generally see ante, p. 27. It is important that all affidavits filed should be entered as read in the order, otherwise the costs of them will not be allowed on taxation even as between solicitor and client : (see Stephens v. Lord Newborouqh, 11 Beav. 403 ; Morgan's Acts and Orders, p. 549. 27. (15.) Such costs of procuring the advice of counsel on the pleadings, evidence, and proceedings in any cause or matter as the taxing officer shall in his discretion think just and reasonable, and of procuring counsel to settle such pleadings and special affidavits as the taxing officer shall in his discretion think proper to be settled by counsel, are to be allowed ; but as to affidavits a separate fee is not to be allowed for each affidavit, but one fee for all the affidavits proper to be so settled, which are or ought to be filed at the same time. " Pleading " includes an originating summons. Therefore, the taxing master has full discretion to allow the cost of procuring counsel to settle such a summons, and it is believed that such cost is usually allowed. 27. (16.) As to counsel attending at judges^ chambers, no costs thereof shall in any case be allowed, unless the judge certifies it to be a proper case for counsel to attend. But see Order LV., r. la, ante, p. -53. It is not the practice in the Chancery Division for counsel attending upon the judge in chambers to apply for a certificate under this rule. It is believed that the cost of counsel attending before the judge in chambers in this division upon an Originating Summons is allowed as a matter of course. 27a. (38a.) If in any case in which a taxation is directed with a view to the payment of the costs out of a fund or estate (real or personal), or out of the assets COSTS. 169 of a compan}' in liquidation, the costs shall have been increased by unnecessary delay, or by improper, vexatious, or unnecessary proceedings, or by other mis- conduct or negligence, or if from any other cause the amount of the costs shall, in the opinion of the taxing master, be excessive having regard to the value of the fund, estate, or assets to which they relate, or other circumstances, the taxing master shall allow only such an amount of costs as would, in his opinion, have been incurred if the litigation had been properly conducted, and shall assess the same at a gross sum, and shall (if necessary) apportion the amount among the parties. (&.) If on the taxation of a bill of costs payable out of a fund or estate (real or personal), or out of the assets of a company in liquidation, the amount of the professional charges (exclusive of disbursements) contained in the bill is reduced by a sixth part, no costs shall be allowed to the solicitor leaving the bill for taxation for drawing and copying it, nor for attending the taxation. Tliis rule was added by R. S. C, May, 1889. 170 ORIGINATING SUMMONS. Showing original . Service not personal. By post. If no appear- ance. Persons! service. CHAPTER XV. SERVICE OF ORDEES, &c. Oedee LXVII., R. S. C, 1883. I. Service of Orders, Sfc. 1. Except in the case of an order for attachment, it shall not be necessary to the regular service of an order that the original order be shown if an office copy of it be exhibited. 2. All writs, notices, pleadings, orders, summonses, warrants, and other documents, proceedings, and written communications in respect of which personal service is not requisite, shall be sufficiently served if left within the prescribed hours, at the address for service of the person to be served as defined by Orders IV. and XII., with any person resident at or belonging to such place. 3. Notices sent from any office of the Supreme Court may be sent by post ; and the time at which the notice so posted would be delivered in the ordinary course of post shall be considered as the time of service thereof, and the posting thereof shall be a sufficient service. 4. Where no appearance has been entered for a party, or where a party or his solicitor, as the case may be, has omitted to give an address for service as required by Orders IV. and XII., all writs, notices, pleadings, orders, summonses, warrants, and other documents, proceedings, and written communications in respect of which personal service is not requisite may be served by filing them with the proper officer. 5. Where personal service of any writ, notice, plead- ing, order, summons, warrant, or other document, pro- ceeding, or written communication is required by these SERVICE OP ORDERS, &C. 171 rules or otherwise, the service shall be effected as nearly as may be in the manner prescribed for the personal service of a writ of summons. 6. Where personal service of any writ, notice, plead- Substituted ing, summons, order, warrant, or other document, pro- ^®'^^^°®- ceeding, or written communication is required by these rules or otherwise, and it is made to appear to the court or a judge that prompt personal service cannot be effected, the court or judge may make such order for substituted or other service, or for the substitution of notice for service by letter, public advertisement, or otherwise, as may be just. As to service of au Originating Summons, see ante, pp. 49, 87, et seq. 7. Where a partyafterhavingsuedorappeared in person Service on has given notice in writing to the opposite party or his solicitor, through a solicitor, that such solicitor is autho- rised to act in the cause or matter on his behalf, all writs, notices, pleadings, summonses, orders, warrants, and other documents, proceedings, and written communica- tions which ought to be delivered to or served upon the party on whose behalf the notice is given shall thereafter be delivered to or served upon such solicitor. 8. Where a person who is not a party appears in any proceeding either before the court or in chambers, service upon the solicitor in London by whom such person appears, whether such solicitor act as principal or agent, shall be deemed good service except in matters requiring personal service. 9. Affidavits of service shall state when, where, and Affidavit of how and by whom, such service was effected. service. [The remaining rules of this order relate to Admiralty actions.] 172 ORIGINATING SUMMONS. IP j^ :e^ T II. STATUTES (OTHEE THAN THOSE REFEEEED TO IN OEDER LV., R. 2, ante, p. 54, et seq.) TTNDEE WHICH AN ORIGINATING SUMMONS MAY BE ISSUED. CHAPTER XVI. VENDOR AND PURCHASER ACT, 1874, Sect. 9. (37 & 38 Vict. c. 78.)— 7th August, 1874 9. A vendor or purchaser of real or leasehold estate in England, or tlieir representatives respectively, may at any time or times, and from time to time, apply in a summary way to a judge of the Court of Chancery in England in chambers, in respect of any requisitions or objections, or any claim for compensation, or any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the judge shall make such order upon the application as to him shall appear just, and shall order how and by whom all, or any, of the costs of and incident to the application shall be borne and paid. A vendor or purchaser of real or leasehold estate in Ireland, or their representatives respectively, may, in like manner, and for the same purpose, apply to a judge of the Court of Chancery in Ireland, and the judge shall make such order upon the application as to him shall VENDOR AND PURCHASER ACT, 1874. 173 appear just, and shall order how and by whom all, or any, of the costs of and incident to the application shall be borne and paid. Applicatious iiuder this section are by Origiuatiug Summous. For form of summons see Appendix III., post, and Dan. F. 1525. The above section, which enables difficulties in purchases, and disputes between vendors and purchasers, to be decided on summons, has proved extremely ixseful. It authorises the vendor or purchaser of real or leasehold estate in England, or their repre- sentatives, to apply in chambers to a judge of the Chancery Division in respect of (1) any requisitions or objections, or (2) any claim for compensation, or (3) any other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract). It will be convenient to deal with the subject under different heads. (1.) When the Procedure by Summons under this Section Applies. The section only applies to purchases properly so called ; but the validity of a vokmtary grant can be tested by means of an application under this section, if a nominal consideration is inserted: Be Marquis ofSalisbunj, 34 L. T. Rep. N. S. 5; 23 W. R. 824.) The section is not intended to apply to cases where there are Scope of questions of controverted facts : (see Re Popple and Barratt's jurisdiction. Contract, 25 W. R. 248 ; and Be Burroughs Lynn and Sexton, 36 L. T. Rep. N. S. 778; 5 Ch. Div. 601; 46 L. J. 528, Ch.; 25 W. R. 520), where the Master of the Rolls had refused to hear evidence on affidavit, filed since the summons and the cross- examination of the deponents. The Court of Appeal declared such evidence admissible, and Lord Justice James, with the concurrence of the other members of the court, laid it down " that whatever could be done in charabex's upon reference as to title, under a decree where title was established, could be done upon proceedings under this Act.' In Be Gray v. The Metropolitan Bailway Company, 44 L. T. Rep. N. S. 567) Mr. Justice Fry doubted his power in an applica- tion under this section to try a preliminary issue of fact. It is the practice in the chambers of Mr. Justice Chitty to require an agreed statement of facts to be brought in : (see Dan. F., p. 654, note X.) For form of such statement see Appendix III., post. But the facts may be proved by affidavit : (see Dan. F., p. 655, note X, and Be Johnson and Tustin, 53 L. T. Rep. N. S. 845 ; 30 Ch. Div. 42 ; 54 L. J. 43, Ch. ; 33 W. R. 43.) 174 ORIGINATING SUMMONS. Although questions as to the " existence or validity of the con- tract " cannot be tried on this summons, questions as to the right to rescind were tried in Jachson and Oakshott (14 Ch. Div. 851 ; 41 L. T. Rep. N. S. 719 ; 49 L. J. 523, Ch. ; 28 W. R. 794) ; Dames to Wood (53 L. T. Rep. N. S. 177 ; 29 Ch. Div. 626 ; 54 L. J. 771, Ch. ; 33 W. R. 685 ; 49 J. P. 52 ; affirming 51 L. T. Rep. N. S. 109 ; 27 Ch. Div. 172) ; Glenton and Saunders to Baden (53 L. T. Rep. N. S. 434 ; 50 J. P. 118) ; Monchton to Gilzean (51 L. T. Rep. N. S. 320; 27 Ch. Div. 555; 54 L. J. 257, Ch.; 33 W. R. 973) ; and The 163rd Starr Sowhett B. B. S. and Sibun's Contract (W. N. 1889, p. 97; 87 L. T. 31). The Court can determine the validity of a notice given by the vendor to rescind the contract of sale : {Re Jachson and Woodhurn's, 37 Ch. Div. 44 ; 57 L. T. Rep. N. S. 753 ; 57 L. J. 243, Ch. ; 36 W. R. 396.) It has been held that if a contract is void in consequence of fraudulent or negligent misrepresentation the procedure under this section is unsuitable : {Re Davis and Cavey's Contract, 60 L. T. Rep. N. S. 100 ; 40 Ch. Div. 601, 609 ; 58 L. J. 143, Ch.) The reported cases which have been decided under this section are very numerous, so only a few of them are given here. As a rule they have arisen with respect to some objection or requisition on title. Questions of compensation were decided in Re Turner and Skelton (41 L. T. Rep. N. S. 668 ; 13 Ch. Div. 130), and in Be Orange and Wright's Contract (52 L. T. Rep. N. S. 606). As to the power of a person to convey, in Re WaddelVs Contract (2 Ch. Div. 172). As to a purchaser's right to the statutory acknowledg- ment of right to production of deeds, in Re Agg -Gardner (49 L. T. Rep. N. S. 804 ; 25 Ch. Div. 600 ; 53 L. J. 347, Ch. ; 32 W. R. 356). Whether a vendor had a right to interest on a dejjosit in a bank, in Gold and Norton's Contract (52 L. T. Rep. N. S. 321 ; 33 W. R. 333 ; W. N. 1885, p. 6). As to the personal attendance of trustees to receive purchase money, in Re Flower and Metro- politan Board of Works (a) (51 L. T. Rep. N. S. 257 ; 27 Ch. Div. 592; 53 L. J. 955, Ch.; 32 W. R. 1101). As to covenants by a tenant for life, in Re Sawyer and Baring's Contract (51 L. T. Rep. N. S. 356). As to succession duty, in Re Cooper and Allen's Contract (35 L. T. Rep. N. S. 890 ; 4 Ch. Div. 802 ; 46 L. J., N. S. 133, Ch. ; 25 W. R. 301). For a selection of cases alphabetically arranged see Clarke and Humphrey on Sales of Land, j). 486, et seq., and see Dan. 1382, et seq. (a) The doctrine of this case is now modified by the Trustee Act, 1888 (51 & 52 Vict. c. 59), s. 2 (1). VENDOR AND PURCHASER ACT, 1874. 175 (2.) Nature of Relief Obtainable on Summons. In exercising the summary jurisdiction given by tins section, the court has power not only to answer the question submitted to it, but to direct such things to be done as are the natural consequence of the decision, see Re Hargreaves and Tliompson'' s Contract (55 L. T. Rep. N. S. 239; 32 Ch. Div. 454; 56 L. J. 199, Ch. ; 34 W. R. 708, C.A.). Thus the Court has power to award to a pur- chaser a retixm of his deposit with interest (Smith and Stott, 48 L. T. Rep. N. S. 512; 29 Ch. Div. 1009, n. ; 31 W. R. 411), and costs of purchaser's investigation of title : {Re Yielding and WestbrooJc, 54 L. T. Rep. N. S. 531 ; 31 Ch. Div. 344 ; 55 L. J. 496, Ch. ; 34 W. R. 397 ; Hargreave and Thompson's Contract, supra; Re Higgins and Percival, 59 L. T. Rep. N. S. 213; 57 L. J. 807, Ch. ; W. N. 1888, p. 172.) But in Re Davis and Cavey's Contract (see p. 174 above), imder sj)ecial circumstances the court refused to order return of deposit. It is doubtful whether the court has jurisdiction, on a vendor and purchaser summons, to order return to a j)urchaser of interest erroneously paid by him : but when the vendor waived the objection the court ordered payment of such interest to the purchaser : {Re Young andHarston's Contract, 53 L. T. Rep. N. S. 837 ; 31 Ch. Div. 168 ; 34 W. R. 84 ; 50 J. P. 245, C.A.) Judgment will be given in court if the purchaser desires it {Coleman v. Jarrom, 35 L. T. Rep. N. S. 614 ; 4 Ch Div. 165; 25 W. R. 137) or the judge thinks fit. If the vendor does not comply with the order made, the purchaser should apply in chambers for its enforcement — not liring an action for specific performance : {Tliompson to Ringer, 44 L. T. Rep. N. S, 507 ; 29 W. R. 520.) On a decision as to succession duty the Crown was held not bound, as not being before the court : {Cooper and Allen's Contract, 35 L. T. Rep. N. S. 890 ; 4 Ch. Div. 802, 805 ; 46 L. J. 133, Ch. ; 25 W. R. 301.) A I'eference to chambers may be made to ascertain amount of compensation to which a purchaser is entitled under a condition, {Aspinall to Powell and Scholefield, 60 L. T. Rep. N. S. 595 ; 87 L.T. 37, 51.) On a vendor's summons a purchaser can obtain rescission : {Re Higgins and Percival, 59 L. T. Rep. N. S. 213 ; 57 L. J. 807, Ch. ; W.N. 1888, p. 172.) In Re Thackwray and Young's Contract (59 L. T. Rep. N. S. 815 ; 40 Ch. Div. 34 ; 58 L. J. N. S. 72, Ch. ; 37 W. R. 74) Mr. Justice Chitty refused to hold that a purchaser was forced to take a doubtfid title without deciding that the title was bad, although the point depended on the construction of an Act of Parliament. 176 ORIGINATING SUMMONS. (3.) Costs. The general (but uot universal) rule as to the costs of the summons is that the losing party, whether vendor or purchaser, is ordered to pay them: {Be Packman and Moss, 1 Ch. Div. 214 ; Osborne to Boidett, 42 L. T. Rep. N. S. 650; 13 Ch. Div. 224, 298 ; 49 L. J. 310, Ch. ; 28 W. R. 365 ; and Be Johnson and Tustin, 53 L. T. Rep. N. S. 281 ; 30 Ch. Div. 42 ; 54 L. J. 43, Ch. ; 33 W. R. 43) where the Court of Appeal gave the purchaser (a successful appellant) his costs of appeal and below. In ease of objection to title the court will not, where it decides in favour of the title, make the vendor pay costs simply on the ground that it was not such that a conveyancer would accept without the decision of the court ; on the contrary the general rule is to order the purchaser to pay the costs so as to assure his title, and show that the court entertains no doubt upon it [Osborne v. Bowlett, supra), but as in that case the difficulty arose entirely from con- flicting decisions. Sir G. Jessel made no order for costs, though declaring that this was not because he had any doubt as to the title. In Finch v. Juices (W. N. 1877, Aug. 11, p. 211), Vice- Chancellor Hall, in deciding on an objection in favour of the vendor, said it Avas a proj^er case to be brought into court, and left each party to bear their own costs. In Be Coward and Adams' Purchase (32 L. T. Rep. N. S. 682 ; L. Rep. 20 Eq. 179 ; 44 L. J. 384, Ch. ; 23 W. R. 605), Sir G. Jessel said that " if the unsuccessful party were made to pay the costs of the summons, it woidd go far to interfere with the bene- ficial oxjeration of the Act, and he should therefore direct each party to pay his own costs." This was a case of a requisition which the court declared " satisfied." Where a solicitor had inserted an inaccurate statement in par- ticulars, and had endeavoured to cover it by a condition, and it was held that purchase could not be compelled to complete, the solicitor's costs against the vendor were disallowed on taxation : {Be X., 54 L. T. Rep. N. S. 634.) For further cases see Clarke and Humphrey on Sales of Land, p. 489. In Be Edwards and Budlcin to Green (58 L. T. Rep. N. S. 789, 792) no costs of summons wei-e given on either side. (4.) Appeal. As to appeals from chambers, see ante, p. 143 et seq. Under Order LVIII, r. 9, of the Rules of 1875, it was held that an appeal fi-om a A'endor and purchaser summons must be within twenty.one days {Be Bhjth and Young, 41 L. T. Re]). N. S. 746 ; 13 Ch. Div. 416 ; 28 W. R. 266) ; and as a summons under the Vendor and Purchaser Act, 1874, is not taken out under Order LV., VENDOR AND PURCHASER ACT, 1874. 177 r. 3, it may be that such au appeal must still be brought within twenty-one clays, notwithstanding .- {Re Fawsitt ; Galland V. Burton, 53 L. T. Rep. N. S. 271 ; 30 Ch. Div. 231) ante, p. 3. As to appeals from orders made in court, see ante, p. 146, et seq. (5.) Miscellaneous. The party taking out the summons must bring the matter properly before the court : {Be Parher and Beech's Contract, 56 L. T. Rep. N. S. 95 ; W. N. 1887, p. 27). In Be Tippetts and Newhould's Contract, (58 L. T. Rep. N. S. 754 ; 37 Ch. Div. 444 ; 36 W. R. 597) it was held that a vendor and purchaser summons might be amended so as to make it an Originating Summons under Order LV. r. 3. " On a summons under the Yendor and Purchaser Act the only persons between whom the court can decide anything are the vendor and purchaser " ; but other persons can come in and agree to be bound, and can concur in the summons and can appeal : (-Be Naylor and Spendla's Contract, 56 L. T. Rep. N. S. 132 ; 34 Ch. Div. 217, 220, C.A.). "When the relief sought can be obtained on a summons under this Act, senible, that if the plaintiif brings an action he will only be entitled to the costs of a summons : {King v. Chamherlayn, W. N. 1887, p. 158.) 178 ORIGINATING SUMMONS. CHAPTER XVII. THE CONVEYANCING AND LAW OF PKOPERTY ACT, 1881 (Sects. 5, 9, 39, and 42). (44 & 45 Vict. c. 41.) 22nd Aug., 1881. (a) Section 5. Discharge of Incumbrances on Sale. 6. (1.) Where land subject to any incumbrance, "whether immediately payable or not, is sold by the court, or out of court, the court may, if it thinks fit, on the appli- cation of any party to the sale, direct or allow payment into court, in case of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land of such amount as, when invested in Government securities, the court considers will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to meet the incumbrance and any interest due thereon ; but in either case there shall also be paid into court such additional amount as the court considers will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency, except depreciation of invest- ments, not exceeding one-tenth part of the original amount to be paid in, unless the court, for special reason, thinks fit to require a larger additional amount. (2.) Thereupon, the court may, if it thinks fit, and either after or without any notice to the incumbrancer, as the court thinks fit, declare the land to be freed from (a) Thia Act commences immediately after the 31st December, 1881. THE CONVEYANCmO, ETC., ACT, 1881. 179 the incumbrance, and make any order for conveyance or vesting order proper for giving effect to the sale, and give directions for the retention and investment of the money in court. (3.) After notice served on the persons interested in or entitled to the money or fund in court, the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distri- bution of the capital or income thereof. ^4.) This section applies to sales not completed at the commencement of this Act, and to sales thereafter made. Applications under this section are by Originating Summons unless made in a pending action or matter, see Dan. F., p. 996, note n., and sect. 69, sub-sect. 3 of the Act, which is as follows : " Every application to the coui-t shall, except where it is otherwise expressed, be by summons at chambers." For forms of summons, see Dan. F. 2249 and 2250. The above is a very useful proAasion, particularly when annuities are charged on the land. Where real estate, forming part of an estate which is being administered by the court, is charged with an annuity, upon further consideration the court will not, under the Conveyancing Act, 1881, sect. 5, direct the property to be sold free from the annuity, but wUl direct an application in chambers as to the mode of sale : {Patching v. Bull, 46 L. T. Rep. N. S. 227 ; 30 W. R. 244.) The court will not, under the power given to it in this section, compel a vendor of land to pay money into court for discharging an incumbrance on the land when the result would be to inflict a great hardship upon him ; e.g., where the incumbrance is a perpetual rent- charge and the sum necessary for its discharge much exceeds the purchase money payable to the vendor. A railway company who had acquired land, under the L. C. C. Act, for a perpetual rentcharge of 631., agreed to sell it, unin- cumbered, for 8681., overlooking the rentcharge. The contract con- tained power to rescind if purchaser declined to waive any valid objection to title. The company offered to indemnify against the rentcharge, but refused to redeem. Held, that the company was not bound to apply to the court to redeem under this section, but could rescind. Quaere, whether the section applies to unwilling vendors. Words " direct " and " allow " in sub-sect. (1) explained : N 2 180 ORIGINATING SUMMONS. {Be Great Northern Railway and Sanderson, 50 L. T. Rep. N. S. 87; 25 Ch. Div. 788.) It will be seen from tlie above cases, that the exercise of this power by the court is discretionary ; and an opinion is expressed in Dart. V. & P. that " this section is probably intended to apply only in exceptional cases, as where an incumbrancer cannot concur in the ordinary way :" (6th edit. 176 ; see also lb. p. 667, n.) A mortgage deed gave the mortgagee an option to purchase in case the debt was not paid on a day named. The trustees in bank- ruptcy of the mortgagors sold the mortgaged property. A part of the purchase money was deposited to provide against the mortgage. Pending proceedings on the part of the trustees to set aside the mortgage on the ground of fraudulent preference, an order was made that the money deposited should be paid into court, and on such further sum being paid in as would cover the priucipal and interest due, and 10 per cent, extra, the mortgaged property should vest in the purchaser : {Milford Haven Railway and Estate Com- pany V. Mowatt ; Be Lake and Taylor's Mortgage, 28 Ch. Div. 402.) An order by the court, under the Conveyancing Act, 1881, s. 5, for the sale of land free from an incumbrance, the incumbrancer not being party to the action, should follow the words of the statute, and after directing payment into court of the purchase money, and setting aside of an amount sufficient to meet the incumbrance, &c., should declare that thereupon any party should be at liberty to apply in chambers for a declaration that the land is freed from the incumbrance : {Dickin v. Dickin, 73 L. T. 179 ; 30 W. R. 887.) For valuable dissertations on this section, see Wolstenholme and Turner's Conveyancing Acts, 4th edit., p. 27, et seq., and Clerke and Brett. As to practice, see Dan. jjp. 1101, 2312. Section 9. Production and Safe Custody of Title Deeds. Under tliis section (sub-sects. 1-6) where a person retains posses- sion of documents and gives to another a written acknowledgment of the latter's right to production and delivery of copies thereof, such acknowledgment binds the holders of the documents for the time being at the written request and costs of the person entitled to the benefit of the acknowledgment to j)roduco the documents and deliver copies thereof, but does not confer any right to damages for loss of the documents. Sub-sect. 7 is as follows : " Any person claiming to be entitled to the benefit of THE CONVEYANCING, ETC., ACT, 1881. 181 an acknowledgment may apply to tlie court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of, or extracts from those documents, or any of them, to him, or some person on his behalf; and the court may if it thinks fit order production, or production and delivery accordingly, and may give directions respecting the time, place, terms, and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application." Under sub -sect. 9, where a person retains possession of documents and gives to another a written undertaking for safe custody thereof that binds the holder of the documents for the time being to keep them safe, unless prevented by fire or inevitable accident. Sub-sect. 10 is as follows : " Any person claiming to be entitled to the benefit of such an undertaking may apply to the court to assess damages for any loss, destruction of, or injury to the documents, or any of them, and the court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter con- nected with the application." This section applies only to an acknowledgment or undertaking given, or a liability respecting documents incurred after the com- mencement of the Act : (sub-sect. 14.) Apj)lications under sub-sect. 7 and 10 of this section are by Originating Summons. For forms of summons, see Dan. F. 2251, 2252. Section 39. Married Women. (1.) Notwithstanding that a married woman is restrained from anticipation, the court may, if it thinks fit, where it appears to the court to be for her benefit. 182 ORIGINATING SUMMONS. by judgment or order, with her consent, bind her inte- rest in any property. (2.) This section applies only to judgments or orders made after the commencement of this Act. Applications under this section are by Originating Summons unless made in a jjending action or matter, see Dan. F., p. 998, note (z), and sect. 69, sub-sect. 3, of the Act, and Re LilhvalVs Settlement Trusts, 30 W. R. 243, and W. N., 1882, p. 6. It is not necessary that the married woman's consent should be obtained by sejiarate examination. It depends upon circumstances. In some cases the judge requires it, in others he does not. In Hodges v. Hodges (46 L. T. Rep. N. S. 366 ; 20 Ch. Div. 749) the order was made upon the evidence of the married woman's consent afforded by an affidavit made by her in support of the application, and a letter written by her to her solicitors strongly urging them to obtain the money for her. Where a married woman resided in the country and was an invalid confined to her house, the order was allowed to be drawn up without a separate examination of the party, upon her consent being testified by a written request signed by her and addressed to her solicitors, her signature being verified by affidavit : {Be Bushby, 73 L. T. 268; 17 L. J. N. C. 106.) In Be Currey ; Gibson v. Way, No. 2 (56 L. T. Rep. N. S. 82 ; 56 L. J. N. S. 389, Ch.; 35 W. R. 326), Mr. Justice Chitty said : " I do not require the married woman to attend, unless I think it is a case in which there are some special circum- stances. I do not put the married women who apply to me froquently in chaml)ers about these matters, under the necessity of always coming to be examined, but I am very strict in finding out that it is according to their own free wiU. Sometimes I may require a letter, particularly when it is something about the husband's debts. I understand that, in the present case, the solicitor, a gentleman of experience, has seen the ladies alone." In Harris v. Harford (85 L. T. 246; W. N., 1888, 190), North, J. said, " That in some such cases he had required a married woman to be examined separately, but lie would not lay down as a rule that this was absolutely necessary in every case. He should reserv'O the right of requiring a separate examination in any case in which he might think it necessary. In the j^resent case he thought the compromise would be for the benefit of the married woman, and he did not think it necessary that she should be sepa- rately examined." It is usual to serve the trustees, but in Be Little's Will ; Be THE CONVEYANCING, ETC., ACT, 1881. 183 Harrison (57 L. T. Rep. N. S. 583 ; 36 Oh. Div. 701, C. A. ; 56 L. J. 872, Ch.), an order was made without requiring the trustees to be served. Wlien, on a petition under tlie Settled Estates Act, 1877, the court, under Conveyancing Act, s. 39, makes an order binding the married woman's interest, the petition need not be entitled under the Conveyancing Act : [Re Landfield's Settled Land, 46 L. T. Rep. N. S. 227.) The importance and utility of this section cannot be estimated merely by the number of reported cases which have been decided upon it — though they are not a few — because there are " a great many cases of this kind in chambers, and they very seldom come into court," as Mr. Justice Chitty stated with reference to his own experience in Be Currey ; Gibson v. Way (56 L. T. Rep. N. S. 80, 82). It will be seen, from a consideration of the cases cited below, that there have been considerable differences of opinion as to the liberality with which the court shoidd exercise its powers under this section. Perhaps the high-water mark of most benevolent interpretation as yet reached will be found in Re C.'s Settle- ment (56 L. T. Rep. N. S. 299 ; 56 L. J. 556, Ch.), where the wife wished to j)ay debts which she had incurred on behalf of her husband; and in Be Torrance (81 L. T. 118), where the court enabled a married woman to raise money on a reversion for the purpose of buying her husband a medical practice. As a rule the Irish court seems more liberal than the English one, probably because the " times " are worse in Ireland than in this country, but the tendency of the court in England is to become more liberal. The convenient phrase "removal of restraint on anticipation," which is often employed to denote the effect of the section, and is even used by the judicial bench {Re Seagrave's Trusts, 17 L. Rep. Ir. 373), is not strictly accurate, and was condemned in Re Warren [ubi inf.), so that the careful prac- titioner in makiug an application under this section would do well to avoid the use of it. Order Made. In Tamplin v. Miller (30 W. R. 422 ; W. N. 82, p. 44), Yice- Chancellor HaU made an order sanctioning a compromise, but stated that he should require very strong grounds before acceding to applications to remove the restraint. In Re Landfield's Settled Land (46 L. T. Rep. N. S. 227) the Court made an order to bind a married woman's interest on a peti- tion for confirmation of a conditional agreement for the sale of land. In Hodges v. H. {supra.), where a married woman was, in effect, 184 ORIGINATING SUMMONS. absolutely entitled to the property in default of children, and in case she did not exercise a power of apj)ointmcnt, and there were no children, and she was past childbearing, an order was made that part of the fund which was in court shoidd be paid out to her sepa- rate receipt to enable her to discharge her debts. In Mnsgrave v. Sandeman (48 L. T. Rep. N. S. 215) the Court made the order to enable a married woman to enter into a compro- mise which the court thought beneficial to her ; and in Sedgwick v. Thomas (48 L. T. Rep. N. S. 100) the Court made a like order to enable a married woman to pay the costs of all parties to an action for rectification, which costs she had undertaken to pay. In Be Curry; Gibson v. Way (56 L. T. Rep. N. S. 80; W. N. 1887, p. 28) where two married women were entitled as tenants in common (restrained), the Court sanctioned a scheme for partition and settlement of the propei'ty, part of it consisting of small houses which it was desirable to lease. In Be C:s Settlement (56 L. T. Rep. N. S. 299) the lady had 17001. a year (restrained), her husband was bankrupt, and the wife had given acceptances, was harassed by actions, and suffered in health. Mr. Justice Chitty enabled her to charge her income with payment of about 400L a year. See also Be Torrance (81 L. T. 118) cited above. In Be Waring and Colley's Settlement (82 L. T. 301) Mr. Justice Chitty authorised the raising of money to pay debts by a loan on the wife's life interest and a policy of insurance. In Be Little (57 L. T. Rep. N. S. 583 ; 36 Ch. Div. 701) a married woman applied for liberty to ])ind her life interest under a will for the purpose of raising 3501. on mortgage. The trustees of the will were not made parties or served, the only parties being the lady and her husband, who was made respondent. Mr. Justice Kay gave leave to raise llOZ. only, and she appealed. The Court of Appeal gave her " liberty to bind her life interest both in possession and reversion " for the piirpose of raising 300Z. It was stated by counsel in this case that the service of trustees woidd greatly increase the expense. An order was also made in Harris v. Harford [supra.), and in Ex parte Thomson (W. N., 1884, p. 28; 76 L. T. 247, 263). We now proceed to the Irish cases. A fund secured by mortgage was vested in trustees in trust for the separate use of a married woman during the joint lives of her- self and her husbaiid without power of anticipation, and after the decease of either, to the survivor for life ; and after the death of the survivor for their three children in equal shares. The wife had received an advantageous offer to purchase the life interest, which she desired to accept, so as to raise money to enable herself, her husband, and family, to emigrate, their pecuniary position being THE CONVEYANCING, ETC., ACT, 1881. 185 very unsatisfactory. The Irish court made the order after separate examination : (Be Flood's Tritsts, 11 L. Rep. Jr. 355.) Trust funds to which a married woman was absolutely entitled, but subject to a restraint on anticipation, wei'e invested on mort- gages of leasehold property. One of these mortgages was not authorised by the trusts of the settlement, and the trustees proposed to call it in. The Court, on the application of the married woman being satisfied that it would be for her benefit, made order accord- ingly, under sect. 39, to allow the mortgage to remain : (Be Wright's Trusts, 15 L. Rep. Ir. 333.) In Be Seagrave's Trust (17 L. Rep. Ir. 373), by a voluntary deed, lands were settled on A., the settlor, for life ; remainder to B., a married woman, for life (restrained); remainder to C. (B.'s hus- band) for life; remainder as B. should appoint. A., B., and C. joined in a mortgage with a power of sale. The mortgagee sold at full value. It appearing that there were no other means of paying off the mortgage, that there was a danger of eviction of the lands for nonpayment of a head-rent, and that no one would give full value unless the " restraint were removed," the Irish court enabled the married woman " to confirm the mortgage " under sect. 39. Order Befused. In Be Warren's Settlement (49 L. T. Rep. N. S. 696 ; 52 L. J. 928, Ch.; W. N. 1883, p. 125) the Court of Appeal pointed out that this section conferred no general power of removing the restraint ; but only authorised the court to sanction some particular disposition by the wife if beneficial. They refused an application by husband and wife for removal of restraint for the j)urpose of rendering the capital of the trust available for the benefit of husband and wife, though it was very unlikely, if not impossible, that they should have children, and in default of children the property ultimately became the husband's. In Be Jordan; Kino v. Pichard (54 L. T. Rep. N. S. 127; 55 L. J. 330, Ch.; 34 W. R. 270; W. N., 1886, p. 6) the Court refused to make an order where the will, under which the married woman's interest arose, contained a general forfeiture clause which might i^erhaps apply to her interest. The appli- cation was dismissed with costs against the married woman, with liberty to apply if they were not paid, in which case the learned judge said he was pre^jared to run the risk of forfeiture by ordering payment of them out of the married woman's income : (see comments in 80 L. T. 242, 335, 372, 390.) In Be Wood (78 L. T. 115) a small sum was settled on trust for the wife for life (restrained), then on usual trusts for children, with an ultimate trust for her absolutely. There were four infant chil- 186 ORIGINATING SUMMONS. dren; the husband was a solicitor's clerk, aged fifty-six, out of employment ; and there was no other income available for the sup- port of the children. Mr. Justice Kay refused an application for a portion of the capital for the maintenance of the children, and hia decision was upheld by the Court of Appeal (78 L. T. 204). In Be Little ; Harrison v. Harrison (60 L. T. Rep. N. S. 248 j 40 Ch. Div. 418 ; 58 L. J. 233, Ch. C. A.) the court refused to dispense with the restraint in order to give effect to a release exe- cuted by the donee of a power for her own benefit. " The court haa a discretion whether it will make the order or not, even though satis- fied that it will be for her benefit : (j)er Cotton, L.J. in i2e Little.} Section 42. Infants. Management 42. (1.) If and as long as any person wlio would, but. recS^t Tnd ^^^ *^^ section, be beneficially entitled to the possession application of of any land is an infant, and being a woman is also- minority .'^^^^^ unmarried, the trustees appointed for this purpose by the settlement, if any, or if there are none so appointed then the persons, if any, who are for the time being under the settlement trustees with power of sale of the settled land, or of part thereof, or with power of con- sent to, or approval of the exercise of such a power of sale, or if there are none, then any persons appointed as trustees for this purpose by the court, on the application of a guardian or next friend of the infant, may enter into and continue in possession of the land ; and in every such case the subsequent provisions of this section shall apply, {a) Sub-sect. (2) empowers the trustees to manage the land, fell timber, build, work mines, drain, improve, insure, accept surrenders, &c. Sub-sect. (3) provides that they may out of income from the land and produce of sale of timber, &c., pay various expenses and outgoings. By sub-sect. (4) they may apply or pay income for maintenance, &c., and by sub-sect. (5) they are to invest (a) This sub-section is set out verbatim. THE CONVEYANCING, ETC., ACT, 1881. 187 tte residue and stand possessed of the accumulations on the trusts, and for the purposes declared in that sub- section. The powers of this section may be exercised with reference to infant's undivided share of land in conjunction with the persons entitled to the other share or shares (sub-sect. 6). It only apphes so far as no contrary intention is ex- pressed (sub-sect. 7), and only when the instrument comes into operation after the 31st Dec, 1881 (sub- sect. 8). Applications under this section will be by Originating Summons unless made in a pending action or matter, see sect. 69, sub-sect. 3 of the Act, ante, p. 179. 188 ORIGINATING SUMMONS. CHAPTER XVIII. THE SETTLED LAND ACT, 1882 (45 & 46 Vict. c. 38). lOth August, 1882. Although this Act only partially appertains to Originating Summons it is considered that a summary of all its provisions, with a reference to the decisions thereon, may conveniently find a place here. The sections appertaining to Originating Summons are set out verbathn. Statutory ijij^g ^^^ j^g^g ^ggj^ amended or extended by the following extensions of , , , g j^ ^ statutes ; The Settled Land Act, 1884 (47 & 48 Yict. c. 18). The Settled Land Act, 1887 (50 & 51 Vict. c. 30). The Agricultural Holdings (England) Act, 1883 (46 & 47 Yict. c. 61), s. 29. The Housing of the Working Classes Act, 1885 (48 & 49 Vict. c. 72), s. 11 (1) (a). These Acts will be noticed in their proper places. It is applied, partially, to sales of glebe lands by the recent Glebe Lands Act, 1888 (51 & 52 Vict. c. 20), s. 8 (1). For general principles of constnaction of Act see note to sect. 3, post, p. 191. Commence- 1. Act Commences from and immediately after 31st December, 1882, and does not extend to Scotland, [h) II. Definitions. Definitions. 2. (1.) Any instrument, whether made before or after Act, under which land stands limited to persons by way of succession, creates a " settlement." (2.) A remainder or reversion, not disposed of by settlement, is an estate coming to settlor under the settlement. {h) Except where otherwise stated only a summary of each section Ib given. THE SETTLED LAND ACT, 1882. 189 As to what is a settlement see Wheelwright v. Walker, No. 1 (48 L. T. Rep. N. S. 70, 73; 23 Ch. Div. 752 ; 52 L. J. 274, Ch. ; 31 W. R. 363) ; Be Earle and Webster, 48 L. T. ReiJ. N. S. 962 ; 24 Ch. Div. 144; 52 L. J. S28, Ch. ; 31 W. R. 837), a case ou sect. 63. As to money bequeathed in trust to invest in purchase of laud to be settled see Mackenzie's Trusts (48 L. T. Rep. N. S. 936; 23 Ch. Div. 750 ; 52 L. J. 526, Ch. ; 31 W. R. 948), and Be Tennant (40 Ch. Div. 594 ; 60 L. T. Rep. N. S. 488; 37 W. R. 542, noted under sect. 33, post, p. 488. Infants' interests in certain land which were partnership pro- perty, and thus personalty for the purposes of the partnership, were treated as within the Act : {Be Wells, 48 L. T. Rep. N. S. 859 ; 31 W. R. 764 ; W. N. 1883, p. 111.) (3.) Land and any interest therein comprised in a settlement is " settled land/' (a) (4.) The question whether land is settled is governed by facts at time of settlement taking effect. (5.) Person for time being beneficially entitled to possession for life is tenant for life. (6.) If several persons are entitled concurrently _, they together constitute the tenant for life for purposes of Act. " Possession " in sect. 2 (5) and sect. 58 (1) is to be read in antithesis to " remainder " or reversion, " so entitled " in sect. 2 (6) means entitled under the direction in the preceding section, i.e., for life {Be Atkinson ; Atkinson v. Bruce, 54 L. T. Rep. N. S. 403 ; 31 Ch. Div. 576, 581 ; 34 W. R. 445, C. A.) See this case, and Be Clitheroe (53 L. T. Rep. N. S. 733 ; 31 Ch. Div. 135 ; 55 L. J. 107, Ch. ; 34 W. R. 169, C. A.) noted under sect. 58, post, p. 226. As to sect. 2 (5) see Be Hale and Clark {or Smyth) (55 L. T. Rep. N. S. 151 ; 55 L. J. 550, Ch. ; W. N. 1886, p. 65. In Be Collinge's Settled Estates (57 L. T. Rep. N. S. 221 ; 36 Ch. Div. 516) it was decided that the tenant for life of an undivided moiety of land, where the other undivided moiety is out of settle- ment, cannot sell the moiety of which he is tenant for life without the concurrence of the owner of the other undivided moiety. In that case sub-sect. 10 (1) of sect. 2 appears not to have been referred to. («) Except where otherwise stated only a summary of each section is given. 190 OEIGINATING SUMMONS. " Beneficially entitled " in sect. 2 does not mean " entitled and deriving a benefit from it," but entitled for his own benefit if there is anything to be derived from the estate, and not simply as trustee for others (per Cotton, L.J. in Be Jones, 50 L. T. Rep. N. S. 466 ; 26 Ch. Div. 736, 743 ; 53 L. J. 807, Ch. ; 32 W. R. 735, C. A.) In this case it was decided that a tenant for life, although in receipt of no income— it being consumed by prior charges — could sell under this Act. (7.) Person shall be deemed tenant for life notwith- standing incumbrances, (a) See Be Jones {sup.) and Be Strangways ; Hickley v. Strangways (34 Ch. Div. 423 ; 55 L. T. Rep. N. S. 714 ; 56 L. J. 195, Ch. ; 35 W. R. 83, C. A.) cited under sect. 58, post, p. 226. (8.) Persons who are under a settlement trustees with power of sale of settled land, or with power of consenting to exercise of such power, or if none, then persons by settlement declared trustees for purposes of this Act are ''trustees of the settlement." To constitnte persons "trustees of the settlement" they must have a, present power of sale: {Wheelwright v. Wallcer {ubi sup.) As to trustees with power to sell with consent of tenant for life, or testamentary guardians during infancy, see Newcastle, DuJce of (48 L. T. Rep. N. S. 779 ; 24 Ch. Div. 129; 52 L. J. 645, Ch. ; 31 W. R. 782). A trustee with power of sale with the consent of the tenant for life is trustee for the purposes of this Act : {Constable v. Constable, 54 L. T. Rep. N. S. 608 ; 32 Ch. Div. 233 ; 55 L. J. 491, Ch. ; 34 W. R. 470.) A trustee of a settlement with power to sell land is sufficiently trustee for the purposes of the Act with reference to sale of heirlooms, although the settlement contains no power to sell heir- looms : {ib.) But it has been held in Ireland that trustees having a power of sale only with the concurrence of another person which cannot be obtained, are not trustees for the purjioses of the S. L. A. : {Be Johnstone's Settlement, 17 L. Rep. Ir., 172.) 10. (1.) Land includes incorporeal hereditaments, also undivided share in land. (a) Except where otherwise stated only a svmmary of each Bection is giveD. THE SETTLED LAND ACT, 1882. 191 This sub-section contains definitions of other terms. " Land " inchides a dignity or title of honour, but the Act does not enable the holder to sell it : (Be Sir J. Bivett Carnac's Will 53 L. T. Rep. N. S. 81 ; 30 Ch. Div. 136, 140 ; 54 L. J. 1074, Ch. ; 33 W. R. 837 ; Be Earl of Aylesford's S. E., 54 L. T. Rep. N. S. 414 ; 32 Ch. Div. 162.) It includes [certain] tithes : {Be Esdaile, 54 L. T. Rep. N. S. 637, W. N. 1886, p. 47.) III. Sale; Enfranchisement; Exchange; Partition. Sect. 3 gives a general power o£ sale and exchange over tlie settled land, including power to grant ease- ments, &c., to sell a seignory and to enfranchise, and to exchange, and to concur in a partition, (a) Sect. 4, Sale is to be at the best price, but may be made by auction or private contract, and under special conditions, and with reservation of minerals. Settled land in England is not to be exchanged for land out of England. The Act is to be construed liberally, per Chitty, J., in Duhe of General con- Butland's Settlement (49 L. T. Rep. N. S. 196; 31 W. R. 947) ; struction of and in furtherance of the important objects of public policy for which it was passed, per Lord Selborne, in Be Hazle's S. E. (29 Ch. Div. 78, 83 ; 52 L. T. Rep. N. S. 947 ; 53 L. J. 514, Ch. ; 33 W. R. 759, C. A.) " Most ample and abundant powers are given to the tenant for life of saying that the property shall be sold," per Bacon, Y.C., in Thomas v. Williams (49 L. T. Rep. N. S. Ill; 24 Ch. Div. 658; 52 L. J. 603, Ch.; 31 W. R. 943). The object of the Act is to give a tenant for life " very large powers for his own benefit " : {Be JDuke of Newcastle, 24 Ch. Div. 129, 137 ; 48 L. T. Rep. N. S. 779 ; 52 L. J. 645, Ch. ; 31 W. R. 782). He has absolute power to sell for any purpose, even for mere caprice {Be Chaytor, 50 L. T. Rep. N. S. 88 ; 25 Ch. Div. 651, 654 ; 53 L. J. 212, Ch. ; 32 W. R. 517 ; Cardigan v. Curzon Howe, 53 L. T. Rep. N. S. 704; 30 Ch. Div. 531, 540; 55 L. J. 71, Ch.; 33 W. R. 836) ; or to disappoint his successor : ( Wheelwright v. Walker (No. 1), 48 L. T. Rep. N. S. 70 ; 23 Ch. Div. 752 ; 31 W. R. («) Except where otherwise stated only a summary of each section is given. 192 ORIGINATING SUMMONS. Housing of working classes. General regu- lations. Building 363 ; 52 L. J. 274, Ch.) He is not bound to wait on the mere pi'obability of obtaining a bettei- price : ( Thomas v. Williams, 49 L. T. Rep. N. S. Ill ; 24 Ch. Div. 558.) This last case was appealed, and an interim injunction obtained from the Court of Apjpeal to stop the sale pending the appeal (75 L. T., July 28, 1884, p. 234). The appeal was ultimately withdrawn. The Act gives the tenant for life a power overriding the settle- ment or will under which he takes, and he can exercise his power of sale without tlie leave of the court, although an administration decree (made before the Act) is pending. Semble, he could equally do so had the decree been made subsequently: {Cardigan Curzon Howe, siqj.) By 48 & 49 Yict. c. 72, s. 11 (1) (a) sales, exchanges, or leases may be made for erection of dwellings for the ' ' working classes " at such price, &c., as may be reasonably obtained for that purpose: (Seeposf, Chapter XX.) Sect. 5. Where the land is incumbered, the incum- brance may, with consent of the incumbrancer, be trans- ferred to other part of the settled land, [a) IV. Leases. Sect. 6. Tenant for life may lease settled land or any easement, &c., for any purpose, '* whether involving waste or not,'^ for term not exceeding, in case of building lease, ninety-nine years, mining lease sixty years, other lease twenty-one years. Sect. 7. Leases to be by deed and at best rent, but fine (6) may be taken and regard had to improvements. Counterpart is to be executed, &c. A statement in the lease, or indorsed thereon, signed by the tenant for life, is to be evidence, in favour of the lessee, of the facts stated in relation to this Act. Sect. 8. In building leases a nominal rent, or any rent less than that ultimately payable, may be reserved for first five years. Provision is made for the apportion- ment of rent when land is agreed to be leased in lots. (a) Except where otherwise stated only a sii^mmary of each section is given. (6) Such fine will be capital money. See S. L.A. 1884, sect. 4. THE SETTLED LAND ACT, 1882. 193 As to what is not a building lease, see Sabin's 8. E. (W. N., 1885, p. 197.) Sect. 9. In mining leases, rent may be by acreage or Mining leases quantity of substance gotten or disposed of ; a minimum rent may be made payable, (a) Sect. 10. (1.) Where it is shown to the court with Variation of respect to the district in which any settled land is m^inuj^g^ieTse situate, either — according to (i.) That it is the custom for land therein to be leased ^^f district, or granted for building or mining purposes for a longer term or on other conditions than the term or conditions specified in that behalf in this Act, or in perpetuity ; or (ii.) That it is difficult to make leases or grants for building or mining purposes of land therein, except for a longer term or on other conditions than the term and conditions specified in that behalf in this Act, or except in perpetuity ; the court may, if it thinks fit, authorise generally the tenant for life to make from time to time leases or grants of or affecting the settled land in that district, or parts thereof, for any term or in perpetuity, at fee-farm or other rents, secured by condition of re-entry, or other- wise, as in the order of the court expressed, or may, if it thinks fit, authorise the tenant for life to make any such lease or grant in any particular case. (2) Thereupon the tenant for life, and, subject to any direction in the order of the court to the contrary, each of his successors in title being a tenant for life, or having the powers of a tenant for life under this Act, may make in any case, or in the particular case, a lease or grant of or affecting the settled land, or part thereof, in conformity with the order. (6) (a) Except where otherwise stated only a summary of each section is given. (b) This section is set forth verbatim. O 194 ORIGINATING SUMMONS. Mode of The applicatioii to the court is made by Originating Sum- application, mons, but it may be made by petition : (see sect. 46 (3), post, p. 220 ; and r. 2, post, p. 235. If, however, a petition is presented without direction of the judge only summons' costs are allowed : (see r. 2.) The application, if made by the tenant for life, will not in the first instance be served on any person : (rule 5, post, p. 235.) For Forms of Summons, see Forms II., III., IV., Y. (post, p. 240) according to circumstances. As to affidavit in sui3j)ort, see r. 7, post, p. 236, and Form VIII., 2)ost, p. 244. Wliere the Court authorises generally the tenant for life to grant leases under sect. 10, it will not usually direct the particular lease to be settled by the judge : (rule 9, post, p. 236.) As to application by trustees in case of an infant, see Cecil v. Langdon (54 L. T. Rep. N. S. 418), cited under sect. 60, j^ost, p. 230. Mining lease. Sect. 11. Where a tenant for life is impeachable for waste, three-fourths of mining rent shall be set aside as "capital money" (sect. 21), otherwise one-fourth shall be so set aside. This is subject to contrary intention being expressed in the " settlement." (a) Where a person was entitled to income of money to ai'ise from sale, and to rents and profits until sale, it was held she was entitled only to one-fourth of the rents and royalties from mining lease : [Be Bidge ; Hellard v. Moody, 54 L. T. Rep. N. S. 549 ; 31 Ch. Div.'504 ; 55 L. J. 265, Ch. ; 34 W. R. 159, C. A.) " Contrary intention" was lield to be expressed in Dulce of New- castle (24 Ch. Div. 129 ; 48 L. T. Rep. N. S. 779; 52 L. J. 645, Ch.) For Form of Summons, under sect. 22, for payment into court by lessee under a mining lease, see Form ~K..p)ost, p. 245. Sect. 12 empowers the tenant for life to lease for the purpose of giving effect to certain contracts for leases and covenants for renewal, and for confirming certain void or voidable leases. Surrenders. Sect. 13. Tenant for life may accept surrender, with or without consideration, of all or part of the land leased. (a) Except where otherwise stated only a summary of each section is given. THE SETTLED LAND ACT, 1882. 195 Rent may be apportioned, and new leases, in conformity Avitli the Act, made, {a) See Be Hazle's Settled Estates, cited at p. 191, sKjrra, aud p. 227. f'.nfra. Sect. 14. Tenant for life may grant licences for copy- Copyholds, holders to make such leases as tenants for life can make, under this Act, of freehold land. The licence may fix the annual value whereon fines, fees, &c., are to be assessed, or tlie amount of the fines, fees, &c. As to the effect of the Act on leases of copyholds, see Green- wood's R. P. Acts, 2ud edit., ]). 485. V. Sale-y, Leases, and other Dispositions. Mansion and Parh. Sect. 15. Notwithstanding anything in this Act, the principal mansion house on any settled land, and the demesnes thereof, and other lands usually occupied there- with, shall not be sold or leased by the tenant for life, without the consent of the trustees of the settlement, or an order of the court, {h) The application to the court will be made by Originating Sum- Mode of mons ; but see sect. 46 [3\ post, p. 220, and r. 2, post, j). 23-5. application. And if made by the tenant for life will be served on the tnistees, see rule 4, post, p. 235. As to authorising leases of the mansion house under tliis section, rule 9, p. 236. For Forms of Summons, see Forms II., IV., to YII.. j^ost, pp. 24C». 24:3; and for Form of Affidavit, Form YIII., p. 244. An order for sale of the mansion house was made in Re J. B. Brou-n's Will (51 L. T. Rep. X. S. 15; 27 Ch. Div. 179: 53 L. J. 920, Ch. ; 32 W. R. 8941. Notwithstanding a forfeiture clause for non-residence, letting of the castle of Clonskeagh, County Dublin, was authorised in Be Thompson (,21 L. Rep. Ir. 109 ; 85 L. T. 4) : and, similarly, sale of a mansion house was sanctioned in Be Pagefs S. E. i53 L. T. Rep. X. S. 90 ; 30 Ch. Div. 161 : 55 L. J. 42. Ch. ; 33 W. R. 898). (a) Except where otherwise stated onlj a summary of each section is given. (&) This section is given verbatim. o 2 196 ORIGINATING SUMMONS. Building. Mining. Mortgage. Undivided share. Completion and convey- ance. The court refused to authorise a sale of the mansion house on the apjilication of tenant for life whei'e his mortgagees (his life estate being mortgaged up to the full value) did not c(msent, the trustees did not consent, and full information was not given to the court : {Be Sebright's S. E., 55 L. T. Rep. N. S. 570 ; 33 Ch. Div. 429 ; 56 L. J. 169, Ch. ; 35 W. R. 49, C. A.) Sect. 16. In connection with sale or lease for building purposes_, tenant for life may dedicate land for streets, open spaces, &c., " for tlie general benefit of the residents " on the settled land, (a) Sect. 17. Land may be sold, exchanged, partitioned, or let on mining lease with reservation of mines, way- leaves, &c. A settlement, made before the Act, contained no power to sell surface apart from the minerals. The co\irt held that tlie trustees might exercise the power contained in sect. 17 without the fetter of consent of the guardians of tlie infant tenant in tail. See Duke of Newcastle's Estates (24 Ch. Div. 129 ; 48 L. T. Rep. N. S. 779 ; 52 L. J. 645, Ch. ; 31 W. R. 782). Sect. 18. Tenant for life may raise money for enfran- chisement, or equality of exchange or partition, by mort- gage of the settled land. It will be observed that the tenant for life has no general power to mortgage under the Act. For Form of Summons, under sect. 22, for payment into court by mortgagee, see Form XI., -p. 245. Sect. 19. Tenant for life of undivided share in land may concur in exercise of powers. The tenant for life of an undi^^ded moiety of land, where the other undivided moiety is out of settlement, cannot sell the moiety of which he is tenant for life without the cojicurrence of the owner of tlie otlier undivided moiety : {Re Collinge's 8. E. (57 L. T. Rep. N. S. 221 ; 36 Ch. Div. 516.)" See ante. p. 189. Sect. 20. For completmg any sale, lease, &c., tenant for life may convey laud sold, &c., for the estate, the (a) Except wliere otherwise stated only a summary of each section is given. THE SETTLED LAND ACT, 1882. 197 subject of the settlement, discharged from provisions of settlement, and all charges thereunder, except charges prior to settlement, and charges created for securing money actually raised at date of deed, and leases and easements granted for value before date of conveyance by tenant for life, (a) In case of deed affecting copyholds it is sufficient to enter same on court rolls, and on payment of fines, &c., purchaser, &c., to be admitted accordingly, but steward may require settlement to be entered on rolls. Where a " teuaut for life " uuder a will sold before the admittance of the devisees iu trust it was held that the lord could only claim one fine : (Be Naylor and SpendWs Contract (56 L. T. Rep. N. S. 132 ; 34 Ch. Div. 217 ; 56 L. J. 453, Ch. ; 35 W. R. 219, C. A., dissentiente Fry, L.J.) VI. Investment. 21. Capital money shall, subject to payment of claims properly payable thereout {h) and to special object for which same raised, be invested (1) on Government secu- rities, or on securities on which trustees of settlement are thereby or by law authorised to invest trust moneys, (c) or on the bonds, mortgages, debentures, or debenture stock {d) of any railway company in Great Britain or Ireland, incorporated by special Act, and having for ten years next before investment paid dividend on ordinary stock or shares, with power to vary investments, (2) in discharge of incumbrances, (e) land-tax, tithe rent charge. Crown rent, chief or quit rent, charged on settled land (3, 4, 5, 6) in payment for ''improvement^' (/) authorised by Act or for equality of exchange or parti- tion, or in purchase of seigniory of freehold settled land. (a) Except where otherwise stated only a summary of each section is given. (Jo) For wide construction of these words, see Re Duhe of Leinster't, 8. E. (23 L. Eep. Ir. 1.52), cited p. 201 below. (f) See p. 198, below. (T/i«se of a London freehold house of residence. See also sects. 25, 26. Su])-sect. (ix.) see Cookes v. Cookes (56 L. T. Rep. N. S. 160; 3t Ch. Div. 498, 502 ; 56 L. J. 397, Ch. ; 35 W. R. 402). The court is not bound to order payment out to trustees : {Be Samuel Smith; Ex parte London and North-Western Bailway and Midland Bailway, 60 L. T. Rep. N. S. 77 ; 40 Ch. Div. 386 ; 59 L. J. 108, Ch., C.A.). Sub-sect. (X.) " Costs." See Be Budd (W. N. 1871, p. 251), and Be Llewellin (W. N. 1871, p. 255), and notes under sects. 46, 53, below. On sale by tenant for life with consent of mortgagees of his life interest, the costs of the mortgagees in relation to the sale are not payable out of the jturchase money : (Cardigan x. Cur zon Howe, 60 L. T. Rep. N. S. 254 ; 40 Ch. Div. 338 ; 58 L. J. 177, Ch., affirmed ; W. N. 1889, p. 84 : 86 L. T., p. 462, C. A.) THE SETTLED LAND ACT, 1882. 203 On a sale by a tenant for life under this Act, the charges of auctioneei's for preparing an elaborate report and valuation of estate were not allowed to be paid out of capital money : ( Re Eyton's Estate, 86 L. T., Dec. 22, 1888, p. 143 ; W. N. 1888, p. 254.) The court has a discretion to allow trustees to retain unauthorised securities, but will not do so merely because they are within the class permitted by the S.L.A. and conversion will reduce the income : {Fox v. Dolbtj, W. N. 1883, p. 29.) The court refused to allow purchase money received by the trustees of the settlement to be sent to the executors in America for investment without the consent of the persons ultimately contingently entitled to the fund : {Be Lloyd ; Edwards v. Lloyd, 54 L. T. Rep. N. S. 643 ; W. N. 1886, p. 37.) Trustees were not authorised to sj)eud money in cai'rying on farm until completion of sale ; but salvage expenditure might be allowed afterwards : {Bound v. Turner, 60 L. T. Rep. N. S. 379 ; W. N. 1889, p. 38.) Sect. 22. (1.) Capital money arising under this Act Regulationa shall, in order to its being invested or applied as afore- {"nvestment said, be paid either to the trustees of the settlement or devolution into court, at the option of the tenant for life, and securities, &c. shall be invested or applied by the trustees, or under the direction of the court, as the case may be, accord- iiigly- (a) (2.) The investment or other application by the trustees shall be made according to the direction of the tenant for life, and in default thereof, according to the discretion of the trustees, but in the last-mentioned case subject to any consent required or direction given by the settlement with respect to the investment or other appli- cation by the trustees of trust money of the settle- ment ; and any investment shall be in the names or under the control of the trustees. (3.) The investment or other application under the direction of the court shall be made on the application of the tenant for life, or of the trustees. (a) This section is set out verbatim. 204 ORIGINATING SUMMONS. (4.) Any investment or other application shall not during the life of the tonant for life be altered without his consent (6.) Capital money arising under this Act while remaining uninvested or unapplied, and securities on which an investment of any such capital money is made, shall, for all purposes of disposition, transmission, and devolu- tion, be considered as land, and the same shall be held for and go to the same persons successively, in the same manner and for and on the same estates, interests, and trusts, as the land wherefrom the money arises would, if not disposed of, have been held and have gone under the settlement. (6.) The income of those securities shall be paid or applied as the income of that land, if not disposed of, would have been payable or applicable under the settle- ment. (7.) Those securities may be converted into money, which shall be capital money arising under this Act. (a) The aijplicatiou to the court uudev tliis section will be by Origiuatiiig Summons ; but see sect. 46 (3) post, p. 220, and r. 2, post, p. 235. As to service, see rr. 4, 5, p. 235. For practice see rr. 10-14, p. 237. For forms of summons see Forms IX., X., and Xl., post, p. 244. Sub-sect. (1). Where a tenant for life consented to purchase money being paid into court to meet a purchaser's objections, it was ludd tliat he liad exercised his option given to him by this section and that the money could not be paid out to the trustees but must be invested or applied under the direction of the court : {Cookes V. CooJces, 34 Ch. Div. 498, ante, p. 202.) Tliis case differs from the cases where money paid in under the L. C. C. Act, 1845, was paid out to trustees: (see sect. 32, p. 210, below. Sect. 23. Capital money, arising from settled land in (a) This Bection is set out verbatim. THE SETTLED LAND ACT, 1882. 