petition, the money was ordered to be paid to the tenant for life, without prejudice to any question as to the renewal. Beaufoy's Trust, in re, 15.
1. Form of Taking Accounts.] In directing accounts to be taken under the Masters in Chancery Abolition Act, the form of the order under the old practice referring it to the Master to take the accounts, is inapplicable, and the accounts are to be directed to be taken in a general form. Catling, in re, 318.
2. Demurrer-Supplemental Bill.] A bill was filed by A and his wife, alleging title in respect of the wife's estate tail. The defendant demurred for want of equity. While the demurrer was standing for argument the wife died, and then A filed a supplemental bill, alleging a disentailing deed before the date of the original bill, under which deed A claimed in fee:- :-
Held, that in this state of things the demurrer could not be heard; that such an alter- ation of the record was not properly the subject of either supplemental bill or of original bill in the nature of a supplemental bill, or of a bill of revivor, not properly of amendment; but the original bill ought to have been left to take its course, and a new bill filed stating the real title. Wright v. Vernon, 261.
3. Indorsement of Bill.] The indorsement on bill of complaint or claim may be altered at the discretion of the court from the form prescribed by the schedule to the Chan- cery Procedure Amendment Act, (15 & 16 Vict. c. 86,) and such indorsement is not required by the act to be printed-semble. Baines v. Ridge, 387.
4. Filing Corrected Bill.] A printed bill was prepared, pursuant to section 1, of the statute 15 & 16 Vict. c. 86, but there being a mistake by the transposition of the christian names of the next friend, the error was corrected in ink, and the officers declined to file it as a printed bill; but the court held, that the alteration was of so slight a nature, that it did not constitute a sufficient ground for refusing to file the bill, and directed it to be received and filed accordingly. Yeatman v. Mousley, 337. 5. Filing Special Claim.] A claim for foreclosure by a mortgagee with power of sale, and a proviso that the power should not prejudice his right to foreclose or his other rights as mortgagee, is a special claim, and requires the leave of the court to file it. Varney v. Forward, 454.
6. Filing Special Claim.] A special claim may be filed for specific performance of a contract to grant a lease. Anonymous, 477.
7. Service of Process by Substitution.] Substituted service of bill, for common injunc- tion allowed, on affidavit, that the plaintiff at law was out of the jurisdiction, and that the person whom it was intended to serve was his attorney, without any affidavit of merits, because the motion for the injunction must now be upon notice. Sergison v. Beavan, 6.
8. Application to Amend.] The 67th and 68th orders of 1845, apply to an application to the court, as well as to an application to the Master. M'Leod v. Lyttleton, 252.
9. Affidavit.] A motion for leave to amend, by striking out the name of a plaintiff and making him a defendant, must be supported by the affidavits required by the 67th and 68th orders of 1845. Ib.
10. Default in Filing Replication.] A bill was filed in 1849, for the purpose of taking the accounts of an abortive railway undertaking. Upon a motion in July, 1851, by a defendant, to dismiss the bill, the plaintiff undertook to file a replication on or be- fore the first day of Hilary term, 1852. He made default in performing his under- taking. Upon a motion made in February following, the plaintiff proved that he
had been unable to serve the other defendants, so as to perfect the suit which he was prosecuting bonâ fide : —
Held, that the plaintiff must be held to the undertaking; and that, if he had a case enti- tling him to be relieved from that undertaking, he ought to have made a special application to be discharged from it. La Mert v. Stanhope, 156.
11. Dismissal.] Other defendants had abstained from moving for the dismissal of the bill, relying on the undertaking given on the motion in July, 1851; but, on the de- fault of the plaintiff to perform that undertaking by filing a replication, these defend- ants, in February, 1852, moved for the dismissal of the bill as against them; and the court dismissed the bill accordingly. Ib.
12. Revival of Suit.] It is an order of course to revive a suit against an official as signee, whose predecessor, a defendant, had died without putting in his answer. Gordon v. Jesson, 571.
13. Supplemental Order to Carry on Suit.] A female ward of court, before the passing of the statute 15 & 16 Vict. c. 86, married without the leave of the court. She was the plaintiff in a suit at this time, and upon her marriage the suit was revived against her husband, and, under an order of the court, a settlement was made on her and her issue, by which her whole property was vested in trustees. Upon an application, on behalf the plaintiff, under the 52d section of the statute :—
Held, that this was a change or transmission of interest within the spirit of the section, so as to authorize the court to make an order against the trustees under that section to the effect of the usual supplemental decree. Atkinson v. Parker, 336.
14. Appointment of Receiver.] Application for appointment of receiver by consent, should be by summons at chambers. Blackborough v. Ravenhill, 16.
15. Proceedings upon a Foreclosure of Mortgage.] If a sale, instead of a foreclosure, under this section, be desired, it must be asked at the hearing; if a decree at the hearing be made for a foreclosure, it cannot afterwards, on motion, be converted into a decree for sale. Girdlestone v. Lavender, 9.
