Court in which any proceeding or application of the like kind could have been taken or made if the Jud. Acts had not been passed.

By O. v. 9 (a), where a matter is commenced by petition, such petition is to be brought to the office of the Registrars of the Chancery Division, and marked by the officer charged by the registrars with that duty, with the name of one of the Judges of that division to whom for the time being Chambers are attached (to be ascertained in the manner used in the distribution of business amongst the conveyancing counsel of the Court): see O. LI. 9; and sup. Chap. XIX., "SALES BY THE COURT," p. 293.

Every subsequent petition relating to or connected with the same matter is to be marked with the name of the same Judge: O. v. 9 (e).

Petitions are transferred in the same manner as actions, as to which, v. inf. Chap. XXXIV.

As to the power of one Judge to sit for another without any transfer in case of urgency during absence or vacancy, see Jud. Act, 1881, s. 12; and upon request, see Jud. Act, 1884, s. 6; O. XLIX. 4a; and by direction of the L. C., see O. XLIX. 4.

Petitions are either special or of course; orders on the latter being drawn up, passed and entered by the registrars of the Chancery Division (O. LXII. 18) without any direct application to the Judge.

By O. LXI. 19, petitions in causes are to be distinguished by year, letter, and number; and by O. XIX. 9, petitions are excepted from the rule as to printing pleadings. The former practice has not been altered as to service of petitions, whether in actions, or in matters, notwithstanding r. 10; and by Jud. Act, 1873, s. 100, “pleading" includes "petition."

The Court of Appeal has no jurisdiction to hear_petitions, except on appeal: see Re Dunraven Coal, &c. Co., 24 W. R. 37; Jud. Act, 1873, s. 18; O. LVIII. 4, 17.

The petition should be addressed to the High Court of Justice, and should contain, as concisely as possible, a statement of the material facts, but not the evidence by which they are to be proved, and is to be divided into paragraphs, numbered consecutively, and each paragraph containing as nearly as may be a separate allegation. Dates, sums, and numbers are to be expressed in figures, and not in words. Signature of counsel is not necessary: see O. XIX. 4.

The effect of documents ought to be stated without setting them out at length (r. 21), except where the precise words are material, as for instance in the case of wills or settlements on applications for payment out of Court. In such cases the gift ought to be set out verbatim; and as to the form of alleging certain facts, see rr. 22-25.

As to the effect of these rules, see Hammer v. Flight, 24 W. R. 346; Herring v. Bischoffsheim, W. N. (76) 77.

As to striking out pleadings calculated to embarrass from prolixity and statement of immaterial facts, v. sup. Chap. V., "PLEADINGS," p. 33.

The petitioner, if not a party to the cause, must give his name, residence, and description: Glazbrook v. Gillatt, 9 Beav. 492; and if abroad may be required to give security for costs: Atkins v. Cooke, 3 Drew. 694; 5 W. R. 384; and so on petition under the statutory jurisdiction, and though respondent had filed affidavits: Anon., 12 Sim. 262; Exp. Seidler, 12 Sim. 106; Re Dolman, 11 Jur. 1095. As to giving security for costs generally, v. sup. Chap. IV., pp. 26 et seq. The order for security to be given was refused as to a petitioner residing abroad, who was a Deft in the suit in which the petition was presented: Cochrane v. Fearon, 18 Jur. 568. Secus, where he came in under the decree: Partington v. Reynolds, 6 W. R. 307; et v. sup. Chap. XVII., "Costs."

Infants must petition by a next friend; and the Court will require a guardian to be appointed to an infant respondent in a matter: Re Barrington, 27 Beav. 272; Re Ward, 6 Jur. N.S. 441. As to the mode of appointing a guardian for an infant respondent to a petition, see O. XVI. 19. In Re Mitchell, 23 Jan. 1866, V.-C. K. allowed an infant respondent to appear by her testamentary guardian, but under the circumstances required an affidavit that the guardian had no adverse interest; and v. inf. Chap. XXXVIII., "INFANTS."

By O. LXI. 15, no order on petition is to be passed till the petition is filed in the Central Office. By r. 17, proper indexes of the petitions are to be

kept there. The original petition having been lost, leave was given to file the copy left with the Judge: Sanderson v. Walker, 1 M. & C. 359; Smith v. Harwood, 1 S. & G. 137. And where a petition was dismissed, and the petitioner's solr would not produce it to be filed, the copy served on the respondent was ordered to be filed instead: Re Devonshire, 32 Beav. 241; Re Anglo-Greek, &c. Co. (No. 2), 35 Beav. 419, where the petitioners were ordered to pay the costs of the applications.

A petition under sect. 39 of the Conveyancing and Law of Property Act, seeking to bind the interest of a married woman restrained from anticipation, need not be entitled in the matter of the Act: Re Landfield, L. v. L., Fry, J., 30 W. R. 377.

Petitions are answered in the name of the senior registrar: O. LXII. 18, and the list thereof prepared in the Cause Book Room. As to the practice in reference to answering winding-up petitions, see Re Building Societies Trust, 44 Ch. D. 140, at p. 142.