2,01 England, not to be invested in laud out of England, unless settlement otherwise directs, (o) ^ect. 24 directs tlie mode of settlement of land pur- chased, taken in exchange, &c. The beneficial interest in leaseholds for years is not to vest in infant tenant in tail by purchase, but, on his death under twenty-one years, to pass as settled freehold land would do. Special powers are given aa to subjecting newly-acquired land to charges affecting the old settled land. VII. Improvements. Sect. 25. " Improvements " authorised by this Act are the making tor benefit of settled land of following works : — Drainage, irrigation, embanking, groynes, enclosing, reclamation, roads, cottages, farm buildings, mills, reser- voirs, tramways, jetties, market-places, streets, sewers, trial pits for mines, &c., &c., and the reconstruction or improvement of any of such works. " Ordinary repairs cannot be done at the expense of capital mouey," but sect. 25 incliides many works which wouhl not have been considered permanent improvements under the old doctrine of the court. One of the objects of the Act is the improvement of land: {Clarhe v. Thornton (66 L. T. Re]). N. S. 294; 35 Ch. Div. 307, 311 ; 56 L. J. 302, Ch. ; 35 W. R. 603.) The following improvements have been authorised : — New road. Re Bethlehem (74 L. T. 466) ; sea walls, Re Bethlehem and Bride- well Hospitals (53 L. T. Rep. N. S. 558; 30 Ch. Div. 541; 54 L. J. 1143, Ch.); water supply, house drainage, rebuihling of stables, building of agent's house and two cottages, Re Houghton Estate (53 L. T. Rep. N. S. 196 ; 30 Ch. Div. 102 ; 55 L. J. 37, Ch. ; 33 W. R. 869.) As to water supply, see also Re Bulwer Lyttons Will, cited under sect. 26, below. As to buiklings, see pp. 200, 202, above. Silos were not allowed: {Re Broadwater Estate, 53 L. T. Rep. N. S. 745; 54 L. J. 1104, Ch. ; 33 W. R. 738, C. A.) (a) Except where otherwise stated only a summary of each section is given. 206 ORIGINATING SUMMONS. Approval of Sect. 26. (1.) Where the tenant for life is desirous that improvement. Capital money arising under this Act shall be applied in or towards payment for an improvement authorised by this Act, he may submit for approval to the trustees of the settlement, or to the court, as the case may require, a scheme for the execution of the improvement, showing the proposed expenditure thereon, (a) (2.) Where the capital money to be expended is in the hands of trustees, then, after a scheme is approved by them, the trustees may apply that money in or towards payment for the whole or part of any work or operation comprised in the improvement, on — (i.) A certificate of the Land Commissioners certifying that the work or operation, or some specifi^ed part thereof, has been properly executed, and what amount is properly payable by the trustees in respect thereof, which certificate shall be conclusive in favour of the trustees as an authority and discharge for any payment made by them in pursuance thereof ; or on (ii.) A like certificate of a competent engineer or able practical surveyor nominated by the trustees and approved by the commissioners, or by the court, which certificate shall be conclusive as aforesaid; or on (iii.) An order of the court directing or authorising the trustees to so apply a specified portion of the capital money. (3.) Where the capital money to be expended is in court, then, after a scheme is approved by the court, the court may, if it thinks fit, on a report or certificate of the commissioners, or of a competent engineer or able practical surveyor, approved by the court, or on such other evidence as the court thinks sufficient, make such order (o) This section is set out verbatim. THE SETTLED LAND ACT, 1882. 207 and give sucli directions as it thinks fit for tlie applica- tion of that money, or any part thereof, in or towards payment for the whole or part of any work or operation comprised in the improvement, (a) The application to the court uudei* this section will be made by Mode of Originating Summons ; but see sect. 46 (3) post, p. 220, and r. 2, application. post, p. 235. As to seiTice, see rr. 4, 5, p. 235. For form of Summons under sub-sect. (1), see Form XII., p. 246 ; under sub-sect. (2) (ii.) see Form XIII. iwst, p. 246, and for nomina- tion of surveyor or engineer for the purposes of sect. 26, sub-sect. (2) (ii.), see Form XIV., p. 247; under sub-sect. 2 (iii.), see Form XV., p. 247; and under sub-sect. 3, see Form XVI., p. 247. Semble, trustees should appear separately from the tenant for life on application for an order for payment for improvements under sect. 21: {Be Broadwater Estate, 53 L. T. Rep. N. S. 745; 33 W. R. 738; 54 L. J. 1104, Ch., C. A.) It is very doubtful whether the court will authorise the expenditure for work done without its previous sanction (per Cotton, C.J. in Re Broadwater). In order that the court may sanction tlie expenditure, the Scheme must be submitted by the tenant for life to the trustees before the works are commenced : (Re Hotchkins S. E., 56 L. T. Rep. N. S. 244; 35 Ch. Div. 41 ; 35 W. R. 463; 56 L. J. 445, Ch., C. A.) It is doubtful whether expense of improvements on lands which have been sold, can be afterwards paid out of capital money (per Cotton, L.J., the other judges not expressing an opinion). The tenant for life has power to require capital money to be laid out under a proper scheme for the improvement of land; and if the trustees decline, the money being in their hands, the court will direct or authorise them to comply with the tenant for life's sclieme, although there is a discretionary trust enabling them to apply income to that purpose. The case is the same if the money is in court : (per Chitty, J. in Clarke v. Thornton, ante, p. 205, followed in Re Lord Stamford's Estate. 56 L. T. Rep. N. S. 484.1 Where a general (and not conditional) approval of a scheme for water supply to a mansion and building estate had been approved by trustees, it was held that certain extra expenditure might be defrayed out of capital money : (Re Bidwer Lijtton's Will, 38 Ch. Div. 20; 69 L. T. Rep. N. S. 12; 57 L. J. 340. Ch. ; 36 W. R. 420; C. A.) (a) This section is set out verbatim. 208 ORIGINATING SUMMONS. Power for tenant for life to enter into contracts. Sect. 27. Tenant for life may concur with others interested in executing " improvements." (a) Sect. 28. This section renders it obligatory on tenant for life, and his successors, during such period as Land Commissioners prescribe, to repair and insure " improve- ments ; " and in default any person interested under the settlement may sue him, and his estate is liable after his death. Sect. 29. Tenant for life may enter on settled land and execute ''improvements,'^ and for that purpose get and work limestone, &c., and make bricks, and cut and use timber not planted for shelter or ornament. Sect. 30. " Improvements " mentioned in sect. 9 of Improvement of Land Act, 1864, is extended to " improvements " authorised by this Act. VIII. Contracts: Sect. '31. (1) A tenant for life (/>) — (i.) May contract to make any sale, exchange, par- tition, mortgage, or charge ; and (ii.) May vary or rescind, with or without considera- tion, the contract, in the like cases and manner in which, if he were absolute owner of the settled land, he might lawfully vary or rescind the same, but so that the contract as varied be in conformity with this Act ; and any such consideration, if paid in money, shall be capital money arising under this Act ; and (iii.) May contract to make any lease ; and in making the lease may vary the terms, with or without consideration, but so that the lease be in con- formity with this Act ; and (iv.) May accept a surrender of a contract for a lease. (a) Except where otherwise stated only a summary of each section is given. (h) This section is set out verbatim. THE SETTLED LAND ACT, 1882. 209 in like manner and on the like terms in and on which he might accept a surrender of a lease ; and thereupon may make a new or other con- tract, or new or other contracts, for or relative to a lease or leases, in like manner and on the like terms in and on which he might make a new or other lease, or new or other leases, where a lease had been granted ; and (v.) May enter into a contract for or relating to the execution of any improvement authorised by this Act, and may vary or rescind the same ; and (vi.) May, in any other case, enter into a contract to do any act for carrying into effect any of the purposes of this Act, and may vary or rescind the same. (2.) Every contract shall be binding on and shall enure for the benefit of the settled land, and shall be en- forceable against and by every successor in title for the time being of the tenant for life, and may be carried into effect by any such successor ; but so that it may be varied or rescinded by any such successor,. in the like case and manner, if any, as if it had been made by himself. (3.) The court may, on the application of the tenant for life, or of any such successor, or of any person interested in any contract, give directions respecting the enforcing, carrying into effect, varying, or rescinding thereof. (4.) Any preliminary contract under this Act for or relating to a lease shall not form part of the title or evidence of the title of any person to the lease, or to the benefit thereof, (a) (a) This section is set out verbatim. V 210 ORIGINATING SUMMONS. The application to the coiirt, under sub-sect. (3) will be by Originating Summons ; but see sect. 46 (3) post, p. 220, and r. 2, IJost, p. 235. As to service see rr. 4, 5, p. 235. For form of summons, see Form X"VII., p. 248. For affidavit, see r. 7, and Form VIII., pp. 236, 244. The fact that at the time the tenant for life enters into a contract for sale there are no trustees of the settlement, will not prevent his making a statutory title, provided such trustees are subse- quently duly appointed : [Hatten v. Russell, 58 L. T. Rep. N. S. 271 ; 38 Ch. Div. 334 ; 57 L. J. 425, Ch. ; 36 W. R. 317). IX. Miscellaneous Provisions. Sect. 32. Money in court under tlie Lands Clauses Con- solidation Acts or the Settled Estates Act, 1877, or any other Act (whether j3aid in before or after this Act), and liable to be laid out in purchase of land to be settled, may be invested or applied as capital money under this Act (see sects. 21, 25). {a) As to this section and L. C. C. Act see note to R. S. C, Order LV., r. 2 (7) p. 63 above. In the following cases orders for investineut or application have been made under sect. 32 : — Byron's Charity, see under sect. 21 (i.). p. 201 above. Lyttons 8. E., under sect. 21 (vii.) ji. 202 above. Re Bethlehem and Bethlehem and Bridewell, see under sect. 25, p. 205, above. In Be Lytton's 8. E., the company liad to pay tlie costs of apjjli- cation for money to be spent in building. Where a fund in coui't had been paid in by the Commissioners of Sewers under their private Act, which made provision for investment in Consols only, it was held that the fund might be invested in debenture stock as an interim investment at the expense of the commissioners, although the expense of investment in debentiue stock exceeds that of investment in Consols : {Hanhury's Trusts, 52 L. J. 687, Ch.; 31 W. R. 784; 75 L. T., June 23, 1883, p. 146 ; and W. N. 1883, p. 116. Where trustees, one of whom was tenant for life, liad upon an investment of trust moneys on a mortgage of land overdrawn their bankers' account in order to find tlie sum required, relying for (a) Except where otherwise stated only a summary of each section is given. THE SETTLED LAND ACT, ]882. 211 paymeut upon a fund paid into court under the L. C. C. Act, the court, upon their petition, allowed the money in court to be paid out to them on their declaring themselves to be trustees of the mortgage for themselves other tliaii and except the tenant for life : {BeHarrcps Settled Esta'e, 48 L. T. Rep. N. S. 937 ; 24 Ch. Div. 717 ; 53 L. J. 574, Ch.) Money was jjaid out to trustees in Re Bolton Estates Act, 1863 (52 L. T. Rep. N. S. 728 ; W. N. 1885, p. 90), and in Be Bathmines Drainage Act (15 L. Rep. Ir. 576). In the former case the court declined to direct the trustees to give notice of intended invest- ments to the tenant in tail in remainder, but advised that some such notice should be given. But see notes to sect. 21, sub-sect, ix., ante, p. 202. Sect. 33 gives tlie same power to trustees, if the money is in their hands, at the option of tenant for life, {a) As to money held by trustees on trust to invest in land, see Be Mackenzie's Trusts (p. 189 above) and Be Maberley, 33 Ch. Div. 455, ante, p. 201), where the testator had directed money to be invested in Irish land, and the court directed the trustees not to comply with this direction. Where trustees had been ordered to invest tlie produce of land sold under the Settled Estates Act, 1877, in Consols, it was held they could convert them into Preference Railway Stock: [Re Tennant, 40 Ch. Div. 594; 60 L. T. Re]). N. S. 489 ; 37 W. R. 542.) Where the infant is a minor, the " trustees of the settlement " can exercise the option of investment or application of capital money: (per Pearson, J. in Be Duke of Newcastle, 48 L. T. Re]>. K S. 779, 783 ; 24 Ch. Div. ]29, 140 ; 52 L. J. 645, Ch. ; 31 W. R. 782.) Sect. 34. Where capital money arising under this Act is Application of purchase money paid in respect of a lease for years, or j^^^ig^gg^op life, or years determinable on life, or in respect of any reversion. other estate or interest in land less than the fee simple, or in respect of a reversion dependent on any such lease, estate, or interest, the trustees of the settlement or the court, as the case may be, and in the case of the court on the application of any party interested in that money, (a) Except where othprwise stated only a summary of each seetion is given. p 2 212 ORIGINATING SUMMONS. may, notwithstanding anything in this Act, require and cause the same to be laid out, invested, accumulated, and paid in such manner as, in the judgment of the trustees or of the court, as the case may be, will give to the parties interested in that money the like benefit therefrom as they might lawfully have had from the lease, estate, interest, or reversion in respect whereof the money was paid, or as near thereto as may be. (a) Mode of The application to the court uuder this section will be by application. Originating Summons ; but see sect. 46 (3), post, p. 220, and r. 2, post, p. 235. As to service, see rr. 4, 5, p. 235. For form of summons, see Form XVIII., post, p. 248. This section and sect. 74 of the L. C. C. Act, 1845, are similar enactments, so that where the facts are similar, decisions on sect. 74 are authorities on this section. See Cottrell v. Cottrell (52 L. T. Rep. N. S. 486; 28 Ch. Div. 628; 54 L. J. 417, Ch.; 33 W. R. 361), and cases there cited. In Re Griffith's Will (49 L. T. Rep. N. S. 161) under the circum- stances the tenant for life, who had arranged vnih the lessees that they should continue to pay the same rent as befoi-e, was held not entitled to any immediate benefit from coraimlsory purchase of land subject to beneficial leases. Cutting and Sect. 35. (1.) Where a tenant for life is impeachable for sale ot timber, ^^g^-g ^^ respect of timber, and there is on the settled and part of ' ' , pit proceeds to be land timber ripe and fit for cutting, the tenant for life, seta-side. ^^ obtaining the consent of the trustees of the settle- ment or an order of the court, may cut and sell that timber, or any part thereof. (2.) Three fourth parts of the net proceeds of the sale shall be set aside as and be capital money arising under this Act, and the other fourth part shall go as rents and profits, (a) Tlie application to tlie court under this section will be by Originating Summons; but see sect. 46 (3), post, j). 220, and r. 2, post, p. 235. (a) This section is set out verbatim. THE SETTLED LAND ACT, 1882. 213 As to service, see rr. 4, 5, p. 235. For form of siimmoiis, see Forms VI., VII., j)os/, p. 243. For form of summons under sect. 22, by purchaser for payment into court of purchase money of timber, see Form IX., p. 244. Where tenant for life had power to sell certain timber, but sold the estate, with the tindier to be taken at a valuation, it Avas held that he was not entitled to any part of the purchase money of the timber : [Be Llewellin ; Lleivellin v. Williams, .58 L. T. Rep. N. S. 152 ; 37 Ch. Div. 317; 36 W. R. 347). Sect. 36. The court may, if it thinks fit, approve of Proceedings any action, defence, petition to Parliament, parliamentary ^j. recovery of opposition, or other proceeding' taken or proposed to be ^^^*^ settled ■, n . f. 1111 p • °^ claimed as taken for protection of settled land, or of any action or settled. proceeding taken or proposed to be taken for recovery of land being or alleged to be subject to a settlement, and may direct that any costs, charges, or expenses incurred or to be incurred in relation thereto, or any part thereof,be paid out of property subject to the settlement, (a) Application to the court for approval imder this section will be by Originating Svimmous ; but see sect. 46 (3), post, p. 220 ; and r. 2, 2iost, p. 235. For an instance of such a summons, see Re Earl of Aylesford's 8. E. (54 L. T. Rep. N. S. 414 ; 32 Ch. Div. 162 ; 55 L. J. 523, Ch. ; 34 W. R. 410). Sect. 37. (1.) Where personal chattels are settled on HeirloouQs. trust so as to devolve with land until a tenant in tail by purchase is born or attains the age of twenty-one years, or so as otherwise to vest in some person becoming entitled to an estate of freehold of inheritance in the land, a tenant for life of the land may sell the chattels or any of them. (2.) The money arising by the sale shall be capital money arising under this Act, and shall be paid, invested, or applied and otherwise dealt with in like manner in all (a) This section is set out verbatim. 214 ORIGINATING SUMMONS. respects as by this Act directed with respect to other capital mouey arising under this Act^ or may be invested in the purchase of other chattels, of the same or any other nature^ which^ wheu purchased, shall be settled and held on the same ti-usts, and shall devolve in the same manner as the chattels sold. (3.) A sale or purchase of chattels under this section shall not be made without an order of the court, (a) For in'actice under this section, see note to sect. 35, p. 212, ante. Sale of heirlooms was sanctioned in tlie following cases : — Be Lord John Tlnjnne's Settlement 1 77 L. T. 195, July 5, 1884) ; Sevivs vases, value 800/. ; Brown's Will, noted under sect. 15, p. 195 above (51 L. T. Rep. N. S. 157; 27 Ch. Div. 179) ; Be Houghton (or Cholmondeleifs) Estate (53 L. T. Rep. N. S. 196 ; 30 Ch. Div. 102; 55 L. J. 37, Ch.; 33 W. R. 869), paintings and tapestry specified in a schedule; Be Duke of Marlborough (32 Ch. Div. 1; 54 L. T. Rep. N. S. 914 ; 55 L. J. 339, Ch. ; 34 W. R. 377, C. A.), pictures from Blenheim Gallery ; Be Sir J. Bivett Carnac's Will (53 L. T. Rep. N. S. 81 ; 30 Ch. Div. 136 ; 54 L. J. 1074, Cli. ; 33^ W. R. 837) ; an expensiA'e, useless service of plate annexed to a dignity or title of honour. The court refused to sanction a sale of lieirlooms in Be BeaumonVs S. E. (58 L. T. Rep. N. S. 916), for the following reasons .— (a.) The chattels had been in the family for a century, and were a feature and characteristic of the house ; [b.) The testator, who settled tliem, kiiew the position of the estate, and there had been only slight diminution of rents. (c) The sum produced wouhl l)e small. (d.) The family objected. The tenant for life had to pay tlie costs of the application. Mouey derived from sale of heirlooms may be spent on improve- ments {Be Houghton, ubi smjj.), or in discharge of incumbrances, without keeping them on foot for the benefit of the infant remain- derman in whom the heirlooms would have vested on his attaining twenty-one : (Be DuJce of Marlborough, ubi sup.) Trustees witli power of sale over land are trustees for sale of heirlooms if it is necessary to have such trustees : {Constable v. Constable, 54 L. T. Rep. N. S. 608 ; 32 Cli. Div. 233, 238 ; 55 L. J. 491, Ch. : 34 W. R. 470.) (a) This section is set out verbatim. THE SETTLED LAND ACT, 1882. 215 In Be Brown [iibi sup.) tlie tenant for life had had liberty to ))id. X. Trudees. Sect. 38. ( I .) If at any time there are no trustees of a Appointment settlement within the definition in this Act, or where ^^^^^t""*^®^ ^^ in any other case it is expedient, for purposes of this Act, that new trustees of a settlement be appointed, the court may, if it thinks fit, on the application of the tenant for life or of any other person having, under the settle- ment, an estate or interest in the settled land, in posses- sion, remainder, or otherwise, or, in the case of an infant, of his testamentary or other guardian, or next friend, appoint fit persons to be trustees under the settlement for purposes of this Act. (2.) The persons so appointed, and the survivors and survivor of them, while continuing to be trustees or trustee, and, until the appointment of new trustees, the personal representatives or representative for the time being of the last surviving or continuing trustee, shall for purposes of this Act become and be the trustees or trustee of the settlement, (a) Applications under this section will be made to the court by Originating Summons ; but see sect. 46 (3), post, p. 220 ; and rule 2, post, p. 235. If the application is made by the tenant for life notice must be served on the trustees (if any). As to service generally, see rules 4-6, ijost, p. 235. For Form of Summons, see Form XIX., p. 248, and authors' Forms in Appendix III., post. As to the appointment of new trustees generally, see Chapter X., ante, p. 121. Even before the new rules of December, 1888 (Order LV., V. 13 a, ante, p. 121), " trustees of the settlement " were almost invariably appointed on summons. A petition was presented in Be Harrop (48 L. T. Rep. N. S. 937 ; 24 Ch. Div. 719 ; 53 L. J. 574, Ch.) ; and in Be Wright (24 Ch. Div. (a) This section is set out verbatim. 216 ORIGINATING SUMMONS. 662; 53 L. J. 139, Cli.) ; but in both cases payment out was ordered of sums above 1000/. The summons must be entitled " In the matter of the estate," &e. "And in the matter of the Settled Land Act, 1882," and (where applicable) " In the matter of the Settled Land Act, 1884." See post,]). 239. In Be WilcocJc (56 L. T. Rep. N. S. 629; 34 Ch. Div. 508; 56 L. J. 757, Ch. ; 35 W. R. 450), the summons was entitled "In the matter of both Acts." If a suit is pending for the administration of the trust, apparently it is minecessary to entitle the summons in the matter of the suit, at all events where the tenant for life has been let into possession : [Re Parry, W. N. 1884, p. 43.) Whom I'l appointing trustees the court will be cai-eful to protect the appointed. interests of the remainderman. It will not appoint a tenant for life, nor a person who may become tenant for life of the settled property (Be Harrofs S. E., 48 L. T. Rep. N. S. 937 ; 24 Ch. Div. 719 ; 53 L. J. 574, Ch.), nor the solicitor of the tenant for life, although he is already a trustee of the will or settlement {Kemps S. E., 49 L. T. Rep. N. S. 196 ; 24 Ch. Div. 485 ; 52 L. J. 950, Ch. ; 31 W. R. 90, C. A. ; Wheelwright v. Walker, No. 2 (48 L. T. Rep. N. S. 632 ; 23 Ch. Div. 763 ; 52 L. J. 274, Ch. ; 31 W. R. 716) ; and although there is no ojipositiou, Be Kemp [ubi sup.), and Be Hadens S. E. (75 L. T., June 23, 1883, p. 142), Init the case might possibly be otherwise if there was anything in the will in respect of which it was the trustee's duty to act as a check upon the tenant for life : (see remarks of Cotton, L.J. in Be Kemp.) In Burke \. Gore (13 L. Rep. Ir. 367) the court refused to appoint trustees. A near relation of the tenant for life is objectionable. In an exceptional case the court might appoint a person bene- ficially interested : (Tempest v. Lord Camoys, 58 L. T. Rep. N. S. 221 ; 52 J. P. 532 ; W. N., 1888, p. 17 ; whicli was not a case under the Settled Land Act.) See also remarks of Jessel, M.R. in Forster v. Abrahams (17 Eq. 356). In Be Samuel Smith; Ex parte London and North-Western Railway and Midland Baihvay Company (60 L. T. Rep. N. S. 77; W. N., Dec. 1, 1888, p. 220 ; 58 L. J. 108, Ch., C. A.). A member of a firm of solicitors who acted as solicitors to the tru.st, was appointed trustee for the purjioses of the Settled Land Act, he being already a trustee of the will. The court will not in general appoint two persons who are near relatives to each other: {Be Knowles, S. E., 51 L. T. Rep. N. S. 655; 27 Ch. Div. 707 ; 54 L. J. 264, Ch.; 33 W.R. 364.) THE SETTLED LAND ACT, 1882. 217 As to remitting pui'diase moueys to executors abroad see -Be Lioyd ; Edimrds v. Lloyd (54 L. T. Rep. N. S. 643; W. N. 1886, p. 37). Wliere persons are appointed to exercise the powers of the Act Infants on behalf of an infant under sect. 60, it is not necessary that entitled. " trustees of the settlement " should be appointed (see Re Countess of Dudley noted under sect. 60), but the appointment of them obviates the necessity of paying the purchase money into court. In Be Wells (48 L. T. Rep. N. S. 859 ; 31 W. R. 363 ; W. N. 1883, p. Ill) the mother of infants absolutely entitled, and their brother were appointed " trustees of settlement," and authorised to exercise leasing powers. See also Leighton v. Price, cited at p. 229 below, under sect. 60, where infants being entitled '* trustees of settlement " were appointed and were authorised to exercise the powers of the Act on behalf of the infants. See further notes to sects. 58, 60, jJost, pp. 227, 229. The Board of Inland Rev^euue have intimated their opinion Scamps. that " original appointments of trustees, as distinguished from those of new trustees, are not chai-geable with duty." See Sol. Jour., April 6, 1889, p. 366, and see Be Potter ( W. N. 1889, p. 69), and Be Kennaioay (W. N. 1889, p. 70, and 86 L. T. 229). " Trustees of the settlement " appointed by the court have power ]^owevs. to give receipts for purchase money: {Cookes v. Coohes, 56 L. T. Rep. N. S. 160; 34 Ch. Div. 498, 502; 56 L. J. 397, Ch. 35 W. R. 402.) Money paid into court under the L. C. C. Act, 1845, may be paid out to them {Be Harrop's Trusts, ubi sujJ; Re Wright's Trusts, 24 Ch. Div. 662 ; 53 L. J. 139, Ch. ; Be Duke of Rutland's Settle- ment, 49 L. T. Rep. N. S. 196; 31 W. R.947); but not money paid into court at the option of tenant for life, see Cookes v. Cookes, {ubi su}}.) and sect. 22 (1). It is doubtful whether C. A., 1881, s. 31, applies to trustees appointed under S. L. A., 1882, s. 38, so as to enable a continuing trustee to appoint a new trustee : {Be Wilcock, 56 L. T. Rep. N. S. 629 ; 34 Ch. Div. 508 ; 56 L. J. 757, Ch. ; 35 W. R. 450 ; Be Kane's Trusts, 21 L. Rep. Ir. 112.) Sect. 39. (1.) Capital money sliall not be paid to one Sole trustee trustee tmless settlement otherwise order. (2.) In other (a) Except where otherwise stated only a summary of each section is given. 218 ORIGINATING SUMMONS. respects the provisions of the Act as to trustees apply to a surviving- trustee, (a) A surviving trustee wlio had power to act and to receive and give receiiJts for capital given to him by the settlement, was held to come within the exceptions of sects. 39 (1) and 45 (2), so as to be able to receive notices and capital money : (Be Garnett, Orme and Hargreaves Contract, 49 L. T. Rep. N. S. 655 ; 25 Ch. Div. 595, 599 ; 53 L. J. 196, Ch. ; 32 W. R. 313.) Receipts. Sect. 40. The receipt of trustees of settlement, or where one is empowered to act of one trustee, or of personal representative of last surviving or continuing trustee, shall be a good discharge. Sect. 41. Each trustee of settlement is answerable for his own acts and defaults only. Indemnitj. Sect. 42. Trustees not liable for giving any consent under the Act, or for not taking any steps to prevent anything ; they may adopt contracts of tenant for life without inquiry ; they must, however, see that the conveyance purports to convey the land properly. The power to give receipts contained in sect. 40 extends to tnistees appointed by the court under sect. 38; {Cookes y. CooTces, 34 Ch. Div. 498, ante, p. 217.) The trustees are not under any duty to come to the court to restrain a sale, &c., (sect. 42), unless there is an actual case of com- plicity in an improi)er sale by a tenant for life [Hatten v. Russell, 38 Ch. Div. 334, ante, p. 210) or ])erhaps if the laud were sold so "infinitely " below its real value, that the sale amounted to a fraud: [Wheelwright v. Walker, 23 Ch. Div. 762, ante, p. 191. Sect. 43. Trustees of settlement may reimburse them- selves out of the trust property. (See Be Llewellin. W. N. 1887, p. 255.) Reference ol Sect. 44. If at any time a difference arises between a ciur^ ''°''' ^" tenant for life and the trustees of the settlement, respecting the exercise of any of the powers of this Act, or respecting any matter relating thereto, the court (a) Except where otherwise stated only a summary of each section is given. THE SETTLED LAND ACT, 1882. 219 may, ou the application of either party, give such direc- tions respecting the matter in difference, and respecting the costs of the application, as the court thinks fit. (a) Applicatious iiuder the sectiou will be made to the court by Mode of Origiuatiug Summons, but see sect. 46 (3) x>ost, 220, aud r. 2, post, application. p. 235. As to service see r. 4, 5, post, p. 235. For form of summons see Form XX., p. 249. Some instances of references under this section are : — Carting- ton Estate, see p. 223, and MacJcenzie's Trusts, see p. 223; and see Hatten v. Russell, sup.) Sect. 45. (I) Tenant for life intending to make a side, Notice of lease, &c., shall give notice to each trustee of settlement intended sale, by registered letter addressed to his usual or last known place of abode in the United Kingdom, and shall give like notice to trustees' solicitor, if known to tenant for life, every such letter being posted not less than one month before making of such sale, &c., or of contract for same. (2.) But at date of notice the trustees shall not be less than two, unless contrary intention expressed in settlement. (3.) A person dealing in good faith with tenant for life is not concerned to inquire as to giving of such notice, (b) It is conceived that a general notice is insuflBcient for a mortgage or charge [Bay's Settled Estates, 50 L. T. Rep. N. S. 80; 25 Ch. Div. 464; 53 L. J. 205, Ch. ; 32 W. R. 458), although it will now suffice for a sale, exchange, partition, or lease (S. L. A. 1884, s. 5 (1), and notice may be waived by the trustee: [lb., sub- sect. 3.) It is clear that the tenant for life cannot complete a sale unless there are trustees of the settlement to whom the notice must be given (or by whom it may be waived) and to whom the purchase money may be paid. For unless there are trustees he cannot direct the purchase money to be paid into court : [Hatten v. Russell, 58 L. T. Rep. N. S. 27] ; 38 Ch. Div. 334, 345 ; 57 L. J. 425, Ch. ; 36 W. R. 317.) But although there is an insufficient notice given (a) This section is set forth verhatim. (b) Except where otherwise stated only a summary of each section is given. 220 ORIGINATING SUMMONS. before the contract for sale (Dulce of Marlborough v. Sartoris^ 55 L. T. Rep. N. S. 506 : 32 Ch. Div. 616) or even where no notice at all, before the contract is given, because there are no trustees {Hatten x. Russell, sup.); yet the purchaser is bound to complete Avhere there are trustees before the day fixed for completion, and notice of the sale has been given to them under this section, or has been waived. See cases last cited. Qucere, as to effect if purchaser knew tliat no notice had been given : (see Hatten v. Russell, and compare sect. 54.) In Wheelwright v. Walker, 48 L. T. Rep. N. S. 70 ; 23 Ch. Div. 752, 763 ; 52 L. J. 274, Ch. ; 31 W. R. 363) an injunction was obtained to prevent a tenant for life from selling land or offering it for sale until trustees were appointed. XI. Procedure, ^c. Conrt appli- Sect. 46. (1 .) All matters under this Act are assigned to Chancery Division; (2) payment into court exonerates; (3) applications to court are to be by petition or sum- mons ; (4) on application by trustees notice shall be served on tenant for life; (5) notice shall be served on such persons as court thinks fit; (6-10) court has full discretion as to costs. Powers of court may, as to land in County Palatine of Lancaster, be exercised also by Court of Chancery of County Palatine. Powers of court may, as to land not exceeding in value 500/., or in annual rateable value 30Z., and as to capital money not exceeding 500Z., and as to settled personal chattels not exceeding in value 500Z., be exercised by any County Court where land to be dealt with is situated, or from which the capital money arises, or in connection Avith which the personal chattels are settled, [a] Sect. 47. Where court orders costs to be paid out of settled property same may be paid out of capital or income, or in any other mode court may think fit. Costs. The usual order on a properly conducted summons which succeeds is that costs of all parties (including tliose directed by the court to be served) {Re Houghton, 53 L. T. Rep. N. S. 196; 30 Ch. Div. (a) Except where otherwise stated only a summary of each section is given. THE SETTLED LAND ACT, 1882. 221 102, 105 ; 55 L. J. 37, Oh. ; 33 W. R. 869 ; Be James, 51 L. T. Rep. N. S. 596; 32 W. R. 898), shall be paid as between solicitor and client out of the settled property, or the proceeds of the sale : (see Forms III,, IV., &c., post, p. 241). Costs of the trustee's appeal were allowed in Be Jones, 50 L. T. Rep. N. S. 466 ; 26 Ch. Div. 736) although he was defeated in both courts. Even when the application fails costs may be ordered to be paid out of the estate : [Be Home, 59 L. T. Rep. N. S. 580; 39 Ch. Div. 84, 90). In Constable v. Constable (54 L. T. Rep. N. S. 608 ; 32 Ch. Div. 233 ; 55 L. J. 491, Ch. ; 34 W. R. 470), where the summons was taken out in an action, and no other order was made, costs were made costs in the action. The tenant for life had to pay costs of an unsuccessful applica- tion in Be Beaumont's S. E. (58 L. T. Rep. N. S. 916), noted under sect. 37 above. In Sebright v. Thornton ("W. N., 1885, p. 176), where an action was brought, he was only allowed " party and party" costs. Incidental costs may be allowed, see Be Llewellin (37 Ch. Div. 317; 58 L. T. Rep. N. S. 152). Trustees appearing by the same counsel as the tenant for life were disallowed their costs out of the estate in Be The Broadwater Estate (53 L. T. Rep. N. S. 745, C. A.) noted under sect. 26, p. 207, above. Tenant for life (appellant) had to pay costs of trustees and remaindermen (^respondents) on appeal in Be Strangways (55 L. T. Rep. N.S. 714; 34 Ch. Div. 423, 433; 56 L. J. 195, Ch.; 35 W. R. 83, C. A.). For various references in Act, rules, and forms, to costs, see note to rule 15, post, p. 238. As to costs generally, see p. 158, ante. Sect. 47 directs the mode in which money shall be raised for costs, &c., to be paid out of the settled property, (a) Sect. 48 directs that the commissioners heretoiore Land Com- styled " Inclosure/' " Copyhold/' and '^ Tithe'' shall be ^i^^^o"^''^- styled " Land Commissioners for England," and shall have one seal, but shall have all the powers they pre- viously possessed. They shall also, for the purposes of (a) Except where otherwise stated only a summnrij of each section is given. plication of either (a) the sale money, or (&) the income of the sale money, or (c) the income of the land until sale, or (cZ) any part of that money or income — for the benefit of any person for life, or any other limited period, or for the benefit of two or more persons concurrently for any limited jieriod. The ordinary " personal " marriage settle- ment of land on trust for sale, with trust to pay the income of the purchase-money to husband and wife successively, and then to hold the capital for the children, would appear to be an example of a settlement falling within this section ; and numerous wills como within its scope. Amendment By S. L. A. 1884 (47 & 48 Vict. c. 18), s. 7 (i.) the powers given Act. by sect. 63 are not to be exercised without the leave of the court. The coiu't 7nay by order authorise any person to exercise the powers (sub-sect, ii.), vary, rescind, or make new orders (sub-sect. iii.). Such order suspends certain trusts or powers (sub-sect, iv.), and may be registered as lis pendens (sub-sect, v); and until registration persons dealing with tnistees, &c., are protected (sub-sect. vi.). By S. L. A., 1884, s. 7 (vii.) : An applicatiou to tlie court under this section may be made by the tenant for life, or by the persons who together constitute the tenant for life, within the meaning of section sixty-three of the Act of 1882. (a) The applicatiou will be by Originating Summons, but in Re Houghton's Estate (63 L. T. Rep. N. S. 196 ; 30 Ch. Div. 102, 107 ; 55 L. J. 37, Ch.; 33 W. R. 869), a petition was presented to (a) This sub-Bection is set out verhatim. THE SETTLED LAND ACT, 1882. 233 authorise the tenant for life under a settlement containing a trust for sale to sell heii-looms and invest purchase money on imin-ove- ments. It appears that the court directed that infant tenant in tail should be served (30 Ch. Div. 105). By S. L. A., 1884, s. 7 (viii.). An application to rescind or vary an order, or to make any new or fnrtlier order under this section, may be made also by the trustees of the settlemeut, or by any person beneficially interested under the settlement, (a) Sub-sect, (ix.) of S. L. A., 1884, sect. 7, declares that the person to whom leave is given under that section may exercise the powers of sect. 63, and sub-sect, (x.) protects dealings j^rior to the Act of 1884 [3rd Jidy, 1884]. The following cases have been decided on, sect. 63 : — Earle and Webster s Contract (24 Ch. Div. 144), and Taylor v. Poncia (25 Ch. Div. 646), noted under sect. 56, p. 225, ante ; Be Powell; Allaway r. OaUey (76 L. T., March 22, 1884; W. N. 1884, p. 67), see below; Be Bidcje ■ Hillard v. Moody (31 Ch. Div. 504), noted under sect. 11, i>. 194 above; Be Home (39 Ch. Div. 84), noted under sect. 68, p. 228. Where a moiety of real estate was held on triist for sale and investment, and to use so much of the annual income as should be required for maintenance and education of testatrix's son and daughter, aud to accumulate the remainder, and pay moieties of principal and interest to the son on attaimng twenty-one, and the daughter on attaining twenty-one, or marriage ; it was held that the son and daughter were tenants for life, so as to enable trustees on their behalf to concur with persons entitled to the other moiety in making mining leases: \Be Powell; Be Allaway; Allaway v. Oakley, iibi sup.) In Be Home tliere was not in effect an inwie- diate trust for sale, and possibly the children might not be even- tually entitled to the surplus accumulated. XVI. Repeals. Sect 64 repeals enactments in schedule, but with a wide saving as to rights accrued, &c. (&) (a) This sub-section is set out verbatim. (h) Except where otherwise stated only a summary of each section is given. 234 ORIGINATING SUMMONS. The schedule repeals the rest of 23 &. 24 Viet. e. 145 (Lord Cranworth's Act). Part had been repealed by tlie Couveyanciug Act, 1881. The schedule also repeals a small part of the Improve- ment of Land Act, 1864, and sect. 17 of the Settled Estates Act, 1877, which section is superseded hj sect. 36 of the present Act. XVII. Ireland. Sect. 65. Modifications respecting Ireland. The Civil Bill Courts in Ireland shall have the powers of the Court under this Act, where the property does not exceed in capital value 500/., or in annual value 30/. The Commissioners of Public Works in Ireland shall be substituted for the Land Commissioners. The term for which a lease other than a building or raining lease may be granted shall be not exceeding thirty-five years, (a) Note. — The provisions of the Settled Laud Act, 1884, have been noticed among- the provisions of the Act of 1882. RULES AND PORMS. December, 1882. KULES UNDER THE SETTLED LAND ACT, 1882. (6) 1. The exjiression " the Act " used in these rules means the Settled Land Act, 1882. Words defined by the Act when used in these rules have the same meanings as in the Act. (c) The expression " the tenant for life " includes the tenant (a) Except where otherwise stated only a summary of each section is given. (6) These rules are under sect. 46, page 220. For procedure see also that section. (c) See sect. 2, page 188. rdi.es under settled land act, 1882. 235 for life as defined by the Act, and any person having the powers of tenant for life under the Act. (a) 2. All applications to the court (6) under the Act may be made by summons (c) in chambers ; and if in any case a petition shall be presented without the direction of the judge, no further costs shall be allowed than would be allowed upon a summons. 3. The forms in the appendix (d) to these rules are to be followed as far as possible, with such modification as the circumstances require. All summonses, j^etitions, affidavits, and other i>roceedings under the Act are to be entitled according to Form I. in the Appendix. 4. The persons to be served (e) with notice of applications to the court shall, in the first instance, be as follows : In the case of applications by the tenant for life (/) under sections 15 (g) and 34 (h) the trustees. In the case of applications under section 38, (i) the trustees (if any), and the tenant for life if not the applicant. In the case of apjjlications under section 44 (k), the tenant for life, or the trustees as the case may be. No other person shall in the first instance be served. Except as hereinbefore provided where an application mider the Act is made by any person other than the tenant for life, the tenant for life alone shall be served in the first instance. 5. Except in the cases mentioned in the last rule, applica- tions by a tenant for life shall not in the first instance be served on any person. (a) See sects. 2, 58-63, pages 188, 226, 231. Apparently a person who is "deemed" tenant for life is included. (h) Sect. 46, page 220. (c) Sect. 46 (3), page 220. (d) These will be found after these rules at page 240. Of course, throughout these rules, " Appendix " means the appendix to the rules, as to rules 3, 4, see Re Parry, W. N. 1884, p. 43, cited at page 239, below. (e) See sect. 46, page 220. (/) See E. 1 and foot note. (g) This refers to sale or lease of mansion-house, &c., page 195. (h) This relates to application of money on sale of lease or reversion, page 211, see Form XVIII., page 248. (i) Appointment of trustees by the court, page 215, see Form XIX., page 248. Ik) Differences between trustees and tenant for life, page 218. 236 ORIGINATING SUMMONS. 6. The judge may require notice (a) of any application under the Act to Ije served ujion such persons as he thinks iit, and may give all neces.>-ary directions as to the persons (if any) to be served, and such directions may be added to or varied horn, time to time as the case may require. Where a petition (b) is presented, the petitioner may, after the petition has been filed, apply by summons in chambers (Appendix, Form XXIII.) (c) for directions with regard to the persons on whom the petition ought to be served. If any person not already served is directed to be served with notice of an application, the aj)plication shall stand over generally, or until such time as the judge directs. The judge may in any jjarticular. case upon such terms (if any) as he thinks fit, dispense with service upon any l>erson upon whom, under these rules, or under any direc- tion of the judge, any application is to be served. 7. It shall be sufficient upon any application under the Act to verify by affidavit the title of the tenant for life and trustees or other persons interested in the application unless the judge in any particular case requires further evidence. Such affidavit may be in the form or to the effect of Form No. VIII. in the Appendix, (d) 8. Any sale authorised or directed by the court under the Act, shall be carried into effect out of court, unless the judge shall otherwise order, and generally in such manner as the judge may direct. 9. Where the court authoi-ises generally the tenant for life to make from time to time leases or grants for building or mining purposes under section 10(e) of the Act, the order shall not direct any particular lease or grant to be settled or approved by the judge unless the judge shall consider that there is some sjDccial reason why such lease or grant should be settled or approved by him. Where the court authorises any such lease or grant in any parti- cular case, or where the court authorises a lease under (n) Sect. 46, page 220. (h) See as to costs, R. 2 above. (c) Page 250 (d) Page 244. (e) These leases are for longer terms or on other conditions than those authorised by the Act. See page 193, and Form III., page 241. RULES UNDER SETTLED LAND ACT, 1882. 237 section 15(a) of the Act, the order may either approve a lease or grant already prepared or may direct that the lease or grant shall contain conditions specified in the order or such conditions as may be approved by the judge at chambers without directing the lease or grant to be settled by the judge. 10. Any person directed by the tenant for life to pay into court any capital money (h) arising under the Act may apply by summons at chambers for leave to j^ay the money into court. (Appendix, Forms IX., X., XI.) (c) 11. The summons shall be suppoi'ted by an affidavit setting forth— 1. The uame and address of the person desiring to make the payment. 2. The place where he is to be served with notice of any proceeding relating to the money. 3. The amount of money to be paid into court and the account to the credit of which it is to be placed. 4. The uame and address of the tenant for life under the settlement by whose direction the money is to be paid into court. 5. The short particulars of the transaction in respect of which the money is payable. 12. The order made upon the summons for payment into court, may contain directions for investment (d) of the money on any securities authorised by sect. 21, sub-sect. 1 of the Act (e), and for payment of the dividends to the tenant for life either forthwith or upon production of the consent in writing of the applicant ; the signature to such consent to be verified by the affidavit of a solicitor. But if the trans- action in respect of which the money arises is not completed at the date of payment into court, the money shall not, without the consent of the applicant, be ordered to be invested in any securities other than those upon which cash under the control of the court may be invested. (/) (a) Mansion-house, &c., pa^e 495. See also E. 4. (6) Sects. 21, 22, page 197. (c) Page 214. (cl) See Forms IX., X., page 244. (e) Page 197. (/) See page 198. Compare Form X. 3, where the lessee names the investment. It would be prudent in consequence of this rule, for tenant for life to arrange beforehand with the lessee as to what investment shall be made. 238 ORIGINATING SUMMONS. 13. Money paid into court under the Act shall be paid to an account, to he entitled in the matter of the settlement, with a short description of the mode in which the money arises if it is necessary or desirable to identify it, and in the matter of the Act. (Appendix, Forms IX., X., and XI.) (a) 14. Any person paying into court any capital money arising under the Act shall be entitled tirst to deduct the costs of paying the money into court, (h) 15. In all cases not provided for by the Act or these rules, the existing practice of the court as to costs (c) and other- wise, so far as the same may be ajiplicable, shall apply to proceedings under the Act. 16. The fees and allowances to solicitors of the court in respect to proceedings under the Act shall be those provided by the Rules of the Supreme Court as to costs for the time being in force, so far as they are applicable to such pro- ceedings. 17. The fees to be taken by the officers of the court in respect to proceedings under the Act shall be those provided by the Rules of the Supreme Court as to court fees for the time being in force, so far as they are applicable to such proceedings. 18. These rules shall come into operation from and after the 31st December, 1882. 19. These rules may be cited as the Settled Land Act Rules, 1882. (Signed) Selborne, C. Coleridge, L.C.J. G. Jesskl, M.R. Nath. Lindley, L.J. H. Manistt, J. E. Fry, J. («) Page 244. (b) See Form X. (r) Beference is made in tlie Act to costs in sects. 21 (x.) 36, 44, "46 (6), 47, and elsewhere. See also Form III , paragraph 2, as to costs ciut of the settled property, and Form VI., paragraph 2, as to costs out of Biile money, &e. RULES UNDER SETTLED LAND ACT, 1882. 239 Note as to the Title to and formal parts of an Origi- nating Summons under the Settled Land Acts. The fomis set out in the appendix to the rules under the Settled Land Aet 1882 must be varied in conformity with Form XXV., Appendix L., R. S. C. 1883, ante, p. 102, and post, Appendix II. " The address and description of the apj^licaut and of the next friend (if any) should in all cases be stated in the summons, and if the applicant or the parties summoned apply or are summoned as trustees or in a representative capacity the fact should appear in the summons, and the rule (if any) under which the application is made should be stated therein : (see L. T. and W. N. of 9th Feb. 1884. Instead of the words " Let all pai-ties concerned " at the commencement of the summons it is better to particularise such parties as follows : " Let the defendant C. D. [tlie trustee of, &c., or the tenant for life, or as may be], attend, &e. It has been thought better not to alter the statutory forms, but the formal parts of an Originating Summons under the Settled Land Act 1882, as it should now stand, will be found 2^ost, Appendix III. "When a complete settlement of land has been made and deriva- tive settlements have been afterwards made by persons who take interests (not yet in possession) under the original settlement. Senible, the summons need not be entitled under the derivative settlement: {Be Knoioles 8. E., 51 L. T. Rep N. S. 655; 27 Cli. Div. 707 ; 54 L. J. 264, Ch. ; 33 W. R. 364.) In Be Parnj (W. N., 1888, p. 43) it was held (see rules 3, 4), that a summons which was entitled in the matter of estates settled by a will and of the statute was rightly entitled, without being entitled in two suits which, it was contended, were still alive. Of course, like other summonses those under the S. L. A. can be amended. Amendments were ordered in Be Brown's Will (51 L. T. Rep. N. S. 156; 27 Ch. Div. 179; a case on heirlooms, see p. 214, sup.) ; and in Be James (51 L. T. Rep. N. S. 596 ; W. N. 1884, p. 172 ; 32 W. R. 898) by making certain infants joint appli- cants by their next friends. 240 OEIQINATING SUMMONS. APPENDIX TO RULES UNDER SETTLED LAND ACT. FORMS, (a) FOKM I. Title of Proceedings. In the High Court of Justice, Chancery Division, Vice-Chan cellor Bacon, or Mr. Justice Chitty, \_or otJier judge before ivhom the application is to he heardJ] In the matter of the estate [or, of the timber (6) upon the estate], situate at in the county of , [or, of the chattels] (c), settled by a settlement made by an indentiire dated the day of , and made between {or, by the Will of dated or, as the case may 6e]. And in the matter of the Settled Land Act, 1882. Form II. Formal part of Summons, {d) Title as in Form I, Let all parties concerned attend at my chambers at the Royal Courts of Justi'^-e on day, the day of 18 , at o'clock in the forenoon, on the hearing of an application — (a.) On the part of A. B., the tenant for life [or, tenant in tail, or as the case may he, describing the nature of the applicant's estate'\ under the above-mentioned settlement. Or, (h.) On the part of A. B., the tenant for life {or as the case may he) under the above-mentioned settlement an infant, (a) See R. 3, page 235. Usually the name of the judge will be omitted by the applicant, and will be inserted at the office. (h) Sect. 35, page 212. (c) Sect. 37, page 213. (d) See note, nnte, page 239. APPENDIX TO RULES UNDER SETTLED LAND ACT. 241 by X. Y., his testamentary guardian [or, guardian appointed by order dated the , or, next friend]: (a) ' Or, (c.) On the ])art of C. D. and E. F., the trustees of the above-mentioned settlement for the purposes of the above- mentioned Act. (h) Or, (d.) On the part of G. H., the tenant for life in remainder [or, tenant in tail in remainder, or as the case may he, describing the applicant's interest?^ under the above-men- tioned settlement subject to the life interest of A. B. [or as the case may &e]. Or, (e.) On the part of / /., the purchaser of the lands [or, the timber iipon the lands, or chattels, or as the case may Se] settled by the above mentioned settlement. Or, (/.) On the part of I. J., the lessee under a mining lease (c) dated the 18 , granted under the powers of the above-mentioned Act of the mines and minerals under the lands settled by the above-mentioned settlement. Or, (g.) On the part of I. J., the mortgagee under a mort- gage intended to be creat^-d under sect. 18 of the above- mentioned Act of the lands settled by the above-mentioned settlement. Or, (h.) On the part of K. L., interested under the con- tract (d) hereinafter mentioned. Dated the day of 18 This summons vras taken out by of , solicitor for the applicant. To Add the names of the person {if any) on whom the sianmons- is to be served, (e) Form III. (/) Summons under Sect. 10 (g) for General Leasing Powers. Title and formal parts as in Forms I. and II. a or b. 1. That the applicant [or, iri the case of an infant, that the said X. Y. during the infancy of the said A. -B.], and each of his successors in title [or, in the case of an infant, each of the successors in title of the said A. .B], being a tenant for life or having the powers of a tenant for life under the above mentioned Act, may pursuant to section 10 of the said Act (a) Sect. 60, page 228. (b) See sects. 2 (8), 63, pages 190, 231. (c) Sects. 6, 7, 9, 11, pages 192-194. (d) Sect. 31 (3), page 209. (e) Eules 4-6, page 235. ( / ) See Rule 9, page 236. (g) Page 193. R 242 0R1GINAT[NG SUMMONS. be authorised from time to time to make building [or mining] leases of the lauds comprised in the said settlement for the term of years [or in perpetuity] on the conditions specified in the said Act [or in other conditions than those specified in sections 7 to 9 of the said Act]. 2. That the costs (a) of this application may be directed to be taxed as between solicitor and client, and that the same when taxed may be paid out of the proj^erty (b) subject to the said settlement, and that for that purpose all necessary directions may be given. ^o^e.— The proposed conditions ought not, except in simple cases, to be set forth in the summons. Form IV. Summons under Sects. 10 (c) or 15 (d) for Authority to GRANT A PARTICULAR LEASE WHERE THE TeNANT FOR Life has entered into a Contract. Title as in Form I. Formal parts as in Form II., a or b. 1. That the conditional contract, (e) dated the 18 , and made between the applicant [or the said X. F.] of the one part and of the other part, for a [building (ir mining] lease to the said of the hereditaments therein mentioned for the term, and upon the conditions therein stated, may, pursuant to section 10 [or 15] of the above-mentioned Act be approved, and that the said A. B. [or X. y.] may be authorised to execute a lease in pursuance of the said contract. 2. {Add application for costs as in Form III., 2.) Form V. .Summons under Sects. 10(c) or 15(fZ) for Authority to GRANT a particular LeASE WHEN NO CONTRACT HAS BEEN ENTERED INTO. Title as in Form I. Formal parts as in Form II., a or b. 1. Tiiat the [building or mining] lease intended to be granted to of the lands [or of the mansion house, (a) See Rule 1.5, pape 2.38, and foot note. ib) Sect. 47, page 220. (r) Extra Icng-th of term or otlier conditions not authoriseil by the Act, j)ago 193. {(t) MaDsion-hone, &c.. page 1!'5. (e) Sec sect. 31, page 208. APPENDIX TO RULES UNDER SETTLED LAND ACT. 243 &c.], settled by the said settlement, may, pursuant to section 10 [or 15] of the above-mentioned Act, be approved, and that the applicant [or the said X. Y.] may be authorised to execute the same. 2. (Add application for costs as in Form III., 2.) Form VI. Summons under Sects. 15 {a), 35 (fc), 37 (c), for a Sale OUT OF Court of the principal Mansion House, and Demesnes, or of Timber or Chattels. Title as in Form I. Formal parts as in Form II. a or 6. 1. That the applicant [or in the case of an infant the said X. Y.] may be authorised to sell the principal mansion house [or the timber ripe and fit for cutting] on the land [or the furniture and chattels] settled by the above-mentioned settlement in such luanner, and subject to such particulars, conditions, and provisions as he may think fit. 2. That the costs of this application may be taxed as between solicitor and client, and that C. D. and E. F., the trustees of the said settlement, may be at liberty to pay the cost when taxed out of the proceeds of the said sale [or in the case of timber, out of the three-fourths of the proceeds of the said sale to be set aside as capital money arising under the said Act], or if this Form is fiot applicable as in Form III., 2. Form VII. Summons under Sects. 15 (a), 35 (b), or 37 (c), for Sale BY THE Court of the principal Mansion House, and Demesnes, or of Timber or Chattels. Title as in Form I. Formal parts as in Form II., a or b. 1. That the principal mansion house [or the timber ripe and fit for cutting] on the land [or the furniture and chattels], settled by the above-mentioned settlement, may be sold under the direction of the court. 2. {Application for costs as in Form III., 2.) («) Mansion House, &c., page 195. (6) Timber, see page 212. (c) Chattel " heirlooms," see page 213. R 2 244 ORIGINATING SUMMONS. Form VIII. (a) Affidavit verifying Title. Title as in Form I. I, , of make oath and say as follows : 1. By the above-mentioned settlement the ahove-mentioued lands [_or certain chattels, shortly describing theoil stand limited to uses [or upon trusts] under which A. J5. is [ or I am] beneficially entitled in possession as tenant for life [or tenant in tail or tenant in fee simple, with an executoi'y gift over, or as the case may be.] 2. (If it is the fact.) The said J.. B. is an infant of the age of years or thereabouts. 3. C. B., of , and E. F., of , are trustees under the said settlement, with a power of sale of the said lands [or with power of consent to or approval of the exercise of a power of sale of the said lauds contained in the said settlement, or are the persons by the said settlement declared to be trustees thereof for purposes of the above-mentioned Act. (6) Form IX. (c) Su3IMONS UNDER SeCT. 22 (d) BY PURCHASER FOR PAYMENT INTO Court of Purchase Money op Settled Land, Timber, or Chattels. Title as in Form I. Formal parts as in Form II. e. 1. That the applicant may be at liberty to jmy into court to the credit of " In the matter of the settlement, dated the and made between [or will, &c.] proceeds of sale of the A. estate [or as the case may be'], and in the matter of the Settled Land Act, 1882," the sum of I. on account of the purchase money of the said A. estate [or as the case may he] settled by the said settlement [or will, Ac] 2. That such directions may be given for the investment (/ ) of the said sums when paid into court, and the accumulation (a) See Rule 7, page 236. (h) See sects. 2 (8), 63, pages 100, 231. (r) As to this and the two following forms, see RR. 10-14, page 237. \d) Page 203. (/) It is ijrestimed that the tenant for life will be allowed to choose the investmi'nt within the limits prcsentccirte Oilchrist. Their decision was reversed by the Court of Appeal without any opinion being given as to the point under discussion with reference to sect. 19 : (55 L. T. Rep. N. S. 538 ; 17 Q. B. Div. 167, 521.) But in Be Arm- strong; Ex parte Boyd (59 L. T. Rep. N. S. 806; 21 Q. B. Div. 264 ; 57 L. J. 553, Q. B. ; 36 W. R. 772, C. A.) wliere real property was by marriage settlement vested in a trustee for a inai-ried woman for life for her separate use without restraint on anticipation, with remainder to such persons as she might appoint, with i-emainder in default of appointment ; it was held (Lord Esher dissenting) that on the married woman who traded separately from her husband becoming bankrupt, the trustee in bankruptcy in claiming the life estate was not interfering with or affecting the settlement within sect. 19 of this Act, and that it passed to him under the T 27-i ORIGINATING SUMMONS. baukruptcy uiuler sect. 1, sub-sect. 5 of the Act. See also Be Onslow's Settlement ; Plowden v. Gayford (59 L. T. Rep. N. S. 308 ; 39 Ch. Div. 622 ; 57 L. J. 940, Ch. ; 36 W. R. 883). We may call atteutiou to Boioer v. Smith (24 L. T. Rep. N. S. 118 ; 11 Eq. 279 ; 40 L. J. 194, Ch. ; 19 W. R. 399), where the effect of a covenaut for settlement was evaded by the lady appoint- ing ill Slims under 500/., wliich was the limit prescribed by the covenant. Married 20. Where iu England the husband of any woman U°We t th *^ having separate property becomes chargeable to any parish for the union or parish^ the justices having jurisdiction in such maintenance . • i ... • tit of her union or parish may, m petty sessions assembled, upon hnsbanil. application of the guardians of the poor, issue a summons n gainst the wife, and make and enforce such order against her for the maintenance of her husband out of such sepa- 31 & 32 Vict, rate property as by the 33rd section of the Poor Law ° Amendment Act, 1868, they may now make and enforce against a husband for the maintenance of his wife if she becomes chargeable to any union or parish. Where in Ireland relief is given under the provisions of the Acts relating to the relief of the destitute poor to the husband of any woman having separate property, the cost price of such relief is hereby declared to be a loan from the guardians of the union in which the same shall be given, and shall be recoverable from such woman as if she were a, feme sole by the same actions and proceedings as money lent. Married 21. A married woman having separate property shall ^°™*^*° ^'^ be subject to all such liability for the maintenance of her liable to the , •• _ '' parish for the children and grandchildren as the husband is now by of^her " '^°*^° law subject to for the maintenance of her children and children. grandchildren : Provided always, that nothing iu this Act shall relieve her husband from any liability imposed upon him by law to maintain her children or grand- children. Repeal of 22. The Married Women's Property Act, 1870, and c.M^^^'"'*' ^^^® Married Women's Property Act, 1870, Amendment THE MARRTEP WOMEN's PROPERTY ACT, 1882. 275 Act, 1874, are hereby repealed: Provided that snch 37 & 38 Vict. repeal shall not affect any act done or right acquired while either of such Acts was in force, or any right or liability of any husband or wife, married before the commencement of this Act, to sue or be sued under the provisions of the said repealed Acts or either of then-;, for or in respect of any debt, contract, wrong, or other matter or thing whatsoever, for or in respect of which any such right or liability shall have accrued to or against such husband or wife before the commencement of this Act. Repeal of Acts of 1870. 