CHAPTER XX.

FURTHER CONSIDERATION.

1. Order on Further Consideration (and Motion, or Adjourned Summons, to vary Certificate).

THIS action coming on [the day of and] this day for [If so, subsequent] further consideration before this Court, in the presence of counsel for the Plt and the Defts [if some Defts do not appear, for the Plt and the Deft A., no one appearing for the Defts B. and C., although they were duly served with notice of this action having been set down to be heard for [subsequent] further consideration, as by the affidavit of &c., filed &c., appears]; if so, and for D., who has been served with the judgment [or order] and has entered an appearance pursuant to 0. XVI. 41, of the R. S. C.; and if so, and for E., the purchaser of the real estates of G., the testator &c., sold pursuant to the judgment, or order, dated the day of; and if so, and for F., upon whose application the funds are restrained by the order dated the day of and if so, and upon the motion of the to vary the chief clerk's certificate dated the adjourned summons, and upon the application of the Deft A. to vary &c., which upon hearing the solrs for the Applicant, and for &c., in Chambers, was adjourned to be heard in Court,] and upon hearing the said judgment, [or order] dated the day of, the chief clerk's certificate dated the day of [enter any evidence], and what was alleged by the counsel on both sides [or for all parties, or for the Plt and the Deft A., and if so, and for the said D., or E., or F.], This Court doth &c.

day of

Deft A.,

[or if on

2. Order on Summons for Further Consideration (and Summons to vary Certificate) heard in Chambers.

day

UPON the application of the Plt for the further consideration of this action, adjourned by the order dated &c. [If so, and upon the application of the Deft A. to vary the chief clerk's certificate dated the of-], and upon hearing the solrs for the Plt and for the Defts [and for &c., last Form], and upon reading the said order dated the day

3. Order on Summons for Further Consideration (and Summons to vary Certificate) adjourned into Court.

day of

THE application of the Plt for the further consideration of this action [If so, and the application of the Deft A. to vary the chief clerk's certificate dated the -], which upon hearing the solrs for the Plt and for the Defts [If other persons appear, and for &c., Form 1, sup.], in Chambers, on the day of, was [or were] adjourned to be heard in Court, coming on (the - day of and) this day to be heard accordingly; and upon hearing counsel for the Plt and the Defts [If so, and for the said &c.], and upon reading the order dated the the chief clerk's certificate dated the - day of

-

- [enter any evidence], this Court doth &c.

day of

And as to applications by motion or summons to vary the certificate and adjourning the applications by summons to be heard in Court, see Chap. XVIII., "CHAMBERS."

NOTES.

SETTING DOWN ACTION OR CAUSE FOR FURTHER CONSIDERATION.

When any cause or matter in the Chancery Division has been adjourned for further consideration, it may, after eight days and within fourteen days from the filing of the certificate, be set down for further consideration, on the written request of the solr for the Plt or party having the conduct of the proceedings, and after the expiration of such fourteen days it may be set down on the written request of the solr for the Plt, or for any other party, and in either case on production of the judgment or order adjourning further consideration, or an office copy thereof, and an office copy of the chief clerk's certificate, or a memorandum of the date when it was filed, endorsed on the request above referred to by the proper officer. The cause, when set down, is not to be put into the paper for ten days, and to be so marked. Notice of setting down is to be given to the other parties at least six days before the day for which the cause is marked: 0. xxxvI. 21. And for the forms of the request and notice, see R. S. C. Appx. L., 26, 27.

By O. XL. 10, upon a motion for judgment, or upon an application for a new trial, the Court may, if of opinion that it has not sufficient material before it, direct the motion to stand over for further consideration, and direct issues or questions to be tried or determined, and accounts and inquiries to be taken.

Where on further consideration further accounts and inquiries were directed, but no question of law remained for decision, the Court refused to adjourn further consideration in Court, but gave liberty to apply in Chambers after certificate: Gilbert v. Russell, W. N. (75) 225.

By O. XXXVI. 39, the Judge may, at or after the trial, direct that judgment be entered for any or either party, or adjourn the case for further consideration, or leave any party to move for judgment.

The action may be marked short as on the original hearing or trial, but not, except by consent, so as to be in the paper until after ten days from the date of setting down. And as to short causes, v. sup. p. 157.

