1854. Rolls.

GLENNY

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WOOLSEY.

Master Litton's Certificate.

that he intended to raise any question upon the jurisdiction of the Court or the Master, or as to the propriety or proper form of the petition, the Master did, as he has always done in proceeding under this Act of Parliament, in aid of the interest of both parties, and to save expense and delay, suggest and direct the heads of the account, which a discharge of a party willing to account should, to make it satisfactory, embrace. It is again emphatically stated that if, at the original hearing, it had been suggested by any party that he wished to raise any of the questions which, in defiance of the unappealed from order of the 18th day of April 1853, were afterwards sought to be raised, the Master would have framed the order so as to have allowed all questions to be raised which the parties might be advised to raise, whether of jurisdiction, of the right frame of the record, of form or of substance. But where it was, as it was in this case, admitted at the hearing that the respondent was to render an account, Master Litton repeats it, the only discharge useful or substantial must be one embracing the heads of that account. The form of rendering it only is suggested, the items only which must form the element of every account are directed; and it is but tantamount to saying to the respondent-' You have consented to an account; let your discharge or account contain an accurate, useful and practical account.' Under this Act of Parliament, each Master is invested, in every proceeding under the 15th section, with the powers of the Court of Chancery. If a cause or a petition matter is heard in the Court of Chancery, the Chancellor, in an administration case (if no point be raised tending to show that the defendant or respondent should not account), decrees, as a matter of course, in every case, that an account should be taken against the respondent of the personal estate, into whose hands the same has come, and how applied, what remains to be collected,' &c. The liability to account being admitted or decided upon, the mode and manner in which that account should be rendered are always named in the decree, and the usual words are actually inserted by the Registrar, without conference with the Court. Now, the directions in the present case, as to the items to be contained in the discharge, were exactly of a similar character, and with a similar object, viz., to

place the admitted rights and the admitted liabilities of the suitor in the proper course for inquiry and discussion. It imposes nothing upon the respondent, but what he himself, by his appearance and non-objection, consented to undertake; and but pointed out, without objection by him, the best and only practical mode of doing that which the petitioner prayed he should do, and which he had assented to do.

"It is maintained, firstly, that this course of practice is entirely analogous to the course adopted by the Chancellor in such cases; and that acting under the 15th section of the Chancery Act, the Masters have equal jurisdiction with the Chancellor; secondly, that it is pursuant to the powers given to the Masters, acting under the 15th section of this Act of Parliament; and thirdly, that it has been the actual practice in the offices of the Masters, acting under the provisions of this Act of Parliament

Firstly-In an administration cause or petition matter, before the Lord Chancellor (not under the 15th section), in the order or decree, the items of the account always appear. But in a reference to the Masters, under the 15th section, no aid is given by the Court. The Master is obliged to act as Chancellor, not merely as Master to take the accounts, but as Chancellor to direct the accounts; and in that direction to provide, especially if, as in this case, there be no objection made to it by the respondent, that the pleading called the discharge, which he is bound, by the practice of centuries in such cases to direct, shall contain matters and items appertaining not to anything the respondent has objected to, but appertaining to that subject in respect of which he has admitted his liability to account.

'Secondly-The 17th section of the Chancery Regulation Act contains the following words :-'That the Master may, without reference to any rule or course of practice of the Court, save as therein provided, regulate the course of such proceedings in such manner as it appears to him expedient for rendering same inexpensive and speedy, as far as justice will admit;' and it is clear, in this case, that the course adopted is emphatically calculated to save expense and delay, and to effectuate justice.

1854.

Rolls.

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WOOLSEY.

Master Litton's Certificate.

1854. Rolls.

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Master Litton's Certificate.