1874, ivith Savings. The object of sect. 22 is to save riglits acquired uutler tlie M. W. P. Acts, 1870, 1874, and it does not extend to the riglits ..£ the husband, which existed independently of those Acts : (per Fry, L.J. in Weldon v. Winslow. .51 L. T. Rep. N. S. 64.3 ; 1.3 Q. B. Div. 784, 789.) In Be Soutar's Policy (50 L. T. Rep. N. S. 262 ; 26 Ch. Div. 236) Mr. Justice Pearson doubted " whether sect. 10 of the Act of 1870 remained in force for any purjjose." 23. For the purposes of this Act the legal personal Legal repre- representative of any married woman shall in respect of ^®"*^.*^iY® °f '^ '' _ _ i _ married her separate estate have the same rights and liabilities woman. and be subject to the same jurisdiction as she would be if she were living. 24. The word "contract^' in this Act shall include Interpreta- ,1 , P ,, p >^ m r , ■ tion of terms, the acceptance or any trust, or ot the oince ot executrix or administratrix, and the provisions of this Act as to liabilities of married women .shall extend to all liabilities by reason of any breach of trust or devastavit committed by any married woman being a trustee or executrix or administratrix either before or after her marriage, and her husband shall not be subject to such liabilities unless he has acted or intermeddled in the trust or administra- tion. The word ''property" in this Act includes a thing in action. See Re Ayres, ante, p. 2.56. T 2 276 OKIGINATING SUMMONS. Commence- 25. The date of tlie commeucemeut of this Act shall " " '^ ■ be the first of January one thousand eight hundred and eighty-three. Extentof Act. 26. This Act shall not extend to Scotland. .Short title. 27. This Act may be cited as the Married Women's Property Act, 1882. MISCELLANEOUS STATUTES. 277 CHAPTER XX. MISCELLANEOUS STATUTES. ARBITRATION AND AWARD. W HERE the reference is to a single arbiti'Jitor if the parties fail to appoint an arbitrator, or the parties or arbitrators fail to appoint an umpire, and in certain other cases, a judge may appoint one on summons : (C. L. P. Act, 1854 (17 & 18 Vict. c. 125), s. 12.) If the reference were in a pending action the api)lication would be by ordinary summons ; in other cases by Originating Summons : (see Dan. F., p. 928, note (q.) For form of summons see Dan. F., 2125. For text of sects. 12-15 of the C. L. P. Act, 1854, see Wilson, note to Order XXXVI., r. 10, 7th edit., p. 292. Where a reference is to two arbitrators and one party fails to appoint, the other party may appoint arbitrator to act alone ; but the court or judge may revoke such appointment: (0. L. P. Act, 1854, s. 13.) For form of summons to revoke such appointment, see Dan., F. 2124. As to sect. 13, see Be Fraser and Co. v. Ehreyisperger mul Eckenstein (49 L. T. Rep. N. S. 646, C.A. ; 12 Q. B. Div. 310). Under certain circumstances the court may enlarge time for making an award: (C. L. P. Act, 1854, s. 15.) For form of summons, see Dan. F. 2129. Where by a submission in writing the time within whicli the award was to be made was fixed at one month, and the submission contained no power to enlarge the time, and the award was in fact made after the expiration of the month ; it was held that the court had power, subsequently to the making of the award, to enlarge the time under sect. 15 of the Common Law Procedure Act, 1854: (Be May and Harcourt, 13 Q. B. Div. 688.) For practice generally under the statutes relating to arbitration, see Dan. 2188, et seq. BURIAL ACTS. By the Burial Act, 1852 (15 & 16 Vict. c. 85), s. 29, it is enacted as follows : Provided always, that any burial board under this 278 ORIGINATING SUMMONS. Act^ with the approval of the vestry and of the guardians of the poor of the parish (if any), and of the Poor Law Board [a] may from time to time appropriate for the purposes of a burial ground for such parish, either alone or jointly with auy other parish or parishes, any land vested in such guardians, or in the churchwardens, or in the churchwardens and overseers {b) of the parish, or iu auy feoffees, trustees, or others, for the general benefit of the parish, or for any specific charity : Provided always that where any laud so taken and appropriated shall be subject to any charitable use, such lands shall be taken on such conditions only as the Court of Chancery in the exercise of its jurisdiction over charit- able trusts shall appoint and direct. Apjjlicatious uudev this section are by Origiiiatiu^- Suiiimous ; (see Dau. F., p. 881, note {t.) For form of sumnious, see Dan. F. 2044. Tliis statute originally only applied to the metropolis ; but, by 16 & 17 Vict. c. 134, s. 7, all the sections of the Act from sect. 10 to sect. 42 (botli inclusiA-e), and sects. 44, 50, 51, 52 were made applic- able to England generally. The sanction of the Charity Commissioners to the making of the application is necessary: {Ex i^arte the Watford Burial Board, 27 L. T. Rep. 316; 2 Jur. N. S. 1045). SeeMitchesou's Charity Commission Acts, 101. For practice generally, see Dan 2063. A somewhat similar power is given to the councils of boroughs by the Burials Act, 1854 (17 & 18 Vict. c. 87). s. 11, which is as follows : ''It shall be lawful for the council of auy borough to appropriate for the purposes of this Act any land belonging to the body corporate of such borough, or vested iu any feoffees, trustees, or others, for the general benefit of the borough, or for any specific charity : Provided always, thai ^here any land so (o) Now the Local Government Board. (b) See 59 Geo. 3, c. 12, s. 17, and Steer's Parish Law, 4th edit., by Macnamara, pp. 115, 332. MISCELLANEOUS STATUTES. 279 appropriated shall be subject to any charitable use, such land shall be taken on such conditions only as the Court of Chancery, in the exercise of its jurisdiction over charitable trusts, shall appoint and direct." The terms "borough" and " couneil of any borough " used in this section have an extended meaning by virtue of the Burials Act, 1857 (20 & 21 Vict. c. 81), s. 29. THE CONSOLIDATED FUND (PERMANENT CHARGES REDEMPTION) ACT, 1873. (36 & 37 Vict. c. 57.) Sect. 2 enacts that : " Whore any annuity (as defined by this Act) (a) is charged on and payable out of the Consolidated Fund of the United Kingdom, or moneys provided by Parlia- ment, either in perpetuity or for a period not determin- able with the life of the individual to whom the same is for the time being payable, the Treasury may at any time contract for the redemption of the same or any part thereof by payment out of moneys provided by Parlia- ment of a capital sum not exceeding such sum as would, according to the average price of Government securities at the date of such contract, purchase an amount of Government securities yielding annual dividends equal to the amount of such annuity. " In entering into any such contract, the Treasury shall have regard to the contingency (if any) of the determina- tion of the annuity, and may surrender such contingency upon such terms as they may think reasonable. "Where the person to whom such annuity is for the time being payable is a limited owner, the contract made for the redemption of the annuity shall not be valid unless it is assented to, if such limited owner is an Eccle- siastical Corporation in England, by the Ecclesiastical (a) This includes " pensions " but not Government secnrities, &c., see sect. 7. 280 ORIGINATING SUMMONS. Commissioners for England, and in any other case by the Court of Chancery [a], but when so assented to shall be binding on the heirs, successors, executors, and administrators of such limited owner, and all other persons interested in the annuity." Redemption money foi- annuities payable to Ecclesiastical Cor- porations are to be paid to tlie Ecclesiastical Commissioners : (sect. 3.) As to these see also 45 & 46 Vict. c. 72, s. 23. In other cases where the owner of tlie annuity is a limited owner the redemption money shall, and where the owner is not a limited owner may, be paid into court to an account, intitided ex parte the owner of the annuity in the matter of the Act : (sect. 3.) If the aimuity (being- one not payable to an Ecclesiastical Cor- poration) does not exceed 5?. a year, or the sum payable for redemp- tion does not exceed 100?., the assent of the court is not necessary, and the money need not be paid into com-t, but the person entitled for the time being may give a receipt : (sect. 4.) The Act provides for ditficulties as to title, and declares that any power vested ])y this Act in the court may be exercised by a (Chancery) judge sitting at chambers. Annuities maybe redeemed by transfer of Government securities instead of cash : (sect. 5.) A return of transactions under this Act is to be laid before Parliament annually : (sect. 6.) The term "limited owner" means a corporation (aggregate or sole), tenant in tail or for life, a married woman entitled in her own right, a guardian, a committee of a lunatic or idiot, a trustee for any jjurpose (charitable or other), an executor or administrator, and any person entitled to any less interest in an annuity than a tenancy for life : (see sect. 7, which contains other definitions.) Applications under this Act are by Originating Summons : (see Dan. F., p. 979, note (i.) For form of summons, see Dan. F. 2220. By 46 Vict. c. 1, s. 2, advances of redemption money may be made to the Treasury by the National Debt Commissioners, and repaid by terminable annuities. And by 46 & 47 Vict. c. 55, s. 18 the Treasury may contract directly with the Charity Commis-sioners for the redonii)ti()n of annuities payable for charitable purposes, and the redem))tion money may be paid or securities transferred to the official trustees of charitable funds. («) Now the Chancery Division. MISCELLANEOUS STATUTES. 281 THE COUNTY COURTS ACT, 1888. 51 & 52 Vict. c. 43. (a) By this Act the old County Court Acts have been repealed, and the law consolidated and amended. In the following instances applications by summons, which it is conceived is properly termed " Originating," may be made in con- nection with proceedings in the County Courts. 1. Where in an action of ejectment in the County Court, laiuls of greater annual value than 50/. would be affected by the judg- ment, for removal into the High Court (s. 59). 2. In an action or matter under the equitable jurisdiction of the court (s. 67) application may be made to allow it proceed in the County Court although above 500Z. (s. 68). 3. Generally for removal of action or matter into the High Court on terms. 4. Prohibition. 5. For removal of judgment into High Court for execution. The power of removal when a defence or counterclaim is beyond the jurisdiction of an inferior coiirt (Judicature Act, 1873, s. 90 ; Judicature Act, 1884, s. 18) ap^jlies to a County Court, and is not taken away by this Act. Such an application for removal is made by Siimmons : (see Wilson, p. 60, and Form (Q. B. Div.) in Chitty's Forms, 12th edit., 798.) 1. Ejectment. Sect. 59 of the County Courts Act, 1888, is as foUows : All actions of ejectment, where neither the value of the lands, tenements, or hereditaments, nor the rent payable in respect thereof, shall exceed the sum of fifty pounds by the year, may be brought and prosecuted in the court of the district in which the lands, tenements, or hereditaments are situate; provided that the defen- dant in any such action of ejectment, or his landlord, may within one month from the day of service of the summons, apply to a judge of the High Court at chambers for a summons to the plaintiff to show cause why such action should not be tried in the High Court on the (a) For rules under this Act, see Law Times, 2nd Feb., 1889. 282 ORIGINATING SUMMONS. gi-ouud that the title to lands or hereditaments of greater annual value than fifty pounds would be affected by the decision in such action ; and on the hearing of such summons, the judge of the High Court, if satisfied that the title to other lands would be so affected, may order such action to be tried in the High Court, and thereupon all proceedings in the court in such action shall be dis- continued. The application will bo made by suiiiiiums. For Form (Q. B. Div.), see Cliitty's Forms, p. 799, 12th edit. 2. Equitable Jurisdiction. Sects. 67 aud 68 of the Act are as follows : 67. The court shall have and exercise all the powers and authority of the High Court in the actions or matters hereinafter mentioned ; that is to say, 1. By creditors, legatees (whether specific, pecuniary, or residuary) devisees (whether in trust or other- wise), heirs-at-law, or next of kin, in 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 : 2. 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 : 3. 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 : 4. For specific performance of or for the refonning, delivering u]^, or cancelling of any agreement for the sale, purchase, or lease of any property, where in the case of a sale or purchase the pur- chase money, or in the case of a lease the value MISCELLANEOUS STATUTES. 283 of the property, shall not exceed the sum of five hundred pounds : 5. Under the Trustees Eelief Acts, or under the Trustee Acts, or under any of such Acts, in which the trust estate or fund to which the action or matter relates shall not exceed in amount or value the sum of five hundred pounds : 6. 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 : 7. For the dissolution or winding-up of any partnership in which the whole property, stock, and credits of such partneri-hip shall not exceed in amount or value the sum of five hundred pounds : 8. Actions for relief against fraud or mistake in which the damage sustained or the estate or fund in respect of which relief is sought shall not exceed in amount or value the sum of five hundred pounds: In all such actions or matters the judge shall, in addition to the powers and authorities possessed by him have all the powers and authorities, for the purposes of this Act, of a judge of the Chancery Division of the High Court ; and the treasurer, registrar, and high bailiff respectively shall in all such actions or matters discharge any duties which an oSicer of the said division can discharge, either under the order of a judge of the said division, or under the practice thereof, and all officers of the courts shall, in discharging such duties, conform to any rules or orders made in that behalf under this Act. 68. If during the progress of any action or matter under the last preceding section it shall be made to appear to the judge that the subject-matter exceeds the limit in point of amount to which the jurisdiction of the 284 ORIGINATING SUMMONS. court is therein limited, it sliall not affect the validity of any order already made, but it shall be the duty of the judge to direct the action or matter to be transferred to the Chancery Division of the High Court ; and the whole of the procedure in the said action or matter when so transferred shall be regulated by the rules of the Supreme Court : Provided always, that it shall be lawful for any party to apply to a judge of the said division at chambers for an order authorising and directing the action or matter to be carried on and prose- cuted in the County Court, notwithstanding such excess in the amount of the limit to which equitable juris- diction is given by the said section ; and the judge, 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. The application under sect. 68 will be made by Originating Summons. The form given at Dan. F. No. 1914 will sufl&ce, only reference must be made to 51 & 52 Yict. c. 43. instead of 28 & 29 Vict. c. 99. If request for transfer to the High Coui-t is made to the County Court judge, he may make the transfer forthwith, if not requested the order for transfer shall not be made before fifteen days at least : (County Court Rules, 1889, Order XXXITI., r. 5.) This enables any party to apply by Originating Summons as above : (Dan., p. 1916.) As to transmission of documents from the County Court, see County Court Rules, 1889, Order XXXIII., r. 7. It will be noticed that the relief under sub-sect. 4 of sect. 67, is enlarged by the Act of 1888, and that sub-sect. 8 is altogether new, 3. Removal of action or matter into the High Court on terms. Sect. 126 of the Act is as follows : 126. It shall be lawful for the High Court or a judge thereof to order the removal into the High Court, by writ of certiorari or otherwise, of any action or matter MISCELLANEOUS STATUTES. 285 commeuced in the court under the provisions of this Act if the High Court or a judge thereof shall deem it desirable that the action or matter shall be tried in the High Court, and upon such terms as to payment of costs, giving security, or otherwise, as the High Court or a judge thereof shall think fit to impose. Or otherivise. — This apjjoars to aiitliorise applicatious by Origi- natiug Suminons. See also sect. 129. Applications could formerly have been made by Origiiiatiug Summous either under sect. 3 of the County Courts Act, 1865 (Equitable Jurisdiction) or on special terms under the general common law jurisdiction: (9 & 10 Vict. c. 95, s. 90 ; 19 & 20 Vict. c. 108, s. 38). See Dan. 1913-1915 and Dan. F. Nos. 1906, 1907. Compare Crown Office Rules, 1886, No. 28. For transmission of documents, &.C., from County Court to High Court, see County Court Rules, 1889, Order XXXllI., r. 7. 4. Prohibition. Sect. 127 of the Act is as follows:— 127. It shall be lawful for any judge of the High Court, as well during the sittings as in vacation, to hear and determine applications for writs of prohibition to any court and to make such orders for the issuing of such writs as might have been made by the High Court, and all such orders so made by any such judge of the High Court shall have the same force and eifect as heretofore. 128. When an application shall be made to the High Court or a judge thereof for a writ of prohibition addressed to any court, the matter shall be finally disposed of by order, and no declaration or further proceedings in prohibition shall be allowed. Upon any such application the judge of the court shall not be served with notice thereof, and shall not, except by the order of a judge of the High Court be required to appear, or be heard thereon, and shall not, except by such order, be liable to any order for the payment of the costs thereof ; but the application shall be proceeded with and heard in the same manner in all respects as 286 ORIGINATING SUMMONS. any case of an appeal duly brought from a decision of a judge; and notice thereof shall be given to or served upon the same parties as in any case of an order made or refused by a judge in a matter Avithin his jui-isdiction^ as the case may be. Apparently an application requirinpf a person to show cause why writ of prohibition should not issue may be made by Originating Summons. See Dan. 1646; Dan. F. 1654; and Crown Oifice Rules 1886. rr. 81, 82. See Dan. 1645 for previous enactments. As to effect of grant of order or summons to show cause why a writ of prohibition or certiorari should not issue, see Coimty Courts Act, 1888, s. 129. 5. Eemoval of Judgments into High Court for Execution. Sect. 151 of the Act is as follows : — 151. If a judge of the High Court shall be satisfied that a party against whom judgment for an amount exceeding twenty pounds, exclusive of costs, has been obtained in a County Court, has no goods or chattels which can be conveniently taken to satisfy such judg- ment, he may, if he shall think fit, and on such terms as to costs as he may direct, order a writ of certiorari to issue to remove the judgment of the County Court into the High Court, and when removed it shall have the same force and effect, and the same proceedings may be bad thereon, as in the case of a judgment of the High Court ; but no action shall be brought upon such judgment. This reproduces, in effect, tlie provisions of sect. 49 of the County Courts Act, 1856 (19 & 20 Vict. c. 108). See Dan. 1917-18. The application may be by Originating Summons. See Dan. F. p. 829, note {t). For form of summons see Dan. F. 1915. MISCKLLANEOUS STATUTES. 287 THE DEFENCE ACTS, 1842, 1860, and 1864, (5 & 6 Vict. c. 94; 23 & 24 Yict. c. 112; 27 & 28 Yict. c. 89). These Acts, as amended by 18 & 19 Vict. c. 117 and 22 & 23 Viet. c. 21, enable payment into court of compensation for land taken for the defence of the realm from persons under disability. &c., where the sum is 200?. or more. For a detailed account of these Acts and the practice thereunder see Dan. 2219-2222. In the Government Index to the Statutes they wiU be found indexed under the title " War Department 3," edit. 1887, p. 1222. Original applications under these Acts are by Originating Summons. See Dan. F. p. 948, note (d). For forms see Dan. F. 2168, 2170. FORFEITURE FOR TREASON AND FELONY ABOLITION ACT, 1870. (33 & 34 Vict. c. 23). Sect. 28 of this Act is as follows : — " It shall be competent for Her Majesty's Attorney- General or other the chief law officer of the Crown for the time being in any part of IJer Majesty's dominions, or for any person who (if such convict were dead intes- tate) would be his heir-at-law or entitled to his personal estate or any share thereof under the Statutes of Distribution or otherwise, or for any person authorised by Her Majesty^s Attorney-General or by such chief law officer as aforesaid in that behalf to apply in a summary way to any court which (if such convict were dead) would have jurisdiction to entertain a suit for the administration of his real or personal estate to issue a writ of summons calling upon any administrator or interim curator of the property of such convict appointed under this Act, or any person who without legal authority shall have possessed himself of any part of the property of such convict to account for his receipts and payments in respect of the property of such convict in such manner as such court shall direct ; and it shall be lawful 288 ORIGINATING SUMMONS. for such court thereupon to issue such writ of summons, and to enforce obedience thereto, and to all orders and proceedings of such court consequent thereon in the same manner as in any other case of process lawfully issuing out of such court, and such court shall thereupon have full power, jurisdiction, and authority to take all such accounts, and to make and give all such orders and directions as to it shall seem proper or necessary for the purpose of securing the due and proper care, adminis- tration, and management of the property of such convict, and the due and proper application of the same and of the income thereof, and the accumulation and investment of such balances, if any, as may from time to time remain in the hands of any such administrator or interim curator, or other person as aforesaid in respect of such property ; and so long as any such proceeding shall be pending in any such court every such adminis- trator or interim curator or other person shall act in the exercise of all powers vested in him under this Act, or otherwise in all respects as such court shall direct, and it shall be lawful for such court (if it shall think fit) to authorise and direct any act to be done by any such interim curator which might competently be done by an administrator duly appointed under this Act." Applicatious iiiulei" tliis scctiou are liy Originating Summons. See Dan. F. p. 972, note {d) For fonii of siuinuous, see Dan. F. 2207. For praetice under tliis Act, see Dan. 99. HOUSING OF THE \yORKING CLASSES ACT, 1885. (48 & 49 Vict. c. 72.) Sect. 5. snb-sect. 3, of tliis Act is as follows : — Where an arbitrator has under the Artizans' and Labourers' Dwellings Improvement Acts, 1875 to 1882, determined the amount of compensation, tm appeal shall MISCELLANEOUS STATUTES. 289 not lie to a jury from the decision of such arbitrator without leave of the High Court of Justice, but such court or any judge thereof at chambers may grant such leave upon application in a summary manner, and upon being satisfied that a failure of justice will take place if the leave is not granted. This application may be made by summons. By sect. 11, the Settled Land Act, 1882, shall be amended as follows : (a) [This enables sales, &c., of land for the benefit of the working classes to be made at a reduced rate.] (b) The improvements on which capital money may be expended, enumerated in sect. 25 of the said Act, and referred to in sect. 30 of the said Act, shall, in addition to cottages for labourers, farm servants, and artizans, whether employed on the settled land or not, include any dwellings available for the working classes, the building of which in the opinion of the court is not injurious to the estate. The application to the court will be made on summons under the Settled Laud Act, see p. 200. IMPROVEMENT OF LAND ACTS. The Laud Commissioners (see 45 & 46 Vict. c. 38, s. 48, atite, p. 221) have power to sanction improvements in laud, and charge the costs on the laud, under the Improvement of Laud Act, 1864 (27 & 28 Vict. c. 114). Sect. 30 of the S. L. Act, 1882 (45 & 46 Vict, c. 38), extends the lists of imx^rovements under sect. 9 of the Act of 1864 (27 & 28 Vict. c. 114) so as to comprise those mentioned in sect. 25 of the S. L. Act, 1882, see ante, p. 205. The erection of a mansion-house and appurtenances, and permanent improvements of the same are, by virt^^e of the Limited Owners Residences Acts (33 & 34 Vict. c. 56 ; 34 & 35 Vict. c. 84), already included in the improvements which may be effected under the Act of 1864. But they are not included in those authorised by the S. L. Act, 1882. The construction of reservoirs for supply of water to the property, &c., is also an improvement within the Act of 1864 by virtue of 40 & 41 Vict. c. 31. 290 ORIGINATING SUMMONS. Compare sect. 25 (xiii.), (xviii.), of the S. L. Act, 1882. In case of any disseut from any application to the commissioners for their sanction of proposed improvements, the landowner desiring such improvements maj' apply to a judge in chambers in the Chancery Division for an order authorising the commissioners to proceed upon the application notwithstanding siich dissent : (see sect. 21 of the Imjn'ovement of Land Act, 1864, as altered by the Settled Land Act, 1882, s. 64, ante, p. 233.) Applications under that section are by Originating Summons. See Dan. F., p. 950, note {I). For form of summons see Dan. F. 2172. For practice see further Dan. p. 2223. INFERIOR COURTS (REMOYAL FROM), (a) As to these see Dan. 1919-1924. Mayor's Court of the City of London. Under certain circumstances the leave of a judge of the High Court is requisite for the removal of causes into the High Court from the Mayor's Court, which leave unless applied for in a pro- ceeding already pending in the Superior Court is obtainable by Originating Summons : (Dan. F., p. 831, note w) For form of summons, see Dan. F. 1921. For form of summons for writ of certiorari to remove action or suit in the Mayor's Court, see Dan. F. 1922. As to period for lodging ync\i for removal, see Prim v. Smith (58 L. T. Rep. N. S. 606, Ct. of App. ; Q. B. Div.). Other Inferior Courts. For form of Originating Summons to remove a jiidgment or order of an inferior court into the High Court, see Dan. F. 1929. For form of Originating Summons for certiorari to remove judgment for the purpose of having execution, see Dan. F. 1931. LAND CHARGES REGISTRATION AND SEARCHES ACT, 1888. (51 & 52 Vict. c. 51.) 24//1 Dec. 1888. " The ol)ject of the Land Charges Registration and Searches Act, 1888, which came into operation on the Ist Jan. 1889, is to (a) Removals from County Courts are treated separately, p. 281. MISCELLANEOUS STATUTES. 291 protect purchasers of estates in land by enabling them to discover the existence of charges created by process of execution under judgments and orders of court, and of other charges in the Act called ' land charges,' created by virtue of land improvement and similar Acts, or Acts enabling sanitary anthorities and other public bodies to impose such charges on lands and buildings." (See Messrs. Elphinstone and Clark's Pamphlet on the Act (being an appendix to their learned work, On Searches), p. 1.) By sect. 4 of the Act " land charge " is defined as follows : " Land charge means a rent, or annuity, or principal moneys pay- able by instalments or otherwise, with or without intex-est charged otherwise than by deed upon land under the provisions of any Act of Parliament for securing to any person either the moneys spent by him, or the costs, charges, and expenses incurred by him under such Act, or the moneys advanced by him for repaying the moneys spent, or the costs, charges, and expenses incurred by another person under the authority of an Act of Pai'liament, and a charge under the 35th section of the Laud Drainage Act, 1861, or under the 29th section of the Agricultural Holdings (England) Act, 1883, but does not include a rate or scot." By sect. 14, " the registration of a land charge may be vacated pursuant to an order of the High Court of Justice, or any judge thereof." Certain riiles have been made under the Act, see W. N., Jan. 12, 1889, p. 32 ; 86 L. T. 211 ; but they do not appear to give any directions as to applications to the court or judge. It is apprehended that an aj)plication to a judge to vacate the registration of a land charge will be by Originating Summons. LAND REGISTRY ACT, 1862. (25 & 26 YiCT. c. 53.) No new application for registration under this Act can now be entertained (38 & 39 Vict. c. 87, s. 125) ; but the Act itself is not altogether superseded by the Land Transfer Act, 1875 (38 & 39 Vict. c. 87), or obsolete. Certain aj)plications may be made by Originating Summons (see 25 & 26 Yict. c. 53, s. 134). For form, see Dan. Forms, 2nd edit. (1871) 2183. For practice, see Dan. 5th edit. 1946-1957 ; and for brief account of the Act, see Dan. 2234, and for fees see W. N. Jan. 26, 1889. The following cases have been decided with reference to this Act: Be Kennard (11 Jur. N. S. 27), Oi-iginating Summons ; Bradish v. Ellames (10 L. T. Rep. N. S. 89), petition ; Be T. Bichardson (25 U 2 292 ORIGINATING SUMMONS. L. T. Rep. N. S. 12 ; L. Rep. 12 Eq. 398 ; ib. 13 Eq. 142 ; 40 L. J. 616, Ch.), Originating Summous; Be Winter (27 L. T. Rep. N. S. 842 ; L. Rep. 15 Eq. 156), Origiuatiug Summous ; and Be Drew ; Mason's Claims (14 L. T. Rep. N. S. 278; L. Rep. 2 Eq. 206; L. Rep. 1 Ch. App. 126); Be The Land Transfer Act, 1862, and a Con- veyance from Parhes to Searles (85 L. T. 47, May 19, 1888, and W. N. 1888, p. 110) ; and see comment in 85 L. T. 78, June 2, 1888. LAND TRANSFER ACT, 1875. (38 & 39 Vict. c. 87.) (a) This Act is intended " to make further provision for the simplifi- cation of the title to land, and for facilitating the transfer of land in England." It establishes a land registry, and enables registration with either absolute or possessory title (sect. 5). The definition of land contained in 13 & 14 Vict. c. 21 (Lord Brougham's Act) is excluded (sect. 4). For the practice under this Act, see the General Rules of the 24th Dec, 1875; "W. N. Jan. 15, 1876; summarised in Dan. 2276, 2279 ; and the General Rules of the 1st Jan., 1889 (W. N. Jan. 12, 1889 ; 86 L. T. 208). See also Schedule of Fees in certain cases, and registry note in W. N. Supp. Jan. 26, 1889, p. 68 ; 86 L. T. 247. " All applications to the Court and appeals from the registrar shall be by summons" (rule 59 of Dec. 1875). Rule No. 7 (h) of tlie 1st Jan. 1889, enables the registrar to modify the General Rules (made previously) with reference to " land now or lioreafter to l)e transferred from tlie register kept under the Transfer of Laud Act, 1862." THE MORTGAGE DEBENTURE ACT, 1865 (28 & 29 Vict. c. 78), AND THE MORTGAGE DEBENTURE AMENDMENT ACT, 1870 (33 & 34 Vict. c. 20). These statutes enable the issue by companies of mortgage deben- (a) See Holt on this Act. The subject of " Ee^stration of Title " including this Act is fully discussed is a series of articles in the Law Times, in the months of May, June, and July, 1886. MISCELLANEOUS STATUTES. 293 tures fouuded on mortgages or charges on laud registered and deposited at the Land Registry Office. If the company makes default in procuring the discharge from the company's debentures at the proper time tlie person entitled to redeem may apply to the Court (Chancery Division) by summons, calling upon the company to show cause why such security is not discharged, and the judge may make the necessary orders : (33 &34 Yict. c. 20, s. 9.) Applications under this section are by Origi- nating Summons : (see Dan. F. p. 957, note r.) A mortgage debenture holder of the company may, in certain cases obtain the appointment of a receiver on petition or summons. See sects. 40, 47, of 28 & 29 Vict. c. 78. For practice under these Acts see Dan. p. 2237. For form of Originating Summonses thereunder, see Dan. F. 2184 and 2186. MORTMAIN AND CHARITABLE USES ACT, 1888. (51 & 52 Vict. c. 42.) ISth Aug. 1888. This Act (sect. 5) gives power, in certain cases, to the High Court or the proper officer to order enrolment of deeds which have not been enrolled in due time. The text of the section is as follows : 5. (1.) Where an iustrument, the enrolment whereof is required under this part of this Act for the vahdation of an assurance, is not duly enrolled within the requisite time, Her Majesty's High Court of Justice, or the officer having control over the enrolment of deeds in the central oflfice, may, on application in such manner and on pay- ment of such fee as may be prescribed by rules of the Supreme Court, and on being satisfied that the omission to enrol the instrument in proper time has arisen from ignorance or inadvertence, or through the destruction or loss of the instrument by time or accident, and that the assurance was of a nature to be validated under this section, order or cause the instrument to be enrolled. (2.) Thereupon, if the assurance to be validated was made in good faith and for full and valuable considera- tion, and was made to take effect in possession imme- diately from the making thereof without any power of 294 ORIGINATING SUMMONS. revocation, reservation, condition, or provision, except such as is authorised by this Act, and if at the time of the application possession or enjoyment was held under the assurance, then enrolment in pursuance of this sec- tion shall have the same effect as if it had been made within the requisite time : (3.) Provided that if at the time of the application any proceeding for setting aside the assurance, or for assert- ing any right founded on the invalidity of the assurance, is pending, or any decree or judgment founded on such invalidity has been then obtained, the enrolment under this section shall not give any validity to the assurance. (4.) Where the instrument omitted to be enrolled in proper time has been destroyed or lost by time or acci- dent and the trusts thereof sufficiently appear by a copy or abstract thereof or some subsequent instrument, such copy, abstract, or subsequent instrument may be enrolled under this section in like manner and with the like effect as if it were the instrument so destroyed or lost. (5.) An application under this section may be made by any trustee, governor, director, or manager of, or other person entitled to act in the management of or otherwise interested in, any charity or charitable trust intended to be benefitted by the uses declared by the instrument to be enrolled. The above sectiou is substantially a coiisolitlatiou of sect. 3 of 27 Yict. c. 13, sects. 1 and 2 of 29 & 30 Vict. c. 57, and sect. 13 of 35 & 36 Vict. c. 24, which are respectively repealed by the above Act, Init, as Mr. Tyssen (p. 557) points out, the above section is slightly more extensive in so far as it expressly authorises the enrolment of a copy or abstract of a deed. Previously to this Act the application to the court under the repealed sections wa.s by Originating Summons, and presumably the rules will continue thi.s practice. But of course no summons was necessary when the Clerk of Eurulments enrolled the deed under sect. 13 of 35 & 36 Vict. c. 24. For the old statutes and practice, see Tudor L. C. in Real Pro- MISCELLANEOUS STATUTES. 295 perty, 3rd edit., notes to Corhyn v. French, 549-553 ; Dan. 2064, and for old form, see Dan. F. 2046. For the practice under the above sect. 5 of the new Act the rules when they appear, must be consulted. For the general law, relative to charitable bequests, see Mr. Tysseu's recent and valuable work. The following brief summary of the new statute may be useful. Summary. The object of the Act is to consolidate and amend the law relating to mortmain and the disposition of land for charitable uses, but though this Act repeals 9 Geo. 2, c. 36 (except so much of sect. 5 as is unrepealed) and thirteen other statutes, besides portions of two more, it leaves unrepealed and unconsolidated a very large number of statutes which provide exemptions from the general laws restraining dispositions for charities, &c. It is well known that these exemptions have grown up on no definite principle, and need revision. However, the present Act is a distinct reform of the statute law on the subject, and will make further reform practicable. Part I, of the new Act relates to " mortmain,^' and declares that '' land" shall not be " assured " to or for, or be acquired by or on behalf of, any corporation in mort- main, except by a licence from the Queen or by statute, under penalty of forfeiture to the Queen, saving the rights of mesne lords (sect. 1). The Queen may grant licences in mortmain (sect. 2) ; and forfeiture of land is not to affect rents or services due therefrom (sect. 3). It should be observed that in this Act " land " usually includes all hereditaments " and any estate and interest in land ^^ (sect. 10 (iii.). Part II. deals with charitable uses. Subject to the exceptions in the Act, assurances of land, or of personalty to be laid out in land, for charit- able uses, are void, except made in accordance with the requirements of the Act. These may be briefly sum- marised as follows : They provide for immediate posses- sion (sub-sect. (2) ; prohibit revocation, reservation, &c. (sub-sect. (3), with some exceptions (sub-sect. (4) ; but 296 ORIGINATING SUMMONS. Summary of allow payment of a rentcharge on a bona fide sale (sub- new Mortmain gg^^^ (5). Also, whatever tlie property (except stock in the public funds or copyhold or customary land) the assurance must be by deed with two witnesses (sub- sect. (6). If it is laud or personalty other than stock in the funds, unless the assurance is made for full value it must be made a year before the assuror^s death (sub-sect. 7). If it is of stock in the funds it must be transferred in the public books six months before the transferor's death, except the transfer is made for full value (sub-sect. (8). If it is land, or personalty, other than stock in the funds, the assurance must be enrolled within six months after execution, or in certain cases of land another instrument declaring the charitable uses must be enrolled instead (sub-sect. (9). In case of inad- vertent omissions, &c., enrolment may by leave be made of assurances on sales when no action is pending, &c., after the prescribed time (sect. 5). The next part relates to exemptions. '' Public parks," " elementary schools," " school houses," and " public museums," are privileged, and it should be observed that each of the expi'essions " public parks," &c., receives a wide definition (sub-sect. (4). Any quantity of land may be given or sold for such objects, and a limited amount — twenty acres for a park, two acres for a museum, and one acre for a school-house — may be devised. And personalty may be left for such objects. But the will or deed (except made for full value) is to be executed at least a year before death, or must reproduce in substance a similar devise so executed, and must be enrolled in the books of the Charity Commis- sioners within six months after the testator's death, or the execution of the deed (sect. 6). Gifts to the Uni- versities of Oxford, Cambridge, London, Durham, the Victoria University, or any of the colleges or houses of learning within them, or for the foundation scholars of Eton, Winchester, and Westminster, or for Keble MISCELLANEOUS STATUTES. 297 College, are exempted (sect. 7 (i.). Sales of land, not exceeding two acres, to trustees, &c., for religious pur- poses, education, art, literature, science, &c., are ex- empted (sect. 7 (ii.). After these exemptions comes a general saving for all cases where any statute wholly or partially excludes the Mortmain Acts (sect. 8). This preserves the provisions of the Church Building Acts, the privileges of various hospitals, &c. Part IV. is styled " supplemental." Assurances required to be made by deed and enrolled may be made under the Land Transfer Act, 1875, instead (sect. 9). Sect. 10 contains the defi- nitions. The Act does not apply to Scotland or Ireland (sect. 11). Charters, licences, and customs enabling land to be held in mortmain are saved (sect. 12). Various statutes are repealed with savings, and the preamble of 43 Eliz. c. 4, is reprinted (sect. 13). THE NATIONAL DEBT (CONVERSION) ACT, 1888. (51 Vict. c. 2.) 2ntli March, 1888. This Act proxTiclecl for the conversion into new stock of a lower denomination and redemption of New Three per Cent. Stock, and for the conversion of consols and reduced stock into such new stock (sects. 1 — 10) ; but as the time for so doing expired on the 1st Sept. 1888, it is considered unnecessary to print the poi-tions of the Act relating thereto here, notwithstanding, sect. 3 of the National Debt (Supplemental) Act, 1888 (51 & 52 Vict. c. 15), which see. [Sects. 11 — 13 relate to "Ways and Means;" and sects. 14 — 18 to Stock Certificates, Savings' Banks, Duchy of Lancaster, and Power to a Holder to have moi'e than one account.] The following sections, being of general utility, are printed here, though they are b ut slightly germane to " Originating Summons." 19. A power or direction, whether subject or not to Powers of any restrictions or conditions, to invest in any of the iii"^estment. stocks which may be converted or exchanged under this Act, or generally in Three per Cent. Stock, shall extend to annuitants 298 ORIGINATING SUMMONS. to authorise an investment subject to tlie same conditions and restrictions (if any) in new stock. ProA-isions as 20. (1.) Where under any trust or arrangement other than a charitable trust any stock has been appro- priated to provide an annuity, and is under this Act Hable to be converted into or exchanged for new stock, the person in whose name the stock is standing may, at the request of the annuitant, or, in the case of several annuitants, the majority of them, and at the expense of the annuitant or annuitants, sell the stock, and invest the proceeds either in any manner authorised by the trust or arrangement, or in any manner in which cash under the control of the High Court, or the Court of Session, may for the time being be invested, and shall not be liable for any loss arising from any such sale or investment. (2.) In the case of stock standing in the name of Her Majesty's Paymaster- General on behalf of the Supreme Court of Judicature in England, or of the Accountant to the Court of Session in Scotland, or of the Accountant- General of the Supreme Court of Judicature in Ireland, any such sale or investment may be authorised by the High Court, or the Court of Session, as the case may be. (3.) Where, in execution of any trust, or in perfor- mance of any duty, and whether in pursuance of the order of any court, or otherwise, any stock has been appro- priated to provide an annuity, and is under this Act converted into or exchanged for new stock, the trust or duty shall, so far as relates to the payment of the annuity be deemed to be executed or performed by the payment of the dividends on the new stock ; but nothing in this section shall affect any power of any court or other authority to make any order as to the application of capital in such cases. See Re Meacock ; Meacoch v. Meacoch (W. N. 1889, p. 9). MISCELLANEOUS STATUTES. 299 For the rule which now regulates the investment of cash under the control of the court, see mite, p. 198. As to the last clause of sub-sect. 3 of sect. 20, see rule xvi. under this Act, post, p. 303. 21, (1.) Ad agreement to transfer any amount of Provisions as to stock mortgages. New Three per Cent. Stock, Consolidated Three per Cent. *° ^*°°^ Stock, or Reduced Three per Cent, Stock, or generally any amount of Three per Cent. Stock, may be satisfied by making a transfer of an equal amount of new stock. (2.) Where under any mortgage or agreement for a loan any person is bound to pay half-yearly sums equal to the dividends on any specified amount of stock, and that amount of stock is under this Act converted into or exchanged for new stock, the obligation shall be satisfied by the payment of quarterly sums equal to the dividends on the same amount of new stock. 22. Where any New Three per Cent. vStock, Consoli- Power for dated Three per Cent. Stock, or Eeduced Three per Cent, ^^^t holders Stock is standing in the names of more than two persons to dissent or as joint holders thereof, the dissent or assent of the majority of those joint holders shall be sufficient for the purposes of this Act. 23. A power of attorney given exclusively for the pur- Exemption of r • 4-1, i-7 i. ■ •£ T certain powers pose of empowering the attorney to signify any dissent of attorney or assent authorised by this Act shall be exempt from ^^°^ stamp stamp duty. 24. The power by this Act given to the Lord Chan- Provision as cellor and Lord Chancellor of Ireland respectively to f^ndsl^^^ make regulations, shall extend to any funds in court to the credit of lunatics so found by inquisition in England and Ireland respectively, including committees' security accounts. 25. (1.) Where any stock is converted into or Application exchanged for new stock, the new stock, and the ^^ ^^^g^g°° dividends thereon, shall be subject to the same trusts, powers, &c., charges, rights, distringas, and restraints as affect the stock. 300 ORIGINATING SUMMONS. stock so converted or exchanged, and the dividends thereon respectively, and all powers of attorney, requests as to dividends, and other documents relating to the stock so converted or exchanged, and the dividends thereon, or either of them, shall apply to the new stock, and the dividends thereon respectively. (2.) In any Act passed or instrument executed before the passing of this A.ct references to any stock liable to be converted or exchanged in pursuance of this Act may, if the stock is so converted or exchanged, be construed as references to new stock, and in the case of any testa- mentary instrument executed before the passing of this Act, any disposition, which, but for the passing of this Act, would have operated as a specific bequest of any such stock, shall if the same is so converted or exchanged be construed as a specific bequest of such new stock, and if the same is not so converted, but is paid off or redeemed, shall be construed as a pecuniary legacy of a sum of money equal to the nominal amount of the stock so paid oif or redeemed. Indemnity to ^6. Persons who are by this Act, or by rules under trustees. ^']q{q ^q^^ authorised to signify their dissent from the conversion of stock, or to exchange or consent to the exchange of stock, shall not be liable for any loss resulting from their not signifying such dissent, or from their making such exchange or giving such consent ; and trustees and other persons acting in a fiduciary character are hereby expressly authorised to make such exchange or give such consent. Ee-invest- 27. When any stock, converted or exchanged by virtue trustees °^ ^^^^ -^^^ ™^° ^^^ stock, is held by a trustee, such trustee shall be at liberty to sell the same, and to invest the proceeds arising from such sale in any of the securities for the time being authorised for the invest- ment of cash under the control of the High Court not- MISCELLANEOUS STATUTES. 301 withstanding anything to the contrary contained in the instrument creating the trust. See 51 & 52 Viet. c. 15, s. 8, as to Scotch Trusts. 28 (1). If by reason of the conversion or exchange of Application to any stock in pursuance of this Act any question arises respecTof as to the powers or duties of any trustee^ executor, or questions administrator, or other person acting in a fiduciary cha- conversion or racter, or as to the application of the dividends or capital exchange. of any stock, and in particular as to the cases in which, and extent to which, capital may be applied towards meeting any deficiency in income, the High Court in England or Ireland, or the Court of Session in Scotland, on the application of the trustee, executor, or admini- strator, or other person as aforesaid, or of any person inte- rested in the stock, may by order determine the question. (2.) In the case of a charity in England or Wales, subject to the provisions of the Charitable Trusts Acts, ] 853 to 1887, the like orders may be made by the Charity Commissioners for England and Wales, either on their own motion or on application, and nothing in this section shall authorise an application to the High Court in the matter of such a charity without a certificate from those commissioners. A testatrix by her will directed the trustees thereof to invest a fund forming part of her estate, in the purchase of Thi*ee per Cent. Consols, but gave them no power to vary or change the investment when made. Out of the income of the consols the trustees were directed to pay certain annuities, and after the deaths of the annuitants, the trust fund was to go over. The fund was duly invested. It was stated that the effect of accepting conversion under this Act would be to consideral)ly reduce the annuities, as they were payable out of income and not out of capital. The ti'ustees were desirous of at once selling out the stock and reinvesting the proceeds of sale in securities authorised by law as trust investments, and asked by petition for the opinion and direction of the court whether they would, under the circumstances, be justified in taking that course. 302 ORIQIXATING SUMMONS. Cliitty, J. held that, having regard to sect. 8 (1) and sects. 26 and 27 of the Act, the trustees might sell the consols and reinvest at once in authorised securities : {Be TucJcetfs Trusts, W. N. 1888, p. 89, and 58 L. T. Rep. N. S. 719.) The application in that case was by petition, but it is submitted that it might properly have been made by Originating Summons. Rules were issued under this Act, entitled " The Conversion Act (Funds) Rules, 1888." Such of these rules as are now in vogue are here printed. Rules 2-14 relate to conversion of stock already effected, or to steps to be taken within a time now past. See Wilson, p. 781. All these rules are in W. N., 7th April, 1888, p. 155, Supp., and 84 L. T. 414. Conversion Act {Funds) Rules, 1888. Rule I. In tlie rules of this order and in all orders of the court and certificates dealing with or referring to new^ stock created under the said Act, such new stock shall be sufficiently described by the term '' New Consols." And in these rules the term " Original Stock " shall mean any sura of New Three per Cent. Stock, Consoli- dated Three per Cent. Stock, and Eeduced Three per Cent. Stock, which shall be exchanged for New Consols. General Directions. Rule XV. The New Consols received in exchange for Original Stock shall be placed by the paymaster to the same credit as that to which such original stock was standing and such New Consols and the dividends thereon, including as part of such dividends the conside- ration money of 5s. for every hundred pounds of stock mentioned in sect. 10 of the said Act, shall, unless other- wise ordered, be dealt with in the same manner as such original stock and the dividends thereon were directed to be dealt with, except that any investment or accumulation shall be made in New Consols. All stop orders, charging orders, powers of attorney, and other documents relating to the original stock or the dividends thereon shall apply to such New Consols or the dividends thereon. MISCELLANEOUS STATUTES. 303 Rule XVI. Where the dividends on New Consols shall be insufficient to make the payments by any order or upon any authority directed to be made out of the divi- dends on the original stock, the whole of such dividends shall be applied, so far as the same will extend, towards making such payments but without prejudice to any application which may be made under sect. 20 of the Act to make up the deficiency out of capital. Rule XVII. Where such original stock as is referred to in the last preceding rule has been appropriated to provide an annuity of an amount equal to the dividends thereon, the paymaster shall, without any order for that purpose, upon a memorandum signed by a registrar, master in lunacy, or chief clerk, in the form D in the schedule hereto, with such alterations as the circumstances may re- quire, sell from time to time so much of any New Consols exchanged therefor or any other securities in which the Original Stock may have been reinvested as with the dividends thereon will raise the amount required for any periodical payment for such annuity after deducting the income tax on such dividends. Rule XVIII. The paymaster may signify his assent, notwithstanding any stop order or charging order affect- ing any consols or reduced annuities, and without the consent of the persons named in such stop order or charging order. Rule XIX. No court fee shall be charged upon any summons, order, certificate, affidavit, or other document or proceeding required for the purpose of giving effect to these rules. Rule XX. All provisions in the Supreme Court Funds Rules, 1886, as to the exchange of Government securities and transactions with the National Debt Commissioners shall apply to New Consols. Rule XXI. Notwithstanding these rules the court or a judge may, if circumstances shall require, make 304 OKIGTNATINQ SUMMONS. a special order relating to conversion of any original stock in any cause or matter. Rule XXII. In these rules, " the Act " means the National Debt (Conversion) Act, 1888, and '' paymaster" means Her Majesty's Paymaster- General on behalf of the Supreme Court of Judicature. Expressions in these rules have the same meanings as in the Act. Rule XXIII. These rules may be cited as the Con- version Act (Funds) Rules, 11 Schedule. Forms A, B, aucl C, are omitted as being no longer available. (See Wilson, 782.) Form D. Short Title of Cause or Matter as in the order Ledger Credit {as in Paymaster's Boohs). £ New Consols. The {describe the old stock) which have been exchanged for the above-mentioned New Consols, having been, by the order dated the day of , appropriated to provide an annuity of 40L a year for A. B. in the said order named by half-yearly payments of 20Z. as in the said order mentioned the paymaster is dii'ected at the time fixed for each periodical payment of such annuity to sell so much of the New Consols as with the dividends then applicable for such payment will raise such sum of 20/. after deducting from such sum the income tax which has been deducted on such dividends, and to pay the amount raised by such sale to the said A. B. Dated this day of ,1888. (Signed) Memorandum. — Judge's Directions to Ghief Clerks in reference to Rule XVII. 1. Service. — (a) It will be sufficient to serve the sum- mons in the first instance only on the trustees or trustee, MISCELLANEOUS STATUTES. 305 executors or executor, or if there is no trustee or executor, or the trustees or trustee, executors or executor cannot, without difficulty or expense, be found or ascertained, then on some person interested in the corpus of the fund ; [h) Where there is a stop order, the summons should also be served on the person entitled to the benefit of the order and the service should be accom- panied with a tender of 13s. 4d. and an intimation that if he appear it will be at his own risk as to costs. BY THE NATIONAL DEBT REDEMPTION ACT, 1889. (52 Vict. c. 4.) nth April, 1889. Provision is made for redemption of Consolidated Three per Cent. Stock, and Reduced Tliree -per Cent. Stock, on the 6th July, 1889 : (sect. 1.) Also for exchange of such stock for Two-and- Three-quarters per Cent. Consolidated Stock or Local Loans Stock : (sect. 3.) The following provisions of the National Debt Conversion Act), 1888, supra, are made applicable to exchanges of stock under this Act, viz., sects. 16 (2), 20 (1), (2), (3), 21 (2), 22, 25 (1), (2), 26, 27, 28 (1), (2) : (sect. 9). In the ease of stock in court, the Lord Chancellor, with the approval of the Treasury, may make regula- tions as to how, with consent of the person to whom the dividends are payable, payment or exchange may be effected under this Act. If the dividends are being accumulated the consent required under this section is to be the consent of a judge of the High Court : (sect. 10.) A trustee may give a consent under this section : {ib.) In the case of stock in court the Treasury may make regulations, with consent as aforesaid, to continue to jjay interest at three pounds per cent, per annum up to the 5th April, 1890. In case of stock in court the regulations shall be made with concurrence of the Lord Chancellor, and where the dividends are being accumulated the consent under this section is to be the consent of a judge of the High Court : (sect. 12.) For rules under this Act, see W. N., 29th June, 1889, p. 317, Supp. and Pay Office Rules, lb., j). 318. See also The National Debt Act, 1889, 52 Yict. c. 6. 306 ORIGINATING SUMMONS. NEWCASTLE CHAPTER ACT, 1884. (47 & 48 Vict. c. 33.) This Act (sect. 11) enables the court (uuder certain circnni- stauces) to authorise persons administering- the estates of deceased persons who liave promised contributions to the Newcastle Bishopric, or Chapter Endowment Funds, to pay the whole or part of such contributions. Subject to any rules of coui't tlie application may be made l)y summons. PAROCHIAL CHARITIES (CITY OF LONDON) ACT, 1883. (46 & 47 YiCT. c. 36.) By sect. 10, any person claiming any such vested interest as therein mentioned may apply to the High Court by petition or summons : (see Re The Parish of St. Edmund the King and Martyr, 60 L. T. Rep. N. S. 622.) See also Mitcheson, 335, where the Act is set out. POLEHAMPTON ESTATES ACT, 188,5. (48 & 49 Vict, c 40.) As to proceedings under this Act, and summons, see sect. 5. THE RAILWAY COMPANIES ACT, 1867. (30 & 31 Vict. c. 127.) This Act protects from execution the rolling stock and jjlant of railway companies, and provides for appointment of a receiver on petition of a judgment creditor : (sect. 4.) Where ]n"operty of the company has been taken in execution, and a question arises whether it is liable to be so taken, such question will be determined by sum- mons in the court out of which execution was issued : (sect. 5.) This will not be an Originating Summons. See rule 32 of Order of 24th Januaiy, 1868, L. Rep. 3 Ch. App. xxxv. When a railway com- pany is uualile to meet its engagements with its creditors, the directors may file a scheme of ari-angement : (sect. 6.) After the scheme is filed the court may, on the application of the company on summons or motion in a summaiy way, restrain actions against the company : (sect. 7.) After publication in the Gazette of notice of filing of scheme, no execution, attachment, or other process MISCELLANEOUS STATUTES. 807 against the property of the company, shall be available without leave of the court to be obtained on summons or motion in a summary way: (sects. 8, 9.) A judgment creditor gains no priority by obtaining a receiver- ship order under this Act : (Re Mersey Railway Company, 37 Ch. Div. 610 ; 58 L. T. Rep. N". S. 745.) A dock company autho- rised to make a railway is a railway company within the meaning of this Act. Re The East and West India Dock Company ; Clarh V. The East and West India Dock Cotnpany (58 L. T. Rep. N. S. 715.) Applications under sect. 7 being made in a pending action are by ordinary summons. But applications under sect. 9, if not made in a pending action, would, it is conceived, be by Originating Sum- mons. For practice, see Dan. 2174 et seq. For form of summons, under sect. 5, see Dan. F. 2100, under sect. 7, see Dan. F. 2111, and under sect. 9, Dan. F. 2112. THE STANNARY COURT. For the benefit of the unlearned reader, we cite the folloAviiig from Mr. Rawson's well-known Pocket Law Lexicon : — " Stannary, a tin mine. There are stannary coixrts in Devonshire and Corn- wall for the administration of justice among the miners. They are courts of record resembling the palatine courts. The judge is called a vice- warden. By the Judicature Act, the appeal is to the Court of Appeal." By 18 & 19 Vict. c. 32, s. 10, it is enacted in effect that where any decrees or orders on the equity side of the Court of the Vice-Warden, whether for payment of money or otherwise, cannot be conveniently or effectually enforced by the ordinary process of the Court of the Vice-Warden, within the jurisdiction thereof, the Court of Chancery (now the Chancery Division) or any judge thereof, sitting in court or at chambers, upon the appli- cation of a party entitled to the benefit of such decree or order, upon such evidence as in this section mentioned, may make the decree or order, or so much thereof as cannot be enforced, a decree or order of the High Court of Chancery (now the Chancery Division) which may be enforced as X 2 308 ORIGINATING SUMMONS. though the same had been originally made by that court. See Dan. 847. Tlie application may be made on motion or by Originating Summons. SeeDan. F. p. .371, note (6). For form, see Dan. F. 931. As to analogous api^lications in actions on the common law side of the Stannary Court, see 18 & 19 Vict. c. 32, s. 9. For form, see Dan. F. 930. For list of Acts affecting the Stannaries Court, see the Government Index to the Statutes, edit. 1887, p. 1085. See also the Stannaries Act, 1887 (50 & 51 Yict. c. 43) which came into operation on the 1st Dec. 1887. General Orders of the Vice Warden, the 2nd July, 1884, made witli the consent of the Lord Chief Justice of England under 18 & 19 Vict. c. 32, s. 23, in lieu of all existing general orders and rules (except an order of the 20th March, 1857, relating to pro- cedure on bills of exchange and promissory notes) are published by authority by Netlierton and Worth, printers, of Truro (price 10s. 6d.). The powers of the Court of the Lord Warden are transferred to the Co^^rt of Appeal: (Jud. Act, 1873, s. 18.) The reader may refer to the following cases on the Stannaries Court, but the effect of legislation subsequent to the cases men- tioned must be considered : — Re West Devon Gh-eat Consols, 38 Ch. Div. 51 (Stannaries Act, 1869, 32 & 33 Vict. c. 19, s. 32) ; Be North Molton Mining Company (W. N. 1886, p. 78, Companies Act, ss. 81, 141 — Jurisdiction), and cases imder title " Company — Cost Book Company," in L. Rep. Dig. 1865-1880, p. 1005, ib. 1881-85, p. 382. See also Report of Select Committee, Pari. Paper, 1887, 245, 252. TRADE MARKS ACTS, 1883 to 1888. (46 & 47 Vict. c. 57 ; 49 & 50 Vict. c. 37 ; 51 &52 Vict. c. 50.) The only a])plications to which we have occasion to refer are certain ones with refei-cnce to trade marks, \4z : 1. Opposition to Registration. 2. Rectification of the register by the court. 3. Altei-ation of registered mark. As to actions rehiting to trade marks generally, see Dan. 1476-1493, as modified by the Table of Alterations to that work, pp. cecxxA-ii. and cccxxviii. MISCELLANEOUS STATUTES. 809 For Trade Mark Rules now in force, see supplement to W. N., 5th Jan. 1884, p. 1, and rules of 1888 in Lawson, p. 482. It is believed that some new rules will shortly appear. The Act of 1883 is called the " Principal Act," and the sections of that Act are here referred to unless otherwise stated. Part IV. of the Act (ss. 62-81) relates specially to Trade Marks ; but see also Part V. which relates to trade marks and other matters. The principal Act was considerably altered by the Act of 1888. Sect. 62 authorised the comptroller to register a trade mark, and prescribed the mode of application and appeals. Sect. 63 limited the time for proceeding, and sect. 64 declared the conditions of registration and defined a trade mark. But sects. 