c. 38, 8. 9. five (d), the petition or statement shall be signed by counsel, 23 & 24 Vict. and the judge by whom it is to be answered may require the petitioner or applicant to attend him by counsel either in chambers or in court where he deems it necessary to have the assistance of counsel. (d) Ante, p. 722. 10. It shall be lawful for the Lord Chancellor, Lord Keeper or Lords Commissioners for the custody of the Great Seal of England, with the advice and assistance of the Master of the Rolls, the Lords Justices of the Court of Appeal in Chancery, and the Vice-Chancellors of the said court, or any three of them, and for the Lord Chancellor of Ireland, with the advice and assistance of the Lord Justice of Appeal and the Master of the Rolls in Ireland, to make such general orders from time to time as to the investment of cash under the control of the court, either in the three per cent. consolidated or reduced or new bank annuities, or in such other stocks, funds or securities as he or they shall, with such advice or assistance, see fit; and it shall be lawful for the Lord Chancellor, Lord Keeper or Lords Commissioners in England, and for the Lord Chancellor in Ireland, to make such orders as he or they shall deem proper for the conversion of any three per cent. bank annuities now standing or which may hereafter stand in the name of the accountantgeneral of the said Court of Chancery, in trust in any cause or matter, into any such other stocks, funds or securities upon which, by any such general order as aforesaid, cash under the control of the court may be invested; all orders for such conversion of bank annuities into other funds or securities to be made upon petition to be presented by any of the parties interested in a summary way, and such parties shall be served with notice thereof as the court shall direct (e). (e) The following General Order was issued under this section on Feb- General order. ruary 1st, 1861: 1. "Cash under the control of the court may be invested in Bank Stock, East India Stock, Exchequer Bills and £2:10s. per Cent. Annuities, and upon mortgage of freehold and copyhold estates respectively in England and Wales as well as in Consolidated £3 per Cent. Annuities, Reduced £3 per Cent. Annuities and New £3 per Cent. Annuities." 2. "Every petition for the purpose of the conversion of any £3 per Cent. Bank Annuities into any of the other stocks, funds or securities hereinbefore mentioned shall be served upon the trustees, if any, of such Bank £3 per Cent. Annuities, and upon such other persons, if any, as the court shall think fit." tioned. Upon applications under this order, the court at first sanctioned invest- Investments in ments in East India Stock, upon the petition of the tenant for life, even East India Stock though the market price of investment exceeded the rate at which the stock at first sancwill be redeemable in 1874, viz. 2007. per cent. (Equitable Reversionary Interest Society v. Fuller, 1 Johns. & H. 379; Bishop v. Bishop, 9 W. R. 549.) But subsequently the Lord Chancellor and Lords Justices refused Afterwards rean application on the ground that it would work an injury to the remainder- fused. Lord Campbell, C., observed, that no more precise rule could safely be laid down than "that in the absence of any special circumstances which might make the desired transfer asked by the tenant for life beneficial to those in remainder irrespective of pecuniary calculations, the transfer ought man. I. 23 & 24 Vict. Sanctioned under stances. Investments in Cases to which Order may be not to be permitted, if on pecuniary calculations it might be injurious to The court refused an investment in East India Stock, but sanctioned a change of investment from New £3 per Cents. into Bank Stock. (Re Langford, 2 J. & H. 458; and see Cohen v. Waley, 9 W. R. 137.) Where a tenant for life had a wife and five children, and his income exclusive of the dividends on the fund in court (£6,357: 15s. 2d. Consols), was only 707. per annum, the court thought these circumstances sufficient to justify an investment in Bank of England Stock, and made the order accordingly. (Peillau v. Brooking, 4 L. T., N. S. 731.) Where the petitioner was poor the court dispensed with a provision in the order, to prevent the party entitled receiving more than two dividends in twelve months. (Re Ingram, 11 W. R. 980.) For the form of order in the case of an investment on real security, see Ungless v. Tuff, 9 W. R. 729. Orders have been made under this section for the investment in consols of money paid into court under a private act which directed investment in Exchequer Bills (Re Birmingham Blue Coat School, L. R., 1 Eq. 632); and for the investment in East India Stock of money paid into court under a special act which directed investment in Consols or Reduced Annuities. (Re Wilkinson, L. R., 9 Eq. 343; see Re Adams, W. N. 1868, p. 58.) The powers of investment given by this section are not applicable to money deposited in the Bank of England pursuant to the Parliamentary