16. Proceedings upon a Prayer for Investment.] When a petitioner prays for invest- ment in lands, the court, on being satisfied that the investment is eligible, will order the petition to stand over for the opinion on the title of such of the conveyancing counsel of the court as the petitioner may select, and on the return of such opinion to the court an order will be made on the petition. Caddick, in re, 319.
17. Evidence of Title to Dividends.] It is not imperative on the court to require from a tenant for life an affidavit of conclusive title to dividends of a fund paid into court under the Lands Clauses Consolidation Act. Braye, Ex parte, 515.
18. Change of Practice.] A motion by consent, in a cause commenced under the old practice, to enlarge publication, to take the evidence orally under the new practice, and to suppress depositions taken under the old practice, is properly made in court instead of by application at chambers. Atkinson v. The Oxford, Worcester, &c., Railway Company, 325.
19. Production of Documents.] A motion by the defendant that the plaintiff should produce, on oath, all the documents in his possession or power relating to the matters in the suit, (the defendant not specifying any documents or giving any evidence that the plaintiff had any,) was refused, with costs. Fiott v. Mullins, 350.
20. Procedure for the Production of Documents.] Counsel will not be heard at cham- bers to oppose a summons for production of documents, under the 15 & 16 Viet c. 80, s. 26, (Masters in Chancery Abolition Act,) but the hearing will be adjourned to the court. Dipple v. Corles, 324.
21. Application for Production of Documents.] Application for production of docu- ments is to be made, in the first instance, by summons at the chambers of the judge. Questions of difficulty as to the production are to be adjourned to and argued in court (Masters in Chancery Abolition Act, 15 & 16 Vict. c. 80, s. 26.) Thompson v. Teulon, 320.
22. Appointment of New Trustee.] Petition by tenant for life, for a vesting order, to vest property in a new trustee appointed in the place of a trustee out of the jurisdiction,
must be served on the remainder-man. It must be proved by affidavit, inter alia, that the power has been properly exercised, and that the proposed trustee is a fit and proper person. Maynard, in re, 17.
23. Revivor and Supplement.] An order and decree of revivor and supplement by a plaintiff against a co-plaintiff in a suit commenced by claim, is not within the Chan- cery Procedure Amendment Act, (15 & 16 Vict. c. 86.) A printed special claim of revivor and supplement must be filed. Yate v. Lighthead, 321.
24. Revivor and Supplement.] An order and decree of revivor and supplement in a suit, instituted by claim, is within the 15 & 16 Vict. c. 86, s. 52, (Chancery Proce- dure Amendment Act.) Martin v. Hadlow, 319.
25. Dismissal of Bill for Want of Prosecution.] A bill being filed in August, for an injunction to restrain waste, pending an action of ejectment brought to try the title, the ejectment being successful, the injunction submitted to, and the defendant hav- ing quietly permitted the plaintiff, after the verdict at law, to sell the estate, and not alleging that he intended to take any steps to disturb the verdict at law, and the defendant being a pauper, and having recently changed his solicitor:-
Held, altogether sufficient to make out such special circumstances as took the case out of the general rule, on a motion to dismiss for want of prosecution. Pinfold v. Pinfold, 10.
26. When not Proper to File Replication.] Where the plaintiff duly gives notice of motion for a decree or decretal order, under the 15 & 16 Vict. c. 86, s. 26, it is not proper to file a replication. Duffield v. Sturges, 519.
27. Petition by Married Woman.] A married woman permitted to present, without the intervention of a next friend, a petition, under the 2 & 3 Vict. c. 54, for access to some, and the custody of others, of her children. Hakewill, re, 599.
28. Application for Assistance of Common Law Judges.] Application for the assistance in equity of a common law judge under the 14 & 15 Vict. c. 83, is to be made through the Lord Chancellor. Hay v. Willoughby, 274.
29. Stamp for Filing.] In a case of emergency, several adhesive stamps, to the amount required to be paid on filing a bill or claim, may be affixed in lieu of one stamp denoting the amount. Brain v. Brain, 519.
30. Fee Upon Service of Bill.] Though a fee of one guinea is paid upon service of a copy of a written bill, a second fee must be paid upon service of a copy of the print- ed bill. Trustees of Birkenhead Dock v. The Shrewsbury and Chester Railway Company, 340.
31. Filing Interrogatories.] Where a written bill is filed under the Chancery Proce- dure Amendment Act, (15 & 16 Vict. c. 86, s. 6,) interrogatories may be filed before the printed copy of the bill is filed. Lambert v. Lomas, 323.
32. Stamp.] Only one stamp is to be paid for by a plaintiff filing a written and printed copy of a bill. Ib.
33. Examination of Witnesses.] The 15 & 16 Vict. c. 80, s. 15, and the 15 & 16 Vict. c. 86, do not empower the court to direct an examination of a defendant vivâ voce in the Master's office, in a suit at issue before the latter act was passed. Rooth v. Tom- linson, 355.