62, 63 are altered by sects. 8, 9 of the Act of 1888, and sect. 64 is repealed by sect. 10 of the Act of 1888, and the following section substituted : " 64. (1.) For the purposes of this Act, a trade mark Definition of must consist of or contain at least one of the following ^^^^^ "'^'^'^• essential particulars : " (a) A name of an individual or firm printed, im- pressed, or woven in some particular and dis- tinctive manner ; or " (6.) A written signature or copy of a written signa- ture of the individual or firm applying for regis- tration thereof as a trade mark ; or '' (c.) A distinctive device, mark, brand, heading, label, or ticket ; or " {d.) An invented word or invented words; or " (e.) A word or words having no reference to the chai-acter or quality of the goods, and not being a geographical name. " (2.) There may be added to any one or more of the essential particulars mentioned in this section any letters, woi-ds, or figures, or combination of letters, words, or figures, or of any of them, but the applicant for registration of any such additional matter must state in his application the essential particulars of the trade mark, and must disclaim in his application any right to the exclusive use of the added matter, and a copy of tho 310 ORIGINATING SUMMONS. statement and disclaimer shall be entered on the register. " (3.) Provided as follows : '^ (i.) A person need not under this section disclaim his own name or the foreign equivalent thereof, or his place of business, but no entry of any such name shall affect the right of any owner of the same name to use that name or the foreign equivalent thereof : " (ii.) Any special and distinctive word or words, letter, figure, or combination of letters or figures, or of letters and figures used as a tiade mark before the thirteenth day of August one thousand eight hundred and seventy-five may be registered as a trade mark under this part of this Act.'' Sect. 10 of the Act of 1888 is not retrospective witli reference to marks applied for before 1st Jan., 1889 : {Be Burgoyne's T. M., W. N. 9tli March, 1889, p. 53; 86 L. T. 350.) As to connection of trade mark with goods, registration of a series of marks, colour, and advertisement of application, see sects. 65-68 of the Act of 1883, and the modifications made by sects. 11, VI of the Act of 1888. 1. Opposition to Begistration. The following is the text of sect. 69 of the Act of 1883 as altered by sect. 13 of the Act of 1888. (39. (1.) Any person may, within one month, or such farther time not exceeding three months, as the comp- troller may allow, of the advertisement of the application, give notice in duplicate at the Patent Office of opposi- tion to registration of the trade mark, and the comptroller shall send one copy of such notice to the applicant. (2.) Within one month after receipt of such notice, or such further time as the comptroller may alloAV, the iipplicant may send to the comptroller a counter-state- MISCELLANEOUS STATUTES. 311 ment in duplicate of the grounds on which he relies for his application, and, if he does not do so, shall be deemed to have abandoned his application. (3.) If the applicant sends such counter-statement the comptroller shall furnish a copy thereof to the person who gave notice of opposition, and shall, after hearing the applicant and the opponent, if so required, decide whether the ti'ade mark is to be registered, but his decision shall be subject to appeal to the Board of Trade, who shall, if required, hear the applicant and the opponent and the comptroller, and may make an order determining whether, and subject to what conditions (if any), registration is to be permitted. (4.) The Board of Trade may, however, if it appears expedient, refer the appeal to the court, and in that event the court shall have jurisdiction to hear and determine the appeal, and may make such order as aforesaid. (5.) If the applicant abandons his application after notice of opposition in pursuance of this section he shall be liable to pay to the opponent such costs in respect of the opposition as the comptroller may determine to be reasonable. (6.) Where the opponent is out of the United Kingdom he shall give the comptroller an address for service in the United Kingdom. As to sect. 69 of the Act of 1883 see Re Australian Wine hnporters Limited and Mason, Be the Trade Mark " Golden Fleece" (60 L. T. Rep. N. S. 436 ; 41 Ch. Div. 278.) For Form of Summons that registration of trade mark may be proceeded with notwithstanding opposition, see Dan. F. 1563, p. 671. Ride 29 of tlie Trade Marks Rules, 1883, which is as follows, seems obsolete by sect. 13 of the Act of 1888. See Lawson, p. 462. 29. \_Manner of hrhiging case before court.'] (1.) Where a case stands for the determination of the court, under the provisions of sect. 69 of the said Act, the comptroller 312 ORIGINATING SUMMONS. shall require the applicant within one month, or such further time as the comptroller may allow, to issue a summons in the chambers of a judge of Her Majesty's High Court of Justice for an order that, notwithstanding the opposition of which notice has been given, the regis- tration of the trade mark be proceeded with by the comptroller, or to take such other proceedings as may be proper and necessary for the determination of the case by the court. (2.) The applicant shall thereupon issue such sum- mons, or take such other proceedings as aforesaid, within the period of one month above-named, or such further time as the comptroller may allow, and shall also within the like period give notice thereof to the comptroller. (3.) If the applicant shall fail to issue such summons, or to take such other proceedings, of which failure the non-receipt by the comptroller of the said notice shall be sufficient proof, the applicant shall be deemed to have abandoned his application. (4.) \_Mode of giving notice that the matter has been hrought before the court.~\ — Such notice to the comp- troller shall be given by delivering at or sending to the Patent Office a copy of the summons or other initiatory proceeding bearing an indorsement of service signed by the applicant or his solicitor, or an indorsement of acceptance of service signed by the opponent or his solicitor. Where upon an opposition to an application to register a trade mark the case stands for the determination of the court under sect. 69 (4), the court can determine all questions arising upon the objections: (Be Arhenz' Application, 35 Ch. Div. 248; 55 L. T. Rep. N. S. 480.) This application was made by summons. 2. Rectification of Register by the Court. Tlie following is the text of sect. 90 of the Act of 1883 as amended by sect. 23 of the Act of 1888, by the insertion of the words in brackets : — MISCELLANEOUS STATUTES. 313 90. (1.) The court may, on the apphcation of any person aggrieved by the omission without sufficient •cause of the name of any person [or of any other parti- culars] from any register kept under this Act, or by any ■entry made without sufficient cause in any such register, make such order for making, expunging, or varying the «ntry, as the court thinks fit; or the court may refuse the application ; and in either case may make such order with respect to the costs of the proceedings as the •Court thinks fit. (2.) The court may, in any proceeding under this section, decide any question that it may be necessary or ■expedient to decide for the rectification of a register, and may direct an issue to be tried for the decision of any question of fact, and may award damages to the party aggrieved. (3.) Any order of the court rectifying a register shall •direct that due notice of the rectification be given to the comptroller. As to this section see Re Australian, &c., ante, p. 311. For form of summons for rectification of the Register of Trade Marks, see Dan. F. No. 1565, p. 672. For form of summons for leave to register Trade Mark, see Sebastian, 2nd edit., 413. A person whose application to register a trade mark has been refused by the comptroller cannot appeal direct to the court from .such refusal, as a person aggrieved within sect. 90 (1), by the omission of his name from the register under sect. 90 of the Act, but must take the special course prescribed by sect. 62 (sub-sect. 4) of appealing to the Board of Trade from the comptroller's decision : {Be Trade Mark '' NormaV\ 35 Ch. Div. 231; 82 L. T. 318, C.A.) For application by motion for rectification of register by adding note agreed upon between rival manufacturers : (see Re Mitchell, 28 Ch. Div. Qm ; 51 L. T. Rep. N. S. 900.) 3. Alteration of Registered Mark. Sect. 92. (1.) The registered proprietor of any registered trade mark may apply to the court for leave to add to or 314 ORIGINATING SUMMONS. alter such mark iu any particular, not being an essential particular within the meaning of this Act, and the court may refuse or grant leave on such terms as it may think fit. (2.) Notice of any intended application to the court under this section shall be given to the comptroller by the applicant, and the comptroller shall be entitled to be heard on the application. (3.) If the court grants leave, the comptroller shall on proof thereof and on payment of the prescribed fee cause the register to be altered in conformity with the order of leave. For form of summons for leave to add to or alter a trade mark, see Dim. F. No. 15G0, p. 672. Notice to comptroller of application for alteration of trade mark, under sect. 92 of the Act, is required by ride 48. Implied war- ranty on sale of marked goods. Merchandise 3Iarks Act, 1887. The importance of the subject of trade marks is increased by the Merchandise Marks Act, 1887 (50 & 51 Yict. c. 28). This repeals the Merchandise Marks Act, 1862 (25 & 26 Yict. c. 88) subject ta certain savinost, p. 322. (b) But see post, p. 324. 320 ORIGINATING SUMMONS. APPENDIX TO S. C. F. RULES, 1886. Form No. 1. {^Lodgment Schedule, referred to in Rule 5.] (a) Lodgment Schedule. In the High Court of Justice, Chancery Division. Date of order, 18 . Title of cause or matter, 18 . A. No. Ledger credit. [If same as title of cause, state " As above."] Particulars of Funds to Person to make the lodgment. Amounts. be lodged. Money. Securities. £ s. d. £ s. d. [Specimen Lodgment Schedules.] lu the Higii Court of Justice, Chancery Division. 21st July, 1886. Be Morton, deceased, Morton v. Matthews. 1881. M, 391. Ledger credit. As above. Particulars of Funds to Person to make the lodgment. be lodged. Money. Securities. £ s. d. £ s. d. Balance to be certified Edmund James White on passinff final ac- (the receiver). count as receiver. Balance to he certified James Matthews (de- of the 871. 5s. 9d. fendant) due from him as executor after re- taining his costs. (a) Ante, p. .318. APPENDIX I. 321 lu the High Court of Justice, Chaucery Division. A. V. B. 1883. A. 16. Ledger credit. As aljove. 15th June, 1886. Amounts. Particulars of Funds to Person to make the be lodged. lodgment. Money. Securities. £ s. d. £ 8. 4. Consols. J. A. and J. B. 15,000 Great Western Rail- Do. 1,500 way 4 per cent. De- benture Stock. Balance of cash to be J. B. certified. Invest and accumulate in Con- sols. {^Specimen Lodgment Schedule of purchase money to be signed by a chief clerk.'] In the High Court of Justice, Chaucery Divisiou. A. V. B. 1885. A. 16. Ledger credit. The said action proceeds of sale of real estate. Lodgment Schedule. Purchase money to be lodged pursuant to order dated 31st July, 1886. Particulars of money to be lodged. Person to make the lodgment. Amount. Deposit. Balance of purchase money and interest. Invest and accumulate amounts lodged in Consols. The above funds not to be paid out, transferred, or dealt with, T. A., the auctioneer. W. K., the purchaser. £ s. d. 20 195 Q without notice to the said W. K. .£215 Total amount in words : Two hundred and fifteen pounds. Dated tliis 10th day of August, 1886. , Chief Clerk. 322 OKIGINATJNG SUMMONS. Form No. 2. [Pmjment Schedule referred to in Rule 6.] (a) Payment Schedule. In the Higli Court of Justice, Cliaiicfry Divisiou. Date of order, Title of cause or matter, 18. A. No. Ledger credit [if same as title of cause state " As above."] Funds in court. 18 Particulars of paymentR, transfers, or other ope- rations ordered. Payees and transferees or separate accounts. Amounts. Money. Securities. £ s. d. £ s. d. \_Specimen Payment Schedules.'] In the High Court of Justice, Chancery DiA-ision. 2nd August, 1886. B. V. D. 1883. B. 165. Ledger credit. As above. 730/. 7s. Id. New Three per Cent. Annuities. lOL 13s. Id. cash. Funds in court Particulars of payments, transfers, or other ope- rations ordered. Payees and transferees or separate accovmts. Amounts Money. Securities. £ s. d. £ s. d. Pay. John Park. 5 6 7 Sell New Three per 730 7 7 Cent. Anmiities. Out of proceeds and balance of funds pay :— Costs of petitioners to be taxed. Leg-acy duty in respect of fund in court. Divide residue in fourths, and pay as under : — One-fourth John Smith (petitioner) One-fourth Emma Joy (petitioner), wife of Wm. Joy, on her separate receipt Out of one-fourth Eliza .Toy (widow). 79 10 6 Residue of such Edward Sparkos. one-fourth Carry over one-fourth. Separate account of Invest and accumu- William Peters late in New Three (plaintiff). per Cent. Annuities. (a) Ante, p. 318. APPENDIX I. 323 In the High Court of Justice, Chancery Division. Smith V. Williams. 1871. S. 103. 4th September, 1886. Ledger credit.. The said cause. Trust legacy of 8001. for Charles Pearce aud Susau his wife and their children and iucumbrancei's. f.308L 4.S. Id. Consolidated Three per Cent. I Annuities. Funds in court ■{ 5121. lis. New Three per Cent. Annuities. I 50Z. money on deposit. I 481. Is. 3cl. cash. Particulars of payments, transfers, or other ope- rations ordered. Sell Consols. Sell New Three per Cent. Annuities. Pay. Pay taxed costs of George Turner. Pay residue of funds as under : — • One-fifth Out of one- fifth Eiesidue of last- named one-fifth Out of one-fith Out of same one-fifth, interest on lOOJ. at 5L per cent, per annum from 18 to day for pay- ment. Residue of last- named one-fifth, One-fifth One-fifth Payees and transferees or separate accounts. Amounts. ( David Shore (a) ") ( Charles Weaver j George Turner. James Watson. Birmingham Banking Company, mort- Money. Henry Earle (as mort- The same. Eobert Wild and Jo- seph Hunter, trus- tees of Arthur Turner. Matthew Field. William Long. £ s. d. 45 6 2 100 140 8 4 Securities. £ s. d. 308 4 1 512 11 (a) As to giving the address of the payees or transferees, see rule 6, ante, p. 319. Y 2 324 ORIGINATING SUMMONS. Form No. 3. [Combined Lodgment and Payment Schedules referred to in Ride 8.] (a) Lodgment and Payment Schedule. In the High Court of Justice, Chancery Division. Date of order, 18 . Title of cause or matter, 18 . A. No. Ledger credit [if same as title of cause state " As above ".] I. Lodgment. Particulars of funds to Person to make the lodgment. Amounts. be lodged. Money. Securities. £ s. d. £ s. d. Funds to be dealt %vith. II. Payment. I. Consolidated Three per Cent. Annuities. I. cash. Funds to be lodged as above. Particidars of payments, Payees and transferees or separate accounts. Amounts, rations ordered. Money. Securities. £ s. d. £ s. d. By the Suxireme Court (District Registry) Funds Rules, 1887 (which will be found in W. N. for 8th Oct., 1887, p. 40.5, and in Wilson, p. 771), the S. C. F. Rules of 1886 were, with slight modifications, made applicable to the district registries of Liverpool and Manchester. By the S. C. F. Rules, March, 1888 (which will be found in Wilson, p. 773), " When payments not exceeding 501. per annum arc liy an order directed to be made to a mother as guardian of her infant children, and sucli mother marries after the date of the said order, such ])ayments may be made to her, notwithstanding her marriage, on her separate receipt." (rt) Ante, p. 319. APPENDIX 1. 325 3. Rules of the Supreme Court, (a) Guardianship of Infants Act, 1886.(6) 1. These miles may be cited as " The Rules of the Supreme Court, Guardiauship of Infauts," aud shall apply to proceedings in the High Court of Justice, iucluding appeals, under the Guardian- ship of Infauts Act, 1886, hereinafter called the Act. 2. Any application under the Act may be made as follows : (a.) Where there is pending any action or other proceeding by reason wliei'eof the infant is a ward of court, then by a summons in such action or pi'oceeding, and in the matter of the infant. (&.) Where there is not pending any sucli action or other pro- ceeding as aforesaid then 1)y an originating summons in the matter of the infant. 3. A summons under sect. 2 of the Act may be taken out by any next friend of the infant, and shall be served upon tlie mother of the infant. 4 (a.) A summons under sect. 3, sub-sect. (2) of the Act may be taken out by any next friend of the infant, and shall be served upon the father of the infant. [b.) A summons vmder sect. 3, sido-sect. (3), of the Act may be taken out by any guardian of the infant, and shall be served upon the other guardian or guardians. 5 (a.) A summons under sect. 5 of the Act taken out by the mother of any infant shall be served upon the father of the infant, or if he be dead, upon the guardian or guardians of the infant, if any such there be, other than the mother. [b.) A summons under sect. 5 of the Act taken out by the father of any infant shall be served upon the mother of the infant, or if she be dead, upon the guardian or guardians of the infant, if any such there be, other than the father. (c.) A sunmions under sect. 5 of the Act taken out by any guardian of an infant, other than a parent, sliall be served upon the other guardian or guardians of the infant, if any such there be, other than a surviA^ing parent, and also upon the surviving parent, if any. 6. A summons under section 6 of the Act may be taken out by any next friend of the infant, and shall be served upon his guardian or guardians. 7. All matters relating to removals and appeals froni County Courts in respect of which jurisdiction is given to the High Court by the Act shall be transacted aud disposed of in court or in chambers by or imder the directions of any judge of the Chancery Division (heremafter called the judge) named for that purpose by the Lord Chancellor. 8. The ajiplication of any party under sect. 10 of the Act for an order of removal from the County Court to the High Court shall be by an Originating Summons in tlie Chancery Division in the (a) See W. N., 4th Feb., 1888, p. 71, Supp. (b) See ante, p. 72. 32(3 ORIGINATING SUMMONS. matter of the iufaut, and shall be marked with the name of the judge. It shall not be necessary to serve tlie summons upon any person. When the judge upon hearing tlie summons shall (on such terms as to costs as he may think proper) have ordered the application to he removed to the High Court, the application shall l)e proceeded with before sucli judge ; and the applicant shall serve a copy of the order upon the registrar of the County Court, who shall forthwith transmit all documents (if any) in the matter filed or lodged in the County Court to such officer as the judge may direct 9. In any proceeding under the Act the judge may direct such ])ersons, other than those in these rules respectively mentioned, to be served with the summons as he may think fit. 10. Upon any application under the Act for the appointment of a guardian of an infant tlie eA'idence shall sliow — (a) The age of the infant ; (b.) Tlie nature and amouut of the infant's fortune and income; (c.) What relations the infant has. 11. Order LIX., rr. 10. 11. 12, 13, 16. and 17, shall apply to ai)peals to the Chancery Di-s-ision of the High Court from County Ctmrts under the Act. The appeal shall not operate as a stay of jjroceedings under the decision appealed from unless the County Court shall so order, (a) 12. The judge may after an appeal has been entered make such orders, either ex liarte or otherwise, with regai'd to the custody of tlie infant pending the appeal and otherwise as he may think proper. 13. Subject to these rules, the rules for the time being in force with respect to appeals to the Queen's Bench Division from inferior courts, and also the rules for the time being in force with respect to appeals from the High Court to the Court of Appeal, shall, so far as is practicable, apply to appeals from County Courts to the High Court under the Act. Tlie 17th day of December, 1887. (Signed) Halsbury, C. Coleridge, L.C.J. ESHER. M.R. C. E. Pollock, B. H. Manisty, J. (a) Order LIX., r. 13, is impliedly repealed bv the County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 121, See McGrah v. Carticright (60 L. T. Rep. N. S. 537 ; 23 Q. B. Div. 3) APPENDIX II. 327 APPENDIX II. 1. Affidavit for Entry of Appearance as Guardian, (a) [Heading as in Form 1.] {h) I, of make oatli aud say as follows : — A.B., of is a fit and proper person to act as guardian ad litem of the above-named infant defendant, and has no interest in the matters in question in this action [matter] adverse to that of the said infant, aud the consent of the said A.B. to act as such guardian is hereto annexed. Sworn, &c. \_To this affidavit shall be annexed the document signed by such giiardian in testimomj of his consent to a.ct.~\ 2. Consent to Act. (c) I, A. B., of hereby consent to act as a trustee of the [describe the instrument.'] (Signed) A. B. I, C. D. of , solicitor, hereby certify that the above written signature is the signature of A.B. the person men- tioned in the above written consent. (Signed) C. D. 3. Advertisement of Originating Summons, (d) In the High Court of Justice. 1888, C. No. 2817. Chancery Division. Mr. Justice Chitty. C. and another v. G. and another. To the defendant W. C. Take notice that this action was on the 23rd day of July, 1888, commenced against E. G. and yourself by Originating Summons, and that the plaintilfs by such summons claim that an account may be taken of what is due to you and the (a) See ante, p. 20. (b) The heading of Form 1 is as follows : — " In the High Court of Justice, 18 No. Division. Between , Plaintiff, and , Defendant." (c) See ante, p. 45. (d) See ante, p. 50. 328 ORIGINATING SUMMONS. said E. G., for principal and interest npon an indenture of mort- gage dated the 16th of May, 1872, and made between C. A. B. of the one part and you the said W. C. and J. G. of the other i^art, and upon an indenture of fui'ther charge endorsed thereon and for costs of action and for redemption of the premises comprised in the said indenture of mortgage, and that the court has, by order dated the 2nd day of August, 1888, authorised service of the said summons on you by the insertion of this notice once in the Times and Standard newspapers. And further, take notice that you are required to appear to the «aid summons within eight days after the insertion of the last of the said notices in manner aforesaid inclusive of the day of such insertion, and tliat in default of your so doing the plaintiffs may proceed therein and judgment may be given in your absence. The hearing of the said summons is adjourned to the 2nd November, 1888, at 11.30. Dated this 10th day of August, 1888. W. and Sons, street, E.G., Plaintiffs' Solicitors. 4. Originating Summons, (a) In the High Court of Justice. Chancery Division. Mr. Justice In the matter of the estate of A. B., deceased. Between C. D., Plaintiff, and E. F., Defendant. Let E. F., the executor of the said A. B., attend at the chambers of Mr. Justice at the Royal Courts of Justice at the time specified in the margin [or, at the foot] hereof, upon tlie ajiplication of C. -D., of , Esq., who claims to be a creditor [_or, as the case tnaij be] upon the estate of the above-named A. B., for an order for the administration of tlie personal [or real and personal] estate of the said A. B. Dated the day of 18 . (Seal. This summons was taken out by , of solicitors for the above-named C. D. The folloxoing note to he added to the original summons, and lohen the time is altered by indorsement the indorsement to be referred to as heloio : — Note. — If you do not attend eitlier in person or l)y your solicitor at the tinu^ and place above mentioned [or at the place above mentioned at the time mentioned in the indorsement hereon], sudi order will l)e made aiul proceedings taken as tlie judge may tliiiik just and expedient. (a) See ante, p. 102. APPENDIX ir. 829 5. By Direction of the Judges attached to the Chancery Division, the following Certificate IS to be lodged in Chambers before an Origi- nating Summons is Sealed there under Order LV., R. 21. (a) In the High Court of Justice. Chanceiy Divisiou. 188 , , No. Yice-Chancellor Bacon, or Mr. Justice In the matter of Between , Plaintiff, and Defendant. I, solicitor for the plaintiff [or aijplicant], hereby certify- that no proceedings have been commenced or taken in this or any other court, and no previous application has been made to this or any other court or any judge thereof, to effect the same or a similar object to that for which the sanction or decision of the court or judge is sought by the summons issued herein, on the day of 188 . And that such summons does not relate to, nor is the same [If summons so connected with, any action, cause, or matter assigned to any marked for judge of this court as to be conveniently dealt with by the same any judge on iudffe certificate Dated the day of 188 . (under Order Plaintiff's [or a2}2'^licant' s^ solicitor. * •> ^- ^> sub- portion of certificate to 6. Titles to Originating Summonses, &c. (b) ^^ omitted.] The following regulations are to be observed as far as practicable ; Administration summonses and summonses under Order LV., r. 3, are to be entitled. In the matter of the estate of A. B., deceased. Between C. D. Plaintiff, and E. F., Defendant. or In the matter of the Trusts of the Settlement made on the marriage of A. B. with C. D. dated, &c. F. G. plaintiff. G. H. defendant. or Where the instrument creating the trust is other than an indenture of settlement, (a) See ante, p. 102. (b) See ante, p. 102. 330 ORIGINATING SUMMONS. lu tlie matter of the Trusts of an indenture, dated and made between A. B. of the one part, and C. D. of the other part. F. G., plaintiff, H. I., defendant. Summonses under Order LV. r. 5a for redemption or foreclosure of mortgage are to be entitled as heretofore as in an action not in a " matter " thus : Between A. B. PlaiutifE, C. D. Defendant. Petitions and Originating Summonses under Acts of Parliament GIVING Summary Jurisdiction. In all cases where a petition is presented or an Originating Summons is issued under the authority of an Act of Parliament giving summary jurisdiction or rules of court, the jietition or summons must be entitled ill a substantial matter {as the Jirgt title), and also in the matter of the particular Act as well as any general Act applicable ; such as the Lands Clauses Consolidation Acts, 18i5, 1860, and 1869, or the Mortgage Debenture Acts, 1865 and 1870, or the Copyhold Acts, or the Defence Act, 1860, or the Improvement of Land Act, 1864, or the Tramways Act, 1870, or the Consolidated Permament Charges Redemption Act, 1873, or the Trustee Act, or the Settled Land Act, &c., or otherwise, as the case may be, for instance : 1. If it be a railway or other local Act, and under its powers a portion of any estate under settlement, or of the estate of any testator or intestate has been taken, the petition or summons must be entitled in the matter of such settlement or of the estate of such testator or intestate, and in the matter of the credit to which the money has under the special Act been paid, and in the matter of the general Act or Example 1, ' 1886, W., No. Lands Clauses In the matter of the estate of George Woolley, deceased ; Acts. Ex parte the South Devon Railway. In the matter of the South Devon Railway Act, 1844, the vendors, John Smith and Robert Stiles, trustees of the estate of George Woolley, deceased, vendors without power of sale ; and In the matter of the Lands ClausesConsolidation Acts, 1845, 1860, and 1809 [as the case may be). Example 2, 1886, T., No. Lands Clauses In the matter of the estate of William Thomas an infant ; Acts. Ex j>arte the Metropolitan Board of Works. In the matter of tlie Metropolitan Street Improvement Act, 188.3. The vendor. William Thomas, an infant. In the matter of the Lands Clauses Consolidation Acts, 1845, 186U, and 1869. Example 3, 1886, I., No. Lands Clauses In the matter of the trusts of the settlement made on the Acts. marriage of John Jarvis and Sarah, his wife ; Ex parte the Metroi)olitan Board of Works. APPENDIX II. 331 lu the matter of the Metropolitan Street Improvement Act, 1883. The vendors, John Sniitli and Robert Jones, trustees of settlement of John Jarvis and Sarah, his wife, without power of sale. In the matter of the Lands Clauses Consolidation Aet^, 1845, 186U, and 1869. 2. If land belonging to a rector, vicar, or other corporate body, then it must be entitled Ex 'parte the rector, vicar, or corporate body, as the case may be, and in the matter of the Act or Acts. 1886, W., No. Example 4, Ex parte the Rector of "Woolwich in tlie county of Kent. Lands Clauses Ex parte the South Eastern Railway Company. Acts. In the matter of the South Eastern Railway Act (additional powers) 1882. The vendor. Rector of Woolwich, without power of sale. In the matter of the Lands Clauses Consolidation Acts, 1845, 1860, and 1869. 3. If under the Parliamentary Deposits Act it must be in the same title as that to which the fund stands in the Chancery Pay Office and of the Act. 1886, A., No. Example 5, In the matter of the undertaking of the A. B. Railway Parliamen- Bill (as the case may be), and * t^'^y Deposits In the matter of the Act of Parliament, 9 Yict. c. 2t>. ^'^*- entitled an Act to amend an Act of the second year of Hir present Majesty, for the custody of certain moneys paid in pursuance of the standing orders of Parliament, by subscribers to works or undertakings to be effected under the authority of Parliament. 4. If to deal with money in court under the Legacy Duty Act it must be in the same title as that under which the fund stands in the books of the Chancery Pay Office and in the matter of the Act 36 Geo. 3, c. 52. 1886, G., No. Example 6, In the matter of John Greaves, an infant legatee [or Legacy Duty /. G., absent beyond the seas], and in the matter of the Act -^ct. 36 Geo. 3, c. 52, entitled " An Act, &c." 5. If under the Trustee Act in the matter of the trusts of the will or other instrument and of the Act. 1886, S., No. Example 7, In the matter of the trusts of the will of John Smith, Trustee Act. of , dated 4th July, 1832. In the matter of the Trustee Act, 1850 [add where applic ■ ahle], and of the Act 15 & 16 Vict. c. 55, entitled " An Act to extend the provisions of the Trustee Act, 1850." 332 ORIGINATING SUMMONS. Example 8, Private Act. Example 9, Settled Land Acts 1882 and 1884. Example 10, Infant. Example 11, Tenant by curtesy. 6. If under Private Acts should be entitled in the matter of the title to the Act. 1886, B., No. lu the matter of an Act Estate session'] Victoria, cap. [^state chapter~\ for empowering the trustees of the estate of A. B. deceased, to grant leases, and for other purposes. 7. If under the Settled Land Act, 1882, it must be entitled in accord- ance with the rules of the Supreme Court (December, 1882) under that Act, and in the form given in the appendix to such rules, as varied by the form Appendix L., No. 25, R. S. C, 1883. 1886, J., No. or 1886, R., No. In the matter of the Blackacre estate [or of the timber on the estate], situate at , in the county of , [or of the chattels], settled by the settlement dated the day of , made on the marriage of John Jones and Mary his wife [or by the will of George Roberts, dated ]. And in the matter of the Settled Land Act, 1882. 1886, S., No. In the matter of the Blackacre estate [or of the timber on the estate] , situate at , in the county of , settled land within the meaning of the Settled Land Act, 1882, s. 59, by reason of John Smith, the person seised of or entitled to such land, being an infant. In the matter of the Settled Land Act, 1882. 1886, R., No. In the matter of the Blackaci'e estate at , in the county of , settled by a settlement within the meaning of the Settled Land Act, 1884, s. 8, by Mary Roberts, deceased, the late Avife of John Roberts. In the matter of the Settled Land Act, 1884. Example 12, Vendor and Purchaser Act, 1874. If under the Vendor and Purchaser Act. 1886, B., No. In the matter of the contract dated the day of , 188 , for sale of (Blackacre) estate, situate at , in the county of , and made between A. B. (vendor), and C. D. (pm-chaser). And in the matter of tlie Vendor and Purchaser Act, 1874. Example 13, Conveyancing and Law of Property Act, 1881, sect. 39. 9. If under the Conveyancing and Law of Property Act, 1881. 1886, B., No. In the matter of the trusis of the settlement, dated the , made on the marriage of A. B. (husl^aud) with C. D. (the wife). In the matter of the Conveyancing and Law of Property Act, 1881. APPENDIX II, 833 10. If under the Married Women's Property Act. 1886, B., No. Example 14, In the matter o£ the policy of assurance in the Law Life Married Assurance Society on the life of A. B., No. 2175. Women's Pro- And in the matter of the Married Women's Property Act, P^rty Act, 1882. 1882, sect. 11. 1886, B., No. Example 15, In the matter of the question between John Brown and Married Mary Brown, his wife, as to certain property [describe Women's Pro- property shorthj~\. perty Act, And in the matter of the Married Women's Property Act, 1882, sect. 17. 1882. The address and description of the applicant and of the next friend (if any), and of the respondents, should in all cases be stated in the petition or summons, and if the applicants apply as, or the respondents are summoned as trustees, or in a representative capacity, the fact should appear, and the rule (if any) under which the application is made should be stated. If the applicants or respondents are females it should be shown on the petition or summons whether they are spinsters, married women, or widows. 334 ORIGINATING SUMMONS. APPENDIX III. Originating Summons. Ou the daj of December, 1886, at 11.30 The following (forms 1-111 is a complete set of forms in an action commenced by Originating Summons under Order TjV. rr. 3 and 4, R. S. C. 1883, from the issuing of the originating summons to the final judgment of the House of Lord.s. 1. Originating Summons, (a) 1886, C, No. lu the Higli Court of Jn.stice. Chancovy Division. Mr. Justice lu the matter of the Estate of T. J. C. deceasecl. Between A. A. C Widow. Phiiutiff, and C. M. L., the Wife of E. B. L..{b) Defendant. Let the above-named C. M. L. of , in the County of the wife of E. B. L. (as tlie sole heiress at law and next of kin of the above-named T. J. C. deceased) attend at the chambers of Mr. Justice , at tlie Royal Courts of Justice, at the time specified in the margin hereof upon the application of A. A. C, the sole o'clock in the executrix of the will, bearing date the 14th day of March, 1884, of forenoon. the above-named T.J. C. deceased, and a devisee and legatee under L.S. ^^lic i^'^if^ ^ill under Order LV., rr. .3 and 4 of the Rules of the Supreme Court, 1883, that the following question arising in the administration of the estate of the said T. J. C. may be determined, What are the rights and interests of the plaintiff A. A. C. under the said will in the real and ])ersonal estate of the said T. J. C, and whether any, and if any, what interest in such real and personal estate respectively, or in any and what part or parts thereof is undi.sposed of by the said will. And if and so far as necessary for the determination of the above question that the real and personal estate of the said testator may be administered. L. S. Dated tlie day of November, 1886. Tliis summons was taken out by of , London, E.C. Solicitor for the above-named A. A. C, the plaintiff. To the above-named C. M. L. (c) Note. — If j'ou do not attend either in person or by your solicitor at the time and place above-mentioned, such order will be (a) This Rummone is not quite in the ordinary form. For other forms see pout, pp. 356, 36.5, &c. (h) As the testator died in 1886 the hnsband of defendant was not a necessary party. (r) Here should follow her address and description, unless already mentioned in the summons. APPENDIX III. 335 made and proceedings taken as the judge may think just and expedient. Before you will be heard in Chambers you will have to enter an appearance in the Central Office, and give notice of such appeai-ance. 2. Plaintiff's affidavit in Support of Summons, (a) 1886, C, No. In the High Court of Justice Chancery Division. Filed, December, 1886. In the matter of the estate of T. J. C. deceased. Between A. A. C, Widow, Plaintiff, and C. M. L., the Wife of E. B. L., Defendant. I, A. A. C, of , in the county of , widow, the above-named plaintiff, make oath, and say 1. I am th" lawful widow and relict of T. J. C, late of aforesaid, solicitor, deceased, who died on the of , 1886, having by his will bearing date the 14th day of March, 1884, appointed me sole executrix thereof, and which will was duly proved by me as sucli executrix in the Probate Division of this Honourable Court on the of November, 1886. and such probate is now produced and shown to me marked with the letter P. 2. The whole of the real and personal estate of the said deceased, of or to which he died possessed or entitled, and which by his will, is given to me as therein mentioned, consists of cei'tain money at his bankers, the Bank Limited, money due to him on mortgage and interest, some leasehold houses in , in Surrey, his furniture, and some shares in companies, all of Avhich I estimate at the value of 25.000Z. and upwards. The only furtlier property which the testator died possessed of consists of twenty-five freehold houses at , in the county of , his residence " X " aforesaid, and some freehold ground rents, at , in the county of Kent, all of which I estimate of the value of 7500?. and upwards. 3. The deceased was eighty-five years of age at his deatli, and I was married to him by special licence at " X," on the 8th day of February, 1884. and directly after our marriage the testator drew a draft of his will, which draft was afterwards copied by Mr. , a solicitor, and one of the attesting Avitnesses tliereto. and after consultation with the testator was engrossed by him, and vntti the exception of the addition by the latter of the gift of the residue and of X. aforesaid, both of which testator had omitted in his own draft, and to which Mr. drew his attention, and by his instructions inserted, the will as set forth in the said jirobate is the same in all respects as that drawn by the testator himself. 4. The testator died without leaving any issue, and the above- (a) The facts in this case were not in dispute, and strict evidence was not filed. There was no " Statement of Facts." 336 ORIGINATING SUMMONS. named defeudaut C. M. L., who is tlie only child of a sister of the deceased, was, I believe, at his death, and still is, his sole heiress at law and uext of kin. Sworn, at, &c. A. A. C. Filed on behalf of the plaintiff, T.L. 3. Order of Mr. Justice . 1886, C, 4872. [Omitting formal 2'>(irts.'\ This court doth declare that according to the true construction of the will of the said testator T. J. C, the plaintiif A. A. G. is absolutely entitled to the whole of the real and personal estate of the testator subject to his debts and legacies bequeathed by his will. And it is ordered that it be referred to the taxing master to tax the costs of the defendant of this application as between solicitor and client including the costs of the adjournment thereof into court. And by consent it is ordered that the plaintiff A. A. C. do pay to the defendant C. M. L. her costs when taxed out of the testator's estate. 4. Notice of Appeal. Inthe Court of Appeal, (o) 188 , C, No. In the matter of th(^ Estate of T. J. C, deceased. Between A. A. C, Widow, Plaintiff, and C. M. L., the Wife of E. B. L., Defendant. Take notice that this court will be moved on (b) day, the day of April, 1887, or so soon thereafter as counsel can be heard, by counsel on the part of the above-named defendant C. M. L. that the judgment made in this matter and action, and dated the day of February, 1887, may be reversed so far as it declares that, according to the true construction of the will of the said testator T. J. C,the plaintiff'^. A. C. is al)Solutely entitled to the whole of the ro&\ and personal estate of the testator subject to his debts and legacies bequeathed by his will ; and that it may be adjudged that, according to the true construction of the said will, the plaintiff'^. A. C. is entitled to a life estate or interest only in the real and personal estate of the said testator subject to his debts and the legacies bequeathed by his said will, and that subject to such life estate, or interest, and debts, and legacies, the said testator died intestate as to his real and pei'sonal estate. Dated this day of 188 . T. and L. street, in the county of (address for service street aforesaid). Solicitors for the Defendant, C. M. L. To the Plaintiff A. A. C. and Mr. T. L., her Solicitor. fa) As to appeals to the Court of Appeal and the practice thereon, see ante, p. 146. (b) This should bo the first day after the expiration of fourteen days from service of this notice on which the Court of Appeal sits to hear apijcals from final orders. APPENDIX III. 337 5. Order of the Court of Appeal. [Omitting formal parts.'] This court doth order that tlie said order be varied by omitting' the declaration in the said order contained, and by dechiring in lieu thereof that, according to the true construction of the will of the testator, T. J. C, the plaiutiif, A. A. C, is absolutely entitled to the properties at , and the houses in G.-road, P., men- tioned in the said will, and to the household furniture, goods, and effects in and about the house called X., and to a life interest in the house X.. L. A. -road, C, in the county of Surrey, and in the residuary, real, and personal estate of the said test.itor, and that, subject to such life interest, the said house called X., and the residuary, real, and personal estate are undisposed of. And it is hei-eby referred to the taxing master to tax, as between solicitor and client, the costs of the plaintiff and defendant of the application for the said order, dated the day of February, 1887, and of such order. And it is ordered that such costs, when taxed, be raised and paid out of the residuary estate of the said testator. And this court doth not think fit to allow any costs of this appeal. IN THE HOUSE OF LORDS, (a) 6. Petition of Appeal. To the Right Honourable the House of Lords. The humble petition and appeal of A. A. C, of , in the County of , widow. Your petitioner humljly prays that the matter of the order of the Court of Appeal, set foi'th in the schedule hereto, may be reviewed before Her Majesty the Queen, in her Court of Parliament, and that the said order may l)e reversed and the order of the High Court of Justice, dated the February, 1887, therein men- tioned, be affirmed, or that the petitioner may have such other relief in the premises as to Her Majesty the Queen, in her Court of Parliament, may seem meet, and that C. M. L., the wife of E. B. L., mentioned in the schedule to the appeal, may be ordered to lodge such printed case as she may be advised, and the circumstances of the case may require, in answer to this appeal, and that service of such order on the solicitors in the cause of the said respondent may be deemed good service. [Signed by two counsel.] Schedule. " From Her Majesty's Court of Appeal (England)." " In a certain cause and matter entitled In the matter of the estate of (a) As to the practice on appeals to the House of Lords, see The Appellate Jurisdiction Act, 1876, 39 & 40 Vict. c. .59, and the Standing Orders, which can be obtained of Eyre and Spottiswoode for a, small sum, and will be found in Wilson, p. 803, et seq. ; and see Dan. F., p. 630. Z 338 ORIGINATING SUMMONS. T. J. C, deceased, wherein A. A. C. was plaiutilf, and C. M. L., the wife of E. B. L., was defendant . The order of the Court of Appeal, dated the day of June, 1887, appealed from is in the words following \_here follows the whole of the order oppealed from in italics J] We ImmlDly conceive this to be a proper case to be heard before your Lordships ])y way of appeal. [Signed by two counsel.] 7 Notice of Appeal to the House of Lords. 12th August, 1887. [Supreme Court of Judicatui-e — In Her Majesty's Court of Appeal], (a) In the matter of the estate of T. J. C, deceased. Between A. A. C. (widow), Plaintiff, and C. M. L. (the wife of E. B. L.), Defendant. Take notice that on the 16th day of August instant, or as soon afterwards as may be, a petition of ajipeal, of which the annexed is a copy, will he presented to the House of Lords against the order made in this cause on the 23rd day of June last. T. L., Square, E.C. Solicitor f(jr the above-named plaintiff. To Messrs. T. and L. Street, Solicitors for the above-named defendant. 8. Case of the Appellant. In the House of Loi*ds. On Appeal from Her Majesty's Court of Appeal (England). Between A. A. C. (widow). Appellant, and C. M. L. (the wife of E. B. L.), Respondent. Case of the Appellant. 1. The question in this appeal is one of consti-uction arising upon tlio will of T. J. C, late of X., in tlie county of , solicitor, deceased, who died on the 18th day of September, 1886. 2. The said T. J. C, duly made his will, dated the 14th day of March, 1881, which was in the following terms : — " This is the last will and testament of me, T. J. C, formerly and for many years of No. 4, Street, in the city of London, afterwards and also (rt) Although the words in square brackets were actually used in this case, it is submitted that this notice should have been headed " In the House of Lords. On an appeal from Her Majesty's Court of Appeal," as at Dan. F., 1475. APPENDIX III. 339 for some years at No. Street, aud siibseqiieutly at No. Street, in the same city of Lomlou, and mo.st of the time at my own freehokl private residence, called ' X.,' in the county of Surrey, gentleman, made this 14th day of Mai'cli, 1884, as follows : I give the following pecuniary legacies, namely, the sum of lOOZ. to my dear wife, A. A. C., for her present wants, and for housekeeping expenses, and I appoint her sole executrix of this my will. I give to /. M"., wife of P iff., of , in the county of Berks, meahuau and baker, the sum of 501. for her sole and separate use, indepen- dently of any husl^and with whom she may intermarry. I hereby declare that her receipt alone, whether covert or sole, shall be a good discharge to my said executrix for such legacy or sum of 50?. I give to L. C. widow of the late Mr. G. C., of No. E,oad, London, the sum of 5UZ., to be paid to her on her sole receipt. I give to K. M., daughter of the said P. and /. M., the sum of 50L, to be paid to her on her sole receijit. I give to L. M., son of the said P. and/. M., of Grove, in the county of Middlesex, the sum of 50L, to be paid on his sole receipt. To E. T. A., wife of W. P. A., of , in the county of Middlesex, gentleman, the sum of 50?., to be i>aid to her on her sole receipt. If any of the last-named persons should at the time of my decease be under any disability, then I direct that any one or more of the said legacies shall be invested in Three per Cent. Consolidated Bank Annuities, and paid to them, or any of them, on the ceasing of such disability. I give, devise, and bequeath all the rents and income of all my freehold, copyhold, and leasehold properties at , in the county of , unto my wife, A. A. C. (which rents are now collected by Mr. N., builder, of Road, , afore- said). I also give and Ijequeath to my said wife. A. A. C, all the rents and profits of my leasehold houses in the G.-road, P. (and which rents are now collected for me by Mr. G. B. 8., of or near the same place). I also direct that she shall be entitled to all other the income of my estate and effects, real and personal, and that any money which may be in my house or in the hands of my said wife, may be invested in her name in tiie said Three per Cent. Consolidated Bank Annuities, and the interest to arise therefrom may be retained or received by my said wife, as part of my income. I also declare my wiU to be that, if any of the legatees hereinbefore-named shall wish to purchase any trifling thing and keep the same as a memento on my account, I desire that they shall be at liberty to do so. I desire to be buried in my grave, devised to me in perpetuity by the directors and owners of the board of cemetery, and that my said wife shall be at liberty, out of the proceeds of my surplus residuary estate, to erect any monument to my memory which she may please, not exceeding the sum of 300?. I also give and bequeath to my said wife, A. A. C, all my household furniture, goods, and effects, in and about my said dwelling-house at X. aforesaid, for her sole and separate use. And I also desire that my said wife shall have the free use and occupation of my said house, called X., aforesaid. I direct that an inventory of such furniture and effects may be made and kept therewith. In witness, &c." 3. The testator died without having revoked or altered his said z 2 340 ORIGINATING SUMMONS. will, and the same was duly proved by his widow, the appellant, on the 27tli November, 1886, in the Probate Division of the High Court of Justice. 4. Tlie testator left no issue. The respondent. C. M. L., who is the only child of a sister of the testator, was at the testator's death his heiress-at-law and sole next of kin. 5. The testator was at his decease entitled to the leasehold houses at , mentioned in his will, and to other personal estate of the value in all of about 25.000L His real estate consisted of some freehold houses at , of his residence X., and of some free- hold grouud rents, at of small value. 6. An Originating Summons in the Chancery Division of the High Court of Justice was taken out by the appellant, A. A. C, praying that her rights and interests, under the said will, in the real and personal estate of the testator might be determined, and so far as necessary for administration of the real and jiersonal estate of the said testator, aud by the order made upon the hearing of the said summons before his Loi'dship, Mr. Justice , dated February. 1887, the court did declare that, according to the true construction of the will of the said testator. T. J. C. the plaintiff. A. A. C, was absolutely entitled to the whole of the real and personal estate of the testator, subject to his debts and the legacies bequeathed by his will, and it was ordered that it be referred to the taxing master to tax the costs of the defendant of that application, as between solicitor and client, including the costs of the adjournment thereof into court, and by consent it was ordered that the plaintiff, A. A. C, shoiild pay to the defendant, C. M. L., her costs, when taxed out of the testator's estate. 7. Tlie said C. M. L. appealed from the said order of Mr. Justice to the Court of Appeal, and by the order of the Court of Appeal, dated the day of June, 1887, the court did order that the said order, dated Fel)ruary, 1887, be varied by omitting the declaration in the said order contained, and by declar- ing in lieu thereof that according to the true construction of tlie will of the testator T. J. C, the plaintiff A. A. C. was absolutely entitled to the ]3roperties at , and the houses in G.-road, P., mentioned in the said will, and to the household furniture, goods, and effects in and about the house called X., and to a life interest In the house X., in the county of Surrey, and in the residuary real and personal estate of the said testator, and that subject to such life interest the said house called X., and the residuary real aud personal estate were undisposed of. And it was refen*ed to the taxing master to tax as between solicitor and client the costs of the plain- tiff and defendant of the application for the said order dated the day of Fel)ruary, 1887, and of that order, and it was ordered that such costs when taxed be raised and paid out of the residuary estate of the said testator, and the court did not think fit to allow any costs of the ajjpeal. Tlie appellant is advised and humbly submits that the order of tlie Court of A))peal, dated June, 1887, vai'ying the order of the Higli Court of Justice, dated February, 1887, is erroneous and ought to be reversed, and that the order of the High Court of Justice, dated February, 1887, ought to be APPENDIX III. 341 affirmed aucl restored, aud the appellaut has appealed from the said order of the Court of Appeal to this most Houourable House for the following (amoug other) Reasons. 1. Because the testator has by his wUl expressly given to his widow, the appellaut, all the income of his residuary real aud personal estate without limit as to time, and such gift in law j)asses to her the absolute interest iii the said property. 2. Because the coustructiou put upon the will by the order of the Court of Appeal giving to the apjiellant a life tenancy only in the residuary estate followed by an intestacy after tlie appellant's death does not accord either with the language of the will, or with the intentions of the testator. 3. Because the construction declared by the order of tlie High Court of Justice is necessary in order to give full effect to the terms of the will, and is in conformity with the settled ride of construc- tion and with the testator's declared intention. [Signed by one counsel.] 9. Case of the Eespondent. In the House of Lords. On Aj)peal From Her Majesty's Court of A^jpeal (England). Between A. A. C, Appellant, aud C. M. L., the wife of E. B. L., Respondent. Case of the Respondent. 1. This is an appeal from an order of the Court of AjJiJoal, dated Formal Order the day of June, 1887, varying an order of the High Court of 23rd June, of Justice, dated day of February, 1887, by omitting the 1887. Appen- declaratiou in such order contained, that, according to the true con- dix, p. 11. structiou of the will of the testator T. J. C, the'plaintiff A. A. C. Notes of judg- (now the appellant, and hei'eiuafter referred to as the plaintiff) was '^^^'t' Appen- absolutely entitled to the whole of the real and personal estate of ^^> P- ■'■"^• the testator subject to his debts aud legacies bequeathed by his will, i'^'^.v °^ f^ aud by declaring in lieu thereof that according to the true construe- 1SS7 tion of the said will the plaintiff was absolutely entitled to the pro- j\ppen(jix ^'7 perties at , and the houses in G.-road, P., mentioned in the Notes of i'ud?- said will, and to the household furniture, goods, and effects in and mgnt Appen- about the house called X., aud to a life interest in such house called (jjx, p. 8. X., aud in the residuary real and personal estate of the said testator, and that subject to such life interest the said house called X., and the residuary real and personal estate, were undisposed of. 2. The action was commenced by Originating Summons, dated ^ppg^^x p. 5. the day of November, 1886, under Order LV., rr. 3 aud 4, of the Rules of the Supreme Court, 1883, for the purpose of deter- mining what were the rights and interests of the plaintiff iinder the will, dated the day of March, 1884, of the said T. J. C. in his real and personal estate, and whether any, and (if any) what interest in such real and personal estate respectively, or in any and what part or parts thereof, was undisposed of by the said will. Aud 342 ORIGINATING SUMMONS. if and so far as necessary for the determiuatiou of the above question for administration of the real and personal estate of the said testator. Formal order 3. The action was heard before Mr. Justice , on the of 19th Feb- day of February, 1887, wlien his Lordship reserved judg- ruary, 1887,^ ment, and upon the day of Feljruary, 1887, his Lordsliip Appendix, p. 7. pronounced tlie judjynient or order set out in the Appendix, page 7. Notes of judg- 4 rjjj^, defendant" C. 31. L. (now tlie respondent, and hereinafter ment, Appen- referred to as '• the defendant ") appealed against the said judg- ' P- ■ ment of the February, 1887, and such appeal came on to be ?^^\ °^ heard before the Court of Aj)peal, consisting of Lord Justices 1887 A "en' ^0^^°"' Bowen, and Fry, on the day of June, 1887, when ,. 'if '^' their Lordships varied tlie said judgment or order of the Notes'of iiidff- ^^^^ ^^ February, 1887, in manner herein))efore mentioned. The ment Apnen- .l^clgment of the Court of Appeal will be found at page 12 of the dix, p. 12. Appendix. 5. The plaintiff tlien appealed to your Lordships' House. 6. The testator T. J. C. was a solicitor, and on the day of February, 1884. he lieing then upwards of eighty-two years of age, intermarried with the plaintiif . 7. The said testator made his will, dated the day of March, 1884, and thereby gave a legacy of lOOl. to his said wife the plaintiff for her present wants and housekeeping expenses, and a2)pointed her sole executrix, and after giving several other pecu- niary legacies, the will proceeded as follows : " I give, demise, and bequeath all the rents and income of all my freehold, copyhold, and leasehold propei-ties at , in the county of , unto my wife A. A. C. (whicli rents are now collected by Mr. N., builder, of , aforesaid). I also give and bequeath to my said wife A. A. C. all the i-ents and profits of my leasehold houses, in the G.- road, P. (and whicli rents are now collected for ine by Mr. G. B. S., of or near the same place). I also direct that she shall l)e entitled to all other the income of my estate and effects, real or personal, and that any moneys which may be in my house, or in the hands of my said wife, may be invested in her name in the said 3 \wy cent. Consolidated Bank Annuities, and the interest to arise therefrom may be retained or received by my said wife as part of my income. I also declare my will to ha that if any of the legatees hereinbefore named shall wish to purchase any trifling thing and keep the same as a memento on my account, I desire that they shall be at liberty to do so. I desire to be buried in my grave, devised to me in per- petuity l)y tlie directors and owners of the board of Ceme- tery, and that my said wife shall be at li])erty out of the proceeds of my surplus retsiduary estate to erect any monument to my memory which she may jdease, not exceeding the sum of 300?. 1 also give and becjiieath to my said wife A. A. C. all my household furniture, goods and effects in and about my said dwelling-house at X. afore- said for her sole and separate use. And I alwo desire that my said wife shall have the free use and occupation of nij' said liouse called X. aforesaid. I direct that an inventory of such funiiture and effects may ha made and kept therewith." 8. Tlie testator died on the 18th day of September, 1886, APPENDIX III. 343 leaving liim sui'viving his widow, the plaintiff, but no children or other issue. 9. The said will was duly j)roved by tlie plaintiff on the day of November, 1886. 10. The defendant was made a defendant to the said Originating Siimmons as being — and she was at the death of the said testator, and still is — tlie sole heiress-at-law and next-of-kin, according to the statutes of distributions, of the said testator. 11. The plaintiff in her affidavit in support of the Originating Affidavit of Summons stated that tlie whole of the real and personal estate of plaintiff, the said testator, of or to which he died possessed or entitled (and Appendix, which the plaintiff incorrectly alleged was given to her as in such p. 6. will mentioned) consisted of certain money at his bankers, the Bank Limited, money due to him on mortgage and interest, some leasehold houses in P., in Surrey, his furniture, and some shai'es in companies, all of which she estimated of the value of 25,000/1. and upwards, and that tlie only further property which the said testator died possessed of consisted of twenty-five freehold houses at . in the county of Herts, his residence X. aforesaid, and some freehold ground rents at , in the county of Kent, all of which she estimated of the vahie of 75007. and ui)wards. 12. The defendant is advised, and humbly submits that the said judgment or order of the day of June, 1887, is right, and that the same ought to be affirmed for, amongst others, the following Beasons. 1. That the question is one of construction, and it appears by the will of the said testator that he intended tliat the plaintiff should have a life interest only in the said house X., and in the residuary real and personal estate of the said testator. 2. That the state of facts under which the said will was made supports the construction that the plaintiff took only a life interest, and not an absolute interest in the said house and residuary real and pei'sonal estate. 3. Because the said judgment or order of the Court of Appeal is right, and ought to be affirmed. [Signed by one counsel.] 10. Appendix to Case, {a) In the House of Lords. On appeal from Her Majesty's Covirt of Appeal (England). Between A. A. C. (widow), Appellant and C. M. L. (the wife of E. B. L.), Respondent. Appendix. No. Index. Page. 1. Originating Summons 2. Affidavit of appellant in support of summons... (o) As to the Appendix see Standing Orders of House of Lords, and Dan. F., p. 640, note. 344 ORIGINATING SUMMONS. No. 3. Order of Mr. Justice 4. Shorthaud writer's notes of judgment of Mr. Justice 5. Order of the Court of Appeal ... 6. Shorthand writer's notes of the judgment of the Court of A]jpeal Lord Justice Cotton Lord Justice Bowen Lord Justice Fiy [Here will be printed in order the documents referred to in the above index.~\ 11. Judgment op the House of Lords. [Omitting formal 2y(i'>'ts.'\ It is ordered and adjudged by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, that the said order of Her Majesty's Court of Appeal of the 23rd of June, 1887, complained of in the said appeal be and the same is hereby affirmed, and that the said petition and appeal be and the same is hereby dismissed this House. And it is further ordered that the costs both in this House and in the courts below be paid out of the estate of the testator T. J. C, the amount of the costs incurred in respect of the said appeal to this House to be certified by the Clerk of the Parliaments. 12. Originating Summons for Appointment of Guar- dian of Person and Estate and Allowance for Maintenance out of Corpus, (a) In the High Court of Justice 1888, M., No. Chancery Division, Mr. Justice In the matter of M. J. W. and N. W., infants, by A. W., their half-sister and next friend. Let [all parties concerned (fe)] attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, London, at the time specified in tlie margin hereof, upon the application on the part of the al)ove-named infants M. J. W. and N. \V. respectively, by the above-named A. W., of , in the county of spinster, their next friend. 1. That tljo said A. W., or some other proper person, may, upon giving security, be appointed guardian of the person and estate of tlie said infants during their respective minorities, or until further order. 2. That the annual sum of I. (c) may be allowed for the (a) As to guardianship, maintenance, and advancement of infants, see ante, p. 71, et seq. (6) Instead of the words in brackets it would be better to insert " E. C, of , in the county of , widow." (c) By S. C. F. K., 1886, r. 68, income tax is required to be deducted from miiptcnance out of a fund in court. If, therefore, the allowance is to be free of income tax this should be stated in the summons. APPENDIX 111. 345 mainteuance and edueafcion of the said iut'aut M. J. W., as from the 1st day of January, 1888, and for the time to come during her minority, or till further order. 