Deposits Act, 9 Vict. c. 20 (Ex parte Great Northern R. Co., L. R., 9 Eq. 274); nor to the purchase-money of land sold under the Settled Estates Act. (Re Shaw, L. R., 14 Eq. 31; Re Boyce, 21 W. R. 667; contra, Re Cook, L. R., 12 Eq. 12; Re Thorold, L. R., 14 Eq. 31.) Notwithstanding the latter part of this section, the court may make an made in decree in order sanctioning a change of investment in a decree in a suit. (Lucas v. Rudd, 16 W. R. 325.) suit. Trustees, &c. to invest trust funds in which cash under the control For the present practice as to investing cash under the control of the court, see 35 & 36 Vict. c. 44; the Chancery Funds Rules, 1872 (L. R., 7 Ch. p. xxxv), and the Practice under them by Field & Dunn, p. 19 et seq. 11. When any such general order as aforesaid shall have been in the stocks, &c. made it shall be lawful for trustees, executors or administrators having power to invest their trust funds upon government secuof the court may rities, or upon parliamentary stocks, funds or securities, or any of them, to invest such trust funds, or any part thereof, in any of the stocks, funds or securities in or upon which by such general order cash under the control of the court may from time to time be invested (ƒ). be invested. (ƒ) With reference to sections 10 and 11, Turner, L. J., said, that if the Court of Chancery was called upon to exercise its discretion as to the mode of investment, it would look to the interests of the tenant for life and remainderman as between themselves. But where the trustees had exercised their discretion, and there was nothing to show that they did not exercise it bona fide, the court would presume that they paid due regard to the interests both of the tenant for life and the remainderman, and would uphold what they had done. The decision in Cockburn v. Peel (sup.) was not intended to fetter the discretion of trustees as to making such an investment in cases where they consider it to be for the benefit of all parties. (Hume v. Richardson, 4 De G., F. & J. 32. See the facts of that case stated in the note to the next section.) 12. Clause thirty-two of the said act of the twenty-second and twenty-third of Queen Victoria, chapter thirty-five, shall operate retrospectively (g). (g) Section 32 of 22 & 23 Vict. c. 35, was made retrospective for the purpose of making it applicable to instruments which would not otherwise have been included in it, but not for the purpose of altering rights which had already accrued. A testator directed his trustees to convert his personal estate and invest it in the purchase of lands to be settled in strict settlement, and in the meantime to invest it in the funds and pay the dividends to the persons who would have been entitled to the rents of the lands if purchased. The testator died shortly before the passing of 22 & 23 Vict. c. 35, possessed of Bank stock and East India stock. Held, after the passing of 23 & 24 Vict. c. 38, that the trustees were justified in retaining the above stocks in their present state, and investing other monies in like stocks until a suitable investment in land could be found; and that the tenant for life was entitled to the whole income arising from them subsequent to 23 & 24 Vict. c. 38, but that for the period between the death of the testator and 23 & 24 Vict. c. 38, the tenant for life was entitled only to such income as she would have received had the stocks been converted at the testator's death and invested in consols. (Hume v. Richardson, 4 De G., F. & J. 29.) [Section 13 is inserted ante, p. 236.] 23 & 24 Vict. c. 38, s. 11. Clause 32 of 22 & 23 Vict. c. 35 to act retrospectively. &c. of deceased 19 of 13 & 14 Vict. made immedigranted. c. 35, may be ately after probate 14. The order to take an account of the debts and liabilities Order to take acaffecting the personal estate of a deceased person, pursuant to count of debts, the nineteenth section of the act of the thirteenth and four- person under sect. teenth years of Victoria, chapter thirty-five (h), may be made immediately, or at any time after probate or letters of administration shall have been granted; and such order may be made either by the Court of Chancery upon motion or petition of course, or by a judge of the said court, sitting at chambers, upon a summons in the form used for originating proceedings at chambers; and after any such order shall have been made, the said court or judge may, on the application of the executors or administrators, by motion or summons, restrain or suspend, until the account directed by such order shall have been taken, any proceedings at law against such executors or administrators by any person having, or claiming to have, any demand upon the estate of the deceased, by reason of any debt or liability due from the estate of the deceased, upon such notice and terms and conditions (if any) as to the said court or judge shall seem just; and the judge, in taking an account of debts and liabilities pursuant to any such order, shall, on the application of the