34. Examination of Witnesses.] The examination of witnesses de bene esse is within the Chancery Procedure Amendment Act (15 & 16 Vict. c. 86, s. 28.) The exa- mination of witnesses de bene esse is to be taken by one examiner. Cook v. Hall, 321. 35. Mode of Taking Evidence.] A cause was at issue before the Chancery Procedure Amendment Act and the orders made under it came into operation, but no evidence had been taken. The court, in the exercise of its discretion, on the motion of the defendants, the plaintiff opposing, ordered that the evidence in the cause should be taken according to the method prescribed by the act and orders. Macintosh v. Great Western Railway Company, 347, 423.
36. Service of Interrogatories.] Under the 12th section of the statute 15 & 16 Vict. c. 86, and by the 17th and 18th orders of the 7th of August, 1852, requiring a copy 53
of interrogatories to be delivered “to a defendant or defendants, or his or their soli- citor," it is sufficient that such copy be left at the office of the solicitor, and need not be served on the solicitor personally. Bowen v. Price, 419.
37. Practice to Charge Trustees as to Wilful Default.]
41. Service of Notice of Injunction upon Foreign Corporation.]
1. Rights of Surety.] In a suit by A against B and C, a conveyance of an estate by A to B was declared void, and set aside for fraud, except as to an intermediate mort- gage of the estate made by B to D, to secure a sum of money lent by D to B, and for which C had joined B as his surety in a bond and covenant to D; and the decree also directed B to redeem the estate and procure its reconveyance to A. and, if he did not do so, gave A the right to redeem, and to use the name of B for that purpose, and to recover from B the money which A should pay to D for such re-conveyance; and the bill was dismissed against C. A afterwards procured an assignment of D's mortgage to a trustee, and in the name of the mortgagees brought an action against C on his covenant and bond:-
Held, that, if A had redeemed D, the debt would have gone as against C; that, C, as the surety of B, would, on payment of the mortgage debt, be entitled to the benefit of the security held by D, such security not having been disturbed by the decree; that the charge of participation by C in the fraud, whereby B had been enabled to create the mortgage on the estate, was not a ground for depriving C of such right; and that C was, therefore, in a suit for an injunction to restrain A from suing him on the bond and covenant, entitled to such relief. Yonge v. Reynall, 237.
The circumstance of the dismissal as against C, of the bill brought by A against B and C, which prayed the mortgage debt might be paid by B and C, was material to the case, though it was not alone conclusive, as it might well be that there might be no equity to compel C to pay the debt, though C might have no equity to be relieved from his legal liability to pay it. lb.
2. Securities.] The right to a surety to the benefit of the security held by the credit- or, is derived from the obligation of the principal debtor to indemnify his surety-
PRIVILEGED COMMUNICATIONS.
1. Confidential Communications Respecting Matters in Suit.]
2. Production of Documents.]
1. In a suit by a contractor against a railway company, in respect of works done for them, a motion was made by the defendants, that the plaintiff should produce all written communications which had passed between certain persons, naming them, and all account books, documents, papers, and writings relating to the contracts in the bill mentioned. The defendants' solicitor made an affidavit in support of the motion, that he believed that the plaintiff had documents as stated in the notice of motion; and the plaintiff, by an affidavit in answer, admitted that he had in his pos- session a great mass of documents relating to the works in question, but stated that to ascertain which of them came within the terms of the motion would be produc- tive of great expense and inconvenience to him. The court made the order accord- ing to the terms of the motion. Macintosh v. Great Western Railway Company, 351, 423.
2. Title Deeds.] In an administration suit the executor and trustees of the testator objected to produce the title deeds of property upon which parts of the testator's estate were invested, on the ground that the mortgagors would pay off the mort- gages rather than consent to such production, and that such repayment would occa- sion great loss to the estate:-
Held, that the deeds must be produced. Gough v. Offley, 275.
3. Practice in Respect to.] No affidavit is necessary to support an application for pro- duction on oath of documents under the 15 & 16 Vict. c. 86, s. 20.
The court has settled an order under that act, requiring the plaintiff to make an affi- davit of the documents in his possession, and to produce such as he does not thereby object to produce.
A defendant is entitled of right to such an order ing the application does not deprive him of it.
4. Application for.]
5. Motion to Obtain.]
for production, and a delay in mak- Rochdale Canal Co. v. King, 61.
6. When it Will be Ordered.]
1. Interest upon Land Damages.] By agreement in 1847, a railway company took possession of certain lands required for their undertaking, and stipulated to pay the price awarded by arbitration to the owner, or into the Court of Chancery, and inte- rest in the mean time, from the delivery of his abstract until the day on which the purchase should be completed. In 1849, the company paid the purchase-money into the Bank of England, under the provisions of the Lands Clauses Consolidation Act, and received from the solicitors of the vendor an account for interest up to that time. This account was mislaid, and another account was, in 1851, sent to the com- pany at their request, in which the interest was brought down to the latter period. No application had been made by the vendor for the investment of money paid in by the company :—
Held, on special case between the vendor and the company, that the interest ceased to run from the time of payment of the purchase-money into the Bank of England. But the court considering there had been great delay on the part of the company
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