3. That the annual sum of I. may be allowed for the maintenance and education of the said infant N. W., as from the 1st day of January, 1888, and for the time to come during her minority, or till further order. 4. That the said allowances may be paid to the said A. W., as the guardian of the said infants, by E. C. (the executrix of the late A. G. C, who was an executor of the late G. W., the father of the said infants), or by A. W. G., the surviving executor of the said G. PT., by equal half-yearly payments of I. each out of the interest to accrue from time to time upon the sum of I. India Three-and-a-Half per Cent. Stock, and I. like stock respectively, standing in the names of the said E. C, and forming part of the estate of the said G. W., or upon the surplus or residue of such stock, which will remain after the sale hereinafter men- tioned, and out of the sum of [x] L, in the hands of Messrs. , bankers, at , aforesaid, to the credit of the said E. C, as the executrix of the said A. G. C, and forming part of the estate of the said G. W., and (after the said sum of I. shall be exhausted) out of the proceeds of such sale the first of such half-yearly payments to be made in the month of July, 1888. 6. That after the said sum of [x] I. shall have been exhausted by the payments thereout aforesaid, so much of the said India Three-and-a-Half per Cent. Stock may from time to time be sold as will from time to time, with the interest to accrue on such stock, be sufficient to pay the said half-yearly sums of I. each. 6. Or that the said sums of I. India Three -and-a-HaK per Cent. Stock, and Z. like stock and [x] I. cash in the said bank, may respectively be transferred and paid to the said A. W., as such guardian of the estate as aforesaid, with liberty to apply the same from time to time in manner aforesaid. 7. And that tlie costs of this application may be taxed as between solicitor and client, and that the same may be paid out of the said sum of [x]Z., or that such costs may be otherwise properly provided for. Dated, &c. [Conclude as in Form 1, p. 334, addressing the summons to the said E. C, the said A. W. G. having renounced probate.] 13. Consent of Guardian to Act. [Title as in Form 12.] I., A. W., of , in the county of , spinster, hereby consent to act as guardian of the persons and estates of tlie above- named infants M. J. W. and N. W. Dated this day of , 1888. (Signed) A. W. I, 0. H., of , in the county of , solicitor, hereby 346 ORIGINATING SUMMONS. certify that the above written siguatnre is the signature of A. W., the person mentioned iu the above written consent, (a) 14. Affidavit of Fitness of Proposed Guardian. [Title as in Form 12.] I, M. B., oi , iu the county of , sj)inster, make oath and say as follows : 1. I have for nineteen years last past known and been well acquainted witli A. W., of , in the county of , sj)inster, the person proposed to be appointed guardian of the persons and estates of the above-named infants during their respective minorities, or until further order. 2. The said A. W. has for twenty-seven years and upwards last past resided at , aforesaid, and during the life of her father G. W., deceased, assisted him in the management of his business or trade of draper, iu , aforesaid, and has, since his death, herself carried on the said business. 3. The said A. W. is a person of good credit and of thorough respectability and integrity, and I verily believe her to be a fit and desirable person to be appointed guardian of the persons and estates of the said infants. Sworn, &c. 15. Affidavit Filed in Support of Summons, Form 12. [Title as in Form 12.] I, A. W., of in the county of , spinster, the next friend of the above-named infants and their half-sister, make oath and say as follows : — 1. I am the person whom it is proposed to appoint the guardian of the persons and estates of the above-named infants M. J. W. and N. W. 2. The said M. J. W. was ])orii on or about the day of , 187 , and is now of the age of yeai's, and the said N. W. was bom on the day of , 187 , and is now of the age of years. 3. Under the will of their father, G. W., late of aforesaid, draper, deceased, and proved on the day of 18 , the said infants are al)solutely entitled to two equal undivided third parts or sliares of the personal estate of the said G. W. Such estate now consists of the following particulars : I. India Three-aiul-a-Half per Cent. Stock standing in the name of A. G. C, of , now deceased, the late legal ])ers()ual representative of the said G. W. and I. dividends thereon. /. like stock standing in the same name and representing the sum of I., part of the purchase money of the stock-in- (n) This certificate was accepted in the present case, but Order XXXVIII., r. 19a, only applies in terms to a new trustee. For form of affidavit verifying the above consent, see Dan. F. 1275, which can be readily adapted. APPENDIX III. 347 trade and other eifects and the goodwill of the biisiuess of a draper carried ou by the said G. W. iu his lifetime as hereinafter men- tioned. I. due to the estate from me this deponent and represent- ing the balance of the purchase money of such stock-in-trade and goodwill. I., balance at the bank of Messrs. , and Z., interest on same, standing to the credit of the executor of G. W., deceased, and representing proceeds of sale of furniture belonging to the said G. W. 4. The said G. W. died on the day of 1886, and his will was proved on the day of 1886, in the district registry at of the Probate Division of Her Majesty's High Court of Justice, by A. G. C, one of the executors therein named, power being reserved to A. W. G., the other executor. 5. The said G. W. was, at the time of his death, carrying on the business of a draper in aforesaid, and by his said will he empowered his executors, if they should think fit and with my consent, to dispose of the same. 6. At the date of the death of the said G. W. I was and had been for nine years previously assisting him in carrying on the said business of a draper, and by an agreement dated the day of 1886, I agreed with A. G. C, the acting executor of the said will of the said G. W.. to purchase part of the stock-in-trade and other effects of the said business and the goodwill thereof at the price of I., being the amount at which the same had been valued by Messrs. , auctioneers and valuers of aforesaid. The said agreement and valuation respectively are now produced and shown to me and marked with the respective letters and figures A. W. I and A. W. 2. 7. I have paid to the said A. G. C. the sum of I., i)art of the said purchase money of I., and the balance of I. still remains due and owing from me to the estate of the said G. W. 8. The only relations of the said M. J. W. and N. W. now living, are me, this clexionent, their half-sister, and A. H., M. B., and E. B., aunts of the said infants, who are living a distance away and take no interest in these children, and they never see anything of them. 9. The said infants M. J. W. and N. W. are now and have been since the death of the said G. W. residing with me at street, , aforesaid, and during the whole of that time I have maintained them at my own expense and out of the profits of the said business of a draper which I am now and liave been since the death of the said G. W., carrying on for the benefit of myself and infants, aud as the only means of maintaining myself and them. 10. The profits of the said business are very small, and, with the excejition of their share as aforesaid of the estate of the said G. W., the amount of the annual income whereof is set forth iu the schedule hereto, the said infants have no other estate or means of subsist- ence. 11. The schedule hereto contains a statement of the estimated annual income derivable from the estates of the said inftmts and 348 ORIGINATING SUMMONS. available for their maiuteuanee, and such estimated annual income so available amoimts in the whole to the sum of 121. Half of this sum is in-operly applicaljle to the maintenance of the said infant M. J. W., and the other half to the maintenance of the said infant N. W. 12. In my judgment and opinion an allowance of I. per annum is proper and necessary for the maintenance and education of the said infant M. J. W., and an allowance of I. per annum is proper and necessary for the maintenance and education of the said infant N. W., and without this assistance I shall be unable any longer to maintain and support the said infants. The Scliediole above referred to. I. India Thi-ee-aud-a-Half per Cent. Stock, less tax ... ... ... ... ... ••• ••• £ Interest at 4 per cent, on I., balance of purchase money of stock-in-ti-ade as aforesaid, less tax £ Total income available ... £ Two-thirds equals ... £ Filed, &c. Sworn, &c, 16. Affidavit filed by the Respondent to Summons, Form 12. [Title as in Form 12.] I. E. C, of No. , in the county of , widow, make oath and say as follows : — 1. I am the widow and sole executrix of the late A. G. C, of , aforesaid, who was the late legal personal representative of G. W., late of , aforesaid, draper, deceased. 2. The said infants M. J. W. and N. W. are absolutely entitled under the will of their father, the said G. W., to two equal undi- vided third parts or shares of the personal estate of the said G. W., which estate now consists of the following x^articulars : — £ s. d. oOOl. India Three -and -a-Half per Cent, stock standing in tlie name of the said A. G. C, as such legal personal I'epx'esentative of the said G. W., representing the sum of 303Z. 17s. 6d. (part of the purchase money of the stock-in-trade, book deljts, furniture, and other effects, and the goodwill of the business of a draper, carried on by the said G. IT. in his lifetime) 303 17 6 BaLance due to the estate from the said Miss A. W., for part of the stock-in-trade and other effects of the said business, and the goodwill thereof purchased by her ... 208 Balance at the bank of Messrs. , standing to the credit of the said A. G. C, representing the balance of the proceeds of sale, furniture, APPENDIX III. 349 and effects, and book debts, and a sum of money received from the estate of the widow of the said G. W 68 16 11 £580 13 5 3. There is a sum of 15Z. at the said bank standing to the credit of the said A. G. C, in trust for the said M. J. W. and N. W., repre- senting tJie interest on the before-mentioned India Three-and-a- Half per Cent. Stock. 4. I am informed that a sum of 6/. is in the hands of my solicitor, Mr. , which will be nearly if not quite exhausted by his bUl of costs against the estate previous to the commencement of these proceedings. 5. Most of the book debts have been collected ; there are a few outstanding accounts which I consider it will take time to collect, and which may realise about ])ounds. 6. The sum of I. was on the day of , 1886, paid as probate duty upon the inventory of the estate, which was estimated at 5501. 7. I consider the said A. W. is a fit person to be appointed guardian of the said infants, but as to the propriety of appointing the said A. W. guardian of the estate of the said infants, I have no means of judging other than I believe that the said A. W. is not a person of substance, and dejaends solely on the profits from the business of a draper carried on by her, which business is not extensive, (a) Sworn, &c., 17. Order made on Summons, Form 12. day the day of , 1888. [Title as in Form 12.] \_Omitting formal parts.^ The judge doth appoint A. W., oi street, , in the county of , spinster, guardian of tlie persons of the above-named infants, 3f. J. W. and N. W., during their respective minorities, or until further order. And it appearing from the said affidavit of E. C. that the share of the said infants in the estate of the said G. W., the father of the infants, may be taken to be represented by the sum of 300L India Three-and-a-Half per Cent. Stock standing in the name of A. G. C. deceased, as executor of the said G. W., 151. cash i*ei)resenting dividends thereon, and 68L 15s. lid. balance standing to the credit of the said A. G. C. with . It is ordered that the said E. C, as executrix of the said A. G. C, the deceased executor of the said G. W., she by her solicitor submitting to this order, and with the said consent of the said A. W., do on or before the , 1888, make the lodgments into court mentioned in the lodgment schedule hereto of 300Z. India Three- and-a-Half per Cent. Stock standing in the name of A. G. C, deceased, in the books of the Bank of England as executor of the (a) Of course the latter portion of this paragraph is not recommended for general use in applications for guardian of the estate. 350 ORIGINATING SUMMONS. said G. W. deceased, aud /. cash, being 151. dividends on such stock, and 68^. 15s. lid., the balance standincf to the credit of A. G. C with Messrs. of , after deducting I., the amount of tlie assessed costs of the applicant, and Z., the amount of the like costs of the respondent of this application, and I. for maintenance of the said infants to , 1889. And it is ordered that the said E. C. do pay the applicant's said costs of /.. and retain her own said costs of I., out of the said sum so deducted, aud also pay the said sum of I. to the said A. W.. for maintenance of the said infants to , 1889. And it is ordered that the annual sum of 30/. be allowed for the maintenance and education of the said infants, 31. J. W. and N. W., during their minority, aud be raised and paid to the said A. W., as their guardian, as in the schedule mentioned. And it is ordered that the funds to be lodged be dealt with as directed by the schedules hereto. And it is ordered that the sum of 208L, the balance of purchase money due from the said A. W., be taken to represent her share in the estate of the said G. W. And it is ordered that the balance, if any, of the sum of I., and any further sums which may be received in respect of book debts due to his estate respectively referred to in the said affidavit of E. C. be paid by her to the said A. IF., on account of past maintenance of the said infants. Lodgment and Payment Schedule. In the High Coui-t of Justice, Chanceiy Di\asion. Re M. J. W. and N. W., infants. Ledger credit. As above. I. Lodgment. June, 1888. Persons to Amounts. Particulars of funds to be lodged. make the lodgment. Money. Securities. £ s. d. £ s. d. India 31. 10s. per centum Stock. E. C. 300 Dividends on said India Stock 15 Balance standing to credit of A. G. C. with Messrs. at 68 15 11 ^683 15 11 £ s. d. Less costs of applicant of applica- tion .. 20 Costs of re- spondent.. 15 Maintenance. 20 55 The same. 28 15 11 i28 15 11 APPENDIX III. 351 II. Payment. Funds to be dealt with : Funds to be lodged as above. Particulars of payments, transfers, or other oi^erations ordered. Payees and transferees or separate accounts. Amounts. Money. Securities. Invest in India 3L 10s. per centum Stock. On or after the January, the April, the July, and the October, 1889, and on or after the same days in each siic- ceeding year during the mino- rity of the infants M. J. TV. and N. W., sell sufficient India Stock to be lodg-ed and purchased with the dividends to accrue on such India Stock, or the residue thereof, to raise the annual sum of 30L by equal quarterly pay- ments of 71. 10s. each free of income tax, the first of such sales to be made on or after the January, 1889. Pay proceeds of sale and divi- dends. A.W., of spinster,as guardian. £ s. d. 28 15 11 7 10 £ s. d. 18. Originating Summons for Appointment of Guar- dian OF Person and Estate and for Maintenance AND other purposes. 1885, M., No. In the High Coiirt of Justice, Chancery Division, Mr. Justice In the matter of the estate of Joseph M., deceased. Between /. B. M., an infant under the age of twenty-one years, by E. M., his next friend, Plaintife, and H. C, E. 8. M., spinster (the surviving trustee of the will of the above-named /. M., deceased), and E. M., spinster, and E. A.C., respectively infants under the age of twenty-one years. Defendants. And in the matter of J. B. M., an infant, by E. M., his next friend. And in the matter of an estate called , situate at , in the coimty of , settled by will, dated the day of , 1866, of B. M., deceased. And in the matter of the Settled Land Act, 1882. 352 ORIGINATING SUMMONS. Let [all parties eonceriiecl(a)] attend at the chambers of Mr. Justice at the Royal Courts of Justice, at the time specified in the margin hereof, upon the application of the above-named plain- tifP /. R. M., the infant tenant in tail under the settlement created by the aliove-mentioned will of R. M., and a beneficiary under the will of tlie said /. M.. by the above-named E. 3L, of in the county of , spinster, his next friend. 1. That it may be declared by this Honourable Court whether, having regard to the trust for accumulation contained in the will of the testator /. M.. deceased, dated tlie day of , 1878, and notwithstanding such trust, the defendants H. C. and E. S. 31., the surviving trustees of such will, are authorised imder sect. 43 of the Conveyancing and Law of Property Act. 1881, to apply the income of a moiety of the residuary estate of the same testator, or any part thereof at their discretion, in and towards the maintenance and education of tlie infant plaintifB /. R. M. 2. If this Honoura])le Court should not see fit to declare that the said trustees are authorised to apply the income as aforesaid, then that so much of the income of the same moiety as will from time to time be required to effect and keep on foot a policy of assurance in the Life Assurance Otfice. on the life of the said infant plaintiff /. R. M., for the siim of 2000?. for a period of thirteen years, in tlie names of the defendants H. C. and E. 8. 31., to be held )iy them as security for recou])ing the estate of the said testator /. 31. the loss in the event of the deatli of the said plaintitf under the age of twenty-one years, of the income which shall have been advanced out of the said moiety for the maintenance and education of such infant plaintiff, and the moneys paid for pi-ocuring and keeping on foot the said policy, and also for the costs of obtaining the order or ordei's to be made hereon (or a proper proporticmof such costs), and also such an amount as would be equivalent to the amount which would have arisen from such part of the income of the said moiety as should be so ap])lied in case the same had been accumulated as directed by the said testator's will, and that the balance of the income of the aforesaid moiety of the said residuary estate, after deducting therefrom the amount I'equired to effect and keep on foot the before-mentioned policy of assurance, may be allowed for the maintenance and education of the said infant plaintiff, in respect of his interest under the said testator's will as from the day of , 1885, during his minority, or imtil further oi-der. 3. That tlie said Italince of income as last aforesaid may be paid by the last-named defendants, as tnistees of the said testator's estate, to the guardians when appointed of the said infant plaintifB, by equal half-yearly payments, on the day of . and the day of , the first of such payments to be made on the day of , 188 . 4. That it may lie declared u])on what securities the said defen- dants H. O. and E. S. 31.. as such trustees as aforesaid, are by their said testator's will autliori.sed to invest the proceeds arising fi'omtho sale and conversion of the residuary estate of their said testator. {a) Instead of the words in brackets it would be better to insert the names, addresses, and descriptions of the respondents. APPENDIX III. 353 5. That it may be declared whether the last-named defendants ought to set aside and invest the proceeds o£ the residuary estate of the said testator in separate moieties, or how otherwise. 6. That the said E. M., the sister of the said J. B. M. and A. M., of , in , in the county of , spinster, the paternal aunt of the said J. R. M., or some other proper person or persons, may be appointed the guardians of the person and estate of the said /. B. M. during his minority, or until further order. 7. That the whole of the income of all other the estate of the said infant plaintifE /. B. M. may be allowed for his maintenance and education, and that such income may be retained and aj)plied by the said E. M. and A. M., or other the guardians appointed of the person. and estate of the said infant plaintiff on the days herein- before appointed for the payment of the other portion of the income of the said infant plaintiff's estate. 8. That the said guai'dians when appointed may be at liberty to do the necessary repairs to the estate called , of which the said infant is tenant in tail in possession, and that the amount required to be expended in and about such repairs may be raised liy a mortgage of the said estate, called 9. Tliat W. B. C, of , in the county of , banker, and H. IF., of , in the said county of , timber mer- chant, may be appointed trustees of the settlement created by the will of B. M., deceased, for the purposes of the above-mentioned Act, and that tlie powers conferred upon a tenant for life by sects. 6 to 13 both inclusive, and sects. 16 to "20 liotli inclusive, of the above-mentioned Act, and all powers ancillary or incidental thereto, may be exercised by the said W. B. C. and S. W. on behalf of the said /. B. M. during his minority. 10. That all necessary directions for the taxation and payment of the costs of tlie applicants and of all necessary parties appearing on this application may be given. 11. That such other order or direction may be made or given as the circumstances of the case may require. Dated this day of , 188 . [Conclude as in Form 1, p. 334.J 19, Statement of Facts, [Title as in Form 18 or short title.] Statement of Facts, 1. The above-named /. M., late of , in the parish of , in the county of , gentleman, duly made his will, dated the day of 1878, and after making divers specific bequests, the said will proceeded as follows : " All the rest, residue, and remainder of my real and personal estate of what kind or nature soever, and wheresoever situate, I give, devise, and bequeath unto the said John M., H. C, W. P., and E. S. M., their heirs, executors, and administrators, according to the nature and tenure of the same (they being hereinafter called the trustees), upon trust to get in and convert into money, as soon as conveniently may be, all such of my said residuary estate as shall not consist of casli or money at my decease, with full powers of sale, and of realisation of A A 354 ORIGINATING SUMMONS. every part of the same ; and out of the proceeds thereof do in the first place pay and discharge my funeral and testamentary expenses, and any debts I may owe at my decease. And in the next place do pay a legacy of 19?. 19.s. to each of the children who may then be living (and be resident in England or Wales) of my late brothers J. M. and /. 31.. and do stand jjossessed of the remaining residuary estate and the stocks, funds, and securities upon which the same may be invested, upon trust as to one moiety or half part thereof, "to invest the same iipon Government, East India, or British Colonial stocks or funds, or in or upon real securities in England or Wales, or the stocks and shares of any company carrying on business in ihe United Kingdom, but not elsewhere, and to j)ay the net interest, ■di^'idends. and annual income of the same unto my .said niece E. S. M.. for her life, for her sole and sej)arate use and benefit, •exclusive of, and not to 1)6 subject to, the control, debts, or engage- ments of any husband with whom she may iutermari-y, and without any power of alienation, charge, or anticipation of any part of the income, whicli, notwithstanding any such, shall always be payable and paid by the trustees into the proper hands of the said E. S. M. for her own personal iise and benefit. And upon and from her death upon trust as to the principal moneys of such moiety of my said residuary estate, and the stocks, funds, and securities whereon the same may be then invested, for all and every, or such one or more of the children of the said E. S. M. (in case of her marriage and issue therefrom) as she shall by deed or will appoint, and in defaiilt of appointment the same to be equally divided between all the children (if more than one) of the said E. 8. M. sliare and share alike, and if but one, then to such only child, sucli share or shares to be vested on such child or children respectively attaining twenty- one years of age, or dying under that age, having married and leaNdng issue; and in default of issue of the said E. S. M. upon trust as to such moiety of the same residuary estate, and the stocks, funds, and securities upon which the same may be invested, upon trust to pay and divide the same equally between all the then surviA-ing children of my said nephew John M., and of my said niece L. E. C. (wife of the said H. C.) equally between them share and share alike as tenants in common, their executors, administra- f ors, and assigns, for their own use and ])enefit ; and as to the other or remaining moiety or half ])art of my said residuary estate, and the stocks, funds, and securities upon which the same may be invested, upon trust to receive the dividends, interest, and annual income thereof, and to invest the same from time to time in and npon other securities of the like nature as hereinbefore mentioned, and to accumidate such income and invested income until the eldest son of my said nephew John M.. who may live to attain the age of twenty-one years, shall attain such age. and then immediately tJiereu])on to pay over and transfer the principal of such last moiety of tlie said residuary estate, together witli all accumulations of such dividends, interest, and income, and the stocks, funds, and securities upon which such principal and accumidated income may liavi' l)een invested, to such eldest son of my said nephew on his so attaining such age of twenty-one years for his own use and benefit absolutely: ProA-ided that if it shall happen that no son of my said APPENDIX III, 355 nephew John M. sliall live to attaiu tlie age of tweuty-one years, and become entitled to the said moiety of my residuary estate, and such accumulated income thereof, then I give and bequeath the same nnto and equally between and a-mongst all the then surviving daughters of tlie said John M.. and the issue of such of his daughters as may be then deceased lea^nng issue (such issue nevertheless taking between them the share of their deceased ]uother per stirpes and not per capita), and the then surviving children of the said L. E. C. (and the issue of such of them then dead lea^ang issue in like manner), share and share alike as tenants in common for their own use and benefit. I appoint the said John M.. H. C, W. P., and E. S. M. to be trustees and executors of this my will (hereby revoking all former wills by me at any time lieretofore made), and I give to each of them the sum of 19 guineas for their trouble in carrying out tlie same in addition to any legacy which either of them may be otherwise entitled to under this my will. And I expressly authorise and empower them to continue all or any pai*t of my personal estate in or upon any of the securities or investments upon which the same may be at the time of my decease, and from time to time, at their discretion, to realise the same, or any part or parts thereof, as they may think fit, and reinvest the proceeds for the purpose of the then subsisting trusts of this my will in other securities or investments of the same nature and character, or of those before specified, as those on which my residuary trust estate may be invested, and from time to time to alter and vaiy the same as they in such their discretion may think fit without being in any way liable or accountable for any loss or diminution resulting therefrom, it being my express direction that my said trustees and executoi's shall not he confined to such investments as trustees are ordinarily limited to and allowed to make by law, but shall have free and absolute discretion in the management and investment thereof." 2. The testator made a codicil, dated the day of , 1879, to his said wiU, but such codicd is not material to this matter. 3. The said testator died on the day of , 1883, without having revoked or altered his said will ; and on the day of , 1883, the same wiU was proved hj all the said executors therein named, in the District Registry of the Probate Division of the High Court of Justice. 4. The debts and fimeral and testamentary expenses of the said testator, and the pecuniary legacies bequeathed by his said will, have been paid, and his residuary estate now consists of the following, viz. : [Here insert short particulars.^ 5. AU the said investments were existing at the death of the testator, except the said mortgage for I., which sum represents certain securities of the said testator which have been got in since his death. There are inoreover accumulations of income of the moiety of the residuary estate of the said testator contingently be- queathed to the plaintiff /. R. M. as aforesaid, such accumulations at the present amount to the sum of 200/. or thereabouts. A A 2 356 ORIGINATING SUMMONS. 6. The said John M., the said testator's nephew, and one of the tnistees of his said -will, died on the day of , 1885. 7. The iufaut plaiutiif /. B. M. was at the date of the will of the said testator J. M. and is still, the eldest son of the said /. M., deceased. He has two brothers and eight sisters. 8. The iufaut defendant E. M., spinster, is one of the sisters of the infant plaintiff, and the infant defendant E. A. C. is one of the children of L. E. C. in the testator's will mentioned. 9. The securities as to which the tnistees of the testator's will require directions as to whether or not they should be retained are those numbered 1, 5, 7, and 11 of the securities set out in j)ara- grapli 4 of this statement. 10. In addition to the infant j)laintiff's contingent interest under the said will, he is also entitled under the will of R. M., dated the day of , 1866. and who died on the day of 1871, and whose will was proved on the day of . 1871, as tenant in tail male in posses.sion to a freehold estate called , situate in aforesaid, such estate being of the net annual value of 150/. or thereabouts. The said John M., deceased, the father, was tenant for life of the last mentioned estate imder the said will of the said B. 31., and he farmed the said land. 11. The last-mentioned farm is about being let for 150Z. a year, the total income of the infant plaintiff will probably be about 250Z. to 300/. a year, the income from the moiety of the investments before refei-red to under the said Joseph M.'s will, to wliieh the said infant plaintiff is entitled, being now about 150/. a year. The questions upon which the opinion of tlie court are required are those raised by the first five paragraphs of the summons. FORMS OF ORIGINATING SUMMONS AND OTHER PROCEEDINGS Under Order LV., r. 3 or rr. 3 and 4 combined, (a) 20. Originating Summons by surviving Executors for DETERMINING QUESTIONS OF LaW AND CONSTRUCTION ARISING UPON A "WlLL. In the High Court of Justice, 1886, W., No. Chancery Division, Mr. Justice , In the matter of the estate of C. W., deceased. Between G. 5. iS Plaintiff, and C.J.H. and 8. W. the wife of H. W. W., A. B. ir., n. C. W. W., and c. w. F. W., and P. W. W. and M. 8. W., respectively, infants, and 8.T., W.N., and G. M. D., spinsters, Defendants. Let the defendants C. J. H. of , in tlie county of , (a) For Order LV., r. 3, see ante, p. 79, et seq. ; and as to the title to, and form of, Originating Summonses see ante, pp. 102 and 329. APPENDIX III. 357 goldsmitli, aud 8. W., the wife of the said H. W. W., of , in the coiiuty of , a clerk iu , legatees in trnst under the will of the above-named testator C. W. aud A. B. W. of , spinster, H. C. W. W. of the same place, C. W. F. W. of the same place, and P. W. W. and M. S. W. both of the same place respectively, infants, all of whom are or claim to be residuary legatees and cestuis que trust under the said will, and the defendants S. T. aud W. N., the surviving executors of the will of the late H. R. W., who was a brother, and one of the next of km according to the statutes for the distribution of intes- tates' effects of the said C W., aud the defendant G. M. D., who is a residuary legatee under the said will, attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, Londou, at the time specified in the margin hereof, upon the appli- cation of G. B. S., the surviving executor and trustee of the will of the above-named testator C. TF., that the following questions [of law and of construction (a)] arising upon the will of the said C. W. may be determined under the Rules of the Supreme Court, Order LV., r. 3, sub-sects, (a), (6), aud (g). (h) 1. Whether the gift in the said will contained of one -third part of the residue of the stocks, funds, and seciirities constituting the residuai-y estate of the said testator in favour of the children of his nephew H. W. W. failed to any and what extent by reason of the same infringing the rule against perpetuities or otherwise. 2. If the court shall be of opinion that the said gift failed to any extent, whether the one-third part comprised in the said gift, or any aud what part thereof, devolved upon the widow and next of kin of the said testator according to the statute for the distribution of intestates' effects, or how otherwise. o. Whether the gift in the said will contained of the principal sum directed by the said testator's will to be set apart to meet the annuity of 50Z., thereby bequeathed to E. W., failed to any, aud if any what, extent by reason of the same infi'inging the rule against perpetuities, or otherwise. 4. If the court shall be of opinion that such last-mentioned gift failed to any and what extent, whether the x^rincipal sum so directed to be set apart, or any aud what part thereof, devolved upon the widow and next of kin of the said testator according to the statute for the distribution of intestates' effects, or how otherwise. 5. Who were the next of kin according to the statute for the distribution of intestates' effects of the said C. W., deceased, living at the time of his death, and whether any of them are since dead, aud if so, who are their respective legal representatives. (c) (a) The words here in [ ] are optional when applicable. The rule against perpetuities is a rule of law as distinguished from one of con- struction. {b) In Dan. F., 1146, the following words are here added, viz. : " And relief given in respect thereof without an administration of the estate of the said C W." Such words follow the language of Order LV., r. 3, and are a convenient hut not a necessary part of the summons. (c) Upon the hearing of this summons the court declared that the gift in question failed as being a perpetuity, and that there was accordingly 358 ORIGINATING SUMMONS. 6. How the costs of and iuciclental to this application are to be borne. Dated this day of , 188 . This summons was taken out by A. B., oi , in the county of , agent for C. D., oi , in the county of , solicitor for the above-named G. B. S. To the above-named C. J. H., 8. W., the wife of the said H. W. W., A. B. W.. spinster, H. C. W. W., C. W. F. W., and P. W. W., and M. S. W. respectively, infants, and S. T. and W. N., and G. W. D. (a) Note. — If you do not attend either in person or by your solicitor [at the time and place above mentioned I, (fc) such order wiU be made and proceedings taken as the judge may think just and expedient. Before you will be heard in chambers, you will have to enter an apj)earance in the central office and give notice of such appearance. 21. Statement of Facts in Suppoet of Summons, Form 20. (c) [Title as in Summoiis.'] 1. This is an application by the surviving executor for the ijur- ))Ose of obtaining the declaration of the court as to whether a gift of a share of the residuary estate is or is not void by reason of the gift in terms infringing the rule against perpetuities. 2. The testator C. W.. formerly of , in the parish of , in the county of , and of , goldsmitli, by his wiU, dated the day of , 1870, a^jpointed his brother E. B. W.. his (testator's) wife H. W., B. W., spinster, the above-named plaintiff, and C. B., and W. N. (thereinafter referred to as his the testator's trustees), trustees and executors of that his will. And after giving cei'tain pecuniary and specific gifts gave, devised, and bequeathed all the residue and remainder of his real and personal estate and effects upon trust to sell and dispose of and convert into money all his residuary real and personal estate, or such parts thereof as sliould not consist of money, or investments, or securities, and to collect and recover all debts owing to him, and to adjust, settle, and wind-up all his accounts, affairs, and con- an intestacy. And an inquiry as to next of iin was ordered, and the plaintiff was ordered to pay the costs of the first seven defendants the residuary legatees out of the residue, and they were dismissed from the summons. Further consideration was adjourned in chambers. As a rule class inquiries and inquiries as to facts would precede the declaration of the court as to the rights of the parties. (a) Where the addresses and descriptions of the defendants are given in the Lody of the summons it is unnecessary to repeat them here. {1} If the time has been altered by indorsement, instead of the words in [ ] insert, " at the place abovementioned at the time mentioned in the indorsement hereon." (c) As to " Statement of Facts," see ante, p. 10. This form was not settled by counsel. APPENDIX III. 359 cerns, and to adjust, compi'omise, aud refer to arbitration aud release any debt, demand, and disj^ute which might exist or be owing to or from, or be made on behalf of or against or arise in rela- tion to, his real and personal estate and effects and the business carried on by him in partnership with his brother, the said H. R. W. And the said testator declared that his said trustees should stand possessed of the moneys to arise from such sale, con- version, and getting in of his residuary real aud personal estate and effects, and also of all the ready money which he should be possessed of at his death, after payment of costs, charges, and expenses of and incident to the execution of the trusts and powers reposed and vested in his trustees, upon trust to lay out, invest, and set apart so much of the residue of the said moneys in their names, either in the pv^blie funds, or in the debentures or debenture stock or guaranteed stock of any English or Indian railway com- pany, as would from time to time be sufficient to produce an income of 50Z. annually for the benefit of his the said testator's sistev E. W., as in the said will is particularly mentioned. And the said will then proceeded as follows : (a) " And after the decease of my said sister E. W., upon trust, subject to the proviso next hereinafter contained, to pay the principal sum so invested and set apart as aforesaid to the said C. J. H. and S. W., the wife of my nephew H. W. IF., a clerk in , upon the like trusts and for the like purposes as are hereinafter declared of and concerning one-third part of my residuary personal estate hereinafter bequeathed to them : provided always, and I declare, that in case my said sister E. W. shall die in the lifetime of my said wife, or of my said sister R. IF., then my trustees are to pay the income of 501. per annum yearlj'' and every year by half-yearly instalments to my said wife dui'ing her lifetime, and after the decease of my said wife to pay the same yearly and every year by half-yearly instalments to my said sister R. VV. during her life for her separate use and benefit." And the said will provided for the reinvestment of the balance of the moneys constituting the said testator's residuary estate as therein particularly mentioned, aud directed his trustees to pay the interest, dividends, aud annual proceeds of such investments to his wife during her life, and after the decease of his said wife to pay the same to his said sister R. W., and after the death of his said sister, and after payment of certain pecuniary legacies, one of which has lapsed by reason of the death of the legatee, the said testator directed his trustees to pay and transfer one-fourth part of one-third of the said residuary estate to each of the four daughters of his brother-in-law /. H. D., for her own use and benefit, and the said will then proceeded as follows : " And as to oue other third part of the residue of the said stocks, funds, and securities, upon trust to pay and transfer the same to the said C. J. H. and 8. IF., the wife of my nephew H. W. W., to be held by them in trust for all the children, or any the child of my said nephew living at my death or afterwards to be born, who being a son or sons shall attain the age (a) The clauses of the will on which the opinion of the judge is required should be set out verbatim. 360 OEIOINATING SUMMONS. of twenty-five years, or being a dangliter or daiighters shall attain tlie age of twenty-one years, or marry under that age, to be divided between such children if more than one in equal sliares." And as to the remaining one-third of the said residuary estate, the said testator directed that the same should be held upon trust to pay and transfer the same to the said C. J. H. and J. V. T. D., to be held by them in tnist for the six children of the said /. V. T. D., by his wife /. I)., since deceased, as to sons on their attaining the age of twenty-five years, and as to daughters on their attaining the age of twenty-one years, or marrying under that age, to be divided between them the said children in equal sliares. 3. The said testator C. W. died on the day of , 1S74, and his said will was proved on the day of , 1874, by the said H. B. W., H. W., the plaintifE, and C. B., four of the executors named in the said will, power being reserved to the said B. W. and W. N. to come in and prove the said will. 4. Neither the said B. W. or TT'^. N. ever proved the said will of the said testator. 5. The said B. W., the above-named executrix and annuitant, died on the day of , 1883, unmarried and intestate, and no representation to her estate has been obtained. The said E. W., the a))ove-named anniiitant, died on the day of , 1879, also unmarried and intestate, and no representation to her estate has been taken out. 6. The said testator's estate was duly converted and got in, and the legacies given by his will (save as to the legacy given to the defendant C. J. H.) and the whole of his debts and funeral and testamentary exjjeuses have been paid, and such residuary estate now consists of the following particulars. [Here insert short p articular s.~\ 7. The said testator was not jDossessed of any real estate whatso- ever. 8. No fund was ever set apart as directed by the said testator's will to answer the payment of the annuity of 50/. so as aforesaid given by the said testator, in the first place to his sister E. W., then to his said wife, and afterwards to his sister B. W. During the lifetime of the said E. W. her annuity was paid or satisfied out of the general income of the said testator's estate, and the said tes- tator's sister B. W. did not survive the said testator's wife. 9. The testator's widow, the said H. W., died on the day of , 1886, intestate, and administration to her estate was, on the day of , 1886, granted to her brother /. H. D. her only next of kin. 10. Plaintiff 's co-executor, the said H. B. W., died on the day of , 1884, and his will, with a codicil thereto, was duly l)r()yed in tlic principal registry of the Probate Division of Her ]\l;ij('sty's Higli Court of Justice on the day of , l<^y4, ))y the above-named defendants S. T., the surviving executor named in the will, and W. N., the executor named in the codicil to til.' will of the s;iid H. B. IV., deceased. 11. Tlio four daugliters of his the testator's, C. W., brother-in- law /. H. D., referred to in the said testator's will, claiming to be APPENDIX III. 361 interested between them equally iu one-third part of the said tes- tator's residuary estate, are L. H. D., C. A. D., C. A. E. D., and the defendant G. M. D., who are all above the age of twenty-one. 12. The children of the said testator's nephew H. W. W., claim- ing to be interested under the will of the said testator equally between tliem in the one-third part of the residuarj"- estate of the said testator, are tlie several defendants, A. B. W., H. C. W. W., C. W., F. W., P. W. W., and M. S. W. 13. The six children of /. V. T. D., by his wife /. D., since deceased, •claiming to be interested equally between them, under the said testator's will, to one-tliird of the said testator's residuary estate are the following, viz., W. 8. D., B. K. D., now the wife of A. L. C, H. H. D.. A. L. B., G. P. D., and E. J. D. 14. The next of kin of the said testator at the time of his death are supposed to have been as follows : the said testator's nephew H. W. W., the said testator's brother H. R. W. (whose representa- tives are defendants in these proceedings), and the said testator's sisters the said R. W. and E. W., and they or some of them, and the said testator's widow H. W., who, as aforesaid, survived the testator, or their rejiresentatives, would be entitled in distribution to any of the said residuary estate of the said testator not disposed of by his will. 15. Doubts as to who are the testator's next of kin however having arisen, in the event of the testator's next of kin being declared entitled, it will be necessary to direct an inquiry as to who are such next of kin. 22. Affidavits Filed in Support of Summons, Form 20. [a) [Title as in summons. 1 (b) I, G. B. 8., of , in the county of , silversmith, make oath and say as follows : 1. I am the plaintiif above named. 2. C. W., formerly of , in the parish of , in the county of , and of , in the parish of , in the same county , by his will, bearing date the day of , 1870, appointed his brother H. R. W., his (the testator's) wife H. W., R. W. (spinster), myself, the above-named plaintiff, and C. R. and W. N. (thereinafter referred to as his the testator's trustees), trustees and executors of that his will, and after giving certain pecuniary and specific gifts, gave, devised, and bequeathed all the residue and remainder of his real and personal estate and effects uj)on trust to sell and dispose of and convert into money all his residuary real and personal estate, or such parts thereof as should not consist of money or investments or securities, and to collect and recover all debts owing to him, and to adjust (a) As to evidence generally see ante, p. 29, et seq., and p. 92. (b) Save and except that, as there are several defendants, it will be suffi- cient to state the name of the first defendant in fnll and to refer to the rest as " and others." See ante, p. 40. 362 ORIGINATING SUMMONS. settle, and wiud-up all liis aceouuts, affairs, and concerns, and to adjust, compromise, and refer to arljitration, and release any debt, demand, and dispute which mio;ht exist or be owing to or from, or be made on behalf of or against, or any wise in relation to, his real and personal estate and effects, and the business carried on by him in partnership with his brother, the said H. JR. W., and the said testator declared that his trustees should stand jtossessed of the moneys to arise from such sale, conversion, and getting in of his residuary real and personal estate and effects, and also of all the ready money which ho should be possessed of at his death, after payment of costs, charges, and expenses of and incident to the execution of the trusts and powers reposed and vested in his trustees, upon trust to lay out, invest, and set apart so much of tlie residue of the said moneys in their names, either in the public funds or in the debentures or de])enture stock or guaranteed stock of any English or Indian railway company, as would from time to time be sufficient to produce an income of bOl. annually for the benefit of his (the testator's) sister E. W., as in the said will is particularly mentioned. And the said will then proceeded as follows : " And after the decease of my said sister E. W., upon trust, subject to the proviso next hereinafter contained, to pay the jjrincipal sum so invested and set apart as aforesaid to the said C. J. H. and S. W., tlie wife of my nephew H. W. W., upon the like trusts and for the like purposes as are hereinafter declared of and concerning one-third part of my residuary personal estate herein- after bequeathed to tliem. Provided always, and I declare, that in case my said sister E. W. shall die in the lifetime of my said wife or of my said sister B. W., then ray trustees are to pay the income of 50L per annum yearly and every year by half-yearly instalments to my said wife during her life, and after tlie decease of my said wife to pay tlie same yearly and every year by half- yearly instalments to my said sister R. W. during her life for her separate use and benefit." And the said will provided for tlie invest- ment of tlie balance of the moneys constituting the said testator's residuary estate as therein is particularly mentioned, and directed his trustees to pay the interest, dividends, and annual jH'oceeds of such investments to his wife during her life, and after the decease of his said wife to pay the same to his said sister R. W., and after tlie death of his said sister, and after payment of certain pecuniary legacies, one of which has lapsed by reason of the death of tlie legatee, the said testator directed his trustees to pay and transfer one-fourth part of one-third of tlie said residuary estate to each of the four daughters of his brother-in-law J. H. D., for her own use and benefit. And the said will then proceeded as follows : " And as to one other third part of the residue of the said stocks, funds, and securities, upon trust to pay and transfer the same to the said. C. J. H. and 8. \V., the wife of my nephew H. W. W., to be held by them in trust for all the children or any the child of my said nephew living at my death or afterwards to be born, who, being a son or sons, shall attain the age of twenty-five years, or being a daughter or daughters, shall attain the age of twenty-one years, or many under that age, to be divided between such children, if more than one, in equal shares." And as to the remaining one-third of the APPENDIX III. 363 said residuary estate, the said testator directed that the same should be held upon trust to pay aud transfer the same to the said C. J. H. and J. V. T. B., to be held by them in trust for the six children of the said /. V. T. D. by his wife /. D., since deceased ; as to sons, on their attaining the age of twenty-five years, and as to daughters, on their attaining the age of twenty-one years, or marrying under that age, to be di-\-ided between the said children in equal shares. 3. The said testator C. W. died on the day of , 1874, and his said will was proved on the day of , 1874, by the said H. B. W., H. W., myself, aud C. B., four of the executors named in the said will, power being reserved to the said B. W. and W. N. to come in aud prove the said will. The probate of the said will is now produced to me marked S'. 4. Neither of them the said B. W. and W. N. has ever come in and proved the said will of the said testator. 5. The said B. W., the above-named executrix and annuitant, died on the day of 1883, unmarried and intestate, aud the said E. W., the above named annuitant, died on the day of , 1879, also unmarried and intestate. 6. The said testator's estate was duly converted and got in, and the legacies given by his will (save as to the legacy given to the defendant C. J. H.) and the whole of his debts and funeral and testamentary expenses have been paid, and such residuary estate now consists of the following particulars : [Sere insert short particulars.^ 7. The said testator was not possessed of any real estate whatso- ever. 8. No fund was ever set apart as directed by the said testator's will to answer the payment of the annuity of 501. so as aforesaid, given by the said testator in the first place to his sister E. W., then to his wife, and afterwards to his sister B. W. During the life- time of the said E. W.. her annuity was f)aid or satisfied out of the general income of the said testator's estate, and the said testator's sister B. W. did not survive the said testator's wife. 9. The said testator's widow the said H. W. died on the day of 1886 intestate, and administration to her estate was on the day of 1886, granted to her brotxier /. H. D., her only next of kin. 10. My co-executor, the said H. B. W., died on -the day of 1884, aud his will with a codicil thereto was duly proved in the Principal Registry of the Probate Division of Her Majesty's High Coui't of Justice on the daj- of 1884, by 8. T. the surviving executor named in the will, and W. N. the executor named in the codicil to the will of the said H. B. W. deceased. 11. The four daughters of his the testator's brother-in-law /. H. D. referred to in the said testator's will, claiming to be interested between them equally in one-third part of the said testator's residuary estate are, L. H. D., C. A.D., C. A. E. D., and the defendant G. M. I)., who are all above the age of twenty-one. 12. The children of the said testator's nephew, H. W. W., claiming to be interested under the will of the said testator. 364 ORIGINATING SUMMONS. equally between them, in the one-third part of the residuary estate of the said testator, are the several defendants, A. B. W., H. C. W. W., C. W. F. W., P. W. TF., and 31. S. W. As to the claim of the last- named ehildnni, I have been advised that the gift contained in the said will of the said testator, C. IT., is bad by reason of the same gift in terms infringing the rule against perpetuities. 13. The six cliildren of J. V. T. D., by his wife, /. D., since deceased, claiming to be interested equally between them under the said testator's will to one-third of the said testator's residuary estate are the following, viz., W. S. D., B. K. D. (now the wife of A. L. C), H. H. D., A. L. D., G. P. D., and E. J. D. 14. I am advised that the next of kin of the said testator, at the time of his death, are supposed to have been as follows : Tlie said testator's nephew, H. W. W. ; the said testator's brother, H. B. W. : and the said testator's sisters, the said B. W. and E. W., and they or some of them, and the said testator's widow, H. W., who as aforesaid survived the testator, or their representatives, would be entitled in distribution to any of the said residuary estate of the said testator not disposed of by his will. 15. I am advised that no representation to the estates of the said E. W. and B. W. have yet been obtained. 16. I am also advised that doubts have been suggested and have arisen as to who really arc the said testator's next of kin. Sworn at , in the couuty of , the day of 188 , Before me, A. B. A Cou\missioner to administer Oaths in the Supreme Court of Judicature in England. Filed on behalf of the piaintifP . [Title as in Form 20.] I, S. W. (the wife of JT. W. W., oi , in the county of ), one of the above-named defendants, make oath and say as follows : — 1. On the day of , 185!). I then being a s])inster, was married to H. W. W., he then being a bachelor ; and the persons " H. W. W. and 8. P.," respectively appearing in the paper writing now produced to me, marked S. W., being a certi- ficat of our marriage, are the same persons as myself and my said hu.sband. 2. Tliere has been issue of the said mai'riage seven children, and no more; tliat is to^say, M. L. W., who was Ijorn on , 1859, A. B. W., who was born on the , 1860, H. C. W. W. who was born on the , 1862, C. W. F. TF.. who was bom on the 1863, A. D. W., who was l)orn in tlie year 1864. P. W. W., who was born on the , 1866, and M. S. W., wlio was born on the , 1870. 3. Tlie said last-mentioned five children are the five above-named defendants of the same name, save tliat my daughter is called in the snmmons in tliis matter. 4. My said husband is tlie same person as the testator, C. W.'s, nephew, H. W. W., nanied in liis will in cjuestion in this matter. APPENDIX III. 365 5. I am now of the age of fifty-five years, and my said Imsband is now of the age of fifty-six years. 6. Two of my said above-named cliiklren, viz., M. L. W. and A. D. W., are dead ; the said M. L. W. died in the year 1873, and the said A. B. W. died a baby in the year 1865. Sworn, &c., Filed, &c. 23. Originating Summons by two out of three Trustees AND Executors against a Third, who was also a Beneficiary, for Determining Questions of Con- struction and Administration arising upon a Will. In the Higli Conrt of Justice, Chancery Division. Mr. Justice In the matter of the estate of T. N., deceased. Between /. P. and B. B. the younger, Plaintiifs, and L. N., widow, B. 8., H. P., and/. 0. N., Defendants. Let the defendants, L. N., widow, a trustee of and beneficiary for life under the wiU of the above-named T. N., and B. S. and it. P., the devisees in trust of the i*eal and personal estate of JE. N., who Avas a devisee, legatee, and cestui que trust under the same will, and /. 0. N., the heir-at-law of the late F. L. N., who was a devisee, legatee, and cestui que trust under the same will, and also heir-at- law of the late H. T. N., who was, or claimed to be a devisee, legatee, and cestui que trust under the same will, attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, London, at the time specified in the margin hereof upon the application of /. P., of aforesaid, innkeeper, and B. B., of , in the county of , farmer (formerly B. B. the youngei'), two of the trustees and executors of the will dated the day of , 18 , of the said T. N. that the following questions [of construction and administration (a)] arising upon the wiU of the said T. N. may be determined under the Rules of the Supreme Court, Order LV., r. 3, sub-sect, (g), and r. 4. (b) 1. Whether H. T. N., E. N.. and F. L. N., the three children of the said testator or any and which of them respectively, took vested interests in the real and personal estate of the said testator, or the moneys to arise by the sale and receipt thereof or any part thereof respectively under or by virtue of the said will, and at what time they respectively acquired such vested interests. 2. What children of the said testator were intended to take his said real and personal estate or any part thereof under the descrip- tion contained in the said will of " all and every my child and chil- dren who shall be li\ang." 3. Whether the real estate of the said testator or any part thereof ought, under the trusts or pro^asions of the said will, to be treated (a) The words here in brackets are optional when applicable. (b) See note (b) to Form 20, ante, p. 357. 366 ORIGINATING SUMMONS. as converted into personal estate as from the death of the said testatoi* 01" from any other and what period. 4. Wliother tlio jjlaiutiffs and defendant, L. N., as such trustees and executor as aforesaid will he justified in payins;' off a certain niorfofao'e deht of I. and interest due from tlie testator to one E. M. H., or his legal personal representative, out of the proceeds of the sale of part of the i-eal estate of the said testator whicli is not charged with sucli mortgage debt. 5. How the costs of this application ought to be borne. And that (if necessary) the real and personal estate of the said testator may be administered. Dated this day of , 18 . This summons was taken out by A. B., of , in the county of , agent for C. D., of , in the county of , solicitor for the above-named /. P. and B. B. the younger. To tlie above-named L. N., oi . in the county of widow ; B. S.. of , in the county of ; H. P., of , in the county of ; and J. 0. N., of in the county of Note. — If yon do not attend either in person or by your solicitor [at tlie time and place above mentioned {a)'] such order will be made and proceedings taken as the judge may think just and expedient. Before you will be heard in chambers you will have to enter an appearance in the Central Office and give notice of such api^earauce. 24. Statement of Facts in Support of Summons, Form 23. (b) \_Title as in Stimnions.'] Statement of facts. 1. By his will dated , 1866, T. N., of , carpenter, appointed his wife the defendant L. N. during her widowhood only, and the plaintiff /. P., and B. B. the younger, joint executrix and executors, and directed that all his just debts, funeral, testamentary, and other expenses should be paid and discharged as soon as con- veniently could be after his decease hj his said ex(>cuti"ix and executors. And after becpieathing to eacli of his executors 5L he gave unto his said wife such of his household goods, funiiture, and effects as she should choose for her use during her life. And at her deatli he gave the same ecpially between all his children, and after a specific bequest of provisions, liciuor, and fuel in favour of testator's said wife, the said will proceeded as follows : (c) " I give, devise, and bequeath unto my said executrix and executors all my (o) If the time has been altered by iiulorsement, instead of the words in [ J, insort " at the place above-mentioned at the time mentioned in the indorsement hereon." (^) This form is applicable where the facts are in dispute. (f) The parts of a will on which the questions turn ought to be sot out verbatim. APPENDIX III. 367 real estate, and all the residue of my personal estate and effects Avliatsover. and wheresoever, upon trust that they do and shall permit and suffer my said wife L. to have, receive, and take the rents, interest, income, proceeds, and profits of my said real and personal estates and effects for the maintenance of herself and our children until my youngest child attains tlie age of twenty-five years, if she my said wife so long remains a widow, but no longer. But if she my said wife shall marry again before or after my youngest child attains the age of twenty-five years, then T give nnto her my said wife the sum of 15?. sterling per annum, payable quarterly in equal portions. And I direct tliat the same shall be paid into the sole and only proper hands of her my said wife inde- pendent of and not in any manner subject or liable to the debts, control, engagements, or interference of any future husband she may cliance to marry, and that her receipt or receipts alone, and notwithstanding any future coverture, shall at all times be sufficient discharge for the same ; and in case my said wife shall happen to marry again, or to die before my said youngest child shall attain the said age of twenty-five years, I authorise and direct my said executors to apply the said rents, interest, income, proceeds and profits of my said real and personal estates for and towards the maintenance, education, and bringing up my said child and children nntil the youngest of them shall attain the said age of twenty-five years in such manner as they my said executors shall tliink proper. And in case my said wife shall be living and not be married again when or after my youngest child attains the age of twenty-five years, then I give unto her my said wife the rents, interest, income, proceeds and profits of one equal half part of my said real and personal estates and property for her sole use and benefit during the term of her natural life, and subject to the receipt and application of the said rents, interest, income, proceeds, and profits of my said real and personal estates in manner, and for tlie periods, aforesaid, I give, devise, and bequeath all my said real and personal estates, effects, and property whatsoever and wheresoever, or the moneys to arise by sale and receipt thereof unto and equally between and among all and every my child and children who shall be living, and the lawful issue of any of them who may be dead, but such issue to take only the share or shares therein, their deceased parent or respective parents would have taken or been entitled to if living, and to their several and respective heirs, executors, administrators, and assigns as tenants in common and not as joint tenants. And also upon trust that tliey my said executors and trustees for the time being do and shall, at such time or times as they sliall think proper, either in the lifetime of my said wife or during the minority hei-eby appointed of any of my said children, sell and dispose of my said real estates or any part thereof either together or in lots, and eitlier by public auction or private contract, according to their discretion; and do and shall convey and assure my said real estates to the purchaser or purchasers thereof, and receive and give receipts for the purchase moneys in total discharge of such purchaser or pur- chasers from all responsibility respecting the application of the same. And I empower my said executors to advance imto or for the benefit of each of my younger children any sum or sums of 368 ORIGINATING SUMMONS. money not exceeding SOL each for tlie piirpose of putting them out apprentice or otherwise for their respective benefit without such younger chiklren being liable to account for or make any deduction from tlieir respective shares on account thereof. And I also empower my said executors in their discretion to advance unto each of my children as and when, or at any time after, they sliall respec- tively attain the age of twenty-three years, the sum of lOOL in part and on account of their respective shares of my x^roperty. And I direct that any moneys coming to the hands of my said trustees for the piu'poses of this my wiU shall be invested on such good security as they shall think proper." 