SERVICE.

By O. LII. 16, at the foot of every petition and copy thereof, a statement is to be made of the persons, if any, intended to be served, or, if so, that no person is to be served. The respondents ought to be named, and not merely described as Plts or Defts: per M. R. in W. N. (76) 219.

By r. 17, unless by special leave, the time for service is two clear days; and as to the computation of a limited time of less than six days, see O. LXIV. 2, 3.

As to service of petition out of the jurisdiction, v. sup. Chap. II., p. 20.

Substituted service of a petition in a suit was ordered on the ground that the bill could have been so served: Shurmer v. Hodge, W. N. (66) 304; but see Anon., W. N. (76) 105, per Denman, J.

As to service of the writ of summons on infants (and the service of petitions in actions may probably follow the same rules), see O. IX. 4; 0. XIII. 1; and generally O. IX.; and by O. LII. 8, the plaintiff may, without any special leave, serve any petition upon any Deft, who, having been duly served with a writ of summons to appear in the action, has not appeared within the time limited for that purpose.

By O. XIX. 10, every "pleading (which by Jud. Act, 1873, s. 100, includes petitions) or other document required to be delivered to a party or between parties," shall be delivered to a party for whom no appearance has been entered by being filed.

This seems to apply to petitions in actions, but in many cases, having regard to the subject-matter of such petitions, the Court would require service: see Re Buttersby's Trusts, 10 Ch. D. 228.

If a respondent does not appear, the order may be made as against him, on affidavit of service; if the petitioner does not appear when the petition is called on in regular order as an opposed petition, the respondent may have the petition dismissed with costs on producing an affidavit of having been served, or the copy of the petition served upon him. For order to dismiss petition, see Form 4, sup.

As to affidavits of service, v. sup. pp. 20, 150.

AMENDMENT.

Leave to amend the petition is almost of course; and an amendment is often required by the Court before granting the order: and see Matson v. Swift, 8 Beav. 378, 379; 9 Jur. 521; Re Humphrys, 1 Jur. N.S. 921.

Petitions have been amended after the hearing and the passing and entry of the order: Hislop v. Wykeham, 3 W. R. 286; Re Bunnett, 1 Jur. N.S. 921; Re Havelock, 14 W. R. 26, 174; Re Savage, 15 Ch. D. 557, sup. Chap. VI., "AMENDMENT," p. 38 (but see Re Marrow, C. & P. 142); and after service and advertisement under the Settled Estates Acts: Re Wilkinson, 9 Eq. 71.

The petition will be amended in the Cause Book Room on a note from the registrar.

Facts occurring after leave to attend was given may be stated in the amendments: Re Westbrook, 11 Eq. 252.

An amended petition does not in general require re-answering: Re Medow, 12 W. R. 595; 10 Jur. N.S. 536; Robinson v. Harrison, 1 Drow. 307.

A petition on which an order had been made, which had not been worked out, was revived on the application of the exor of the petitioner: Re Youl, 16 Eq. 107.

By O. XXVIII. 6, application for leave to amend any pleading (which includes petitions, Jud. Act, 1873, s. 100) may be made by either party to the Court or a Judge; and may be given on such terms as to costs or otherwise as may be just; in practice, however, petitions are amended upon the direction of the Court upon a fiat signed by the registrar, as before stated, without the imposition of any terms.

By O. LII. 6, if on the hearing of a motion or other application the Court or Judge shall be of opinion that any person to whom notice has not been given ought to have or to have had such notice, the Court or Judge may either dismiss the motion or application, or adjourn the hearing thereof, in order that such notice may be given, upon such terms, if any, as the Court or Judge may think fit to impose.

And by r. 7, the hearing of any motion or application may from time to time be adjourned upon such terms, if any, as the Court or Judge shall think fit.

EVIDENCE.

By O. XXXVIII. 1, the evidence upon any motion, petition, or summons may be 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; and the Court has power to direct the depositions of witnesses to be taken before an examiner: see O. XXXVII. 5.

The Court has a discretion to refuse to order a witness to attend for crossexamination: La Trinidad v. Browne, 36 W. R. 138.

As to the form, contents, and mode of swearing affidavits, and as to evidence generally, v. sup. Chap. VIII., "EVIDENCE.'

The petitioner intending to use affidavits previously filed in the action, should give notice thereof to the respondents. When the title of a petition is amended, affidavits need not be resworn, but may be made exhibits to a short affidavit: Re Varteg Chapel, 10 Ha. xxxvii. The petition must be entitled in the cause or matter to which the fund is standing, but a slight variation between the title of the petition and that of the account to which the fund was standing, was immaterial: Re Harris, 8 Jur. N.S. 166; and see Re Varley, 14 W. R. 98; in which case, and in Re Gombault, W. N. (68) 243, the affidavits were sworn before the petition was presented; and as to an affidavit wrongly intituled in an action, see Fisher v. Coffey, 1 Jur. N.S. 956.