Thirdly-That it has been the course of practice to direct discharges of this character, and is so considered by the profession, adequately appears in pp. 236, 237, 238 and 239 of Mr. M'Nevin's valuable work upon the Practice of the Court of Chancery,' in which a series of orders are given in Appendix B, tit. 'Forms of Masters' Orders,' order upon first hearing before a Master upon an executor or administrator to account. The precedents of the proper orders given in a marginal note are in direct accordance with that made by Master Litton in the present case, which is now, but was not then, complained of; and though the eighth of the Masters' General Orders, of the 11th February 1851, uses the term charge,' yet the full jurisdiction to order the defendant administrator to file a pleading-be it called charge or discharge-is there enforced and recognised. Hundreds of similar orders remain in Master Litton's Examiner's, and in the Registrar's office, and also in the other Masters' offices. The order here is one advancing the justice of the case, consistent with the law and practice, as heretofore administered under the Act of Parliament; and to abrogate such a practice now, would be to establish a new practice. But besides it was made in the presence of the parties-the jurisdiction was never contested or objected to-no re-hearing was applied for, and no appeal instituted; and, under such circumstances, the 18th section of the Chancery Regulation Act provides, 'that it shall be binding upon the parties, and may be enforced by any such process in the same manner in all respects, except as herein before provided, as if the same had been made by the Court in a suit duly instituted,' &c. The Master, therefore, was bound, in discharge of his duty, to award the attachment; but notwithstanding what had occurred, he gave the parties power to purge their contempt, by filing a discharge as originally ordered at a future day; and it was only in the event of their still contumaciously declining to do so that the attachment was awarded. In setting forward in his discharge that he would obey the Master's order, if directed by the Court, which has no jurisdiction, save on appeal, the respondent committed a deliberate contempt of the Master's authority. That the Court of Chancery has the power to attach

a man for a distinct disobedience of its orders, is of course conceded. Before the Chancery Act, the answer of a man could be enforced by personal arrest, and attachment for not answering pursuant to a subpoena to answer, which is, in other words, a requisition or order of the Court, under the present Chancery Regulation Act. If the Lord Chancellor shall direct interrogatories to be annexed to the petition, and shall order the same to be answered, he will attach a man for non-compliance with that order. No further proceeding by interrogatories is adopted in such cases. Under the 15th section the Master has equal power to direct a discharge in the nature of an answer; the 17th section gives him such power; the 18th section necessarily gives him the means of enforcing obedience. If in this case a defective or unsatisfactory or inadequate discharge had been put in, then, possibly, the most convenient course would have been to allow the parties to administer personal interrogatories, or to order the respondent to amend the discharge; but here the pleading filed by the party was a contumacious refusal to abide by an order to which he was himself a party.

Even before the extensive powers vested in the Masters by this Act of Parliament, the practice of the Court authorised attachments to be awarded by the Masters in different cases, ex. gr., against receivers for not accounting, tenants for non-payment of rent. That the powers vested in the Masters by this Act of Parliament would ever be used by any Master oppressively, or that any Master would ever direct any form of discharge oppressive to the parties, or injurious to their rights, it is a fancy to anticipate or to suppose. If parties should be advised that any order made by any judicial functionary bears that character, an appeal is open to them; it lies equally from a Master, from the Master of the Rolls, and from the Lord Chancellor. This order for an attachment does not form a precedent, for Master Murphy and Master Lyle have ordered attachments for simple neglect of their orders; but this is the first case which the Masters have been enabled to discover, of a contumacious and determined refusal to obey an order by a suitor who was a party to it, in its original framing and its final settlement; and if it were a precedent, it is a precedent abso

1854.

Rolls.

GLENNY

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WOOLSEY.

Master Litton's Certificate.

1854. Rolls.

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WOOLSEY.

Master Litton's Certificate.

lutely necessary, to enable the Masters to perform the high judicial functions now vested in them by this Act of Parliament, and to render its provisions subservient to the interest of the public. Under a new jurisdiction, new precedents must be continually made, or the jurisdiction ceases. Successive Acts of Parliament and successive Governments, observing, as it must be supposed, that the business of their Court is conducted with dignity, temper and usefulness, have, from time to time, extended the jurisdiction of the Masters, until at length their jurisdiction, as to three-fourths of the property of the country, is commensurate with that of the Lord Chancellor. They must have power to enforce their orders, or all which Parliament has thus sought to do for the benefit of the suitors becomes valueless. As to suffering the party now to appeal from the order of the 18th of April 1853, the two orders taken together provide for everything which can secure the rights of the parties and the justice of the case; the fund is secure for the parties who may ultimately be held entitled to it, and provision is made for the amendment of the record, if the Court with whom that jurisdiction remains should think that an amendment is required; no one element which an honest suitor can desire is unprovided for: and it now appears, from the subjoined written opinions of the four other Masters, that they consider that the orders in this case, in the terms in which they have been already pronounced, are right orders, and should be confirmed without alteration or qualification.

"EDWARD LITTON."

Judgment.

The MASTER OF THE ROLLS, on the return of the Masters' certificates, said, that he should act on their opinion, so far as this motion sought to set aside the order for the attachment. But as the order, so far as it directed that the respondent should invest the sum stated in it, was directly contrary to Boschetti v. Power (a), and to the established practice of the Court, he should set it aside in that respect. He should also set aside the order, so far as it gave leave to file a supplemental petition, as the application should have been made to the Court.

(a) 8 Beav. 98.