2. The said testator died on the 4th April, 1867, and his said will was proved by the defendant L. N. and the plaintiffs, the executrix and executors thereof, on the 26th June, 1867, in the District Registry of the Court of Prol)ate. 3. It is alleged (but the defendant J. 0. N. does not know and therefore does not admit) that in due course after the death of the said testator the said defendant L. N. and the plaintiffs as such executrix and executors got in and converted his personal estate (otlier tlian such part of his furniture as was scheduled by the defendant L. N., which part is still iinconverted and is in the possession of the defendant L. N., and is of the estimated value of £ ), but that such jiersoual estate was insufficient to pay his debts exclusive of mortgage debts. 4. The following are stated by tlie plaintiffs and the defendant L. N. to be the short particulaivs of the real estate of which the said testator was seized or possessed at tlie time of his decease, but no admission is made by the defendant J. 0. N. as to the correct- ness of such particulars : — (1.) A farm in the said parish of W., called M. wliicli was in mortgage to one B. W. for securing 300/. and interest at 5/. per cent. x>er annum which mortgage was created by one T. B. a predecessor in title of tlie said testator by indenture dated the of 1825. (2.) Three cottages in M. aforesaid which were mortgaged to W. T. and J. W. for secui'ing 1501. and interest at 5/. per cent, per annum, whicli mortgage was created by the said testator by an indenture dated the of 1862. (3.) A messuage or tenement formerly called Inn, situate at W. aforesaid with the carpenter's shop and a cliapel erected thereon by the said testator, which was mort- gaged to one E. for securing 200/. and interest at 5/. per cent, per annum, wliicli mortgage was created by the said testator by an indenture dated of 1853. (4.) A messuage in tliree dwellings, one of Avhich was called the and a saddler's .slio]) and dwelling-house witli a garden and orchard situate in IF. aforesaid, which was mortgaged to the plaintiff B. B. the younger for securing 150Z. and interest at 5L per cent, per annum, which mort- gage was created liy the said testator by an indenture dated the of 1864. (5.) Certain messuages or tenements formerly in three and now in four dwellings adjoining the churchyard in IF. aforesaid. APPENDIX III. 369 which were mortgaged to one E. M. H. and still are to his representatives, for securing 200Z. and interest at 51. per per cent, per annum, which mortgage was created by the said testator by an indenture dated the of 1849, and made between the said testator of the one part and the said E. M. H. of the other part. 5. Tlie said testator had, at the date of his said will and death respectively, three children only, namely H. T. N., who was born on the of , 1845, E. N., who was born on the of , 1848, and F. L. N., who was born on the , 1854, and such three children were his sole statutory next of kin. 6. The said H. T. N. died intestate and a bachelor on the 1871, leaving the said F. L. N. his heir-at-law and the defendant L. N. and the said E. N. and F. L. N. his statutory next of kin, but DO letters of administration have yet been taken out to his personal estate. 7. The said F. L. N. attained the age of twenty-five years on the of , 1879. 8. The said E. N. died on the day of , 1883 without ha\4ng been married, having by her will devised and bequeathed her real and personal estate to the defendants R. S. and H. P. upon certain trusts for the benefit of her illegitimate child, who is an infant. 9. The said F. L. N. died intestate and a bachelor on the , 1887, leaving his uncle, the defendant /. 0. N., his heir- at-law. 10. On the , 1888, letters of administration to the personal estates and effects of the said F. L. N. were dn\j granted to the said defendant L.N. by the Probate Division of Her Majesty's High Court of Justice in the principal registry. 11. The defendant L. N. has not married again since the death of the said testator. 12. Since the death of the said testator the said defendant L. N. and the plaintiffs have, as they allege, sold parts of his real estate, of which particulars are given below. The defendant /. 0. N. admits that the sales were made, but he does not admit, and is not by agreeing to this statement to be taken as admitting the correctness of any of the figures given or the propriety of the apiilication of any of the purchase moneys. (1.) The farm called M. was sold on the day of , 1867, for 1200L, and the net proceeds of the sale were applied in aid of the personal estate in jjayment of the testator's debts, funeral and testamentary expenses, the aforesaid legacies, and in discharge of the aforesaid mort- gages of 300L to the said B. W., 200Z. to the said E. T., 1501. to the said B. B. the younger, leaving (exclusive of the furniture) a cash balance of 60L from which 20L was paid for apprenticing the testator's son F. L. N., and the remainder 401. remained in the hands of the said defendant L. N. and the said plaintiffs, and has since been (with the consent of the said defendant L. N.) paid or accounted for to the testator's children. (2.) The three cottages at M. were sold on the , 1873, B B 370 OEIGINATING SUMMONS. for 275L and the net proceeds of sale were applied in pay- ment of the principal sum of 150Z. due on the mortgage of the same premises to the said W. T. and/. PT., leaving a balance of 98i. cash. From this sum 50Z. was paid to the testator's said daughter E. N. and the balance remained in hands of the said defendant L. N. and the plaintiffs, and has since been (with the consent of the said defendant L. N.) paid or accoimted for to the said testator's daughter E. N. and the said F. L. N. (3.) The chapel erected on part of the said premises formerly called with a yard adjoining was sold on , 1885, for 175L, which sum was reduced by the expenses of sale to 143Z. ; of this sum two-thirds of one-half part and a sum of 161. were paid or accounted for to the said F. L. N, and one-third of one-lialf part and (with the assent of the said defendant L. N.) a further sum of lOZ. paid or accounted for to the executors of the said E. N., leaving a balance of 45Z. in hands of the said defendant L. N. and the plaintifEs as executors and trustees of the said testator's will. (4.) The said messuage in three dwellings, one of which was called the , with the saddler's shop, dwelling-house, garden, and orchard, were sold on the , 1888, for 7801., from which have been paid the expenses of the sale and certain other costs incuri-ed in relation to the estate of the said testator, amounting altogether to 56Z., and the balance, 724L is in the hands of the said defendant L. N. and the plaintifEs as executors and trustees of the said testator's will. 13. The unconverted real estate of the said testator (consisting of the said messuage formerly called the and the carpenter's shop, and the said messuages adjoining the churchyard in ), without deducting the mortgage debt or part thereof, is considered to be of the estimated value of 6501. or thereabouts. 14. The sum of 2001. with interest thereon from the 10th day of April, 1888, is still due and owing uijon the said mortgage to the said E. M. H. on the security of the said indenture of the 1849. 15. The plaintifEs are desirous of paying ofE the said sum of 1001. out of the proceeds of the sale of the premises sold on the day of , 1888, but the defendant /. 0. N. objects to their so doing. 16. The questions for tlie determination of the court appear by the summons. APPENDIX III. 371 25. Originating Summons by a sukviving Trustee and Executor for determining Questions of Construc- tion and of Law arising upon a Will. 1886, T., No. In the High Court of Justice, Chaucery Division, Mr. Justice In the matter of the estate of C. E. T. deceased. Between TT. fl. TT. T. Plaintiff, and W. 8. T., W. L., the younger, and E. T. W., spinster ... ... ... Defendants. Let the defendants, W. 8. T., the heir-at-law of the above-named C. E. T., W. L., one of the residuary legatees under the will of the said C. E. T., and E. T. W., another of such legatees, attend at the chambers of Mr. Justice , at the Royal Courts of Justice, at the time specified in the margin hereof, upon the application of the above-named plaintiff, W. H. W. T., of , in the parish of , in the county of , gentleman, the surviving trustee and executor of the will of the above-named C. E. T., that the following questions [of construction and of law (a)] arising upon the will of the said C. E. T. may be determined under the Rules of the Supreme Court, Order LY., r. 3, sub-sects, (e) and (. G. A. and E. A. To the defendants, E. B. widow, and B. B. B. an infant, by the said S. E. B., his mother and giiardian ad litem, and to the plaintiffs, S. T. H. and J. J. C, and to Messrs. their respective solicitors. (a) As to the practice on appeals from chambers, see ante, pp. 143 et seq. (b) As to fresh evidence on an appeal, see ante, p. 149. The ground here stated is not adapted for use in cases where the application for leave to file further evidence is likely to he opposed. 378 ORIGINATING SUMMONS. 31. Oeiginating Summons by Two out of Three Exe- cutors AGAINST A Third, who was also a Legatee, and against other beneficiaries, for determining Questions of Construction and of Law arising UPON A Will. In the High Court of Justice, 1887, F., No. Chancery Division. Mr. Justice In tlic matter of the estate of /. V. T., deceased. Between /. W. C. and B. B. T. Plaintiifs, and J. V. T. F., widow, and J. W. F. and C. F. (respectively infants under the age of twenty-one years), and 3/. A. C. the wife of /. C, J. B., and H. B. widow ... ... ... ... ... Defendants. Let tlie defendant /. V. T. F., one of the executors of the will of the above-named /. V. T., and a legatee named in such will, and the defendants J. W. F., C. F., and M. A. C, being respectively legatees under the said will, and the defendant /. B., the heir-at- law of the said /. V. T., and the defendant H. B., one of the next of kin of the said /. V. T., attend at the chambers of Mr. Justice , at tlie Royal Courts of Justice, at the time specified in the margin hereof, upon the application of /. W. C, of , in the county of , merchant, and B. B. T., of , in the county of , gentleman, two of the executors of the said will, that the following questions [of construction and of law] (a) arising iipon tlie will of the said J. V. T. may be determined under the Rules of the Supreme Court, Order LY., r. 3, sub-sects, (a), (e), (/), and {g) (^); that is to say — 1. How the plaintiffs and defendant /. V. T. F., as executors of the said testatrix, ought to deal with the forty shares in the Bank Limited, mentioned in the said will. 2. Whether the bequests contained in the said will of the said shares are valid in whole or in part. 3. Whether the defendant J. W. F. is entitled to the dividends on twenty of the said shares as from the death of the said testatrix until lie attains the age of twenty-one years, or whether the said testatrix died intestate as to such dividends dui-ing that period, and who is now entitled to such dividends. 4. Whether tlio defendant C. F. is entitled to the dividends on ten of the said shares as from the death of the said testatrix, or whetlier there is an intestacy as to such dividends during the life of the defendant /. V. T. F., and who is now entitled to such di\i- dends. 5. Whether the gift by the said will of 25s. every four weeks to the defendant M. A. C. failed by reason of tlie failure of the gift (a) As to the words here in [ ], sec note (a) ante, p. 357. (6) Seo note (b) to Form 20, ante, p. 357. APPENDIX III. 379 to the defendant /. V. T. F., ox how and by whom such 25s. ought to be paid. 6. Whether the defendant J. W. F. is entitled to the rents of the two freehokl houses, Nos. , Terrace, , mentioned in the said will as from the death of the said testatrix, or whether there is an intestacy as to such rents until that defen- dant shall attain twenty-one, and who is now entitled to such rents. 7. "Whether the said testatrix died intestate as to her I'eal and residuary personal estate. Dated, &c. [Conclude as in Form 23, p. 366.] 32. Affidavit filed in support of Summons, Form 31. (a) [Title as in Sutmnons.l (&) I, /. V. T. F., of , in the county of , widow, one of the above-named defendants, make oath and say as follows : — 1. My late aunt, the above-named /. V. T., of , in the county of , widow, duly made her will, dated the day of , 1886. 2. Such will, so far as material, and omitting formal parts, was in the words and figures following : — '" I give to my nephew, /. W. F., when he attains the age of twenty-one years, twenty shares in the Bank Limited, and also my piano and two houses, 3 and 5, Terrace. I also give to my niece, /. V. T. F., twenty shares in the Bank Limited ; and at her decease ten of those shares are for her son C. F., and five for her daughter M. F., and five for her daughter H. F. My niece /. V. T. F. is to receive the interest of the forty shares, and rent of two houses up tiU /. W. F., attains the age of twenty-one. And she is to pay her mother, M. A. C, 18, Street, , twenty-five sliillings every four weeks as long as she lives." And after bequeathing divers pecuniary legacies, including a legacy to the plaintiff /. W. C, the said will proceeded as follows : " And furthermore I say that should /. V. T. F. cohabit with or marry G. C, the said /. V. T. F. shall forfeit the whole of that which 1 have left, and that it shall be divided equally amongst her children mentioned by her so doing." And, after bequeathing divers specific legacies, the said will px-oceeds as foUows : " I wish /. W. C, and B. B. T., and G. V. T. F. to be my executors to this my will. I also give to my niece /. V. T. F. all my furniture and effects." 3. The said will was attested by /. W. F. and the said J. W. C, and me, this deponent, in the order named. 4. The said testatrix died on the day of , 1886. and on the day of , 1887, her said will was proved by the said J. W. C, B. B. T., and me, this deponent, in the prin- cipal registry. 5. I am a daughter of M. A. C, who was a sister of the said testatrix, and sometime prior to her decease the said testatrix and her husband when living adopted me as their child. 6. On the day of , 1877, I intermarried with (a) As to evidence generally, see ante, pp. 27-48 and 92. (b) See note (b), ante, p. 361. 380 ORIGINATING SUMMONS. J. W. F., wlio died on the day of , 1885. There was no settlement on oiiv marriage. 7. I have had four children, and no more, by the said /. W. F., deceased, namely, the said J. W. F., C. F., M. F., and H. F. 8. The said J. W. F. is the eldest of such children, and he is of the age of nine years or thereabouts. 9. The said testatrix did not leave her surviving any father, mother, or child, and her brother, the defendant /. B., is her heir- at-law. 10. Tlie next of kin according to the statutes of distributions of the said testatrix at the time of her decease were her brother and sisters, namely, tlie defendants /. R., M. A. C, and H. B. widow. 11. The said testatrix at the time of her decease was possessed of forty shares in the Bank Limited, eighteen of which shares were of 30/. each, and the remaining twenty-two 25L each. All of such shares have been raised to 30/. each, of which 8Z. only was at the death of the said testatrix paid up in respect of each share. A di\adend of 221. has been paid since the death of the testatrix. 12. The only real estate which the said testatrix died possessed of or entitled to were the said two houses, Terrace, which were of freehold tenure. 13. The personal estate not specifically bequeathed of or to which the said testatrix died possessed or entitled, consisted of the following pai-ticulars, namely, a dividend of 22Z. on the said bank shares; cash in the house, 2s. 6rf. ; cash at the bank, 35L lis.; debts amounting to 105Z. ; household furniture and effects valued at 20/. Is. ; rents of real estate 4/. %s. Id. ; and a sum of 6/. due on a policy in the Prudential Life Assurance Office. 14. The funeral expenses and debts of the said testatrix amounted to the sum of 11/. lis. or thereabouts, and have been paid. 15. The piano specifically bequeathed by the said will to the said /. W. F. was valued for ])robate at 6/. 16. I have never cohabited or married with G. C. in the said will named. Sworn, &c. Filed, &c. 33. Originating Summons by one Executor against another, who was also a legatee, and against a Creditor, for the purpose of determining the Validity of a Claim against a Testator's Estate. In the High Court of Justice, 1888, B., No Chancery Division, Mr. Justice In the matter of the estate of A. B. deceased. Between CD Plaintiff, and J5/. B. and (5. B., widow... ... Defendants. Let the defendant E. B., who claims to be a creditor upon the estate of the above-named A. B., late of , in the county of , and the defendant G. B. universal legatee, and one of the executors under the wiU, dated the day of , 1885, of APPENDIX III. 381 the said A. B., attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Straud, London, at tlie time specified in the margin hereof, upon the application of C. D., of , in the county of , the other executor of the said A. B., that the following questions of administration arising with reference to the estate of the said A. B. may be determined under the Rules of the Supreme Court, Order LV., rr. 3 and 4, and the following relief be given, namely : 1. Whether the defendant E. B. is, under or by virtue of a certain agreement, dated the day of , 1879, or otherwise, a creditor of the estate of the said A.B., deceased, to any and what amount, (a) 2. That if necessary an account may be taken of what (if any- thing) is due to the said E. F. from the estate of the said A. B., under or by Adrtue of the said agreement or otherwise. 3. Or that the executors of the said A. B. may be at liberty to distribute his assets among the parties entitled thereto without reference to the claim of the said E. B. 4. That (if and so far as may be necessary) the personal estate of the said A. B. may be administered. Dated, &c. [Conclude as in Form 23, p. 366.] 34. Affidavits Filed on Hearing of Summons, Form 33. (6) [Title as in Sumvwns.'] I, C. D., of , in the county of , make oath and say as follows : — 1. I am the above-named plaintiff. 2. A. B., of , in the county of , by his will dated the day of ,1885, after revoking all previous wills theretofore at any time made by him, left to his wife G. every- thing that she could, by the help of her advisers for the time being, say (J. D. (me this deponent) get hold of, and he appointed her the said G. his wife and me this deponent executrix and executor jointly to act in all matters connected with what estate he the testator had or was entitled to as they might think best, and after bequeathing a legacy of nineteen guineas to me this deponent, the testator, besides the statutory power given by law to trustees and executors, left me this deponent full discretion, with the consent of his said wife, to settle up all matters connected at all with his atfairs. 3. The said testator died on the day of , 1885, at aforesaid, and his said will was, on the day of 1885, proved in the principal registry of the Probate Division of Her Majesty's High Court of Justice by the oaths of the said G. B. and myself. 4. The assets of the said testator at the date of his death, so far (a) Aa to advertisements for creditors, see p. Ill and Re Bracken (60 L. T. Eep. N. S. 628 ; W. N. 1889, p. 69). (6) As to evidence generally, see ayite, pp. 27-48 and 92. 382 ORIGINATING SUMMONS. as I hare been able to ascertain the same, consisted of tlie following, videlicet. [Here insert slwrt particulars of assets. '\ 5. For some considerable time previous to his death I was aware that the said testator had experienced great ti-ouble and annoyance from the beha^-iour of his father E. J5., of , in the county of , and although I was never aware of the details of the disagreement between them, I knew generally from information given to me by the said testator, that he had agreed to pay his father a certain sum on condition that his said father did not molest him in any way. The testator also informed me that there was an agreement to that effect, which had been continually broken by his father, who, however, being -in want and having certain claims u])on him by persons not connected l)y marriage or relation- ship with the testator, caused the latter great annoyance by continually ajiplying for money, and by making certain statements with reference to him and his jiractice. 6. Upon searching through the testator's papers after his death, I found amongst them the paper writing now produced, and shown to me and marked CD. 1. 7. The copy correspondence now produced and shoAvn to me and marked C. D. 2, has, since the testator's death, taken place between the said E. B. and myself upon the subject-matter of his claim against the said estate. The copies therein set out are true copies of the originals of such letters. I have made diligent and full inquiries at , with reference to the circumstances con- nected with the payment of moneys under the said agreement, and from the information I have gathered I have not the slightest doubt but that the said E. B. has habitually broken the coudition of such bond, and he was at the time of the testator's death and still is, as I am informed and believe, living at , which as I am informed and believe is within the prescribed distance. 8. The realised assets of the said testator consist solely of [Here insert short particulars.'} 9. The said E. B. has notwithstanding such correspondence never produced to me evidence in support of his said claim, nor has he withdrawn such claim, and under the aforesaid circumstances the assistance of the court is sought to decide upon the merits of the said claim pi-ior to the distribution of the assets amongst the cre- ditors of the estate. Filed, &c. Sworn, &c. Affidavit Filed on Behalf of the Defendant E. B. [Title as in Summons. } I, E. B., of , in the county of , one of the above- 7iamed defendants, make oatli and say as follows : — 1. I liave read a copy of the affidavit of C. D., the above-named ji'aintift', filed in this action on tlie day of , 1886. 2. A. B., tlie above-named testator, was at the time of his death and his estate still is justly and truly indebted to me in the sum of I. for arrears from the day of , 1884, of APPENDIX IIT. 383 the monthly allowance provided to be paid to me (subject as herein- after mentioned) by the said testator under the agreement, dated the day of , 1879, now produced to me marked A. The fui'ther sum of I. is now due to me from the estate of the said testator for arrears of the said monthly allowance to the present time. The estate of tlie said testator is also liable to pay to me under the agreement, and I claim payment of the said monthly allowance (subject to the reduction hereinafter mentioned) so long as I shall live. The letter of the said testator which accompanied the said agreement is now produced to me, and marked B. By the said letter the said testator undertook to execute a bond embodj'iug the same conditions as those contained in the said agreement, if called upon. 3. Prior to the year 1879, and to the date of the said agreement, I made advances at various times to my son, the said testator, such advances amounted to I. I also in the month of , 1879, handed to my said son a promissory note for I. in my favour from . My said son duly received the amount secured by the said promissory note. The letter now produced and shown to me and marked C, is the letter in which my said son acknow- ledged the receipt of the said promissory note. 4. In or about the month of , 1869, 1 lent to one a sum of /-. on a promissory note. Subsequently the said got into difficulties, and eventually only jjaid a dividend of Is. 10(Z. in the pound on the amount secured by the said promissory note. The said dividend amounted to I. The cheque for the latter amount was handed by this deponent to the said testator, A. B., on account of the consideration mentioned in the said agree- ment. The letter of the said A. B. acknowledging the receipt of the said cheque is now produced to me, and marked D. 5. The said sum of I. and I., so received by the said testator, make together the sum of I. The balance between the latter sum and the amount of the said consideration money ( I.) mentioned in the said agreement was paid by me to the said testator in cash. 6. In or about the year 1883 I had great difficulty in obtaining payment of the sums due to me from the said testator under the said agreement, owing to the financial embarrassment of the said testator. Ultimately I consented to accept a reduced allowance of Z. per month in lieu of the sums provided to be paid by the said agreement. The letter now produced to me, and marked E., sets out the new arrangement made by the said testator. I am willing to accept the said reduced amount of I. per month in lieu of the payments mentioned in the said agreement. 7. The said testator did not carry out the arrangement referred to in the last-mentioned letter, but allowed the said monthly payments to fall into arrear, and the above-mentioned sum of I. was, as above stated, due to me at the death of the said testator, and still remains due and owing to me. 8. It is not the fact, as stated in the said affidavit of the said C. D., that the conditions of the said agreement have been broken by me, and the said testator never raised any such question. The said testator having failed to make certain of the said monthly payments, 384 ORIGINATING SUMMONS. I was compelled to make applications to him for such payments from time to time, and have been put to very serious inconvenience by the defaults of the said testator in paying the said monthly allowance. 9. I live at aforesaid, and -was livnng there at the date of the said agreement, and at the date of the death of the said testator, and he never raised any objection to my living there. The said letter, marked E., hereinbefore mentioned was addressed to me at , and contains no objection, but on the contrary remits monthly allowance therein referred to, and the testator afterwards continued to make remittances from time to time on account of tlie said allowance. 10. And I, speaking positively for myself, and to the best of my knowledge and belief as to other persons, lastly say, that I have not, nor liath nor have any other person or persons by my oi'der, or for my use, i-eceived any satisfaction or security whatsoever for the said sums of I., and I., or any part thereof respectively, save and except the said agreement. 35. Originating Summons by the Trustees and Execu- tors AGAINST Beneficiaries for the Determination OF certain Questions of Fact and of Construction ARISING UNDER A WlLL.(a) 1887, p.. No. In the Higli Court of Justice, Chancery Division, Mr. Justice In the matter of the Estate of W. P., deceased. Between J. (3. and /. C . . . ... ... PlaintifPs, and W. G., B. C, spinster ; C. J. D. and 31. L. D. his wife ; E. K. S. and E. J. K. S. his wife, and S. C, K. B. C. and B. C. respectively, in- fants under the age of twenty-one years, and A. C. C, A. B. J., and J. T.F. Defendants. Let the defendant W. G., the joint executor with the plaintiff /. G. of the will of the late J. P., who was the widow of the above- named testator W. P. and a legatee under his will dated the 6th day of August, 1874, and the defendants B. C, C. J. D. and M. L. D. his wife, E. K. S. and E. J. K. S. his wife, and S. T. C, K. B. C, and B. C. C. respectively, infants, all of whom are pecuniary and residuai-y legatees under the said will, and the defendants A. C. C, A. B. J. and /. T. F., mortgagees of the share of the said J. C, attend at the diambers of Mr. Justice , at the Royal Courts of Justice, Strand, London, at the time specified in the margin hereof, upon the application of /. (?., of , in (a) This form is useful as an example of a case (1) in which certain of the defendants were appointed to represent a class of next of kin who were difficult to ascertain, see Order XVI., r. 32, ante, p. 22, and (2) in which certain preliminary inquiries were directed to be made before determinitiff the rights of the parties. APPENDIX III. 385 the county of , Esquire, and /. C, of , iu the couuty of , Esquire, tlio surviving trustees and executors of tlie said will that the following questions [of fact, of construction, and of administration (a)] ai'isingwith reference to the estate of the said W. P., may be determined under the rules of the Supreme Court, Order LV., r. 3, sub-sects, (a) and ((j). (b) 1. What real and pei'sonal estate the said testator was possessed of or entitled to at the date of his said will, and of his death resjiectively, distinguishing property in possession at the date of such will from other property, and whether any and what part of the property of or to which he was possessed or entitled at his death consisted of property of or to which he was possessed or entitled in possession at the date of his will, or of property pur- chased or acquired with the proceeds of such property. 2. Whether property purchased by the said testator with or out of property or the proceeds of property which belonged to him in possession at the date of his said will, fell within the description of and devolved under the said will in the same way as property to which he was entitled in possession at the date of such will. 3. Or whether the property which belonged to the said testator in possession at the date of his said will ceased to so belong on a change of investment thereof, and thereupon became j)roperty to which he was entitled in possession after the date of his said will. 4. Under which devise and bequest in the said will contained tlie said testator's reversionary interest under his marriage settlement dated the 3rd day of January, 1846, passed. 5. What portion of the said testator's assets belonged to him in possession at the date and execution of his said will. 6. What portions of the said testator's assets were included in or passed under the devise and bequest therein contained of real estate and chattels real, and residuary personal estate of or to which he was seized or entitled in possession, or which he had power to dis- pose of at the date and execution of his said will. 7. What portion of the said testator's assets was included in or passed under the devise and bequest therein contained of real and personal estate of or to which he might become seized or entitled in possession after the date and execution of his said will, or over which he might in the interval between the date and execution of his said will and his decease acquire any disposing power. 8. Out of what portion of the said testator's assets the legacies of 6601. and 1800/. by the said will respectively bequeathed ought to be paid. 9. Whether the grandchildren of the said testator's sister B. C. are entitled to particiijate in his estate in competition with their living parents. 10. Out of wliat fund the debts and funeral and testamentary expenses of tlie said testator and the costs of proving his will and the costs of this application ought to be paid. (a) The words here in [ ] are optional when applicable. (6) See note (h) to Form 20, ante, p. 357. C C 386 ORIGINATING SUMMONS. 11. If necessary that an order maybe made for tlie administration of the real and personal estate of the said W. P. with all necessary and proper directions and inqniries. Dated this day of 1887. (a) [^Conclude as in Form 23, p. 366.] 36. Order made upon the first Hearing of Summons, Form 35. \_Title as in Summons.'] [Omitting formal parts.] It being difficult to ascertain who are the next of kin of the said testator. Let the defendants, A. C. C, A. B. J., and /. T. F.,t\\e executors of the late B. C. C, one of the next of kin of the said testator, be appointed to represent such next of kin. And let the following inquiries be made, that is to say, 1. An inquiry what real and personal estate (other than the testator's interest under his marriage settlement, dated the day of , 1845) the testator was seised, possessed of, or entitled to in possession, or had power to dispose of at the date of his will. 2. An inquiry what real and personal estate (other than as afore- said) the testator became seised of or entitled to in possession after the date of his said will, or over which in the interval between the date of his said will and death he acquired any disposing power. 3. An inquiry of what the estate of the testator consisted at the time of his death. 4. An inquiry whether any and what -part of the property (other than as aforesaid) of or to which the said testator was seised, possessed, or entitled in possession, or had power to dispose of at the date of his death, consisted of property of or to which he was seised, possessed, or entitled in possession, or had power to dispose of at the date of his said will, or of property jjurchased or acquired with the proceeds of such last-mentioned property, or of any property substituted tlierefor. Adjourn further consideration of the summons into court. («) The statement of facts and evidence in this case were of too special a nature to be usefully inserted here. APPENDIX III. 387 37. Originating Summons by the Trustees and Executors AGAINST Beneficiaries for the determination of certain Questions of Construction and of Law arising under a Will. 1887, K, No. In the High Court of Justice, Chancery Division. Mr. Justice In the matter of the estate of 8. N. (widow) deceased. Between G. W., J. if.. /. G. F., and M. J. T., the wife of the Rev. W. T., ... Plaintiffs, and T. G., H. B., 8. E. H., the wife of /. T. H., J. B., and If. N. G., ... Defendants. Let the defendant T. (?., a residuary legatee under the will of the above-named 8. N., late of , in the county of , and of , in the county of , widow, and the defen- dant H. B., the heir-at-law of the said 8. .ISF., and the defendants 8. E. H., the wife of /. T. H., and /. B., two of the next of kin of the said 8. N., the said /. T. H., as the husband of the said 8. E. H., and the defendant ilf. N. G.,the legal personal repi*esentative of tlie late G. N. C, who was another of the next of kin of the said 8. N., attend at the chambers of Mr. Justice , at the Royal Courts of Justice, at the time specified in the margin hereof, upon the application of G. W., of , m the county of , Esq., /. JT., of , in the county of , /. G. K, of in the county of , Esq., and M. J. T., the wife of the Rev. 11^. T., of , in the county of , the trustees and executors, and executrix of the said will, that the following questions [of construction and of law (a)] arising upon the will of the said 8. N. may be determined under the rules of the Supreme Court, Order LV., r. 3, sub-sect, {g) {^), that is to say, 1. Whether the share of the residuary estate of the said tes- tatrix 8. N. bequeathed by her will to her brother /. G. lapsed by reason of his death in the lifetime of the said testatrix, or wliether such share survived for the benefit of the brothers and sisters of the said /. (?., in the said will named, or how otherwise. 2. If such share lapsed, whether the same devolved, so far as it was constituted by real estate or the proceeds of the sale thereof, upon the heir-at-law of the said testatrix, and so far as it was consti- tuted by personal estate upon her next of kin, according to the Statute of Distributions, or how otherwise. 3. Whether such next of kin take j9er stirpes or per capita. 4. Who are now entitled to the aforesaid share of residuary estate, and in what shares and pi-oportions. 5. How the costs of and incidental to this application ought to be provided for. Dated, &c. IConclude as in Form 23, ante, p. 866.] (a) As to the words here in [ ], see note (a), ante, p. 357. (b) See note (b) to Form 20, ante, p. 357. c c 2 388 ORIGINATING SDMMONS. 38. — Originating Summons by a Surviving Executor AND Trustee against Beneficiaries for the De- termination OF Certain Questions op Construc- tion ARISING under A WiLL. 1886, S., No. In the High Court of Justice, Chiiiicory Division. Mr. Justice In the matter of the estate of M. S., deceased. Between W. W., PlaintifP, and John E., Joseph E., B. E., P. E., and W. G. the younger ... ... ... Defendants. Let tlie defendants John E., of , in the county of , farmer, and Josej^h E., oi , in the county of , farmer, the executors of tlie will of the late R. E., oi , in the county of , gentleman, and claiming to be legatees under the will of the above-named M. S., and the defendants, R. E., of , in the county of , farmer, and P. E., of , in the county of , farmer, two of the next of kin according to the Statutes of Distril)utions, of the said R. E., at the time of his death and at tlie time of the death of the said M. S. respectively, and also claiming to be legatees under the will of the said M. S., and the defendant W. G. the younger, of , of the county of , farmer, one of the next of kin, according to the Statutes of Distribu- tions, of tlie said R. E., at the time of the decease of the said M. 8., attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, London, at tlie time specified in the margin hereof, upon tlie application of W. W., of , in the parish of , in tlie county of , farmer, the surA'iA-ing executor and trustee of the will of the above-named testatrix M. 8., that the following questions of construction, arising upon the will of the said M. 8., deceased, may be determined under the Rules of the Supreme Court, Order LV., rule 3, sub-sects. («) and {g) {"■) ; that is to say : 1. Wlietlier under the will of the said testatrix M. 8., the defen- dants John E. and Joseph E., the executors of the will of the said R. E., are entitled, as part of the personal estate of the said R. E. to be administered by them under his will, to the legacy of 400?., and to the residue of her estate bequeathed by the will of the said testatrix, or to either of tliem ; or 2. Whether the persons who were the next of kin, according to the Statutes of Di.stributions, of the said R. E. at the time of the deatli of till' said testatrix M. 8., are entitled to the said legacy of 400/. and to the said residue, or to either of them, and in the shares to which they would have been entitled under the said statutes or how otherwise ; or 3. Whether the j>ersons who were tlie next of kin, according to the Statutes of Distributions, of the said R. E. at the time of his death. are entitled to the said legacy of 400/. and to the residue, or to (a) See note (h) to Form 20, ante, p. 357. APPENDIX III. 389 either of tliem, anrl in the share to wliich they would have been entitled under the said statutes, or how otherwise ; or 4. Who in the events which have haj^pened are now entitled to the said legacy and residue respectively, and in what shares. Dated, &c. {_Conclude as in Form 20, p. 358.] 39. Originating Summons by One Trustee and Executor AGAINST Another vtho was also a Beneficiary, and OTHER Beneficiaries, for the Determination of CERTAIN Questions of Construction, Fact, and Law, ARISING WITH REFERENCE TO THE ESTATES OF ThREE Deceased Persons. In the High Court of Justice, 1888, No. Chancery Division. Mr. Justice In the matter of the estate of J. H., deceased, and In the matter of the estate of M. A. H., spinster, deceased, and In the matter of the estate of A. P. IT., deceased. Between F. r., ... Plaintiff, and The president, vice-presidents, treasurers and governors of the M. hospital, /. C. 8. S. L., and /. /., the trustees and directors of the S. infirmary, 0. W., G. B. L., T. J., J. B., E. L. W. (spin- ster), and C ^. ... ... ... ... Defendants. Let the defendants the president, vice-presidents, treasurers, and governors of the M. hospital, who claim to be legatees under the wills of the above-named /. H. and A. P. H. respectively, and the defendants, /. C, 8. 8. L., and /. /., the trustees of the B. general hospital, legatees, or claiming to be legatees under the same wills respectively, and the defendant the said 8. L., the treasurer of the said B. general hospital, and the defendants the trustees and directors of the S. infirmary, legatees, or claiming to be legatees under the same wills respectively, and the defendant 0. W., the treasurer, and the defendant G. B. L., the deputy-treasurer of the said 8. infirmary, and the defendant T. J., one of the trustees and executors of the will of the above-named A. P. H., and also a devisee and legatee under such wiU, and defendants /. B. and E. L. W. respectively, pecuniary and specific legatees and annui- tants under the will and codicils of the said A. P. H., and C A., the first cousin and sole next of kin of the said A. P. H., attend at the chambers of Mr. Justice at the Royal Courts of Justice, Strand, London, at the time specified in the margin hereof upon the application of F. T., of , in the county of , gentle- man, one of the trustees and executors of the will of the said A. P. H. that the following questions [of construction, of law, and of fact (a)] arising in the administration of the estates of the said (a) The words here in [ ] are optional when applicable. 390 ORIGINATING SUMMONS. J. H., M. A. H., and. A. P. H. respectively, deceased, may be deter- miued under the Rules of the Supreme Coiii-t, Order LV., r. 3, sub- sects, (a) and (g), and the following relief be giveu ; that is to say :— 1. Wliether the above-named 31. A. H. and A. P. H. became absolutelj' entitled under the will of the above-named J. H. to all his property as joint tenants or otherwise, or what estate and interest they acquired under such will in such "jiroperty. 2. Wliether in the event which happened of the said /. H. dpng without lawful issue, the M. hospital, the B. General Hospital, and the S. Infirmary, or any of those institutions, or the defendants, the president, vice-presidents, treasurers, and governors of the M. hospital, /. C, S. S. L.,J. J., the trustees and directors of the S. Infirmary, and the Rev. /. D. S., or any of them as representing those institutions, became, under the will of the said /. H. entitled to his property, or any part thereof, and if so, for what estates or interests. 3. Wliether under the will of the said A. P. H. the said hospitals and infirmary, or any of tliem, or the defendants representing the same respectively, are entitled to be paid the legacies bequeathed to them by the wiU of the said /. H. out of any and what part of the assets of the said A. P. H., and whether or not in priority of all or any other legacies and payments under the will of the said A. P.H. 4. Or what effect the will of the said A. P. H. had upon the bequests contained in the will of the said /. H. in favour of the said hospitals and infirmary. 5. Out of what property of the said A. P. H. the pecuniary legacies (other than charitable legacies), and annuities bequeathed by liis will and codicils, ought to be paid and provided for, and iu particular whether the same, or any jjart thereof, are a charge upon his freehold property at , in the county of 6. Whether such legacies and annuities ought to abate propor- tionately, or liow otherwise. 7. What portions of the assets of the said A. P. H. were pure personal estate. 8. Whether the said^. P. H. died intestate as to his residuary impure personal estate. 9. Whether the sum of I., Four per Cent. Stock of the Midland Railway, })el()ngiiig to the testator A. P. H. passed to the defendant /. B. under the fourth codicil, dated the day of , 188o, to the will of the said A. P. H. 10. Whether any and which of the pecuniary legacies and annuities and specific legacies l)equeathed by the said will and codicils of the said A. P. H. were to be free from legacy duty. 11. Whether tlie second codicil, dated the day of , 18S4, to tlie said will of A. P. H., revoked the annuities bequeathed by the same will, and the first codicil thereto. 12. Whether the specific l)oqucsts contained in the fourth codicil to the will of tlie said A. P. H. in favour ot the defendants E. L. W. and /. B., were in addition to or in substitution for the legacies and annuities Ijequeathed to them ])y the will and ])rior codicils. 13. If necessary an order for the administration of the real APPENDIX III. 391 and personal estate of the said /. H., M. A. IL, and A. P. IT. respectively. 14. How the costs of tliis application ought to be borne. Dated, &c. {Conclude as in Form 23, j^- 366.] 40. Originating Summons by the Trustee of a Settle- ment AGAINST the CeSTUIS QUE TRUST FOR THE determination op certain Questions of Construc- tion AND Administration arising under the Trusts OF A Settlement. 1886., C, No. lu the High Court of Justice, Chancery Division. Mr. Jixstice In the matter of the trusts of an indenture of settlement, dated the day of , 1841,. and made . between E. J. C. (then and therein called E. J. L., spinster) of the first part ; the Rev. /. G. of the second i^art ; and C. B. and J. G. F. of the third part. Between J. 5., ... ... ... ... ... Plaintiff, and The Rev. J. G. C. and E. J. C, his wife, Defendants. Let the defendants /. G. G. and E. J. C., the cestui que trust under the trusts of the above-mentioned indenture of settlement, attend at the chambers of Mr. Justice , at the Royal Courts of Justice at tlie time specified in the margin hereof upon the application of /. B. of , in Switzerland, the trustee of the said indenture of settlement, that the following questions [of con- struction and of administration (a)] arising under the trusts of the said indenture of settlement may be determined, and the following relief be granted under the Rides of the Supreme Court Order LY., r. 3. ; that is to say : — 1. Whether under or by virtue of the said indenture of settle- ment, the defendant E. J. C. is or is not restrained from anticipating the dividends or income of the trust property. 2. That the true construction of the said indenture of settlement, and the rights of the parties interested thereunder may be ascer- tained and declared by the court. 3. Whether the plaintiff may transfer and pay the trust property to the defendants, or tlieir assignee, without reference to the possible rights of children. Dated, &c. {Conclude as in Form, p. 23, ante, p. 366.] (a) See note (a) a/ife,p. 357. 392 ORIGINATING SUMMONS. 41. Originating Summons by the Trustee of a Settle- ment AGAINST THE CeSTUIS QUE TRUST FOR THE Determination of a Question of Construction AND Administration arising under the Settle- ment. .1888, J., No. Ill tlie High Court of Justice, Cliaucery Division. Mr. Justice lu tile matter of the Trusts of aii Indenture of Settlement dated the day of , 1873, and made between P. E. S. J. (then and therein described as P. E. T., spinster), of the first part; E. 8. J., of the second part ; and P. B. and J. B. S. of the third part. Between C. T. Plaintiff, and E. J. and P. E. J., his wife, and E. P. /., E. C. J., and A. F. J. (respectively infants under the age of twenty-one years), ... ... ... ... ... Defendants. Let the defendants E. J. and P. E. J. his wife, and E. P. J., E. C. J., and A. F. J. (respectively infants under the age of twenty- one years), the cestuis que trust under the trusts of the above- mentioned indenture of settlement, attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, Loudon, at the time sijecified in the margin hereof, on the application of C. T., of in the county of Esq., the trustee of the said indenture of settlement, that the following questions [of con- struction and of administration (a)] arising under the trusts of the said indenture of settlement may be determined under the Rules of the Supreme Court, Order LV., r. 3, sub-sect, {g), and Order LV., r. 4, and if necessary tlie following relief be given, that is to say:— 1. Whether tlie plaintiff C. T. may lawfully and properlj^ under the power of advancement in the said indenture of settlement con- tained, with the consent in writing of the defendant P. E. J., or otherwise, out of the corpus of tlio trust funds thereby brought into settlement l)y her, make her an annual allowance of 100/., or any other sum, as from the day of 1887, during the minority of her three children or any two of them, by tlie defendant E. J., viz., the defendants E. P. J., E. C. J., and A. F. J., for or towards their education, or may otherwise raise and apply such sum for that purpose. 2. How the costs of this application ought to be jirovided for. 3. Tliat (if necessary) the trusts of the said in(leiiture of settle- may be administered l^y the court with all proper directions. Dated, &c. [Conclude as in Form2S, p. 366.] (a) See note (a), ante, p. 357. APPENDIX IIT. 393 42. Originating Summons by a Residuary Legatee for Life and Cestui que Trust and her Husband against the surviving trustee and executor of A Will for Accounts and Inquiries and Pay- ment, (a) 1887, W., No. In the High Court of Justice, Chaucery Divisiou. Mr. Justice In tlie matter of the estate of A. W. (a widow), deceased. Between The Rev. C. F. C. P. and C. P. liis wife. Plaintiff, and T.S. Defendant. Let the defi-ndant T. S., the surviving trustee and executor of the will and codicils, dated respectively the , 1842, the , 18-i7, and the , 1851, of the above-named A. W., late of in the county of , widow, attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, Loudon, at the time specified in the margin hereof, upon the appli- cation of C. F. C. P. of in the county of , and C. P. his wife, who claim to be interested in the relief sought in right of the said C P. as residuary legatee for life and cestui que trust under the said will, for an order under the Rules of the Supreme Court, Order LY., r. 3, sub-sects, (a), (c), (e), and {g), and Order LV., r. 4 : That the following inquiries and accounts and relief may be made, taken, and granted : — 1. An inquiry of what particulars the residuary ])ersonal estate of the said testatrix, A. TF., consisted at the time of her death, and of what the same now consists. 2. An account of the residuary personal estate of the said testa- trix, A. W., received by the defendant, T. S., the sur\-iving executor of her will, or by any other person or persons, by the order or for the use of the said defendant, or which without the wilful neglect or default of the defendant might liave lieen so received. 3. An account of what is due from the defendant as such trustee and executor as aforesaid to the plaintiffs in right of the plaintiff, C. P., as tenant for life of the residuary personal estate of the said testatrix. 4. Payment by the defendant to the plaintiff, C. P., on her separate receipt of what shall appear to be due to the plaintiffs on taking the last-mentioned account. 5. Payment by the defendant to the plaintiff, C. P., on her sepa- rate receipt during her life of all future income to arise from the residuary personal estate of the said testatrix. Or, For an order for the administration of the personal estate of the said A. W., with all necessary and pi-oi)er directions. Dated. &c. \_Concltide as in Forvi 23, p. 366.^ (a) This form must be used with caution. 894 ORIGINATING SUMMONS. FORMS OF ORIGINATING SUMMONS AND OTHER PROCEEDINGS UNDER ORDER LY., R. 5a, FOR FORECLOSURE, &c. [a) 43. Originating Summons by Equitable Mortgagee of Leaseholds by Memorandum and Deposit of Deeds. 1888, — No. In the High Court of Justice, Chancery Division. Mr. Justice Between J2. ^. ... PlaintifE, and J.T.S. ... Defendant. Let the defendant J. T. S. oi , in the connty of , the mortgao-or, attend at the cliambers of Mr. Justice , at the Royal Courts of Justice at the time specified in the margin hereof, ux^on the application of R. A. of , gentleman, the mortgagee (under R. S. C. O. 55, r. 5 (a)) that an account may be taken of what is due to the plaintiff for princii)al, interest, and costs upon an equitable mortgage, dated the day of 1885, and made lietween the defendant /. T. S. on the one part, and the plaintiff, i^. ^. of the other part, and effected thereby and by a deposit of an agreement for lease, dated the day of , 1883, therein mentioned or referred to, and by the subsequent deposit of a lease dated the day of , 1886, granted in pursuance of such agreement of part of the property therein comprised, and that such mortgage may be enforced by sale [b) or foreclosure, and (if necessary) that the defendant, ./. T. S. may execute a proper conveyance or assignment of the mortgaged pro- perty to the plaintiff, (c) and that the defendant, /. T. S., may l)e ordered to deliver up possession of the mortgaged property to the plaintiff. Dated the day of , 1888. [Coytclude as in Form 23, j9. 366.] (a) See ante, p. 89 et scq. (6) The right of an equitable mortgagee by deposit with or without a written memorandum is foreclosure (Backhouse v. Charlton, 8 Ch. Div. 444; 2G W. R. .'iOl) ; but under certain circumstanc.es he is entitled to a sale, see Coote on Mortgages, vol. I., p. 3.52, .'Stli edit., Oldham v. Stringer (51 L. T. Rep. N. S. 895 ; 33 W. R. 251 ; W. N. 1884, p. 235; ; and see Conveyancing Act, 1881 ( 4 & 45 Vict. c. 41), s. 25. As to the possibility of obtaining an immediate order for sale, see Wade v. Wilson (22 Ch. Div. 235 ; 47 L. T. Rep. N. S. C96 ; 52 L. J. 399, Ch. ; 31 W. R. 237) and Green v. Bigg.'^ (.V2 L. T. Rep. N. S. 680 ; W. N., 1885, p. 128). (c) Order LV., r. 5a, is silent on this point, but as it expressly mentions equitable mortgage, it is conceived that the judge could upon this summons order a conveyance to be executed. APPENDIX III. 395 44. Affidavits filed in Support of Summons, Form 43. [Title as in Summons. 1 I, B. A., of , geutleman, the above uamed plaiutiif", make oath and say as follows : 1. By a memoraudum of agreement made the day of , 1885, between the defendant /. T. S. of the one part, and me this deponent of the other i^art, and duly sigTied by the defen- dant, it was agreed that in consideration of 121. Is. 8d., to the said defendant paid by me ou or before the signature of the said agreement, and in consideration of such further advances as were thereinafter made, the document comprised in the schedule thereto (and which the said defendant had on tlie day of deposited with me), should thenceforth be held by me as an equitable secvirity for the payment by the defendant /. T. S. to me on the day of then next of the sum of 12L Is. 8d., together with interest thereon at the rate of lOZ. per cent, per anniim, to be comjjuted from the date thereof, and also for the pay- ment of sucli further sums as should at any time thereafter whilst the said document should continue in my possession, l)e advanced by me to tlie said defendant with interest thereon at the rate afore- said. And the said defendant thereby charged all the heredita- ments and property comprised in the said document to which the same related, with the payment to me of the said sum of 12L Is. Sd. and also all such further advances as aforesaid and interest. And also agreed at anytime upon my request to execute to me a legal mortgage of the said hereditainents and premises as therein mentioned. And in the said memoraudum of agreement it was also agreed that I should have all the x^owers conferred on mort- gagees by sects. 19 to 24, inclusive, of the Conveyancing and Law of Property Act, 1881, in like manner as if the said memorandum of agreement had been a mortgage by deed, and that the said defendant and all persons dei-i^nng title under him should upon any sale made under the said statutory jjower execute and do sxich assurances aiul things for vesting in the purchaser the legal estate of the property sold as should be required in that behalf by the person or persons by whom the sale should have been made. 2. The document now produced and sliowu to me and marked It. A. 1 is the said memorandum of agreement. 3. The document comprised in the schedule to the said meiuo- randum of agreement consisted of an agreement for a lease dated the day of , 1883, and made between E. D. spinster, and F. F. (trustees of the will of the late G. B.) of the one part and the defendant /. T. 8. of the other part, being an agreement for a lease to the defendant of two jjlots of land situate at in the county of for building purposes. 4. The document now produced and shown to me and marked R. A. 2, is the said agreement for a lease so deposited with me as- aforesaid. 5. Subsequently to the date of the said agreement of the day of , 1885, I lent and advanced to the defendant on the 396 ORIGINATING SUMMONS. security of sucli agreement and of the said deposit the following further sums on the following dates respectively. \_Here insert dates and amounts of advances'} amounting in the aggregate, together with the said sum of 12/. Is. 8d. to 532L 19s. llcZ. 6. Subsequently to the date of the said agreement of the day of , 1885, the defendant erected, or caused to be erected, on one of the said plots of land a messuage or dwelling-house, known as " ," and on the day of , 1886, in pursuance of the said agreement of the day of , 1883, a lease of the same plot of laud with the messuage thereon was granted by the said E. D. and one W. 0. (who had been appointed trustee of the said will iu place of the said F. F., then deceased), unto the defendant for the term of ninety-nine years, from the day of , 1883, at the yearly rent (after the first year of the said term) of 8Z. 8s. 7. On the day of , 1886, the lease was deposited with me by the said defendant as part of my said equitable security. 8. The document now produced and shown to me, and marked R. A. 3, is the said indenture of lease so deposited with me as aforesaid. 9. There is due to me upon and by virtue of my said mortgage security, dated the day of , 1885, and of the said deposits of agreement for a lease and lease respectiA'ely, the sum of 532L 19s. llfZ. for principal, and the sum of 113?. 8s. 10(Z. for interest, computed at the rate of 10 per cent, per annum from the respective times when the said several sums were advanced by me as afore- said up to the day of the date hereof, making together the sum of 646Z. 8s. M. 10. I have not, nor hath or have any other person or persons by my order, or for my iise, to my knowledge or belief received the said sum of 646/. Ss. dd., or any part thereof, nor any security or satisfaction for the same, or any part thereof, save and except the said mortgage securities. Sworn, &c. Filed, &c. [Title as in summons. 1 I, C. J. C, of , in the county of , clerk to Messrs. , of aforesaid, make oath and say as follows : 1. I saw the defendant /. T. S., one of the parties to a memorandum of agreement made and entered into the day of , 1885, now produced and shown to me and marked R. A. 1, duly sign tlie said memorandum of agreement. 2. Tlui signature " /. T. S.," set and subscribed to the said memorandum of agreement as one of the parties executing the same, is of the iJi'0])er handwriting of the said /. T. S. 3. TIio signature "C. J. C," set and subscribed to the foot of the said agreement as a witness, is of my proper handwriting. Sworn, &c. Filed, &c. APPENDIX III. 397 45. Originating Summons by an Equitable Mortgagee OF Leaseholds by Memorandum and Deposit of Deeds. 1888, S., No. In the High Court of Justice. Chaucery Division. Mr. Justice Between /, ilf. S., Plaintiff. and /. T. S. and J. W. 8., Defendants. Let the defendant /. T. 8., the mortgagor, and the defendant /. W. 8., the second mortgagee, attend at the chamljers of Mr. Justice , at the Royal Courts of Justice, Strand, London, at the time specified in the margin hereof upon the application of J. M. 8., oi , in the county of , gentleman, the first mortgagee (under R. S. C, Order LV., r. 5 a), that an account may be taken of what is due to the plaintiff for principal and interest and costs upon an equitable mortgage, dated the day of , 1885, and made between the defendant /. T. 8. of the one part, and the plaintiff J. M. S. of the other part, and effected thereby and by a deposit of a lease, dated the day of , 1885, therein mentioned or referred to, and that sixch mortgage may be enforced by sale or foreclosure ; and (if necessary) that the defendant /. T. 8. may execute a proper convey- ance or assignment of the mortgaged property to the plaintiff ; and that the defendant J. T. 8. may be ordered to deliver up possession of the mortgaged property to the plaintiff. Dated this day of , 188 . [Conclude as in Form 23, j5. 366.] 46. Originating Summons by First Mortgagees of Free- holds Mortgaged by Demise for a long term where THE Equity of Redemption had been Settled. 1887, A., No. In the High Court of Justice. Chancery Division. Mr. Justice 'Bei-ween The A. Fire Offi,ce ... ... ... Plaintiffs, and B. M., M. T., H. T., B. M. L., F. L., and T. J. M. M., an infant, and J. L., A. 8. M. and F. P. and F. E., widow, G. N. F. and W. E. F., Defendants. Let the defendant B. M., the tenant for life under the wiU of the late B. B. M., of in the county of , Esq., the defen- dants M. T. and H. T., the second mortgagees of the life estate of the said B. M., the defendants B. M. L. and F. L., the trustees of the said will, the defendant T. J. M. M., an infant, the fii'st tenant in tail male in remainder imder the said will, and tlie defendants J. L., A. 8. M., and F. P., the trustees of a term of 1000 years and 398 ORIGINATING SUMMONS. of a portion charge of 5000Z. created under a power contained in the said will, and the defendant E. E., O. W. E., and W. E. E., the executors and devisees of trust estates of the late G. N. E., the surviving trustee of the marriage settlement of the defendant R. M.. and in whom a term of 1000 years is vested for securing portions charged under a jjower contained in the said will, attend at the chambers of Mr. Justice at the Royal Courts of Justice, Strand, London, at the time specified in the margin hei'eof upon the application of the A. Fire office, whose office is at , in the county of , the first mortgagees (under R. S. C, Order LV., r. 5rt), that an account may be taken of wjiat is due to the plaintiffs for principal, interest, and costs on a mortgage dated the day of , 18 , and made between the said R. B. M. of the one i)art, R. H., R. B., and G. P. of the other part, and that the said mortgage may be enforced by foreclosure in the terms of the minutes annexed to this summons. Dated this day of , 1887. \ Conclude as in Form. 23, p. 366. J 47. Affidavit Filed in Support of Summons, Fokm 46. \_Tltle as in Summons.] (a) I, n. J. S., of , secretary of the above-named plaintiffs, the A. Fire Office, make oath and say as follows : 1. I am and have been for twelve years last past the secretary of the said A. Fire Office, and in that caiiacity I am well acquainted with their affairs. 