On a question reserved by the chief clerk for the Court's opinion counsel for the affirmative proposition have the right to begin: Lyle v. Ellwood, 23 W. R. 157.

SERVICE-APPEARANCE BY PERSONS NOT PARTIES.

All parties to the action, including any persons who may have entered appearances pursuant to O. XVI. 41, must be served with notice that the action has been set down for further consideration.

As to affidavit of service, see sup. p. 20.

If it is intended to deal with the proceeds of any estates sold in the action, the purchaser must be served, and if he does not appear, an affidavit not only of service, but that his conveyance has been delivered to him, must be produced and entered as read. If the purchaser has obtained his conveyance, he should not appear; and doing so was refused his costs: Barton v. Latour, 18 Beav. 526. If it appears on the proceedings that he has obtained his conveyance, he need not be served: Noble v. Stow (No. 2), 30 Beav. 272. If any stop order affects the funds to be dealt with, the person who obtained it must be served with notice, and if he does not appear, an affidavit of service must be produced. If such purchaser or incumbrancer appear, his appearance must be noticed in the order.

Persons against whom a personal order for payment of money is required should be served, though they have not obtained an order to attend proceedings: Re Rees, R. v. George, 15 Ch. D. 490.

By O. LXVII. 8, where a person who is not a party appears in any proceeding, either before the Court or in Chambers, service on the London solr, by whom such person appears, whether acting as principal or agent, is good service except in matters requiring personal service."

As to the right of a person not served with the judgment to obtain leave to appear to contest a point on further consideration, see Samuel v. S., 12 Ch. D. 152, 161; Dan. 1006; D. C. F. p. 465, Form 1167.

EVIDENCE.

An affidavit as to matters directly in issue, filed after the certificate, could not formerly have been read, but the Court, on counsel's statement of the facts, has sent an inquiry: Fleming v. East, Kay, lii.; and see Howard v. Chaffers, 11 W. R. 585; but now, under O. XXXVII. 1, further evidence by affidavit may be received by leave of the Court: May v. Newton, 34 Ch. D. 347; and see Re Chifferiel, C. v. Watson, 57 L. J. Ch. 137; 58 L. T. N.S. 877; 36 W. R. 806; Re Rouse, R. v. Trible, W. N. (88) 231; Re Michael, Dessau v. Lewin, 52 L. T. N.S. 609; Beaney v. Elliott, W. N. (80) 99. Further evidence as to the conduct of the Deft between judgment and further consideration was received on the question of costs, but not as to his conduct before action: Re Revill, Leigh v. Rumney, 55 L. T. N.S. 542.

Notice ought to be given of reading evidence entered in the certificate: per M. R. (Sir G. Jessel), in Re Chennell, Jones v. C., 8 Ch. Div. 504. In Re Brier, B. v. Evison, 26 Ch. Div. 242, the question was raised whether the evidence could be read where there was no summons to vary, but was not decided.

PRINCIPLE OF JUDGMENT NOT TO BE VARIED.

The Court will not, on the further consideration of the action, entertain questions raised on the pleadings, but with respect to which no direction or reservation is contained in the original judgment: Legrand v. Whitehead, 1 Rus. 309; and see Morgan v. M., 13 Beav. 441; and as to raising on further consideration questions not raised in the pleading, see Hughes v. Jones, 3 D. F. & J. 307.

Interest may, on further consideration, be directed to be computed on balances certified to be due, if grounds for it appear by the certificate: see Chap. XLVII., "MORTGAGES," and Chap. XLI., "TRUSTEES."

But though grounds for it may appear, the Court will not, on further consideration, direct a party to be charged with wilful default: see Chap. XLI., “TRUSTEES;" and where a decree was framed so as to give the Plts compensation for the value of minerals wrongfully taken, the Court declined, on further consideration, to entertain a claim for interest thereon: Phillips v. Homfray, 44 Ch. D. 694, 701.