executors or administrators, be at liberty to direct that the particulars only of any claim or claims which may be brought in pursuant to any such order shall be certified by his chief clerk, without any adjudication thereon; and any notices for creditors 23 & 24 Vict. to come in which may be published in pursuance of any such c. 38, s. 14. order shall have the same force and effect as if such notices had been given by the executors or administrators in pursuance of the twenty-ninth section of the act of the twenty-second and twenty-third years of Victoria, chapter thirty-five. 13 & 14 Vict. c. 35, s. 19. Act not to extend to Scotland, &c. (h) This act enacted, that it shall be lawful for the said court upon the application of the executors or administrators of any deceased person by order to be made upon motion or petition of course, and to be in the form or to the effect set forth in the schedule thereto, with such variations as circumstances may require, to refer it to one of the masters of the said court to take an account of the debts and liabilities affecting the personal estate of such deceased person and to report thereon: provided always, that no such order shall be made until the expiration of one year next after the death of such deceased person, or pending any proceedings to administer the estate of such person, and that in case at any time after the making of such order any decree or order for administering the estate of such deceased person shall be made, it shall be lawful for the said court by such decree or order to stay or suspend the proceedings under such order of course on such terms and conditions, if any, as to the said court shall seem just. (13 & 14 Vict. c. 35, s. 19.) As to this act, see Morgan, Ch. Acts, 126, 4th ed., and Dan. Ch. Pr. 1076 et seq. Where an administratrix was sued by a creditor, it was held that she might obtain an order for taking the accounts and then for an injunction to restrain the action, pending taking the accounts. Malins, V.-C., treated the injunction as an ex parte injunction, and said that the plaintiff must undertake to be answerable in damages. (Re Cole, 17 L. T., N. S. 490.) Section 14 of 23 & 24 Vict. c. 38 has been repealed from the first day of Michaelmas Term, 1867. (30 & 31 Vict. c. 44, ss. 52, 195.) Inasmuch, however, as the act 30 & 31 Vict. c. 44 was passed to amend the constitution, practice, and procedure of the Court of Chancery in Ireland it would seem that the repeal was not intended to extend to England. The injunction in Re Cole (sup.) was granted on the 27th Jan. 1868. 15. This act is not to extend to Scotland, nor are any of the clauses, except clause six and the subsequent clauses, to extend to Ireland. TRUSTEES AND MORTGAGEES ACT. 23 & 24 VICTORIA, C. 145. An Act to give to Trustees, Mortgagees and others certain c. 145, s. 1. WHEREAS it is expedient that certain powers and provisions 23 & 24 Vict. which it is now usual to insert in settlements, mortgages, wills and other instruments should be made incident to the estates of the persons interested, so as to dispense with the necessity of inserting the same in terms in every such instrument: be it enacted as follows: PART I. Powers of Trustees for Sale, &c., and Trustees of renewable Leaseholds. 1. In all cases where by any will, deed or other instrument of settlement it is expressly declared that trustees or other persons therein named or indicated shall have a power of sale (a), either generally, or in any particular event, over any hereditaments named or referred to in or from time to time subject to the uses or trusts of such will, deed or other instrument, it shall be lawful for such trustees or other persons, whether such hereditaments be vested in them or not, to exercise such power of sale by selling such hereditaments, either together or in lots, and either by auction or private contract, and either at one time or at several times, and (in case the power shall expressly authorize an exchange) to exchange any hereditaments which for the time being shall be subject to the uses or trusts aforesaid for any other hereditaments in England or Wales or in Ireland (as the case may be), and upon such exchange to give or receive any money for equality of exchange. (a) These sections of the act strictly apply to those cases only where there is a power of sale; but it is probable that a trust for sale would also be within the act. (3 Davidson, Conv. 565, n. (u), 3rd ed.) Mr. Waley considered that there was no reason why reliance should not, in general, be placed on the implied powers given by the act to trustees having a power of sale and exchange, as a substitute for the express powers usually inserted, recourse being had to the power of introducing variations or limitations under the 32nd section (post), when it was desired to add to, alter, or restrict the statutory scheme without introducing any extensive and important deviation. But that where there would be a considerable deviation from the structure of the statutory power, it was |