2. By an indenture of mortgage dated the day of 1845, and made between R. B. M., of , of the one part, and R. H., R. B.. and G. P. of the other part, in consideration of 9000?. to the said R. B. M. paid by the said R. H., R. B., and G. P., the said R. B. M. granted and demised unto tlie said R. H., R. B., and G. P., their executors, administrators, and assigns, divers messuages, farms, lands, and hereditaments situate in the parish of in the county of called respectively and con- taining together by admeasurement a. r. p. or there- abouts. The containing by admeasurement a. r. p. or thereabouts. The containing by admeasurement a. r. p. or thereabouts. The containing by admeasurement a. r. p. or thereabouts. The con- taining by admeasurement a. r. p. or thereabouts, and idso a messuage and tenement containing a. r. p. or thereabouts, to hold the same unto the said R. IT., R. B., and G. P. their executors, administrators, and assigns, for the term of 1200 years, to be computed from the date of the indenture now being statful without impeachment of waste, sidjject nevertheless to a proviso for cesser of the said term on pa}^neut by the said R. B. M. (a) Save and except that as there are several defendants it will be Kiinicient to state the name of the first defendant in full, and to refer to the rest as '" and others," ante, p. 40. APPENDIX III. 399 his heirs, executors, or administrators unto the said R. H., R. B., and G. P., their executors, administrators, or assigns of 9000L on the day of then next with interest thereon in tlie mean- time at the rate of 5L per cent, per annum reduceable as therein mentioned. And it was thereby declared and agreed that if the said R. H., R. B., and G. P. or any of tliem shoukl happen to die wliilst the said sum of 9000L or the interest thereof or any part thereof, should continue upon that security, the receipt or receipts of the survivors or survivor of them or of their or his assigns should be a good and eifectual release and discharge for the same or any part thereof. 3. The indenture marked H. J. S. 1, now produced and shown to me, is the said indenture of mortgage, (a) 4. By the A. Fire Insurance Act, 18 (being an Act for incorpo- rating the A. Fire Office and for other purposes relating thereto, and by which Act a previously existing company or co-partnership called " The A. Fire Office " was dissolved), sect. 12, it was pro- vided that, subject to the provision thereinafter contained (which did not affect the said mortgage security) all lands and other pro- pei'ty, real and personal, wherever situated, which, at the passing of that Act belonged to or were held by or vested in the dissolved company or the trustees the directors or the secretary thereof or otherwise for the use or behoof of the said dissolved company, whether held absolutely or in security should be and the same were thereby vested in the company, and should in future be held, con- veyed, released, discharged, or otherwise disposed of by the com- pany under the corporate name and designation " Tlie A. Fire Office." And by sect. 14 of the said Act it was provided that it should be lawful for the company in all matters and proceedings whatsoever to use the said corporate name and designation of the A. Fire Office, and by and under that name the company might sue and be sued, and should have power to acquire, purchase, and hold absolutely or in security any lands and property of any description real or personal wherever situated in or upon which the moneys and funds of the company might be invested. 5. The document marked H. J. S. 2, now produced and shown to me, is a Queen's printer's copy of the said Act of Parliament. 6. On the , day of , 1886, notice to pay off the said mortgage debt of 9000L and interest was given on behalf of the plaintiffs to the defendant R. M., but such notice has not been complied with and the whole of the said sum of 9000^. together with 2681. 14s. llcZ. for interest thereon up to the day of 1887 (less income tax) is still due and owing to the plaintiffs on the security of the said indenture of the day of 1845. Sworn, &c. Filed, &c. (a) As this deed was upwards of thirty years old it did not require to be proved strictly. 400 ORIGINATING SUMMONS. 48. Another Affidavit in Support of Summons, Form 46. I Title as in Summo7is.] (a) I, T. M. H. of , in the county of , solicitor, make oath and say as follows : 1. My late father W. W. II. and I, then in jjai-tuership, were the family solicitors of the late R. B. M., of , in the county of , and I was well acquainted with his affairs. I have also for many years past been tlie solicitor of the A. Fire Office. 2. The said B. B. M. duly made his wiU dated the day of 1843. and thereby gave and devised all his manors or reputed manors, messuages, lauds, tenements, and other heredita- ments of and in , in tlie said county of , and all his advowsous and rights of patronage and presentation of and to the churches of aforesaid, and aU his messuages, lands, tene- ments, and other hereditaments situate, lying, and being in the several ]>arishes of , in the same county ; and all and every other tlie manors or reputed manors, messuages, lands, tenements, and hereditaments whatsoever and wheresoever of or to which he the said B. B. M., or any person or persons, in trust for him (the said testator) was or were seized or entitled for any estate of free- holds and inheritance or of freehold only in possession, reversion, remainder, or expectancy with their rights, members, and appurten- ances (save and except the advowson of the living thereinafter mentioned, and also except the estates vested in him as trustee or mortgagee) to J. W. L., of , and his heirs, to the uses upon and for the trusts, intents, and purposes, and with, under, and subject to the powers, provisoes, and declarations thereinafter expressed, declared, and contained of and concerning the same (that was to say) to the use of his, the said testator's brother T. F. M., and his assigns for and during the term of his natural life without impeachment of waste ; and immediately after the determination of that estate by forfeiture or otherwise in the lifetime of the said T. F. M., to the use of the said /. TT^. L. and his heirs during the natural life of the said T. F. M. upon ti-ust to preserve the contin- gent remainders, and after the decease of the said T. F. M. to tlie use of the said testator's nephew, the defendant J?. 31. and his assigns during his life without impeachment of waste, with remainder to the use of the said /. W. L. and his heirs during the life of the said B. M. in trust for him, and to presei-ve contingent remainders ; and after the decease of the said B. M. to the use of the first and every other son of his body lawfully issuing, severally, successively, and in remainder one after another, in order and course as they slioidd respectively l)e in priority of birth, and the heirs male of tlie Ijody and respective Ixjdies of such son and sons, the elder of such sons, and the heirs male of his body issuing being always to take before, and to be preferred to the yoimger of such sons, and the heirs male of his and their body and respective bodies issuing, with divers remainders over ; and the said will contained a power for tlie said testator's l)rother, and the other persons therein. (a) See note (a), ante, p. 398. APPENDIX III. 401 before made tenants for life as and when they should become entitled to the actual possession and to the receipt of the rents and profits of the said manors and hereditaments by any deed or instru- ment in writing with or without power of revocation and new appointment to be by them sealed and delivered in the presence of and attested by two or more credible witnesses or by will, to charge all or any part of the said hereditaments thereby devised with the payment of any sum or sums of money not exceeding in the whole 5000^ for the portion or portions of any daughter or daughters, or younger son or sons of them the said testator's brothers, and the other persons aforesaid, the same to vest and be payable as the person exercising the power should in manner aforesaid direct, and power for the person exei'cising the power of charging the said hereditaments with such portions as aforesaid, to limit the said hereditaments to any person or persons for any term of years for the purpose of raising the same. And the said wiU contained a power of sale over the said hereditaments exercisable by the said J. W. L. and his executors or administrators with the consent of the adult tenant for life for the time being of the said heredita- ments. And the said testator appointed the said T. F. M., his nephew R. M. W., and his cousin R. H. G. M., executors of his said will. 3. The said testator died on the day of , 1852, and on the day of , 1853, his said will was proved in the Prerogative Court of Canterbury by aU the said executors thereof. 4. The said T. F. M. was married once only, namely, on the day of , 1831, to H. M. M., at the parish church of , in the county of 5. The said T. F. M. and H. M. M. are the same persons as "T. F. M., bachelor," and " H. M. M., spinster," named in the certi- ficate of marriage marked T. H. il/.,now produced and shown to me. 6. The said T. F. M. had by his said wife two children only, namely, the defendant R. M. and H. L. M. 7. The defendant R. M. was baptised on the day of , 1836, at the parish church of , in the county of . He is the same person as " R. M., son of H. M. and T. F. M." named in the certificate of baptism marked T. M. H. 2 now produced to me. He is still living. 8. The said H. L. M. was baptised on the , day of , 1834, at the parish church of aforesaid. She is the same person as " H. L., daughter of T. F. and H. M. 31.," named in the certificate of baptism marked T. M. H. 3, now produced and shown to me. 9. By an indenture dated the day of , 1861, and made between the said T. F. M. of the one part and the said H. L. M. of the other part, the said T. F. M. being then in the actual possession or in the receipt of the rents and profits of the hereditaments devised by the will of the said R. B. M., in pursuance of the power to him given by the same will irrevocably appointed that all the said manors, messuages, lands, and hereditaments should be charged with payment to the said H. L. M. of the sum of 5000L for her portion, the same to vest and be payable to her immediately after the execution thereof and by the same indenture, D D 402 ORIGINATING SUMMONS. the said T. F. M., in further pursuance of the said power, limited and appointed all the said hereditaments to tlie said IT. L. M., her executors, administrators, and assigns, for the term of 1000 years for better securing the said sum of 5000L 10. The signature " T. F. M. " set out and subscribed to the said indenture of the day of , 1861, as the party executing the same, is of the proper handwriting of the said T. F. M., the said T. F. M. having signed, sealed, and as his act and deed delivered the same in the pi-eseuce of me this deponent, and of W. W., of , solicitor; the signature " T. M. H." being one of the signatures set and subscribed to the attestation indorsed on the said indenture of the day of , 1861, of the execution thereof by the said T. F. M., is of mj' proper handwriting. 11. By another indenture dated the day of , 1861, and made between M. L. of the first part and the said T. F. M. of the second part, the said H. L. M. of the third part, and the defendant /. L.. J. L. J. (since deceased), and the defen- dants A. S. M. and F. P. of the fourth part, the said If. L. M. assigned the said sum of 5000Z. and the said term of 1000 years for securing tlie same, to the said /. L., J. L. J., A. S. M. and F. P. (being the trustees of the settlement executed on the marriage of the said H. L. M. with the said M. L.) upon certain trusts therein menticmed or referred to. 12. R. B., late of , in the county of , Esq., died on the day of , 1860. He is the same person as " B. B." named in the paper writing marked T. M. H. 4, now produced and shown to me and purporting to be a certified copy of an entry in a register of deaths given at the General Register Office. 13. O. P., late of , in the county of , Esq., died on the day of , 1861, and was buried on the day of , 1861, at , in the county of He is the same person as " G. P.," named in the certificate of burial marked T. M. H. 5 now produced and shown to me. 14. By an indenture dated the day of , 1862 {indorsed on a certain indenture of mortgage dated the day of , 1845, and made between the said B. B. M. of the one part and B. H., the said B. B., and O. P. of the other ]»art), and made between the said B. H. of the one part, and Iho said B. IT., J. P., and B. L. B. of the other part, the said B. H. assigned the principal sum of 9000Z. secured by the said indenture of the day of , 1845, and the intoi-est thereon and all securities for the same, unto the said B. H., J. P., and B. L. B., their executors, administrators, and assigns. And by tlie same indenture the said B. H. assigned unto himself the said B. II. and the said /. P. and B. L. B. all the said messiiage, farms, lands and hereditaments comprised in and demised by the said indenture of the day of , 1845, to liold the same unto the said B. H., J. P., and B. L. B., their heirs, executors, administrators, and assigns, for all the then residue of the term of 1200 years, created by the said indenture of the day of , 1845, subject to the proviso for redemption or cesser in the last- meutioned indenture contained. APPENDIX III. 403 15. I saw the said R. H. sign, seal, and as his act deliver the said indenture, dated the day of , 1862, and marked T. M. II. 6, now produced and shown to me. 16. The signature " R. H. " set and subscribed to the said indenture dated the day of , 1862, as one of the parties executing the same, is of the proper handwriting of the said R. H. 17. The signature " T. M. H. " set and subscribed to the attesta- tion subscribed to the said indenture of the day of , 1862, of tlie execution thereof by the said R. H., is of my proper handwriting. 18. By a statutory declaration made before me this deponent by the said R. H., J. P. and R. L. B., of the day of 1865, and by E. T. on the day 'of the same month, the said R. H., J. P., R. L. B., ami E. T. respectively declared that the said sum of 9000Z. and interest secured by the said indentures of the day of , 1845, and the day of , 1862, and the securities for the same, were tlie property of the plaintiffs the A. Fire Office. 19. The signatures R. H., J. P., R. L. B., and E. T. respectively set and subscribed to the said statutory declaration marked T. M. n. 7, now produced and shown to me, are of the proper handwriting of the said R. H., J. P., R. L. B., and E. T. respectively. 20. The said T. F. M. died on the day of , 1869, and was buried at , in the county of . He is the same person as " T. F. M." named in the certificate of burial, marked T. M. H. 8, now produced and shown to me. 21. The said R. M. has been married once only, namely, on the day of , 1871, to E. F. C, at the district parish church of , in the county of 22. The said R. M. and E. F. C. are the same persons as " R. M., bachelor," and " E. F. C, spinster," named in the paper writing marked T. M. H. 9, now produced and shown to me, and pur- j)orting to be a certified copy of an entry in a register of marriages given at the General Register Office. 23. The first child of such marriage, namely, the defendant T. J. M. M., was born on the day of , 1872. and he is the same person as " T. J. M., son of R. M. and E. F. M., formerly C," named in the paper writing marked T. M. H. 10, now produced and shown to me, and purporting to be a certified copy of an entry in a register of births given at the General Register Office. 24. On or about the day of . 1866, I received from the defendants M. T. and H. T. the notice or document marked T. M. H. 11, now produced and shown to me. Sworn, &c. Filed, &c. D D 2 404 ORIGINATING SUMMONS. 49. Another Affidavit in support of Summons, Form 46. \_Title as in Sunimons.'\ (a) I, A. L. J., of in the county of , make oath and say as follows : — 1. I know and was well acquainted with /. L. J., formerly of , in the county of , and late of , in the county of , and one of the trustees of a certain indenture dated the day of , 1861, and made between H. L. M. of the one part and the said /. L., /. L. J., A. S. M., and F. P. of the other part, and also one of the trustees of the settlement made upon the marriage of H. L. M. with M. L. 2. The said /. L. J. died in the month of , 1871, and was buried on the day of , 1871, at , in the county of . He is the same person as " /. L. J.," named in the certificate of burial marked A. B. 1, now produced and shown to me. 50. Another Affidavit in support of Summons, Form 46. [Title as in Suvimons.l (a) I, R. M. L., oi , one of the above-named defendants, make oath and say as follows : — 1. I knew and was well acquainted with the late /. TF. L., of , who I am informed was the surviving trustee of the win of the late B. B. M. 2. The said /. W. L. was my brother. 3. By his will, dated the day of , 1868, the said /. W. L. devised all estates vested in him as a trustee or mort- gagee to me and the defendant F. L., and appointed me and the said F. L. executors of his said will. 4. The said J. W. L. died on the day of , 1876, and I was present at his fimeral. 5. The said will was proved by me and the said F. L. on the day of , 1876. in the Princiiial Registry of the Probate Di\'ision of the High Court of Justice. 61. Minutes of Order referred to in Summons, Form 46. In the High Court of Justice, Chancery Division. The A. Fire Office v. M. and others. Proposed minutes of judgment referred to in annexed summons. Let an account be taken of what is due to the plaintiffs under and by virtue of their mortgage security {h), dated the day of , 184.5, in the summons mentioned and for their costs of this action to be taxed by tlie taxing master; and let, upon the defendants li. 31., M. T., H. T., R. M. L., and F. L., T. J. M. M., (a) See note (6), ante, p. 3G1. (6) The words in italics are sufficient to coyer everything due to the mortgagee including costs of repairs and insurance, and his costs outside the action. APPENDIX III. 405 J. L., A. 8. M., F. P., E. K, G. N. E., aud W. E. E., or auy of them, paying to the plaiutift's what shall be certified to be due to them under and by virtue of their said security within six calendar months (a) from the date of the chief clerk's certificate at such time and place as shall be thereby appointed, the plaintifEs assign, surrender, or otherwise assure the mortgage premises during the residue of the term of 1200 years created by the said indenture, free and clear of and from all incumbrances done by the plaintifEs or auy persons claiming by, from, or under them, or by those under whom they claim, and deliver up upon oath all deeds and writings in their custody or power relating to the said premises to the said defendants, or to such one or more of them as shall so redeem the plaintiffs, or as he or they shall direct, such assurance to be settled by the judge in case the parties differ about the same. And it is ordered that, in case the said defendants, or any or either of them, shall so redeem the plaintiffs, the defendant or defendants so redeeming the plaintiffs are or is to be at liberty to apply to this court, as he or they shall be advised, for the addition to the order of auy further accounts and directions consequential thereon, which by reason of such redemption the court may think just, or otherwise as he or they shall be advised, aud on such application it is not to be incumbent on the defendant or defendants so applying to give to the plaintiffs notice thereof ; but this order is to be without prejudice to any question which may arise as to the rights or interests of the said defendants as between themselves to or in the said hereditaments and premises, (ft) But in default of the said defendants, or any or either of them, so i*edeeming the plaintiffs by the time aforesaid, let the defendants from thence- forth stand absolutely debarred aud foreclosed of and from all right, title, interest, and equity of redemption iu aud to the hereditaments and premises comprised in the plaintiffs' said mortgage security during the residue of the term created by the said indenture of the day of , 1845. Liberty to apply. 52. Originating Summons by First Mortgagee in posses- sion OF Freeholds against the Mortgagor and the Purchaser of the Equity of Redemption of part of the Property, the Plaintiff seeking to con- solidate. In the High Court of Justice, 1886, N., No. Chancery Division. Mr. Justice Between G. N. SiuAW. N. Plaintiffs, and W. H. G. and the X. Company Limited, Defendants. Let the defendants W. H. G. and the X. Com,pany Limited, the (a) As to fixing one period of redemption, see Piatt v. Mendel (51 L. T. Rep. N. S. 424 ; 27 Ch. Div. 246 ; 54 L. J. 1145, Ch. ; 32 W. E. 918) ; Tufnell V. Nichols (56 L. T. Eep. N. S. 152 ; W. N. 1887, p. 52.) (b) See Bartlett v. Rees (12 Eq. 397 ; 25 L. T. Rep. N. S. 373 ; 40 L. J. 599, Ch. ; 19 W. R. 1046) and Jennings v. Jordan (6 App. Cas. 698, 721 ; 45 L. T. Rep. N. S. 593 ; 51 L. J. 129, Ch. ; 30 W. R. 369). 40G ORIGINATLNG SUMMONS. persou and couipauy respectively interested in the equity of redemp- tion of the messuan^es and hereditaments comprised in the respective mortgages hereinafter mentioned, attendat the chambersof Mr. Justice , at tlie Royal Courts of Justice, Strand, London, at the time specified in the margin hereof, upon the application of G. N., of , in the coimty of , and W. N., oi , in the county of , Esquire, who claim to be interested in the relief sought as mortgagees for an order (under the Rules of the Supreme Court, Order LV., r. 5a) for foreclosure in the terms of the minutes annexed to this summons, (a) Dated, &c. [Conclude as in Fonn 23, j). 366.] 53. Order made on Summons, Form 52. \_Title as in Summons.'] Upon the application (on an Originating Simimons) of the plain- tiffs, under Order LV., rule 5a, of the Rules of the Supreme Court, who claim to be interested as mortgagees, and upon hearing the solicitors for the applicants and for the defendants, and upon read- ing an affidavit of A. B., filed the , 1887, and the several exhibits therein referred to, marked A. B. 1. A. B. 2, A. B. 3, A. B. 4, and A. B. 5 {A. B. 1. A. B. 2, A. B. 3, and A. B. 4 being four indentures of moi'tgage, all dated the , 1878, between W. H. G. of the one ^jart, and G. N. C. D. (now deceased) and W. N. of tlie other part, and A. B. 5 being a certificate of the death of the said C. D.) It is ordered that the following accounts be taken : — 1. An account of what is due to the plaintiffs under and by virtue of the said four indentures of mortgage dated the , 1878, and for their costs of this action, such costs to be taxed by the taxing master. 2. An accoimt of the rents and profits received, or which but for wilful defaulf might have been received, by the plaintiffs, (b) And it is ordered that what shall appear to J)e due on account 2, be deducted from wliat shall appear to l)e due on account 1, and the balance certified, and upon the defendants, or either of them, paj-ing to the plaintiffs what shall bo certified to be the balance due to them within six calendar months after the date of the chief clerk's certificate, at such time and place as sliall be thereby appointed, it is ordered that tlie plaintiffs do re-assign the messuage and here- ditaments comprised in their said respective four mortgage secu- rities free and clear of and from all incumbrances done by the plaintiffs or any persou or persons claiming by, from, or under them, and deliver up upon oath all the title deeds and writings in their custody or power relating to the said premises, to the said defen- dants, or to such one of tliem as shall so redeem the plaintiffs, or as (a) The minutes sufficiently appear from the order made on this summons. (6) For a fuller form in case of a mortgagee in possession, see Seton» p. 1066. APPENDIX III. 407 he or they shall direct, such assigument or assiguuieuts to be settled by the judge in case the parties diifer about the same. But in default of the said defendants, or either of them, so redeeming the plaintiif s by the time aforesaid, the defendants are from thenceforth to stand absolutely debari-ed and foreclosed of and from all right, title, interest, and equity of redemption, of, in, and to the messuages and hereditaments comprised in the said four mortgage securities and every part thereof. Any of the parties are to be at liberty to apply as they may be advised. 54. Originating Summons by First Mortgagees op Free- holds AGAINST THE PURCHASERS OF THE EQUITY OP Redemption and Second Mortgagees. 1886, N., No. In the High Court of Justice, Chancery Dixasion. Mr. Justice Between G. N. audi W.N. Plaintiffs, and The X. Company Limited [and J. J. M., F. G., W. C. G., B. G., H. G.. J. C. 8., and C. E. B., by order dated the day of March, 1887.J (a) Defendants. Let the defendants interested in the equity of redemption of the messuage and hereditaments comprised in the mortgage hereinafter mentioned, attend at the chamber of Mr. Justice , at the Royal Courts of Justice, Strand, London, at the time specified in the mai'gin hereof, upon the application of G. N., of , in the coTinty of , and W. N.. oi , in the county of , who claim to be interested in the relief sought as mort- gagees, for an order (under the rides of the Supreme Court, Order LV., r. 5a), that an account may be taken of what is due to the plaintiffs for principal, interest, and costs on a mortgage, dated the day of , 1878, and made between /. P. F. of the one ijart and the said G. N., C. D. (since deceased), and the plaintiff W. N. of the other part (being a mortgage of No. 19, Road), and that the said mortgage may be enforced by foreclosure or sale. Dated the day of , 1886. (6) [Conclude as in Form 23, p. 366.] (a.) These parties were added by amendment. (b) While the order on this summons was in draft, but after the order Form 53 had been passed and entered, the plaintiffs' solicitors received notice of an order to wind-up the said X. Company Limited under super- vision ; also that there was a second mortgage on the house No. 19 referred to in this summons, and on one of the houses comprised in the summons Form 52. Accordingly the summonses set out in the next three forms were taken out, and will be useful as showing the practice in similar cases. 408 ORIGINATING SUMMONS. 55. Ordinary Summons for Leave to Amend Summons, Form 54. (o) 1886, N., No. In the High Court of Justice, Chaucery Divisiou. Mr. Justice Between G. N.&nd W. N., Plaintiffs, and The X. Company Limited, Defendants. Let all parties concerned attend at the chambers of Mr. Justice , in the Royal Courts of Justice, Strand, Middlesex, on day, the day of March, 1887, at o'clock in the noon, on the hearing of an application on the part of the plaintiff's, that notwithstanding the order made herein, and dated the March, 1887, the drawing up thereof may be stayed, and the Originating Summons herein may be amended by the names of J J. M.. F. G., W. C. G., B. G., and H. G., J. C. S., and C. E. B. being added as parties defendants to this action, and that the costs of this application may be defendants' costs in any event. Dated March, 1887. This summons was taken out by , of , in tlie county of , solicitors for the applicants. To the defendants and Mr. their solicitor, {b) 56. Ordinary Summons for Leave to Prosecute Fore- closure Action notwithstanding Winding-up Proceedings. 188 . No. In the High Court of Justice, Chancery Division. Mr. Justice In the matter of the Companies Acts, 1862 and 1867, and In the matter of the X. Covipany Limited and Betyfeeu G. N. and W. N. Plaintiffs, and W. H. G. and tlie X. Covipcmy Limited, Defendants. Let all parties concerned aticnd at my chambers in the Royal Courts of Justice, Strand, Middlesex, on the day of March. 1887, at of the clock in the noon, on the hearing of an a])))lication on the part of G. N. and W. N. the plaintiff's in an action of N. and another v. G. and the X. Com,' (a) Ab a rule an Originating Sumnions can be amended without a formal order or KumnioiiB, see Dan. F., p. 435, note (o), but there were special circumstances in this case. (b) An order was made on this Bummoiis in the terms thereof. APPENDIX III. 409 pany Limited, 1886, N. that the applicants may be at liberty to prosecute the said action against the above-mentioned X. Company Limited and its official liquidator, notwithstanding the order made in the above-mentioned matters and dated the day of March, 1887, for winding-up of the said X. Company Limited, (a) Dated the day of March, 1887. This summons was taken out by , of , in the county of Solicitors for the applicants. To the official liquidator of the above-named X. Com,pany and their solicitors. 57. Originating Summons by First Mortgagees against Second Mortgagees of part of the Property comprised in the Action, Form 52, vtho vs^ere discovered after the Order for Foreclosure therein had been made. In the High Court of Justice, 188 . No. Chancery Division. Mr. Justice Between G. N. and W. N. Plaintiffs, and /. /. M., F. G., W. C. G., B. G., H. G., J. C. S., and C. E. B Defendants. Let the defendants /. /. M., of , F. G., W. C. G., B. G., H. G., and /. C. 8., aU of , and C. E. B., of , the persons interested in the equity of redemption of the messuages and hereditaments comprised in the mortgages hereinafter mentioned, attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, London, at the time specified in the margin hereof, upon the application of G. N., oi , and W. N., of , who claim to be interested in the relief sought as first mortgagees, for an order (under the Rules of the Supreme Court, Order LV., r. 5a) that an account may be taken of what is due to the plaintiffs for principal, interest, and costs on a mortgage dated the day of , 1878, and made between W. H. G. of the one part and the said G. N., C. D. (since deceased), and W. N, of the other part (being a mortgage of No. Road, and on a mortgage of the same date made between the same parties (being a mortgage of No. Road), and on a mortgage of the same date made between the same parties i^being a mortgage of No. Road), and on a mortgage of the same date made between the said parties (being a mortgage of No. Road), and that the said mortgages may be enforced by foreclosure in the terms of the minutes annexed to this summons. And that if and so far as necessary this action may be taken as siipplemental to the action of N. and another v. (?., 1886, N., No. Dated, &c, [Conclude as in Form 20, p. 358.] (a) A similar summons was taken out in the other foreclosure action, Form 54, p. 407^ 410 ORIGINATING SUMMONS. 58. — Order made on Summons, Form 57, [Omitting formal parts.l It is ordered tliat 1. An account be taken of what is due to the plaintiffs under and by virtue of all their mortgage securities, that is to say, an indenture of mortgage dated the , 1878, and made between W. G. of the one part, and G. N. C. D. (since deceased), and W. N. of the other part, (being a mortgage of No. Road), also an indenture of mortgage of the same date, and made between the same parties (being a mortgage of No. Road), also an inden- ture of mortgage of tlie same date, and made between the same parties (being a mortgage of No. Road), also an indenture of mortgage of the same date and between the same pai'ties (being a mortgage of No. Road), and for the costs of the plaintiffs of this action, such costs to be taxed l)y the taxing master. 2. An account of the rents and profits of the messuages and hereditaments comprised in the said mortgages received by the plaintiffs G. N. and W. N., or by either of them, or by any other person or persons, by the order or for the use of the plaintiffs, or either of them, or which, without the wilfid default of the plaintiffs, miglit have been so received. And it is ordered that what shall ajipear to be due on account No. 2 be deducted from wliat shall appear to be due on account No. 1, and that tlie balance be certified. And it is ordered that upon the defendants, or any or either of them, paying to the plaintiffs Avliat shall be certified to be the balance due to them as aforesaid within six calendar months after the date of the chief clerk's certificate, at such time and place as sliall be there- by ajipointed, the plaintiffs do re-assign the messuages and heredita- ments comprised in their said respective mortgage securities, free and clear of and from all incumbrances done by tlie plaintiffs, or any person or persons claiming l>y, from, or under them, and deliver up (upon oath if required) all the title deeds and writings in their custody or power, relating to tlie said premises, to such of the defendants as shall redeem the said mortgaged messuages and here- ditaments, or as they or lie sliall direct, sucli assignment or assign- ments to be setthMl by tlic; judge in case tlie parties differ. But this oi'der is to lie without prejudice to any question which may arise as to the riglits or interests of the defendants as between themselves, to or in the said mortgaged messuages and heredita- ments. But in default of the defendants, or any or either of them, paying to the plaintiffs what shall bo certified to be due to them as aforesaid, by the time aforesaid, tlie defendants /. /. M., F. G., W. C. G., B. G., H. G., J. C. S., and C. E. B., are from thenceforth to stand absolutely debarred and foreclosed of and from all right, title, interest, and equity of redemption of, in, and to the messuages and hereditaments comprised in the said mortgage securities and every part thereof. And any of the parties are to be at liberty to apjily as they may bo advised, (a) (a) An order was subsequently made consolidating this action with that of N. V. G., horm 52, p. 405. APPENDIX III. 411 59. Originating Summons by First Mortgagees of Free- holds and copyholds against a second mortgagee. 1887, N. No. In the High Court of Justice, Chancery Division. Mr. Justice Between C. N., W. M., anAE.D Plaintiffs. and M. C, widow, (a) ... ... ... Defendant. Let the defendant, M. C, of , in the county of , widow, a person interested in the equity of redemption of the messuage and hereditaments comprised in the mortgage hereinafter mentioned, attend at the chambers of Mr. Justice , at the Royal Coui*ts of Justice, Strand, London, at the time specified in the margin hei'eof, upon the application of C. N., of , in the county of , W. M., in the county of , esquire, and E. D., of , in the county of , who claim to be interested in the relief sought as first mortgagees, for an order (under the Rules of the Supreme Court, Order LV., r. 5 a) that an account may be taken of what is due to the plaintiffs for principal^ interest, and costs, under an indenture of mortgage dated the day of , 1876, made between W. T. of the one part and the said C. N. and also W. N. (since deceased) of the other part, and a conditional surrender, dated the day of , 1876, made by the said W. T. in favour of the said C. N. and W. N. (being respectively a mortgage of freehold and copyhold heredita- ments in the parish of T., in the county of ), and that the said mortgage may be enforced by foreclosure or sale in accordance with the minutes annexed to this summons. Dated this day of , 18 . \_Conclude as in Form 20, p. 358.] 60. Affidavit in support of Summons, Form 59. [Title as in Swrnmons.'] We, A. H., of , in the county of , the actuary and resident secretary of the company, of which company the plaintiff C. N. is the chairman, and tlie plaintiffs W. M. and E. D. are two of the directors, and W. B., of No. , in the county of , solicitor, managing clerk to , of the same place, soli- citors to the said company, severally make oath and say as follows : And I the said A. H. for myself say : 1. By an indenture of mortgage, dated the day of , 1876, and made between W. T. of the one part and C. N. one of the above-named plaintiffs, and W. N. (since deceased) of the other (a) In this case the mortgagor had become bankrupt, and hia trustee had disclaimed ; accordingly only the second mortgagee was made defen- dant. 412 ORIGINATING SUMMONS. part, and which indenture is now produced, and shown to me, and marked A. H. 1, the said W. T. mortgaged certain freehokl property, and covenanted to surrender, and subsequently did surrender, certain copyhold property (the subject-matter of this action), situate in , in the parish of , in the county of , to the said C N. ^md TF. N., to secure the repayment of the principal sum of 650Z., and such further sum or sums not exceeding in the whole the sum of 200/. as should or might thereafter be advanced to the said W. T. by the said C. N. and W. N., with interest at I. per cent, per annum, and which said sum of 2001. was siibsequently ^idvanced, namely, on the , 1877. 2. By a conditional surrender now produced and shown to me, and marked A. H. 2, the said W. T. on the day of , 1876, in pursuance of his covenant in that behalf contained in the said indenture marked A. H. 1, duly surrendered the said copy- hold property to the use of the said C. N. and W. iV., their heirs and assigns, subject to the condition for making void the said surrender ■on payment as therein mentioned. 3. The said W. N. died on the , 1879. 4. By an indenture of transfer indorsed on the said indenture, marked A. H. 1, and dated the , 1880, and made between the said C. N. of the one part, and the said C. N., W. M., and E. D., the above-named plaintiffs, of the other part, the said C. N. assigned and conveyed unto the plaintilfs, the said C. N., W. M.,aud the said E. D. the said mortgage debt and the freehold and copyhold property comprised in the said inden- ture of mortgage, subject to the equity of redemption subsisting therein. And I, the said W. B., for myself say as follows : — 5. I have read the London Gazette of the , 1886, from which, on page , it appears that W. T., of , was adjudicated a bankrupt on the , 1886. 6. The said W. T., in the said London Gazette mentioned is the same person as " W. T." referred to in the first paragraph of this affidavit. 7. I have also read the office copy certificate of the Board of Trade in the bankruptcy proceedings of the said W. T., from which it appears that H. W. F., of , in the City of London, accountant, was on the , 1886, appointed a trustee of the said W. T.'s estate. 8. I know and am acquainted with the said H. W. F. He is the same pei-son as " H. W. F." referred to in tlie next succeeding para- graph of tliis affida\'it. And I, the said A. H., for myself further say as follows : 9. On or about the , 1886, I received from Mr. H. W. F. the notice of disclaimer now produced, and shown to me, and marked A. H. 3. And 1, W. B., for myself, further say : 10. It l)eing doubtful, from tlie wording of the said notice of disclaimer, whether tlie said disclaimer was intended to apply to the copyhold portion of tlie property, the subject-matter of this .action. I, on belialf of tlie said Messrs. , on the , APPENDIX III. 413 1887, wrote a letter to the said H. W. F., of which the following is a copy ; . London. Dear Sir, 1887. Be T. On the 1886, you as trustee in the bankruptcy of W. T. executed a disclaimer, of which we send you, on the other side, a copy. The first mortgage therein referred to comprises a small piece of copyhold land, adjoinmg the freeliold property, to which alone the disclaimer relates, and as our clients, the first mortgagees, are now about to commence an action of foreclosure against the second mortgagee, we should be glad to know whether you intended your disclaimer to apply to such copyhold laud, and also whether you now disclaim all the freehold and copyhold property comprised in the said first mortgage. If you do not, we shall be obliged to make you a defendant in this action. Yours tnily, B. W. F., Esq. In answer to such letter the said Messrs. , on or about the , 1887, received the letter dated the , 1887, now produced and shown to me, and marked W. B. 11. In the course of correspondence consequent upon the bank- ruptcy of the said W. T., I incidentally became aware of ihe fact of the said W. T. having effected a further charge upon the heredita- ments, the subject of this action, and iipon inquiring of him for particulars thereof, he produced what purported to be a copy of an equitable charge in favour of the defendant M. C. And I, the said A. H., for myself, further say : 12. There is now due and owing to the said C. N., W. M., and E. D., in respect of the said mortgage, the principal sum of 850Z. 13. On the , 1886, the said plaintiffs C. M., W. M., and E. D. entered into the receijit of the rents and profits of the said freehold and copyhold property, and there is, assuming the validity of the equitable charge referred to in the lltli paragraph of this affidavit, now due and owing to the defendant in respect of such rents and profits, after deducting the sum of 631. 6s., due to the plaintiffs for interest and fire insurance premium, the sum of L or thereabouts. Sworn, &e. Filed, &c. 61. Originating Summons to enforce a Charging Order, (a) In the High Court of Justice, 188 . No. Chancery Division. Mr. Justice , by Certificate. Between i2. iV. ...Plaintiff. and 8.H. Defendant. Let the defendant 8. H., the judgment debtor, and the person (a) As to this mode of proceeding, see Leggott v. Western (12 Q. B. Div. 287 ; 53 L. J. 316, Q. B. ; 32 W. R. 460). 414 ORIGINATING SUMMONS. against whom the charging order hereinafter mentioned was obtained, attend at the cliambers of Mr. Justice , at the Royal Courts of Justice, Strand, London, at the time specified in the margin hereof, upon the application of R. N., oi , in the county of , the judgment creditor and person entitled to the benefit of the said charging order, that an account may be taken of what is due to the plaintiff for principal, interest, and costs, or otherwise, under or by virtue of a certain charging order dated the day of . 1888, and made absolute on the day of , 1888, by his Lordship Mr. Justice , in the matter of the trusts of an indenture of settlement dated the day of , 1860, and in the matter of the personal estate of E. E. H. intestate, and in tlie matter of the estate of G. B.. deceased, and in an action of E. N. against J. F. and another, and that such charging order may be enforced by foreclosure, or sale, and that the sum of I. and aU other sums (if any) which under a certain order, dated day of , 1887, mentioned in the said charging order, are payable to the defendant S. H. out of tlie proceeds of the Z. I. per Cent. Stock of the Company in court to the credit oi " JRe H. ,18 JS. Personal estate of G B., deceased," mentioned in the said charging order, and out of the funds to be lodged to the same credit, may be paid to the plaintifi', and if neces- sary that the defendant S. H. may he ordered to execiite and do such assurances, acts, and deeds as may be necessary for enabling the plaiutifE to receive the said sum of I. and other sums. Dated, &c. [Conclude as in Form 23, ante, p. 366. J 62. Order made on Summons, Form 61. [Omitting formal parts.~\ It is ordered that an account be taken of what is due to the plain- tiff under and by virtue of the said charging order and for his costs of this action to be taxed, and upon the defendant paying to the plaintiff what shall be certified to remain due to him as afore- said within six calendar montlis after the date of the chief clerk's certificate at such time and place as shall be thei-eby appointed, it is ordered that tlu; plaintiff do deliver up upon oath, if required, all documents in his custody or power relating to his aforesaid security to the defendant, l)ut in default of the defendant paying to the plaintiff" what shall be so certifiedto be due to him as aforesaid by the time aforesaid, the judge doth declare that the plaintiff will be absolutely entitled to the amount payable to the defendant as afore- said and affected l)y the said cliarging order, free from all right, title, interest, and equity of redemption by the defendant, and in that case it is ordered that the defendant from tlienceforth stand abso- lutely debarred and foreclosed froin all right, title, interest, and equity of redemption of, in, and to the said amount. Liberty to apply. APPENDIX III. 415 63. Originating Summons for the Appointment of New Trustees and a Vesting Order (under Order LV., R. 13 (A), Dec, 1888). (a) \_Beferencc to record.'] In the High Court of Justice, Chaucery Division. Mr. Justice In the matter of the trusts of the will and codicil of M. P., widow, deceased, dated resijectively the day of , 1865, and the day of , 1873. And in the matter of the Trustee Act, 1850, and of the Act, 15 & 16 Vict. c. 55, intituled, " An Act to extend the iwovisions of the Trustee Act, 1850." (&) Let the respondent, A. R. B., tlie legal personal representative of the last surviving trustee of the will of the above-named M. P., attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, at the time specified in the margin hereof, upon the application, under Order LV.. r. 13 (a), of the Rules of the Supreme Court, of M. B. L., the wife of if. B. L., of , in the county of , Esq., the said H. D. L., B. M. P., of in the county of , spinster, a person of unsound mind, by the said M. B. L., as committee of her estate ; /. H. L., oi a captain in ; W. H. P. L., of ; C. F. H. L., of , merchant ; B. M. L., of , spinster ; and D. H. L., of , an infant under the age of twenty-one years, by the said H. D. L., his father and next friend, being respectively cesfwis que trusts under the said will. 1. That A. B., of , in the coimty of , \_occupation], and C. D., of , in the county of , [occupation], may be appointed trustees of the will dated the day of , 1865, of the said M. P., in the place of H. B. and B. S. P. respec- tively, deceased. 2. That the messuages, tenements, lands, and hereditaments, situate in , now subject to the trusts of the said will, and all other, if any, the lands and hereditaments so subject may vest in the said A. B. and C. D. as such trustees as aforesaid, for the estate and interest therein now vested in the said A. B. B. 3. That the right to call for a transfer of and to transfer into their own names the sum of /. Consolidated Stock, and the sum of I. 4Z. Debenture Stock of the Railway Company, respectively, subject to the trusts of the said will, and to receive the dividends now due and to accrue due thereon, may be vested in the said^. B. and C. D. as the trustees thereof. 4. .That the right to sue for and recover any chose in action (a) See ante, p. 121 et seq., and Addenda; and for Form of Petition, see Dan. F. 2065. (b) It will not be necessary to entitle the summons in the second Act unless relief thereunder i$ asked for. As for instance if an order vesting the right to transfer stock is required. 416 ORIGINATING SUMMONS. subject to the trusts of the said will may vest iu the said A. B. and C D. as such trustees of the said will. 5. That the costs of this application may be properly provided for. Dated, &e. Note. — The order to be made on this summons is sought under sects. 32, 34, and 35 of the Trustee Act, 1850, and sect. 9 of the Act 15 & 16 Vict. c. 55. (a) \_Conchide as in Form 23, p. 366.] The consent of the new trustees to act and the affidavit of their fitness can be readily adapted from the corresponding forms under the Settled Land Acts, post, p. 420. 64. Originating Summons under the Vendor and Pur- chaser Act, 1874. {b) 18 . In the High Court of Justice, Chancery Division. Mr. Justice In the matter of the contract dated the day of , 18 , for the sale of freehold heredi- taments, known as " The Farm," in the parish of , in the county of , made between H. L., the Rev. B. G., and H. A. L. of the one part, and W. T. of the other part, and In the matter of the Vendor and Purchaser Act, 1874. (c) Let H. L., B. G., and H. A. L., the vendors, attend at the chambers of Mr. Justice , at the Royal Courts of Justice, Strand, at the time specified in the margin hereof, upon the applica- tion of the above-named W. T., oi , in the county of , gentleman, the purchaser, that it may be declared that the objec- tions of the said W. T. to the title to the hereditaments comprised in the above-mentioned contract have not been sufficiently answered by the vendors ; and that a good title to the said hereditaments has not been shown. (cZ) Dated, &c. [Conclude as in Form 23, p. 366.] (a) As to this note, see p. 126, ante. (b) See ante, p. 172. (c) As to the title, see ante, p. 332, and Seton, vol. 2, p. 1318, and as to the form generally, see Dan. F. 1525. (d) In a proper case add, " And that the said W. T. is entitled to a return of the deposit of I. with interest, and that the [vendors'] may be ordered to return and pay the same accordingly, and that the [vendors] may bo ordered to pay the costs of this application." APPENDIX III. 417 65. Statement of Agreed Facts to Accompany Sum- mons, FoEM 64. \_Insiert short Title and Reference to Record.^ Statement of agreed facts. 1. The Rev. R. G., H. L., and S. A. L., as trustees of an inden- ture, dated the day of , 1851, liave lately agreed with W. T. for the sale to him of certain freehold hereditaments, known as The Farm, in the parish of , in the county of , at the price of I., the purchaser taking to the cultivations at a valuation. 2. The vendors were constituted trustees by and repi'esent per- sons beneficially interested in the said premises nuder the will, dated the day of , 1830, of W. C. B., who died in the year 1842, a copy of such will is hereto annexed, marked A. 3. Such persons were in events which have happened the four only daughters of the said testator. Three of them are spinsters, and one is married. 4. The said daughters were the co-heiresses at law of the said testator, and the youngest, of them is aged sixty-two years, or there- abouts. 5. The purchaser has olDJected to the title on the ground that under the said will the said daughters only took life estates in the proj)erty, with remainder to their respective issue (if any), and further that, if any of such daughters should die without leaving issxie to attain twenty-one, but leaving a husband her surviving, such husband would acquire a life interest in tlie property. 6. The vendors, on the other hand, contend either that the said daughters took life interests under the said will, with remainder on the death of the survivor of them to themselves as tenants in com- mon in fee simple as co-heiresses at law of the testator, or that they were tenants in common in tail under the said will, and that the interests (if any) limited to their respective husl)ands are void for remoteness. E E 418 ORIGINATING SUMMONS. ADDITIONAL FORMS UNDER THE SETTLED LAND ACTS, (a) Forms on Applications for Appointment of Trustees OF THE Settlement (sects. 38, 59, and 60). (b) 66. Summons by a Tenant for Life of Full Age. In the High Court of Justice, 1888, C, No. Chancery Division. Mr. Justice [By certificate.] (c) In the matter of a certain freehokl house, called , situate at street, W., in the county of , with the grounds and fields thereto belonging, containing together about acres, more or less, and of a freehold cottage, called , situate at street, aforesaid, and also the gardener's cottage near thereto, settled by the will of W. C, dated the day of , 1874, and In the matter of Settled Land Act, 1882. Let (d) [all pai-ties concerned] attend at my chambers, at the Royal Coiirts of Justice, Strand, London, on the day of , 1888, at o'clock, in the forenoon, on the hearing of an application on the part of ill". H. (the wife of T. W. H.), the tenant for life under the settlement created by the above-men- tioned will in the above mentioned hereditaments. 1. That E. T., of , in the county of , spinster, and W. G. C, of street, in the county , \_occupation], may be appointed trustees under the settlement created by the above-mentioned will, in the above-mentioned hereditaments, for the purposes of the above-mentioned Act. 2. That the costs of this application may be directed to be taxed as between solicitor and client, and that the same when taxed may be paid out of the property subject to the said settlement, and that for that purpose all necessary directions may be given. Dated the day of , 1888. This summons was taken out by , of , solicitor for the applicant. To W. G. C, of , in the county of , W. C. S., of , in the county of , and E. 8., of , in tlie county of , surviving trustees of the will of the above-named W. C., deceased. (a) For Government forms, see ante, p. 240 et seq., and observe note on p. 239. (6) See ante, pp. 215, 229. (c) These words were inserted because it was necessary to make the application before the judge in whose court an action was pending to administer the estate. ((Z) In lieu of the words in [ ] it would be lietter to insert the names of the respondents describing them as the trustees of tlie will of the above-named W. C, deceased. APPENDIX III. 419 If you do not attend either in person or by your solicitor [at tlie time and placed above-mentioned], (a) such order will be made and proceedings taken as the judge may think just and expedient. Before you will be heard in chambers, you will have to enter an appearance in the central office, and give notice of such appearance. 67. Affidavit of Tenant for Life Filed in Support of Summons, Form 66. [Title as in Summons.] Filed 1888. I, M. H. (the wife of T. W. H.),{b) of No. road, in the county of , make oath and say as follows : — 1. By the above-mentioned will the above-mentioned house, grounds, fields, cottages, and hereditaments stand limited upon trusts under which I am beneficially entitled in possession as tenant for life. 2. W. G. C, W. C. S., and E. T. are the surviving trustees of the said will, but they have no power of sale or of consenting to or approval of the exercise of tlie power of sale of the said heredita- ments and premises until after my death, and at present there are no trustees of the settlement created by the said will in the said hereditaments and premises for the purposes of the said Act. 3. The said testator died on the day of June, 1874. 4. On the day of October, 1874, a suit was institiited by bill of complaint for the purpose of having the real and personal estate of the said testator administered by the court. 5. By the decree made in the said suit on the day of December, 1874, the usual accounts and inquiries were ordered to to be taken and made, including an inquiry what real estate the said testator was seised of or entitled to at the time of his death, distinguishing such parts thereof as were specifically devised. 6. By the chief clerk's certificate, filed in the said suit on the day of , 1876, it was found that the above- mentioned hereditaments formed part of the real estate of which the said testator was seised at the time of his death. 7. By an indenture dated the of , 1877, and made between the said W. G. C, W. C. T. and E. T. of the one part, and C. A. B., of the other part, the said premises called House, with the gardens and lands adjoining thereto, and occupied therewith and containing by estimation about twenty- three acres more or less, were, with the sanction of the court, demised to the said C. A. B. for the term of fourteen years from the day of , 1875, at the yearly rent of 190L (a) If the time has been altered by indorsement, instead of the words in [ ] insert " at the place above-mentioned, at the time mentioned in the indorsement hereon." {h) As the husband and wife were not living' together in this case the address of the husband is not given. E E 2 420 ORIGINATING SUMMONS. 8. Tlie said suit was heard on fiirtlier consideration on the day of 1876. 9. By a memorandum of agreement dated the day of , 1877, and made between the said W. G. C, W. C. S., and E. T. of the first part, and H. G., G. F. G. and C. E. G. of the second part, a conditional agreement was entered into for settling the boundary between the above-mentioned hereditaments and certain adjoining hereditaments. 10. By an order made in the said suit on day of , 1877, it was oi'dered that the last-mentioned agreement should be carried into effect, and the same was accordingly carried into effect by indeutiires of mutual conveyance, dated respectively the day of , 1878, and made between the said W. G. C, W. C. S., and E. T. of the first part, A. T. of the second part, W. W. of the third part, and /. T. of the fourth part. 11. I attained the age of twenty-one years on day of 1883. 12. By an order made in the said suit on the day of 1884, it was order that I should be let into possession of my estate and receipt of the rents thereof as from the . day of , 1883, and ever since that date I have received the rents and profits of the above-mentioned hereditaments. 13. On the day of , 1885, I intermarried with A. H., but no settlement was made on such marriage. 14. By decree nisi of the Probate, Divorce, and Admiralty Division of the High Court of Justice, made on the day of , 1887, the said marriage was dissolved, and on the day of , 1888, the said decree was made absolute. 15. On the day of , 1888, I intermarried with the said T. M. H., but no settlement was made upon such marriage. 16. The company have made an advantageous offer to purchase the above hereditaments, and I am desirous of accepting such offer. Sworn at No. , in the city of London this day of ,1888. Before me A. B., A commissioner to administer oaths in the Supreme Court of Judicature in England. This affidavit is filed on behalf of the said M. H. 68. Consent of Trustee to Act and Yeeification THEREOF, (a) [^Insert short title and reference to the record.l Wo, E. T., ot , in the county , spinster, and W. G. C, of , in tlie county of , locciq^ation], do hereby consent to act as trustees under the settlement created by the will dated the day of , 18 , of W. C, late of , in the county of , in the hereditaments above (a) See OrJer XXXVIII., r. 19a, ante, p. 45. APPENDIX III. 421 mentioned or referred to for tlie purposes of the above-mentioned Act. Dated tlie day of , 1888. (Signed) E. T. W. G. C. I, H. S. C, of , in the county , solicitor, hereby certify that the above-written signatures are the signatures of E. T. a.nd W. G. C, the persons mentioned iii the above-written consent. (Signed) H. 8. C. 69. Affidavit of Fitness of Trustee, (a) [Title as in Summons.^ Filed 1888. I, E. F., of street, W., in the county of sub- comptroller (6) in office, make oath and say as follows : — 1. I have for eleven years last past known and been Avell acquainted with W. G. C, of , in the county of [occupation'] one of the persons proposed to be appointed trustees under the settlement created by the above-mentioned will in the above-mentioned hereditaments for the purposes of the above- mentioned Act. 2. The said W. G. C. has retired from business, but has for many years last past been engaged in local work at W. aforesaid as a member of two important public bodies. 3. I have always understood and believed that the said W. G. G. is a j)erson of independent means. He lives in a freehold house of his own at aforesaid, of the annual value of I. or thereabouts, (c) 4. I have had many opportunities of judging as to the chai'acter and habits of the said W. G. C. He is a person of good credit and of thorough respectability and integrity, and of Imsiuesslike habits. 5. In my judgment the said W. G. C. is a fit and desirable person to be appointed trustee under the said settlement, and I verily believe that he will fulfil the duties of that office in a proper manner. Sworn, &c. This affidavit is filed, &c. (a) One affidavit of fitness by a deponent whose evidence can be relied upon is sufficient, see Re Arden, W. N., 1887, p. 166. This was a petition in lunacy and in Chancery. Of course a similar affidavit would have to be filed as to the other trustee. (h) The word " gentleman " in an affidavit of fitness is not a sufficient description of the deponent, see Be Orde (49 L. T. Eep. N. S. 430 ; 24 Ch. Div. 271), ante, p. 126. (c) The affidavit of fitness should show something as to the position of the proposed trustees in respect of their pecuniary means. Per Kay, J. in Re Castle Sterry's Trust, W. N., 1888, p. 179. 422 ORIGINATING SUMMONS. 70. Summons by an Infant absolutely entitled, (a) 1884, W., No. lu the High Court of Justice, Chaucery Division. Mr. justice In the matter of one equal undivided fiftli share of a freehokl messuage called House, with the stahle, coach-house, outbuildings, yards, and gardens thereto, sitxiate in Street, in the town of , in the county of settled land, within the meaning of the Settled Laud Act, 1882, s. 59, by reason of H. G. P. W., the person seised of or entitled to such share being an infant, and In the matter of the Settled Laud Act, 1882. Let all j)arties concerned (b) attend at the chambers of Mr. Justice , at the Royal Courts of Justice, at the time specified in the margin hereof, on the hearing of an application of H. G. P. W., an infant, by /. G. S., of , in the county of i^vixupation'], his next friend. 1. That /. /. S., of , in the county of , and C. W. R. 8., of the same place, may be appointed trustees of the settlement deemed to be existing under the above-mentioned Act of the above-mentioned share of the said infant for the purposes of the said Act. 2. That the powers conferred upon a tenant for life by sects. 3 to 5, both inclusive, sect. 15, and sect. 19 to 24, both inclusive, and sect. 31 of the above-mentioned Act, and all other powers of sale, and powers ancillary thereto conferred by the said Act upon a tenant for life, may be exercised by the said /. J. S. and C. W. B. S., on belialf of the said H. G. P. W. during his minority. Or that such other order may be made in the premises as will enalile the said undivided fifth sliare to be sold, together with the remaining' undivided shares of the above-mentioned hereditaments. 3. That the costs of this aj)plication, &c. \_as in Form 66, p. 418.] Dated the day of 1884. This summons was taken out by , of , in the county of , solicitor for the above-named H. G. P. W. and J. J. S. (r) 71. OllDER MADE ON SUMMONS, FORM 70. [ Omitting formal parts.~\ The judge being of opinion that it is for the benefit of the infant applicant that the aljove-mentioned, one equal undivided fifth share of the said freehold messuage and premises, should be sold with (a) In this case trustees of the settlement were asked for. (6) In this case the summons was not served on anyone as there were no existing trustees. (c) As no one was served with this summons the remaining formal parts of the conclusion are not required. APPENDIX III. 423 the remaiuiug foin* equal uudivided fiftli shares thereof, the judge doth hereby appoint /. /. S. of , iu the couuty of , and C. W. It. 8. of the same place , trustees of the settlement, and to exercise on behalf of the above-named infant H. G. P. W. the powers conferred upon a tenant for life by sects. 3 to 5, botli inclusive, and sects. 19 to 24, both inclusive, and sect. 31, and all other powers of sale, and powers ancillary thereto, conferred by the said Act upon a tenant for life during his minority. And it is ordered that it may be referred to the taxing master to tax, as between solicitor and client, the costs of this application, and con- sequent thereon and of the said sale, and incidental thereto, and that the same wlien taxed may l^e paid by the said J. J. 8. and C. W. B. 8. out of moneys in their hands to arise by such sale. 72. Summons by an Infant Absolittely Entitled. (a) In the High Court of Justice, 1888, W., No. Chancery Division. Mr. Justice In the matter of one equal iindivided fifth share of a freehold messuage called House, with the outbuildings and garden thereto, situate in street, in the town of , in the couuty of settled land within the meaning of the Settled Land Act, 1882, sect. 59, by reason of C. M. W. and E. E. W., the persons seized of or entitled to such share as co-parceners being infants ; and In the matter of the Settled Land Act, 1882. Let all parties concerued(&) attend at the chambers of Mr. Justice at the Royal Courts of Justice, at the time specified in the margin hereof, on the hearing of an application of C. M. W. and E. E. W., infants, now residing at , in the colony of New Zealand, by J. J. 8., of , in the coimty of their next friend. 