ORDER ON PETITION.

In Sharshaw v. Gibbs, 18 Jur. 330, it was said that the Court makes no declaration on petition, but, if necessary, prefaces its order with the statement of its opinion; but this rule is not adhered to: see Re Walker, 16 Jur. 1154; and by O. xxv. 5, no action or proceeding is to be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential relief is or could be claimed, or not.: and see Re St. Nazaire Co., sup. Chap. XII., "TRIAL AND JUDGMENT," p. 144.

COSTS.

A respondent who appears unnecessarily after service and tender of a sufficient sum to enable him to get legal advice, will not have his costs: Re Duggan, 6 Eq. 697; Boucher v. Wood, 6 Ch. 77, and cases there cited: Carey v. Whittingham, T. & R. 405; Re Gore Langton's Estate, 10 Ch. 328.

And by O. LXV. 27 (19), where any petition in a cause or matter assigned to the Chancery Division is served, with notice to the party served that if he appear his costs will be objected to, the tender of costs for perusing the same is to be £1 108., which is to be allowed to the party making the payment if the service was proper, but not otherwise. This is without prejudice to the rights of either party to costs or to object to costs where no such tender is

made, or where the Court or Judge shall consider the party entitled, notwithstanding such notice or tender, to appear in Court. In any other case in which a solr of a party served necessarily or properly peruses any such petition without appearing thereon, he is to be allowed a fee not exceeding £1 108.: see Re Sutton, 21 Ch. D. 855.

And by r. 23, any party appearing on any application or proceeding in which he is not interested, or which he ought not to attend, will not be allowed costs unless expressly directed. Where no tender for costs was made to respondents who had no interest, they were allowed £2 28. (the amount specified in the corresponding Rules of 1875): Somes v. Martin, W. N. (82)

113.

PETITIONS ADJOURNED TO CHAMBERS.

By O. LV. 29, when any matter is adjourned to Chambers, or any directions are given to be acted upon at Chambers, without an order being drawn up, a note signed by the registrar, stating the purpose of the adjournment or directions, is to be left at Chambers.

In the case of petitions for leave for an infant to marry, the more usual course now is to adjourn the consideration of the whole matter to Chambers; a summons is then taken out to proceed on the petition in Chambers, where, if right, the order may be made; and in that case a minute of the order, and of the evidence adduced, written on the fold of the original petition to be filed therewith, is sent to the registrar to enable him to draw it up. The same course is sometimes adopted on petitions for payment of funds out of Court, where the evidence is complicated, or the persons representing a class or family are numerous, and much time would be occupied in investigating their title in Court. By this course, the expense of a certificate and of a further order and attendance in Court is saved. If a petition is adjourned to Chambers, that the matter may be looked into there, and is then to be brought on again to be disposed of in Court, without a formal certificate being made, a minute of the result is annexed to the Judge's copy of the petition and sent to the Judge in Court, and a note of the evidence used will be made by the chief clerk for the registrar, on the fold of the original petition see Dan. 1112.

A petition for payment out of Court under the Trustee Relief Act may be adjourned into Chambers: Re Moate's Trusts, 22 Ch. D. 635.

Where matters adjourned to Chambers may be prosecuted without drawing up the order, see Kelson v. K., 9 Ha. lxxxvi.; but semble, it is discretionary.

CHAPTER XXIV.

MOTION.

1. Order on Motion.

UPON motion this day made unto this Court by counsel for &c., and upon hearing counsel for &c. [If so, and upon reading an affidavit of &c. filed &c., of service of notice of this motion on &c., Enter any evidence], This Court doth order &c.

2. The Like-and on Cross Motion.

UPON motion &c., by counsel for &c. that [Recite Plt's notice], and upon motion &c., by counsel for &c., that &c. [Recite the cross notice], and upon reading &c. [Enter any evidence], and upon hearing what was alleged by the counsel on both sides, This Court doth order &c.

3. Order on Motion refused.

UPON motion &c., by counsel for &c. [Recite notice], and upon hearing counsel for &c. [Enter evidence], This Court doth not think fit to make any order upon this motion [if with costs, but doth order that the Plt A. do pay to the Deft B. his costs of this motion, to be taxed by the taxing master, if so, in case the parties differ].

4. Order on Abandoned Motion.

WHEREAS the Plt A. did, on the day of &c., give notice that this Court would be moved, on Thursday, the - day of &c., or so soon after as counsel could be heard, by counsel for the Plt A. that [Recite notice]; Now upon motion this day made unto this Court by counsel for the Deft B., who alleged that the Plt A. had not moved this Court pursuant to the said notice, This Court doth order that the Plt A. do pay to the Deft B. his costs occasioned by the said notice of motion, such costs to be taxed by the taxing master.

5. Order on Motion under O. XXXII. 6.

UPON motion &c., by counsel for the Plt for such order as upon the admissions of fact in the statement of defence the Plt is entitled to, and