The principle on which costs have by the original judgment been directed to be taxed will not be varied: Wilson v. Metcalfe, 1 Rus. 530; Quarrell v. Beckford, 1 Mad. 286; but where by a decretal order directing an inquiry what damage Plt had sustained, with liberty to apply, no further consideration was adjourned, but costs of suit were ordered to be paid by Deft, the Plt, though entitled to the costs of all matters properly within the inquiry, notwithstanding he failed to prove any damage, was ordered to pay the costs of questions improperly raised by him in prosecuting such inquiry: Krehl v. Park, 10 Ch. 434.

Where a receiver has been appointed generally, it is unnecessary, on further consideration, to insert a direction to continue him: Re Underwood, U. v. U., 60 L. T. N.S. 384; 37 W. R. 428.

Although an order on further consideration directing payment of costs in a particular way did not reserve subsequent further consideration, nor the question how the costs should ultimately be borne, the Court treated the directions as to costs as being made for the purpose of convenience, and on petition for payment out of the fund, readjusted the incidence of the costs: In re Roper, Taylor v. Bland, 45 Ch. Div. 126; and that it is right in such a case to reserve the question how the costs are ultimately to be borne, v. Ib. p. 136.

FURTHER CONSIDERATION IN CHAMBERS.

By O. Lv. 2 (16), applications for orders on the further consideration of any cause or matter, where the order to be made 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, may be disposed of in Chambers.

Where questions of difficulty arose in the distribution of an insolvent estate the Plt was allowed costs of further consideration in Court: Re Barber, Burgess v. Vinnicome, 31 Ch. D. 665, 670.

As to the admon of insolvent estates, v. inf. Chap. XLIV., ADMINISTRATIONS."

In Gilbert v. Smith, 2 Ch. Div. 686, on an order on admissions in pleadings for the usual inquiries in a partition action, the Court reserved further consideration, and gave liberty to any of the parties to apply that the hearing on further consideration should be in Chambers.

ON ORIGINATING SUMMONS UNDER O. LV. 72.

By O. LV. 72, where any matter originating in Chambers shall have been adjourned for further consideration in Chambers, such matter may, after eight 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 conduct of the matter, and after the fourteen days, by a summons to be taken out by any other party. The summons is to be in the form prescribed by the rule, and is to be served six clear days before the

return.

The order will in simple cases be made in Chambers, but if both sides desire the case to be argued by counsel, or if it appears to the Judge that the questions arising are such as to require the assistance of counsel, the case is adjourned to Court. For the course taken on such adjournment, see Chap. XVIII., "CHAMBERS," p. 278.

CHAPTER XXI.

SPECIAL CASE.

1. Form of Order on Special Case which decides the whole Action.

THIS special case, stated for the opinion of this Court, and filed on the &c., coming on this day to be heard before this Court in the presence of counsel for the Plt and for the Deft, and upon hearing the said special case read, and what was alleged by counsel on both [all] sides, This Court is of opinion that &c., and that &c., and that &c. And that the costs of this special case and of this action ought to be borne out of &c. And counsel for the [Plt or Deft] moving for judgment in accordance with the foregoing opinion, This Court doth order and adjudge accordingly; And it is ordered that it be referred to the taxing master to tax the said costs [in case the parties differ]. Liberty to apply.

This form was settled after the hearing of Harrison v. The Cornwall Minerals Co., V.-C. H., 16 Ch. D. 66.

Where the decision on a special case will decide all questions in the action, it is not necessary that the action should be separately set down on motion for judgment: In re Cane, Ruff v. Sivers, 60 L. J. Ch. 36; 63 L. T. N.S. 746, where the Court made a declaration in terms of its answer to the case, and ordered further proceedings in the action to be stayed.

2. If the Special Case stands for Judgment.

THIS Court did order that this special case should stand for judgment, and the same standing for judgment this day in the paper in the presence of counsel for &c., this Court doth declare &c.

3. The like-Court Declining to answer the Question.

THIS special case coming on &c. [Form 1, supra], and this Court being of opinion that the question submitted for the opinion of the Court cannot properly be decided during the life of the Deft B., doth decline to decide the same.-See Moore v. M., V.-C. W., 8 Dec. 1856, B. 320; followed by V.-C. M., in Bright v. Tyndall, 4 Ch. D. 189, 199.

4. Order to set down Special Case-0. xxxiv. 4. UPON the application of the Plt, who alleged that the parties have concurred in stating the questions of law arising in this action in the