1. That the powers conferred upon a tenant for life by sects. 3 to 5, both inclusive, and sect. 15 and sects. 19 to 24, both inclusive, and sect. 31 of the above-mentioned Act, and all other powers of sale, and powers r.:i:lJai'y thereto, conferred by the said Act upon a tenant' for life, may be exercised by the said /. J. 8. and C. W. B. 8. on behalf of the said C. M. W. and E. E. W. during their respective minorities, or that such other order may be made iu the premises as wdU enable the said uudivided fifth share to be sold, together with the remaining undivided shares of the above-mentioned heredita- ments. 2. That the costs, &c., [as in Form 66, p. 418.] \_Conclude as in Form 70, p. 422.] (a) In this case trustees of the settlement were not asked for, but see ante, p. 229. (b) In this case the summons was not served on anyone, as there were no existing trustees. 424 ORIGINATING SUMMONS. 73. Okder upon Summons, Form 72. [^Omitting formal parts. ^ It is ordered that tlie said /. /. 8. and C. W. R. S. be, aud they are liereby appointed to exercise the powers conferred ujjou a tenant for life hy sects. 3 to 5, both inclusive, and sect. 15 and sects. 19 to 24, both inclusive, and sect. 31 of the above-mentioned Act aud all other ])owers of sale, and powers ancillary thereto, conferred by the said Act upou a tenant for life, ou behalf of the said C. M. W. aud E. E. W. respectively during their respective minorities. And it is ordered that the mouey to arise by the sale of the said infant's one-fifth share of the above-mentioned messuage and premises be paid into court, to the credit of " Be C. 31. W. and E. E. W. infants, as joint tenants," and it is ordered that the costs, &c. 74. Summons by Infants Absolutely entitled to Shares OF Partnership Land, (a) In the High Court of Justice, Chancery Division. Mr. Justice In the matter of the shares of A. T. and B. T., both infants, in the freeliold aud copyhold lands in the parishes of H. and E., in county of D., forming part of the partnership estate of the late firm of And in the matter of the Settled Land Act, 1882. Let all parties [<£'c., as in Form 70, above'] on the hearing of an apj)lieation on the part of the above-named A. T. and B. T., of , by M. T., of , their next friend. 1. That the said M. T. and G. H., oi , may be appointed trustees [&c., as in Form 70, par. 1]. 2. That the powers conferred ou a tenant for life by sects. 6 to 13 (both inclusive), aud sects. 19 and 20 of the said Act may be exer- cised by the said M. T. and G. H. on behaK of the said A. T. and B. T. respectively during the':- respective minorities. 3. {Costs']. Dated, &c. [Conclude as in Form 70. J (a) This Tas the form used in Re Wells, 48 L. T. Eep. N. S. 189; W. N., 1883. p. Ill, but it would be better now that the title should follow Form 70, ante, p. 422. APPENDIX III. 425 75. Summons by Quasi-Tenant for Life for Leave to exercise the powers of s. l. a., 1882, s. 63. lu tlie Higli Court of Justice, Cliaucery Dmsiou. Mr. Justice lu the matter of tlie Dale estate, situated iu tlie county of X., settled or deemed to be settled by an inden- ture dated the day of ,18 , and made between [parties']. And in tlie matter of the Settled Land Acts, 1882, 1884. Let all parties [&c., as in Form 66, above] on the hearing of an application on the jjart of A. B., the tenant for life, or the person wlio is deemed tenant for life, under the above-mentioned settlement. 1. That the court may give leave to the said A. B. to exercise with regard to the land comprised in the said settlement all the powers conferred by sect. 63 of the Settled Land Act, 1882. 3. [^Costs as in Form 66.] Dated, &c. [If there are any trustees to be served conclude as in Form 66, otherwise conclude as in Form 70.] 76. Summons by Tenant by the Curtesy for Appoint- ment OF Trustees of THr. Settlement. In the High Court of Justice, Chancery Division. Mr. Justice In the matter of a house and appurtenances, situate in the parish of X. and the county of Y., settled by a settlement within the meaning of the Settled Land Act, 1884, s. 8, by Elizabeth B., deceased, the late wife of ^. B. And in the matter of the Settled Land Acts, 1882, 1884. (a) Let aU parties [&c., as in Form 66, above] on the hearing of an r.pplication on the part of A. B., of , the tenant by the curtesy, under the above-mentioned settlement. 1. That G. H., of, &c., and I. J., of, &c., may be appointed trustees of and under the above-mentioned settlement deemed to be existing for the purposes of the above Acts. 2. [Costs as in Form 66, p. 418.] Dated, &c. [Conclude as in Foryn, 70, j?. 422.] (a) According to the direction as to the titles to Orig-inating Sum- monses, ante, p. 332, it would be sufficient to entitle this summons in the Act of 1884 alone. 426 ORIGINATING SUMMONS. 77. Summons by Rector for Application and Invest- ment OF Money paid in by a Sanitary Authority IN RESPECT OF GlEBE LaNDS TAKEN UNDER THE Public Health Act, 1875, in Improvements and Redemption of Land Tax. (a) In the High Court of Justice, Chancery Division. Mr. Justice Ex parte the Rector of X. in the county of Y. And in the matter of the Public Health Act, 1875. And in the matter of the L. C. C. Act, 1845. And in the matter of the Settled Land Act, 1882. Let the [sanitary authority] and C. D. {b) [the patron of the living^ attend at the chambers of the Honourahle Mr. Justice , at the Royal Courts of Justice, Strand. Middlesex, at the time specified in the margin hereof. On the hearing of an application by the Rev. A. B., rector of X. in the county of Y., that — (1.) The following improvement, y\z. [here describe theimprove- ment'\ be approved as a proper mode of investment or application of the sum of 200L to be jiroduced by sale of a competent part of the sum of 250/. Consolidated 3?. per Cent. Aniniities now standing to the credit of " Ex parte the [sanitary authority] in the matter of the Public Health Act, 1875, in respect of the lands, j)art of the glebe of X. in the county of Y. belonging to the Rev. A. B. as tenant for life without power of sale." (c) (2.) That redemption of land tax on the rectory house of X. and the garden belonging thereto, which form part of the glebe, and on the glebe land near thereto in the occupation of one F., which said premises contain in the whole about acres, and which are more particularly described in the affidavit in this matter dated, &c., of the said A. B., be approved as a proper mode of investment of a competent part of the said sum of 'il. per cent, annuities stand- ing to the said credit. (cZ) (3.) That on the production to the chief clerk of a certificate of E. F., ol , surveyor, or in default of him of some surveyor ap])()inted or approved by the Land Commissioners, or, in case they decline to appoint or approve, by the Bishop of Y. for the time being, that the said improvement has l)een properly performed, and of the reasonaV)le cost of the same, a competent i)art of the said 31. per cent. Annuities be sold (without deducting the brokerage, (a) In this case a previous order had been made for interim investment in consols. (h) The patron of a benefice is in much the same position as the remainderman of settled land, with regard to applications of this descrip- tion. (c) The title of the account will bo copied verbatim. A reotor or vicar is a corporation sole. * (d) Previous leave may be given to contract for redemption of land tax : (Seton, 142G.) APPENDIX III. 427 the said A. B. undertakiug by Ms solicitor to pay the same to the Chancery broker), aud tliat the reasonable cost, or the sum of 200L (whichever be tlie less sum) be paid to the said A. B. out of the proceeds of such sale, (a) (4.) That on completion of a contract by the said A. B. for the redemption of laud tax on the said lands, and upon the requisition of the Receiver-General of the Inland Revenue, a competent j)art of the said Zl. per cent. Annuities be sold (without deducting the brokerage, the said A. B. undertaking to pay the same to the Chancery broker), aud tlie cash produced be transferi-ed to the account of the public moneys of the Receiver-General of Inland Revenue as the consideration for the redemption of the land tax charged on the said lands. (&) (5.) That interest on the residiie of the said 3Z. per cent. Annui- ties may from time to time be paid to the said A. B. as rector of X. and his successors, rectors of X. for the time being, until further order. (6.) That pursuant to the 80th section of the L. C. C. Act, 1845, and the 32nd section of the S. L. A. 1882, the said [sanitary authority] may be ordered to pay to the said A. B. his costs as thereby provided, including therein all reasonable charges and expenses of and incident to the said investments or application in the said improvement and redemption of land tax, and of this application, and of all proceedings relating thereto, such costs, charges, and expenses to be taxed in case the parties differ. (7.) Or that such order may be made in the premises as may seem meet. Dated the day of 18 . [^Conclude as in Form QQ, ante, p. 418.] (a) It is believed that the Land Commissioners do appoint surveyors, but the name of the bishop is added in case they refuse. It is usually more convenient to make a contract with some builder, or other person, to execute the improvement for a definite sum, but in some cases (as in the present instance) that was not found practicable. The money is not usually paid out until the work is complete. {h) See Seton, vol. 2, part 2, p. 1425 ; vol. 1, p. 97. This is the usual and best mode of redeeming small sums. Roughly speaking, the cost of redeeming land tax was thirty years' purchase, before the conversion of stocks. Every information about redemption may be obtained at the land tax office at Somerset House (Room 73). At present, there is a question whether the price will not be raised to nearly thirty-three years pvirchase. Inquiry should be made before applying to redeem. 428 OEIGINATING SUMMONS. 77a. Variation xvliere it is helievecl that the Fund in Court loill be nearly spent, (a) (5.) That if by means of the above investments, and the orders made on this summons, the said 31. per cent Annuities shall be reduced to 30?. or any less sum, the same be sold and (without deducting brokerage, &c., as in par. 4, page 427) paid to the said A. B., he undertaking, if the sum exceed 20Z., to apply the same on .siicli improvements on the glebe as are sanctioned by the Settled Land Act, 1882 ; but that if the said annuities be not reduced to 30Z., that interest to accrue on the residue thereof may from time to time \_&c., as in par. 5 of the last preceding Form]. {a) This is intended in substitution for paragraph 5 of Form 77, when circumstances render it suitable. Small balances are paid over to a tenant for life, or the incumbent of an ecclesiastical benefice. If this variation is employed, the words " and payment out if payment OUT IS ORDERED " must be added after the word tax in line 6 of paragraph 6. GENERAL INDEX. («) Abroad, afl&davits sworn ... ^7«r/e 42 parties ... ... ... ••• .•• .-. ••• 17 trustee (proposed) 124: et seq. trustee ... ... ... ... ... ... ... 132 security for costs wlieu plaintiff ... ... ... ... 161 Absconding trustee... ... ... ... ... 126, 131, 135 Absent parties ... ... ... ... ... ... • ■ • 17 notice of order to bind ... ... ... ... ... 24? Accountants' fees ... ... ... ... ... ... ... 101 Account, liow stated in certificate ... ... ... . . 117 payment in to, under S. L. A. ... ... ... . . 2.38 Accounts and inquiries in chambers . . . 1G5, and see Addenda Action, definition of ... ... ... ... • • • ■ • ■ 2 O. S. is(6) 3 transfer of . . . ... ... ... ... ... . • 6 consolidation ... ... ... ... ... ... ... 7 matter not being an.. ... ... ... ... ... 151 Addresses and descriiitions of parties to summons . . . 352, 358 Adjournment ... ... ... ... ... .•• 5, 11 from chief clerk to judge 51 for attendance of counsel court to chambers and vice versa in matters before chief clerk of claims in administration actions of O. S. into court ... ... ... ... ... 144 Administration action, claims in ... Administration, O. S. for ... transfer of matter, when pending letters of administration, when to be j)roduced judgment for, &c. ... ... ... ... ... 22-26 Administration Order, notice of who may obtain ... ... ... ... ... 23, 24 under Order LV. made by judge personally ... not obligatory effect on trustees' powers ... (rt) For separate Index of Forms, see itost. (b) O. S. means " Originating Summons." 53 105 108 113 145 26 1 6 9 24 85 99 93 95 430 GENERAL INDEX. Administrators represent the estate none appointed {And see "Executors.") Admissions ... Advancement Adverse litigation, costs of, nnder L. 0. C. Act Advertisements for creditors and claimants in partition action Advice of judge Affidavits cross-examination on title and contents swearing form ... illiterates and blind, of defects in, waived . . . stamping filing ... used in chambers verifying accounts, &c. marking trial on not printed for O. S. under L. C. C. Act ... Affidavits in particular matters : — of service of trustees on payment in of title on payment out claims in administration of executor, &c., in administration of fitness of new trustee of title under S. L. A. on payment in under S. L. A. Agricultural Holdings Act, 1883 (46 & 47 Yict. c. 61) capital money applicable for payment of improvements and costs under ... Amendment ... ... ... ... ... ... 10, Anticipation restraint on, O. S. for removal of . does not affect powers under S. L. A. how affected by M. W. P. Act ... Appeal, adjournment from chief clerk to judge is not time for, geuerally ... from judge in chambers to judge in court fresh evidence time for from chambers direct to court of appeal . . by way of rehearing... t(j Court of Appeal ... notice of fresh evidence evidence u])on time for interest allowed pending ... jicige 15 ... 26 58, 33-35 71, 74 ... 68 110-112 ... 107 ... 4 40-48 40, 46, 48 40, 41 41, 42, 44 42-44 ... 44 ... 44 ... 44 ... 45 ... 45 45, 46 ... 46 46-48 ... 48 ... 67 39, 50, 171 62 6Q 112 113 126 236 237 certain ... 200 82, 407, 408 83, 182 ... 230 ... 272 ... 51 ... 3 143-146 ... 145 ... 146 54, 144, 376 ... 146 146-154 147-150 ... 148 ... 151 151-153, 336 153 GENERAL INDEX. 431 Appeal, to Ho^^se of Lords jiage 154, 337 in interpleader ... ... ... ... ... 140, 141 from consent or discretionary orders ... ... ... 143 as to costs ... ... ... ... ... ... ... 143 Appearance ... ... ... ... ... ... ... 9, 25 of person out of jurisdiction ... ... ... ... 17 by infant 20 toO. S 103 Appellate Jiu-isdiction Act, 1876 154, 337 Arbitration and award ... ... ... ... ... ... 277 O. S. for appointment of arbitrator or umpire ... ... 278 Attendances ... ... ... ... ... ... ... ... 108 Attending proceedings ... ... ... ... ... ... 25 Attorneys' and Solicitors' Act, 1870 ... ... ... ... 76 Award, time for application to set aside... ... ... ... 157 Bankruptcy Act, 1883 (46 & 47 Yict. c. 52), s. 4 (1) ... 259 sect. 147 (new trustee in lieu of bankrupt) ... ... 137 Bankruptcy, appeals in ... ... ... ... ... ... 151 Bankrupt, married woman ... ... ... ... ... 252, 259 Beneficed clergyman ... ... ... ... ... ... 210 Beneficiaries when not parties ... ... ... ... ... 15 Bovill's Act 260 Buildings, payment out for ... ... ... ... 57, 64 contracts for ... ... ... ... ... ... 65, %Q nnderS. L. A 200,202,205 Burial Acts 277 O . S. for taking charity land 278 Capital money under S. L. A. : — part of mining rent to be . . . ... ... ... ... 194 how to be invested 197, 204 {And see " Investments.''^) payment of, to trustees, or into court, devobxtion, non- con ver.sion, and income of ... ... . . ... 203 how applied for improvements ... ... ... ... 206 application of other moneys as ... ... ... 210, 211 application when paid for lease or reversion ... 211, 235 part of produce of sale of certain timber to be ... ... 212 produce of sale of "heirlooms " to be ... ... ... 213 not to be paid to sole trustee ... ... ... ... 217 provision as to settlements on trust for sale ... ... 231 {See also "Payment into and out of Court") Cash under control of court ... ... ... ... (iQ, 198 Certificate of no prior application... ... ... ... 8,102 of amount of fund ... ... ... ... ... ... 58 of Charity Commissioners ... ... ... ... 96, 97 of chief clerk 116,119 discharge of .. . ... ... ... ... ... ... 118 that judge requires no further argument... ... ... 144 Cesfwi gtte intsi may take out O. S. ... ... ... ... 79 represented by trustee ... ... ... ... ... 15 may have order for execution of trusts ... ... ... 23 432 GENERAL INDEX. Cestui que trust, order obtained agaiust for execution of trusts page not usually appointed trustee Chambers, what are ... apj)licatious and proceedings at ... counsel iu business disposed of in {And see " Originating Summons") course of proceedings in Chancery Procedure Act, 1852 Charitable Trusts Act, 1853, s. 28, O. S. under... 1860 1853-1887 Uses Act, 1888, O. S. ixnder Charity Commissioners funds, conversion of lands, investments representing ... Chief clerk, powers and duties of... adjournment from ... not to decide certain cases... ... 99, and summons to attend by transfer of business of computations by Christmas day Claims, evidence of... allowing costs ... Class, numei'ous unknown, &c. inquiries as to Classification Common Law Procedure Act, 1854 1860 Comiianies Act, 1862, appeal costs Consent, enlarging time Consent of new trustee to act married woman under C. A. s. 39 guardian to act... tenant for life under S. L. A. Consolidated Fund Permanent Charges Redemption Act, 1873, 279 O. S. in case of redemption of annuity payable to limited owner ... ... ... ... ... ... ... 280 Consolidation of matters ... ... ... ... ... ... 7 Contract by tenant for life under S. L. A. ... ... ... 208 notice of, to trustees ... ... ... ... 219,220 O. S. as to 222 iu defeasance of Act void, but assigTiee partially pro- tected 209 Contract preliminary for lease ... ... ... ... ... 209 Conversion, sss. 22 (5), 63 204,231 Conveyance, completion by, under S. L. A. ... ... 196,224 liability of trustees as to ... .^, ,.. ... ... 218 24 124 . 53 . 49 . 53 54-78 107 1,2,85 96, 98 98 301 293 .'." 95-98, 280 301 65 98,101 51 see Addenda 100 100 100 155 112 .. 113, 114 .. 112, 114 17 ..22,23, 384 358 108 277 .. 138,141 151 162 156 45 182 346 224, 225 GENERAL INDEX. 433 ■when late construction of will, o£ counsel, of ... debt, of establishing discovery, of . . . discretion of court as to evith^nce, of ... guardian ad litem, of higher and lower scale infant of interpleader, in L. C. 0. Act, under ... married woman non-attendance, occasioned by O. S. of preparation of of counsel on... pauper of security for ... 21)., 161 20) and jyaye 178 179 180 181 127 217, 134 134 181 182 83 appoint Conveyancing Act, 1881 (44 & 45 Vict. c. 41) sect. 5, discharge of incumbrances on sale O. S. for sect. 9, production and safe custody of title deeds O. S. for sect. 30 (Trust and Mortgage Estates on death) sect. 31 (apj)ointment of new trustees) 95, 123, 124, 128, sects. 32, 33 sect. 34 (Vesting of trust property) sect. 39 (Removing restraint on anticipation) O. S. for sect. 42 (Management of infant's land ; O. S. for ment of trustees for) sect. 43 (Maintenance) Conveyancing Act, 1882 : sect. 5 (separate sets of trustees) ... Copyhold Acts, O. S. under vesting of trust or mortgage estate Copyholds under S. L. Acts : — freehold of, may be sold (ss. 3, 4). licences for leasing (s. 14) ... conveyance of, and entry on Court Rolls ( the fee simple of, may be bought (s Corporation, lands of whether can be trustee affected by S. L. A., s. 32 Costs generally additional solicitor, of adjournment, of appeal as to ... appeal, of appointing new trustee, of attendance in chambers, of capital money applicable for claims, of proving 127, 187 73 135 71 128 127, 112, ... 191 ... 195 ... 197 ... 198 ... 65 ... 124 210, 426 158-169 ... 109 ... 108 ... 143 149 130 109 198 114 114 see Addenda 168 114 32 159 168 165 164 161 140-142 67, 210 252, 255, 258 ... 51 ... 168 ... 168 21, 22 161-163 31, 163, 434 GENERAL INDEX. Costs, continued : S. L. k., under page 213, 221, 235, 238 solicitor, of additional ... ... ... ... ... 109 solicitor and client ... ... ... ... ... ... 159 solicitors liability to pay personally ... ... ... 165 taxation, of . . . ... ... ... ... ... ... 168 taxing ... ... ... 166-169, and see ^fZc?e>icia trustees, &c., right to 159,161,168 of appointing new... ... ... ... ... 127 trustees', under S. L. A. ... ... ... ... ... 218 V. & P. A., under 176 Counsel, employment of ... ... ... ... ... 9, 53, 54 direct appeal when employed ... ... ... ... 144 costs of 168 County Court, jurisdiction of, in foreclosure, &c. ... ... 90 as to charitable trusts ... ... ... ... ... 97 equitable jurisdiction ... ... ... ... ... 282 under the M. W. P. Act 271 under S. L. Acts 220 County Courts Act, 1888 : O. S. for removal of action into High Court ... 281, 284 for execution ... ... ... ... ... ... 286 O. S. to allow continuance in County Court ... ... 284 equitable jurisdiction under ... ... ... ... 282 jurisdiction under S. L. A.... ... ... ... ... 220 Cran worth's (Lord) Act 73,129-132,234 Creditor may take out O. S. ... ... ... ... ... 79 doubtful if bound by limited administration ... ... 94 advertisements for 110-112,381 affidavits of 112 claims by, in chambers ... ... ... ... WO et seq. notices to ... ... ... ... ... ... 114,115 Creditor of husband : preference over wife's loan... ... ... ... ... 260 claim over certain investments ... ... ... ... 264 life policies ... ... ... ... ... ... 265 Creditor of wife : limited remedies of 252, 255, 256, 257 when power has been executed ... ... ... ... 261 sett lenient set aside for ... ... ... ... ... 272 Cross examination ... ... ... ... ... ... ... 36 Crown bound by S. L. A 226 Curtesy, right to, since M. W. P. Act 252,254 estates by, under S. L. Acts ... ... ... ... 227 Damages, O. S. to assess for loss of deeds, &c.... ... ... 181 Debtor's Act, 1869 _ 257 Deeds, O. S. for delivery of, by solicitor ... ... ... 75 settled by judge ... ... ... ... ... ... 106 executed by eliief clerk ... ... ... ... ... 107 not to be copied whei'e originals can be brought in ... 108 O. S. for enrolment of, under " Mortmain Act "... ... 294 Deeds, title, O. S. for production, &c. ... ... ... ... 181 GENERAL INDEX. 435 Defence Acts, 1842, 1860, 1864, 0. S. under page 287 Delivery by solicitor of bill, deed, &c., O. S. for ... 75-77 Devisee may take out O. S. ... ... ... ... ... 79 Discharge of incuuibrances on sale, O. S. for ... ... ... 178 Discovery ... .... . . .• . , ... ... ... 28, 32 Disputed debt when triable on summons ... ... ... 86, 380 Distinct solicitor, costs of .. . ... ... ... ... ... 109 District registry ... ... ... ... ... ... ... 324 Dividends, application in chambers for ... ... ... 58,63 payment to mother of infants ... ... ... ... 324 Documents, discovery of ... ... ... ... ... ... 28 production of ... ... ... ... ... 28, 29 to be left at chambers ... ... ... ... ... 105 what copies to be supplied in chambers ... ... ... 108 to substantiate claims ... ... ... ... ... 112 three copies for Court of Appeal... ... ... ... 151 {And see " Deeds") Drawing up order ... ... ... ... ... ... 11, 119 Enfranchisement under S. L. A. ... ... ... ... 191 raising money for ... ... ... ... ... ... 196 with capital money ... ... ... ... ... ... 198 England, purchase of land out of ... ... ... ... 205 Enrolment under Mortmain Act, O. S. for 294 Equitable mortgages ... ... ... ... ...89,90, 394 Evidence : generally ... ... ... ... ... ... 27, 48 closing of, on O. S. ... ... ... ... ... ... 9 on claims ... ... ... ... ... ... ... 113 in case of infant, &e. ... ... ... ... ... 20 by affidavit 36, 38 in another cause ... ... ... ... ... ... 36 office copies when admissible ... ... ... ... 37 viva voce ... ... ... ... ... ... 36, 37 after hearing ... ... ... ... ... ... 38 onO. S. 92 on appointment of new trustee ... , . . ... ... 126 fresh when allowed .. . ... ... ... ... 145, 148 how brought before Court of Appeal ... ... ... 151 costs of ... ... ... ... ... ... ... 168 under V. &P. A 173 underS. L. A _ 236,237 on applications under S. L. A., as to improvements ... 206 Examination of witnesses .. . ... ... ... ... ... 37 Exchange and partition, powers of tenant for life, as to 191, 192 surface and minerals apart on ... 196 mortgage to raise money for ... ... 196 settlement on , . . ... ... ... 205 contracts for ... ... ... ... 208 protection to trustees on ... ... 218 notice to trustees when requisite ... 219 {And see " Sale under 8. L. A") F P 2 436 GENERAL INDEX. Executors represent estate. . . may have jiidgineut for administration taking out O. S.... appointing new trustees Ex parte apjilications proceeding ... Experts Fees, on issue of summons on entry of appearance for amendment on entry of order under S. L. A. Order as to, Supreme Court Final order, Tvhat ... appeal from ... " Fine " on lease usually capital money ... on licence to copyholder to lease ... on conveyance of copyhold... may not be taken on lease by mortgagor. Foreclosure, O. S. for jiarties not added after judgment... Forfeiture for Treason and felony Abolition Act, 1870 O. S. under ... Forfeiture, none for exercise of powers under S. L. A Funds in court. Supreme Court Rules as to District Registry ... Further consideration costs of attending in particular case appeals against orders on . . . fage 15, 16 . ■ ... 24 79-8^ 128, 131 49, 151 50 100 8 la 12 238 317 148 152 192 195 197 222 89, 90 93 287 288 223 318 324 119 109 153 147 77 Generality of sub-sects. (1) (2) of Order LY., r. cut down ... Glebe Lands Act, 1888 (51 & 52 Vict. c. 20) Good Friday ... Grant at fee farm rent under S. L. A. ... dedication in connection with of powers of working mines, easements, Guardian ad litem ... costs of... married woman Guardianship of infants, O. S. for Guardianship of Infants Act, 1886 rules under ... O. S. under ... Guardian under S. L. A., application by... Hearing of summons Heir-at-law when party may take out O. S. ... questions between and devisee inquiry for of surviving ti'ustee ... 2, is not 54, 56 188 155 193 196 196 20 165 252 71-73 72 325 325, 326 215, 228 8 25 79 81 110 127 GENERAL INDEX. 437 Heirlooms, 0. S. for sale of ... ... ... page Higher and lower scale costs Housing of the Working Classes Act, 1885 ... 192, O. S. under ... Husband entitled to curtesy to separate estate undisposed of taking in joint tenancy liable for wife's torts for some ante-nuptial debts, &c. under M. W. P. Acts, 1870, 1874 freed from certain costs liabilities as to trusts . . . borrowing wife's money claims by, against wife insurance of or by ... proceedings, between, and wife onO. S _ ... criminal proceedings by or against sued jointly with wife wife liable to maintain rights under M. W. P. Acts, 1870, 1874, saved powers under S. L. A. {And see " Married Woman.") 213, 214 163, 164 200, 288 ... 289 252, 254 252. 254 ... 254 ... 257 268-270 ... 275 ... 255 ... 275 ... 260 ... 264 265, 266 266-271 270, 271 266-267 ... 269 ... 274 ... 275 227, 230 60 289 290 205 208 209 196 204 344 190 192 197 Identity, O. S. where title depends on 54, 59, Improvement of Laud Acts 208,222,234, O. S. under ... Imj)rovemeuts under S. L. A. maintenance, execution, and repair of contracts for ... by way of dedication (See also " Improvement of Land Acts" and " Land Commis sioners.") Income, regulations respecting under S. L. A. . . . Income tax on fund in court Incumbrance, tenant for life notwithstanding ... transfer of, on laud sold discharge of, with capital money ... Incumbrancer, partially protected from operation of S. L. A. s. 50 ... 222 (And see " Mortgages " and p. 197.) Incumbrances, O. S. for discharge of, on sale ... ... ... 179 Infant, suing 19, 20 guardian ad litem, of ... ... ... ... ... 20 notice of order on ... ... ... ... ... ... 25 applications on behalf of, as to leases, &c. ... ... 69 settlements ... ... ... ... ... ... ... 70 guardianship, advancement, maintenance ... 71-74 interested in estate administered ... ... ... ... 93 evidence ou application for guardian, maintenance, and settlement ... ... ... ... ... ... ... 104 sole trustee of fund of ... ... ... ... . . 125 trustee ... ... ... ... ... ... ... 132 438 GENERAL INDEX. Infants, continued : represented \by tnistees on application for vesting order ... ... ... ... ... ... page 135 costs of ... ... "... ... ... ... ... 161 O. S. for trnstees to manage laud, &c., of ... ... 187 underS. L. A 228-230 under Gnardiansliip Act, 1886 72,325 small f iintls in court of ... ... ... ... ... 324 Inferior courts, removal from, O. S. for ... ... ... ... 290 Inquiries and directions ... ... ... ... ... 92, 358 Inspection ... ... ... ... ... ... ... 30, 31 Interest, application in chambers for ... ... ... ... 58 wlien and what allowed ... ... ... ... 115, 116 Interlocutory orders, what ... ... ... ... ... 147, 148 appeal from ... ... ... ... ... ... 147, 152 Interpleader, application when by O. S. ... ... ... ... 138 .Act 138 affidavit 139 procedure generally... ... ... ... 140, 141 special case ... ... ... ... ... ... 140 when claimant barred ... ... ... ... 141 decision when conclusive ... ... ... ... 141 sherife, &c 141 one order in several matters ... ... ... 142 costs, &c 141, 142 Interrogatories 27, 28, 31, 32 time ... ... ... ... ... ... ... ... 156 Investments, what allowed for, money paid in ^^nder L. C. C. Act, &c 65,66,197,210 for cash in court ... ... ... ... ... ... 198 what authorised by S. L. Acts 197-203 regulations respecting. . . ... 203 in land in England ... ... 205 in settlement on trust for sale 231 order for, on payment in ... 237 {And see " Capital Money under 8. L. A. ") Ireland, investment in land in ... ... ... ... ... 205 railways in ... ... ... ... ... ... ... 197 modifications of S. L. A., as to ... ... ... ... 234 Issuing of O. S. ... ... ... ... ... ... ... 8 Issue, where title depends on default of . . . ... ... ... 54 Joint tenants under S. L. A 196 Judge in person ... ... ... ... 99, and nee Addenda Judgment ... ... ... ... ... ... ... ... 93 Judgment Extension Act, 1868 161 Judieatiu-e Act, 1873, 8. 25 (6) 62,139 8. 39 49 SS.49, 50 .'.".' .'.'.' ..." .'.'. '.'.'. 143-146 s. 90 ... 281 s. 100 2,3,13,27 1875 116, 147 GENEKAL INDEX. 439 Judicature Act, 1884, s. 14 i^«9« s. 18 ... Jurat ... Jurisdictiou of court ou O. S. {And see "Originating Summons") persons out of no service of O. S. out of ... service of petition out of . . . service of interpleader summons out of . . . Lancaster Court 97, Land Charges Registration and Searches Act, 1888 ... O. S. for vacating registration Land Commissioners, powers of, as to improvements (s. 26) ... power to require maintenance of improvements ... constitution aud powers of filing of certificates and i*eports of Land Registry Act, 1862, O. S. under Land tax may be redeemed. . . Land Transfer Act, 1875 O. S. under ... Lands Clauses Cousolidation Act : Summons under not k lira vires Payment out... Investment, &c., under Affidavit Service Costs... Money paid in under ... ... ... 66, 204, 210, of charity {And see " Capital Money under S. L. A.") Lands Improvement Act, 1864, extension of (s. 30) repeal of part of Lease, power of tenant for life to,imder S. L. A. statement in or upon, evidence (s. 7 (5) ... building (s. 8) mining (s. 9) ... variations permitted by the court ... ... 193 part of rent uuder mining, to be set aside special powers as to surrender and new grant of licences to copyholders for restriction as to mansion house, &c ... 195, 235, dedication of streets in connection with building surface and minerals apart, on mining completion by conveyance ... purchase of, or of reversion on settlement of purchased land contracts with respect to . . . preliminary contracts not to form part of title application of money paid for ... ... ... 211, notice to trustees when requisite 197, 291, 55, 66, 60 ... 63-67, 6'} 107 281 43 17 ■ 89 126 139 220 290 291 206 208 221 222 291 427 292 292 2 , 63 210 66 67 , 68 217 97 208 234 192 192 192 193 236 194 194 194 195 £36 196 196 196 198 205 208 209 235 219 440 GENERAL INDEX. Lease, tenant for life may, notwithstanding mortgage... page 222 protection of lessee ... ... ... ... ... ... 224 Leases, infants ... ... ... ... ... ... ... 69 LegacyDuty Acts, 6. S., iVnder !!! '.'.'. '.'.'. '.y. 58, 59, 74 Legal devise not decided on O. S. ... ... ... ... 81 Legal personal representative, where none ... ... 26, 376 Legal Practitioners Act, 1875 77 Legatee may take out O. S. ... ... ... ... ... 79 Limitations, Statutes of ... ... ... ... ... ... 252 Limited owners "residences" and "reservoirs" Acts ... ... 289 Lis pendens ... ... ... ... ... ... ... 232 Lists of matters before judges and chief clerks ... ... 108 claims ... ... ... ... ... ... ... 114 appeals from interlocutory orders ... ... ... 150 Local Loans Act, 1875 199,201 Long Vacation ... ... ... ... ... ... 155, 156 Limacy Regulation Act, 1853 132 Lunatic party 19-22 tenant for life under S. L. A. ... ... ... ... 230 trustee 123, 133 Maintenance of infants 71,73,82,104 O. S. for 73 Malins Act (20 & 21 Yict. c. 57) 70 Management of property ... ... ... ... ... ... 74 trustees for infants', O. S. for appointing ... ... 186 Mansion house, O. S. for sale of ... ... ... ... ... 195 Marking O. S. with judge's name... ... ... ... ...6, 7 subsequent summons ... ... ... ... ... 95 Married woman : administration 271,272,275 after-acquired property ... ... ... ... ... 258 anticipation, restraint on ... ... ... 256,257, 272 removed by O. S 182 bankrupt 252, 259 committal of 252,257 contract 251,255,258,275 costs recovered by or against ... ... ... ... 255 secnirityfor 252, 258 criminal proceedings against ... ... ... ... 270 deposits in bank ... ... ... ... ... 261-265 evidence in actions between husband and wife ... ... 267 executor of . . . ... ... ... ... ... ... 275 executrix 27L 272, 275 funds, money in ... ... ... ... ... 261-265 fraudulent investments ... ... ... ... ... 264 guardian ad litem ... ... ... ... ... ... 252 judgment against ... ... ... ... ... 256, 259 loans to liusband ... ... ... ... ... ... 260 married ))ef ore Act ... ... ... ... ... ... 261 next friend ... ... ... ... ... ... ... 252 payment out to ... ... ... ... ... ... 272 GENERAL INDEX. 441 Married woman, continued : petition by policy of insurance ... powers, exercise of . . . questions with husband, triable on O. S receiver appointed af^ainst... reversionary interests of separate examination of separate propei'ty, what is . , . specific performance stock, shares, &c. suing and sued tenant for life third party ... torts ... trustee undertaking by will of 19, ... page 2.56 ... 265, 266 ... 254, 261 270 257 255 252 ..." 255, 256 2.55 ... 261-265 252, 255, 256, 269 230 257 257 ... 272, 275 230 ... 253, 264 Creditors" {And see "Married Women's Property Acts," "Husband") Married Women's Property Acts, 1870, 1874 ... 256, 269, 271 petition for trustees under ... ... ... 125, 266 repealed, Avith savings ... ... ... ... 274, 275 Married Women's Property Act, 1882 : general construction of ... ... ... ... 251, 252 how procedure affected by . . . ... ... ... ... 251 how retrosjDective ... ... ... ... ... 251, 257 how statutes alf ected by ... ... ... ... ... 252 O.S. under 271 property, how defined in ... ... ... ... ... 275 Married Women's Property Act, 1884 267 Mayor's Court, O. S. for removal from ... ... ... ... 290, Merchandise Marks Act, 1887 314 Mines and minerals under S. L. A. ... ... 191, 196, 198 Month 155 Mortgages, O. S. with reference to devolution of legal estate in, on death (C. A., s. 30) raising money by, under S. L. A. ... investment on, under S. L. A. notice before, under S. L. -A. {And see " Sale," " Equitable Mortgage") Mortgage Debenture Acts ... O. S. under ... Mortmain and Charitable Uses Act, 1888 O. S. for enrolment of deeds summary of Act Motion when under Legacy Duty Act . . . practice in chambers, similar to ... to set aside order made in chambers appeals to C. A. by notice of applications to C. A. by 89 127 196 197 219 ... 292 ... 293 ... 293 294 295-297 ... 58 ... 107 ... 144 ... 146 ... 153 442 GENERAL INDEX. National Debt Act, 1889 .. page 305 National Debt and Local Loans Act, 1887 199 National Debt Conversion Act, 1888 66, 297 annnitauts 298, 301, 303 bonus of five shillings 302 charity f nnds 301 court, powers of 301, 303, 304 fees ... 303 lunacy funds ... 299 new stock, how held 299, 300, 302 0. S. to decide questions under ... .. 301, 302 powers of investment extend to new stock 297 rules under ... 302-304 service of summons ... 304 stamp duty 299 stock mortgage 299 trustee's consent 300 will or deed, how construed 300 National Debt Redemption Act, 1889 305 National Debt (Supplemental) Act 297 New trustees appointed by Originating Summons ..82,96, 121 not by ordinary summons ... 122 not by chief clerk . . Addenda under Trustee Acts ... . . 122 et seq. when apply to court for 121-124 consent to act 45 who appointed, and how many 124 practice on appointment of 125 costs 127 ai^pointment under C. A., s. 31 ... 128-134 practice where unaltered ... 133 vesting of trust property in 134 by the court ... 135 separate sets of ... 135-137 apT)ointed under Bankruptcy Act 137 S. L. A .. 132, 215 M. W. P. Act 265 {And see " Trustees") Newcastle Chapter Act, 1884 306 Next friend ... 20 married woman 252 Next of kin, person to represent ... 22 may take out 0. S. ... 79 inquiry for ... 110 Non-attendance 50, 51 Notes, judges' 152 verified 152 Notice to produce ... .. 9,29,35 admit documents 34 facts 34 read affidavits 45 of judgment, &c 24, 25 disi^ensed with 107 GENERAL INDEX. 443 Notice, continued : to claimants to attend to creditors ... ... of order, time runs from ... of motion, aj)peal by of appeal of cross appeal ... ... . . . of intent to adduce fresh e\ddeuce service of certain, by post ... to tru.stees under S. L. Acts Numerous persons ... Official solicitor ... Omnibus summons ... Open spaces, dedication of, under S. L. A. Order generally, see " Order on O. S." to read evidence in another cause... Order on O. S. : drawing up ... printing passing and entry of stamp on final or interlocutory service of Order on taxation ... Orders in chambers, how drawn up Order XII., rr. 8 to 13 («) XV., r. 1 XVI., rr. 1 to 47 XXXI XXXII XXXVIL, r. 5 XXXVII XXXVIII XLIX.. r. 1 XLIX., r. 4 XLIX., r. 4a XLIX., r. 5 XLIX., r. 6 XLIX., r. 8 LL, r. 1« LIL, r. 7 LIV LIV.,r. 4 LV., rr. 1, la r. 2 r.3 r.4 r. 5 r. 5a r. 5&-14 r. 13a 121, page 112 114, 115 ... 146 ... 147 147-150 ... 149 ... 149 170, 171 219, 220 ... 16 ... 165 ... 51 ... 196 ... 36 ... 11 ... 11 ... 12 ... 12 147, 148 170, 171 166, 167 119, 120 ... 9 ... 93 14-26 27-33 33-35 ... 27 35-40 40-48 ... 5 ... 6 ... 6 ... 6 ... 7 ... 7 ... 74 ... 5 49-52 ... 8 ... 53 54-78 79, 95 85, 95 ... 87 ... 89 92-96 Addenda (a) These refer to the Orders and Eules of the Supreme Court. 444 GENERAL INDEX. LY., r. 23 LV., r. 20-75 LVII. LVIII. LYIII. ,r. 15 LXIY. LXY... LXYII LXXI. r. 1 Order LY., rr. 15-19 j^age 98-101, Addenda 9, 103 102-120 138-142 146-154 3 155-157 ... ..'. '.'.'. ...158-169, Addenda 170, 171 3 •Originating Summons, proceduee when applicable. Administration of estates or trusts ... ... 1, 85 questions arising in ... ... ... ... 79 accounts in , . . ... ... ... ... 79, 94 approval of sale, &c. ... ... ... ... 80 ascertainment of class ... ... ... ... 79 direction to executors and trustees ... ... 80 payment into court ... ... ... ... ... 79 advice of judge ... ... ... ... ... ... 4 arbitration and award ... ... ... ... 277, 278 Burial Acts 277, 278 Charitable Trusts Act, 1853, s. 28 96 Charitable Uses Act, 1888 293 Consolidated Fund Permanent Charges Redemption Act, 1873 279 Conveyancing Act, 1881 178-187 binding married woman's interest ... ... 181 damages for loss of title deeds ... ... ... 181 discharge of incumbrances, on sale ... ... 179 production, &c., of title deeds ... ... ... 181 trustees appointed for infant's property ... ... 187 Copyhold Acts 71 County Courts Act, 1888 281-286 Defence Acts, 1842, 1860, 1864 287 delivery of j)ossession ... ... ... ... ... 89 foreclosure ... ... ... ... ... ... ... 89 Forfeiture for Treason, &c.. Abolition Act, 1870 ... 288 general power upon ... ... ... ... ... ... 78 Housing of the Working Classes Act, 1885 289 Improvement of Land Acts ... ... ... ... 289 Infants, advancement ... ... ... ... 71, 73 guardianship . . ... ... ... 71, 72, 325 leases... ... ... ... ... ... ... 69 Legacy Duty Act 58 maintenance ... ... ... ... ... 71, 73 settlements ... ... ... ... ... ... 70 trustees for management of property ... ... 186 {And see " Settled Land Act.") inferior courts, removal from ... ... ... ... 290 investment ... ... ... ... ... ... ... 63 Land Charges Registration and Searches Act, 1888 . . . 291 Land Registrjs 18G2 291 Land Transfer Act, 1875 292 GENERAL INDEX. 445 page 301 Originating Summons, procedure when applicable, continued : Lands Clauses Cousolidation Acts Legacy Duty Act ... management of property ... of infants Married "Women's Propei-ty Act ... claims by husband on investments questions between husband and wife miscellaneous Moi-tgage Debenture Acts .. . Mortmain, &c., Act, 1888 National Debt Conversion Act, 1888 National Debt Redemption Act, 1889 Newcastle Chapter Act, 1884 Parliamentary Deposits Acts Parochial Charities (City) Act, 1883 payment out after judgment, &c. ... payment out under lOOOZ. ... questions in administration and trusts Railway Companies Act, 1867 reconveyance redemption ... sale of mortgaged property Settled Land Act, 1882 : as to leases (s. 10) ... as to sale or lease of mansion-house (s. 15) as to contracts, s. 31 (3) on sale of lease or reversion (s. 34) for sale of timber (s. 35) heirlooms (s. 37) for appointment of trustees (s. 38) on difference with trustees (s. 44)... for opinion in certain cases (s. 56) (3) Settled Land Act, 1884 : for leave to exercise powers under S. L. A., 1882, s. 63 to rescind or vary order giving such leave Stannary Court taxation of costs Trade Marks Acts, 1883-1888 Trustee Acts, 1850, 1852 . . . Trustees, appointment of new for infants' property Trustee Relief Acts. . . Trusts, administration of ... questions arising in... Yendor and Purchaser Act, 1874 vesting orders ... Originating Summons : definition of . . . is an action ... history of 63 58 74 186 264 271 78 293 294 302 305 306 63 306 54 56 79 306 89 89 89 193 195 209 211 212 213 215 218 225 232 ... 233 ... 307 ... 75 308-311 68, 121 121, Addenda 186 59 85 79 173 121, Addenda 3 1, 2 446 GENERAL INDEX. Originating Summons, continued : adjournmeut generally ... ... ... ...page 5, 51 from chief clerk to judge ... ... ... ... 117 into court 9,11,-51,145 iuto chambers ... ... ... ... 51, 105 advantages of ... ... ... ... ... GO, 80 alteration of, after sealing ... ... ... ... ... 49 amendment ... ... ... ... ... ... ... 10 appeal from chambers to court ... ... ...11,143-146 chambers direct to C. A. ... ... 144-146 court to C. A 144-154 0. A. to House of Lords ... ... ... 154 time for 3,152 appeai-ance, entry of ... ... ... ... 9, 103 attendance on 103,109 book 108 certificate preceding ... ... ... ... 8, 102 what to be left at chambers ... ... ... ... 105 chief clerk not to decide certain ... ... 99, Addenda consolidation... ... ... ... ... ... ... 7 costs 158-169 of parties voluntarily attending ... ... ... 110 counsel 9, 53, 168 documents to be supplied ... ... ... ... 9, 107 drawing up orders on ... ... ... ... ... 11 eA'idence on ... ... ... ... ... ... 9,27-48 fees on 9, 10, 12,317 filing and stamping copy of ... ... ... ... 102 form and issue of ... ... ... ... ... ... 102 {And see " Index of Forms.") hearing ... ... ... ... ... ... ... 9 issue of ... ... ... ... ... ... ... 102 legal devise not decided on ... ... ... ... 81 not disposed of ... ... ... ... ... ... 51 ordei's on, how made ... ... ... ... ... 11 drawn ... ... ... ... ... 119 parties on ... ... ... ... ... ... 13-26 procedure on... ... ... ... ... ... ... 107 return of ... ... ... ... .. ... 9, 49 sealing ... ... ... ... ... ... ... 102 service generally ... ... ... ... 9, 49, 50, 103 under Order L V. , rr. 3, 4 87 Order LV., r. 5a 92 S. L. A 235, 236 several matters in one ... ... ... ... ... 51 stamping ... ... ... ... ... ... ... 102 summons for witnesses, &c. ... ... ... ... 103 time for service and hearing ... ... ...49,50, 103 transfer ;.. ... ... ... ... ... ... 6 unsuitable in certain cases (see "Petition" "Motion," " Writ.") Parliamentary Deposits Acts 63 GENERAL INDEX. 447 Parochial Charities (City of London) Act, 1883 restrictions under ... Parties, general pi'inciples as to . . . in O. S. under Order LY., rr. 3, 4 r. 5a ... absent added by court administration and execution of trusts . . . order for ... ... ... ... ... 23 appeal, upon... ... ... ... ... ... ... 147 defective ... ... ... ... ... ... ... 18 defendants ... ... ... ... ... ... ... 15 executors ... ... ... ... ... ... 15, 88 foreclosure ... ... ... ... ... ... ... 92 heir 25 infants ... ... ... ... ... ... ... 19 lunatics ... ... ... ... ... ... ... 19 married women (generally) .. . ... ... ... ... 19 seeking to remove restraint, C. A. s. 39 ... ... 184 numerous persons ... ... ... ... ... ... 16 partners ... ... ... ... ... ... ... 19 paiapers ... ... ... ... ... ... 21, 22 personal representative wanting ... ... ... ... 25 plaintiffs ... ... ... ... ... ... ... 14 protection of, property in action for ... ... ... 23 redemption ... ... ... ... ... ... .. 92 Settled Land Act 235 trustees ... ... ... ... ... ... ... 15 trusts, execution of . . . ... ... ... ... ... 23 Y. and P. Act, 1874 177 Parliamentary Deposits Acts, O. S. under ... ... ... 63 Partners ... ... ... ... ... ... ... ... 19 Paupers ... ... ... ... ... ... ... 21. 22 Paymaster- General 115,118,119,318 Payment into court : generally ... ... ... ... ... ... ... 58 under Legacy Duty Act ... ... ... ... ... 59 under Trustee Relief Act ... ... ... ... 60, 61 costs of, needless ... ... ... ... ... 60,83 L. C. C. Act 65 of purchase money on sales by court ... ... ... 75 underS. L. A 203,220 mode of , under S. L. A 235,237,238 Payment out of court : applications for, by 0. S. ... ... ... ... 54, 56 under Legacy Duty Act ... ... ... ... 58,59 under Trustee Relief Act 59,62 where there has been order declaring rights ... ... 54 when by petition ... ... ... ... ... 55,57 of interest ... ... ... ... ... ... ... 58 under Parliamentary Deposits Act ... ... ... 63 L. C. C. Act 63 et seq. S. L. A. for investment, &c. ... ... ... 203 448 GENERAL INDEX. Payment out of court, continued : under S. L. A. for improvements ... ... ... page 207 costs, &c 221 of small iucomes of infants... ... ... ... ... 324 Petition, service out of jurisdiction ... ... ... ... 89 Petition, when necessary : — where title depends on default of issue ... ... ... 54 for carrying over fund above lOOOL, where no previous order ... ... ... ... ... ... ... 55 share under lOOOZ. in fund exceeding, where no previous order has been made ... ... ... ... ... 57 where originally above lOOOL ... ... ... ... 57 advancement under Legacy Duty Act ... ... 58, 74 where person out of jurisdiction ... ... ... ... 89 Petition, where allowed : complicated cases ... ... ... ... 55,56,60,63,81 where no extra cost... ... ... ... ... 55,56,57 accrued interest over lOOOZ. ... ... ... ... 57 building ... ... ... ... ... ... 57,64 for aj)pointment of new trustee ... ... ... 125-126 underS. L. A 220,235,236 Petition, where costs not allowed... ... ... ... 64,235 Personal reiiresentative, absence of ... ... ... 26, 376 Polehampt on Estates Act, 1885 306 Policy of insurauce under M. W. P. Acts 265,266 Poor Law Amendment Act, 1868... ... ... ... ... 274 Possession, delivery of, by mortgagee or mortgagor ... 89, 91 Post, notices by 115,170,171 Powers, effect of decree on ... ... ... ... ... 95 mider S. L. A., some indestructible ... ... ... 223 Printing order as to fund in court ... ... ... 11,12 affidavits ... ... ... ... ... ... ... 48 for Court of Appeal ... ... ... ... ... 152 Proceedings, none for a year ... ... ... ... ... 157 Production of documents ... ... ... ... ... 28, 29 acknowledgment of right to ... ... ... ... 181 Property, detinition of, in M. W. P. Act 275 Protection of settled land, proceedings for ... ... ... 213 Pwr awfre me estates under S. L. A. ... ... ... 226,231 Railway Companies Act, 1867 stock allowed for investment (S. L. A.) Receiver, application for ... ... ... ... ... 86, 91 in diambers ... ... ... ... ... ... ... 91 ajpainst married woman ... ... ... ... ... 257 Reconveyance, application tor .. ... ... ... ... 89 Redemption, application for by O. S. ... ... ... ... 89 one period for ... ... ... ... ... 405 Regi.stering orders in chambers ... ... ... ... ... 119 Relea.se, whether set a.side on O. S. ... ... ... ... 82 Relief against trustees on O. S. ... ... ... ... ... 86 Remainderman, powers and duties of as to improvements ... 208 may apply for appointment of trustees under S. L. A. 215, 235 (See also p. 211, and " Successors in Title."') 306 197 GENERAL INDEX. 449 ^' Rent " under S. L. A. :— apportionment of milling, when to be capital money Crown, quit and chief pro\'isions as to best. . . certain lessees at, not witliin Act Representation order Respondents to appeal to C A. Reversion, application of money on sale of " Royal Courts of Justice " Rule of law distinguished from construction Rules of Supreme Court not ultra vires... {And see " Orders") Funds, rules ... Rules under Guardianship of Infants Act National Debt Conversion Act Settled Land Act ... Trade Marks Act page 192, 195 ... 194 197 192, 222, 224 .226 16,23 .. 147,149 211 53 357 2 318 325 302 234 309 Sale under S. L. A. : — powers of tenant for life to make ... ... ... ... 191 regulations respecting ... ... ... ... ... 191 transfer of incumbrances on ... ... ... ... 192 I'estrictions as to mansion house ... ... ... 195, 235 dedication of streets on ... ... ... ... ... 196 of minerals and surface apai't ... ... ... ... 196 conveyance on ... ... ... ... ... 196, 224 contracts for .. . ... ... ... ... ... ... 208 of lease or reversion, application of money on . . . ... 211 of timber ... ... ... ... ..." ... ... 212 of "heirlooms" ... ... ... ... ... ... 213 trustees' receipts on... ... ... ... ... ... 218 protection of trustees on . . . ... ... ... ... 218 notice of ... ... ... ... ... ... ... 219 to raise money for costs ... ... ... ... ... 221 protection of purchaser on... ... ... ... ... 224 settlement by way of trusts for, s. 63 ... ... ... 231 when directed by the coui't ... ... ... ... 236 {And see " Conveyance," " Capital Money," "Payment into Court.") Sale by court ... ... ... ... ... ... 74, 75 discharge of incumbrance on, O. S. for ... ... ... 179 Saturday 156 Scandalous matter ... ... ... ... ... ... ... 43 Security for costs genei-ally ... ... ... ... 161, 162 of discovery ... ... ... ... ... 32 time for giving ... ... ... ... 156 Separate examination ... ... ... ... ... ... 252 Service of notice of appeal ... ... ... ... ... 147 G a 450 GENEEAL INDEX. Service of O. S., mode of page 8,50,170,171 time for ... ... ... ... ... ... 49 hour for ... ... ... ... ... ... 156 not out of jurisdiction ... ... ... 89 parties to be served uuder Order LV., rr. 3, 4 87, 88 under z&., r. 5a... ... ... ... ... 92 by order of court ... ... ... ... 92, 93 [And see " Parties.") Service of petition out of jurisdiction ... ... ... 89, 126 of orders, &c 170, 171 of proceedings generally ... ... ... ... ... 156 Settled Estates Act, 1877 :— petition under ... ... ... ... ... ... 183 money in court under ... ... ... ... ... 210 orders made under, before S. L. A. 225 special powers under ... ... ... ... ... 225 repeal of sect. 17 of... ... ... ... ... ... 234 separate examination under ... . . ... ... 252 Settled Land Act, 1882 (45 & 46 Yict. c. 38) 188-234 general construction of . . ... ... ... ... 191 Ii'eland, modifications as to... ... ... ... ... 234 payment into court often rendered needless by . . . 64, 65 repeals by 233, 234 retrospective effect of 188, 210, 224, 231 rules under .... ... ... ... ... ... ... 234 simplifying purchase under L. C. C. Acts ... ... 64 statutes amending or extending ... ... ... 188, 199 Settled Land Act, 1884 (47 & 48 Yict. c. 18) 188, 192 n.. 216, 219 225 227 n 232-234 Settled Land Act, 1887 (50 & 51 Vict. c. 30) '... ' ... 188, 200 Settlements, O. S. for infants 70,104 how affected by M. W. P. Act 272-274 Settlor, estate reverting to (S. L. A.) 188 Solicitor, liability to j»ay costs personally ... ... 51, 165 delivery of bill, &c 75,76 Remuneration Act ... ... ... ... ... ... 76 retainer ... ... ... ... ... ... ... 76 representative ... ... ... ... ... ... 108 official appointed ... ... ... ... ... ... 109 several or distinct ... ... ... ... ... 109, 110 when appointed trustee ... ... ... ... ... 124 duty of, on taxation ... ... ... ... ... 166-169 8er\^ce on ... ... ... ... ... ... 170, 171 notice to, imder S. L. A 219 fees of, uuder S. L. A 238 Solicitor and client costs ... ... ... ... ... 159, 161 Solicitors Act, 1843 75-77 fees for O. S. and order of course under 317 Solicitors' Remuneration Act, 1881 ... ... ... ... 76 Stani]) on order ... ... ... ... ... ... ... 12 Stannary Court, O. S. as to 307 Statutes (see under various titles of statutes.) GENERAL INDEX. 451 Staying proceediugs in aclmiuistration ... ... ... page 94 Stay of proceediugs wlieu appeal not to be ... ... ... 153 Subpcena 37-40 Substituted sei'vice ... ... ... ... ... ... 50, 147 Succession, interests given in, under S. L. A. ... ... ... 188 Successors iu title under S. L. A. : — exercise extra leasing powers ... ... ... ... 193 how far bound by contracts ... ... ... ... 209 powers and liabilities as to improvements ... ... 208 {See also ss. 34, 56, pp. 211, 225.) Summons : applications at chambers by ... ... ... ... 49 alteration of, after sealing ... ... ... ... ... 49 time of service ... ... ... ... ... ... 49 non-attendance on ... ... ... ... ... 50, 51 not disposed of ... ... ... ... ... ... 51 several matters in one ... ... ... ... ... 51 adjournment... ... ... ... ... ... ... 51 form ... ... ... ... ... ... ... ... 51 whom addressed to . . , ... ... ... ... 51, 52 of chief clerk ... ... ... ... ... ... 99 to proceed ... ... ... ... ... ... ... 106 book 108 when no order made on ... ... ... ... ... 157 under S. L. A. applications to be by ... ... 220, 235 [And see " Originating Summons") Sunday ... ... ... ... ... ... ... ... 155 Surrender of lease under S. L. A. ... ... ... 194, 208 infant's lease... ... ... ... ... ... ... 69 Taxation of costs generally ... as between solicitor and client O. S. for Tenant for life, who is, under S. L. A who is to be deemed who has the jDowers of meaning of, in S. L. Rules... " of undivided share " statement by, when evidence power of, as to the land capital money improvements contracts . . . money in court or in the hands of under L. C. C. or other Acts . timber " heirlooms " differences with trustees when, must give notice of intended disposition, entitled to notice on applications ... powers of, cannot be assigned or released 166-169, and see Addenda 159,161 75, 228 226 76 189 2.31 230 ... 234 ... 196 ... 192 191-197 ... 203 206-208 ... 208 trustees .. 210. &c. 220, 211 212 213 218 21y 235 222 452 GENERAL INDEX. Tenant for life, continued : powers of , cannot be prohibited ... ... ... page 223 exercise of, cannot create forfeiture ... 223 is trustee for all parties under settlement ... ... 223 persons dealing with, protected ... ... ... ... 224 powers of, independently of the Act ... ... 224-227 as to conflict of powers ... ... ... ... 225, 232 (See also " Originating Summons") Tenant in tail ... 226 Tenants concurrently for life ... ... ... ... ... 189 Testamentary expenses what are ... ... ... ... ... 160 Timber, power to cut down ... ... ... ... ... 212 Time generally ... ... ... ... ... ... 155-157 Simday, &c 155 long vacation... ... ... ... ... ... 155,156 enlarging or abridging ... ... ... ... ... 156 for service ... ... ... ... ... ... ... 156 exclusive and inclusive ... ... ... ... ... 156 clear days ... ... ... ... ... ... ... 157 Tithe rent charge, redemption of . . . ... ... ... ... 197 Trade Marks Acts, 1883-1888 308 definition of mark ... ... ... ... ... ... 309 opiiositiou to registration ... ... ... ... ... 310 rectification of register ... ... ... ... ... 312 alteration of mark ... ... ... ... ... ... 313 Rules ... ... 309-311, Addenda {See also "Merchandise Marhs Act.") Tramways Act, 1870 63 Transfer of matter ... ... ... ... ... ... ... 6 Trustee Act, 1888 (51 & 52 Yict. c. 59) 174, 198 Trustee Acts, 1850, 1852, applications under, 68, 82, 122-126, 132, 135, et seq. jurisdiction of County Court ... ... ... ... 283 Trustee Relief Acts 59-62 charity money paid in under ... ... ... ... 97 jm'isdictiou of County Court ... ... ... ... 283 Trustees represent e.state ... ... ... ... ... 15, 16 orders for administration obtainable by ... ... 24 applications by O. S 79-87 relief against, ^ersonaZ/y by 0. S ... ... 81,86 discretion of 82-85, 95 accused of breach of trust ... ... ... ... 93 when they ought not to pay in ... ... .., 60, 83 how affected ))y summons ... ... ... ... 95 allowed commission ... ... ... ... ... 124 keeping up number ... ... ... ... 124, 128 appointing new, by court ... 121-137, 421, Addenda powers to appoint new, out of court ... ... 128 et seq. of deceased trustee ... ... ... ... ... 131 under S.L. A 131 costs of 158-161 {And see " New Trustees.") GENERAL INDEX. 453 Trustees under S. L. A., defined, s. 2 (8) page M)0 in settlements on trust for sale, s. 63 (1 ) . . . ... ... 231 general provisions as to ... ... ... ... 215-220 may consent to sale or lease of mansion, &c. ... ... 195 capital money may be paid to ... ... ... ... 203 investment l)y ... ... ... ... ... ... 203 certain purchased land to be vested in ... ... ... 205 duties of, with regax-d to improvements ... ... ... 206 application of money in the hands of ... ... ... 211 power of, to apportion money paid for lease or reversion 211 may consent to sale of ripe timber ... ... ... 212 appointment by the court ... ... ... ... 132, 215 whether appointed under C. A., s. 31 ... ... ... 132 succession when appointed ... ... ... ... 215 surviving and continuing ... ... ... ... 215, 218 when single trustee may act ... ... ... 217, 219 receipts of ... ... ... ... ... ... ..• 218 protection of, individually ... ... ... ... ... 218 liability as to conveyance ... ... ... ... ... 218 reimbursement of ... ... ... ... ... ... 218 application to the court by, on differences with tenant for life _ 218, 235 notice to, before sales, &c., by tenant for life ... ... 219 notice on application to the court by ... ... ... 220 powers of, how exercisable... ... ... ... ... 224 what powers of, imder settlement, statute, or otherwise, preserved, and what modified ... ... ... ... 224 applications to court by, under s. 56 ... ... ... 225 additional powers may be conferred on ... ... ... 226 may exercise powers of infant tenant for life ... ... 228 Trustee, tenant for life is ... ... ... ... ... ... 223 Trust estate, devolution of, on death (0. A., s. 30) 127 Trust for sale, settlement by way of ... ... ... ... 231 Trusts, O. S. with reference to 79 Unascertained persons, person to represent... ... 22,384 inquiry for ... ... ... ... 110 Undivided share under S. L. A 196 " Unfit to act," trustee 128 Unsoiind mind, guardian acZ Zi7e»i, for person of ... ... 105 vestiug order when trustee is of ... ... ... 123, 124 Vacation jiulge 53 Vendor and Purchaser Act, 1874, s. 9 : afiidavit 173 appeal ... ... ... ... ... ••• ■ 176 compensation ... ... ... ... 172, 174, 175 costs of investigating title... ... ... ... ... 175 costs of summons ... ... ... ... ... 176, 177 evidence ... ... ... ... ••. ••• • 173 judgment ... ... ... ... ... .■• 175-177 rescission ... ... ... ... ... ■•. ••• 174 454 GENERAL INDEX. Vendor and Purchaser Act, 1874, s. 9, continued statement of facts ... succession duty summons when applicable title doubtful whom bound ... Vesting order sometimes obtainable on O Vesting property in new or continuing tr et scq, and ustees by court, in continuing trustees alone Wilful default Witness, summons for Writ, when action commenced by page 173 174, 175 172, 173, 177 ... 175 ... 177 68, 121 see Addenda 134, 135 ... 133 ... 85 ... 99 81-86 Teak, no proceedings for a ... 157 INDEX TO FOMS. («) Account, O. S. asking for Accounts and iuqiiiries, O. S. for... Advertisement of O. S. Administration, O. S. for ... (if necessary) ... ... ... ...334, of settlement Affidavits : for entry of appearance as guardian in support of O. S. for construction of will O. S. for guardian, &c. O. S. against creditor by creditor (defendant) in foreclosure 395,396,398, of death, probate, &c. for appointment of trustees under S. L. A. of fitness of trustee Amendment of O. S., summons for Appeal to Court of Appeal, notice of to House of Lords, petition of notice of appellant's " case "on respondent's " case " on appendix to case judgment on . . . Appearance, affidavit of entry of, as guardian ... -pacie 381 ... 393 ... 327 ... 393 366, 386, 390 ... 392 ... 327 335, 373, 379 ... 346 ... 381 382 400, 404, 411 ... 404 ... 419 ... 421 ... 408 336, 377 ... 337 ... 338 ... 338 ... 341 ... 343 ... 344 ... 327 Certificate before sealing of O. S. ... of no further argument ... for particular judge Charging order, O. S. to enforce ... Consent to act as trustee ... Conveyancing Act, O. S. as to s. 43 of ... Corporation sole, S. for investment, &c., by Costs, on O. S. for construction, &c. defendants in any event new trustees, &c. under L. C. C. Act ... 329 ... 376 413, 418 ... 413 327, 420 ... 352 .. 426 345, 353, 366, 376, 387, 391, 392 408 416 427 (a) See also Table of Contents. " S." is employed as an abbreviation for " Summons," and " 0. S." for " Originating Summons." 456 INDEX TO FORMS. Creditor, O. S. against jja^e 380 affidavit by 382 Foreclosure. O. S. for 394,397,407,411 with consolidation ... ... ... ... ... ... 405 supplomeutid . . ... ... ... ... ... ... 409 S. to amend O.S 408 affidavits in 395-404 niinuies of order ... ... ... ... ... ... 404 order in ... ... ... ... ... ... ... 406 Fnrther consideration, S. for ... ... ... ... ... 119 Guardian, affidavit of entry of ai)pearance as 327 of person and estate, O. S. for appointment of ... 344, 351 consent to act as ... ... ... ... ... ... 345 affidavit of fitness of ... ... ... ... ... 346 affidavit in support of O. S. for ... ... ... ... 347 affidavit of respondent ... ... ... ... ... 348 order appointing ... ... ... ... ... ... 349 House of Lords, proceedings on appeal to ... ... 337-344 {A)id see " Appeal") Improvements, S. for 426 Intere.st, S. for payment of ... ... ... ... ... 427 L. C. C. Act, summons under ... ... ... ... ... 426 Land tax redemption, S. for ... ... ... ... ... 426 Lodgment schedules ... ... ... ... ... 320, 321 Lodgment and payment schedules ... ... ... 324, 350 Maintenance, O. S. for 344,351 Minutes of order for foreclosure ... ... ... ... ... 404 Mortgages (see " Foreclosure") New trustees, O. S. for 415 {And see " Trustees.") Notice of appeal to C. A. ... ... ... ... ... 336, 377 toH. of L 338 ORDERonO. S. 336 first hearing ... ... ... ... ... ... ... 386 1)y Court of Appeal 337 for foreclosure ... ... ... ... ... 406, 410 enforcing cliarging order ... ... ... ... ... 414 Ordinary summons : for leave to amend O. S. ... ... ... ... ... 408 in winding-up ... ... ... ... ... ... 408 Originating Summons : — formal parts of 334,358,366 Government form ... ... ... ... ... ... 328 titles of 329-333 INDEX TO FORMS. 457 Originating Summons, <'0»