who survived the said day of; After such inquiries have been made and persons appointed the Master to certify in respect of the matters aforesaid independently of and without waiting for completion of the certificate in respect of the inquiries hereinafter directed. Usual admon judgment of personal estate.-See Re Peppitt's Estate, Chester v. Phillips, V.-C. B., 16 Dec. 1876, B. 3544; 4 Ch. D. 230.

NOTES.

By O. XVI, 9, "where there are numerous persons having the same interest in one cause or matter, one or more of such persons may sue or be sued, or may be authorized by the Court or a Judge to defend in such cause or matter, on behalf, or for the benefit, of all persons so interested."

This rule adopts the practice of the Court of Chancery, that where several persons are interested in establishing and contesting a particular right, individuals may be selected on the one side as Plts to assert, and on the other as Defts to contest, the claim, and the right may be finally determined in an action thus constituted, so as to bind all parties, though not actually present as parties to the action: see Commrs. of Sewers v. Gellatly, 3 Ch. D. 610, 615; and see Dan. 196, 362.

The order should state that the Court has proceeded in the absence of any person representing, or entitled to represent, the estate of the deceased person, or has appointed some person to represent such estate: Re Richerson, Scales v. Heyhoe, (1893) 3 Ch. 146.

Under this rule a part owner of a ship may sue on behalf of himself and his co-owners: De Hart v. Stevenson, 1 Q. B. D. 313.

The rule is not confined to persons who have or claim some beneficial proprietary right: D. of Bedford v. Ellis, (1901) A. C. 1, H. L., observing upon Temperton v. Russell, (1893) 1 Q. B. 435, 715, C. A.

When numerous persons have the same interest, if one of them is sued as a Deft an order should be obtained in the form "It appearing that the residuary legatees [or other class] are numerous, and that A. is one of them, order that A. do defend on behalf of or for the benefit of all persons so interested," and when such an order is made the absent parties are bound as though they had been present throughout: May v. Newton, 34 Ch. D. 718. In a bondholders' action, an order having been made in favour of the class represented by the Plt, a dissentient member of the class could not appeal; but, semble, his proper course was to apply to the Court below to be made Deft: Watson v. Cave, 17 Ch. D. 19, C. A. Where Plts sued on behalf of a class except Deft, but did not obtain an order enabling the Deft to be sued as representing dissentients, another member of the class was at his own instance made Deft to represent all such dissentients: Fraser v. Cooper, Hall & Co., 21 Ch. D. 718.

In the case of the ordinary action by a creditor for admon of a deceased debtor's real and personal estate, the writ must be indorsed with a claim on behalf of himself and all other the creditors: Re Royle, Fyer v. R., 5 Ch. D. 540; Worraker v. Pryor, 2 Ch. D. 109; Re Vincent, 26 W. R. 94; not following Cooper v. Blissett, 1 Ch. D. 691; Dan. 196; secus, where admon of personal estate only is sought: Re Blount, Naylor v. B., 27 W. R. 865; Re Greaves, Bray v. Tofield, 18 Ch. D. 554.

By r. 32, "(a) in any case in which the right of an heir-at-law, or the next of kin, or a class, shall depend upon the construction which the Court or a Judge may put upon an instrument, and it shall not be known or shall be difficult to ascertain, who is or are such heir-at-law, or next of kin, or class, and the Court or a Judge shall consider that in order to save expense, or for some other reason, it will be convenient to have the questions of construction determined before such heir-at-law, next of kin, or class, shall have been ascertained by means of inquiry or otherwise, the Court or Judge may appoint some one or more persons to represent such heir-at-law, next of kin, or class, and the judgment of the Court or Judge in the presence of such persons shall be binding upon the heir-at-law, next of kin, or class so represented.

"(b) In any other case in which an heir-at-law, or customary heir, or

any next of kin or a class shall be interested in any proceedings, the Court or Judge may, if, having regard to the nature and extent of the interest of such persons or any of them, it shall appear expedient on account of the difficulty of ascertaining such persons, or in order to save expense, appoint one or more persons to represent such heir, or to represent all or any of such next of kin or class, and the judgment or order of the Court or Judge in the presence of the persons so appointed shall be binding upon the persons so represented."

Devisees who might prove to be entitled under a will other than that which had been admitted to probate were treated as a class under the rule: Re Nash; Lewis v. Darby, W. N. (93) 199.

In illustration of this rule, see Re Peppitt's Estate, Chester v. Phillips, 4 Ch. D. 230, Form 4, sup., in which case questions as to the meaning of the words "heirs" and "children arose on a will, and great difficulty in discovering the heir was apprehended; and see Re Gardiner, W. N. (87) 59. On the decease of an interested person without a legal pers. represve, the Court, under O. XVI, 46, may proceed in the absence of a represve, or appoint one for the purposes of the cause, matter, or proceeding, on such notice, if any, as it thinks fit. And the order so made, and any consequent orders, are to bind the deceased's estate as if a duly constituted legal pers. represve had been a party to the cause, matter, or proceeding.

Clause (a) of the rule is adapted from 15 & 16 V. c. 49, s. 44 (now repealed), which was held to be generally applicable only in cases where, from insolvency or some other cause, there was difficulty in obtaining representation to the deceased: Long v. Stone, Kay, App. xii; Davies v. Boulcott, 1 Dr. & Sm. 23; Bliss v. Putman, 29 Beav. 20.

The application is usually made by ex parte motion, but the order may be obtained at the hearing: Mendes v. Guedalla, 10 W. R. 485; Hewitson v. Todhunter, 22 L. J. Ch. 76; 1 W. R. 78; Re Peppitt, Chester v. Phillips, 4 Ch. D. 230, Form 4, sup. p. 120; and see Dan. 251; D. C. F. 75; or, if required in respect of matters pending at Chambers, by ex parte summons: and see Ashley v. Taylor, 10 Ch. D. 768.

Before drawing up the order, notice should be given to the person entitled to administer: Davies v. Boulcott, 1 Dr. & Sm. 23; Joint Stock Discount Co. V. Brown, 8 Eq. 376, 380.

An order may be made under the rule against the will of the Defts authorizing them to defend on behalf of a class: Wood v. McCarthy, (1893) 1 Q. B. 775.

An order appointing a person to represent a class, such as next of kin, is not binding on one of the next of kin who has a distinct and independent interest in another capacity: Re Lart, Wilkinson v. Blades, (1896) 2 Ch. 788.

On summons by represve against residuary legatee to determine whether residuary personalty goes to the next of kin, the represve may be appointed to represent the next of kin : Re Hake, W. N. (95) 116.

Under 15 & 16 V. c. 86, s. 44, now repealed by 46 & 47 V. c. 49, the intention being that the Court should have power either to appoint a person to represent the estate, or to go on without a represve, if it considered that the interests of the estate were sufficiently protected (see Joint Stock Discount Co. v. Brown, 8 Eq. 380), a wide discretion was given and exercised as to appointing or dispensing with a represve: Tarratt v. Lloyd, 2 Jur. N. S. 371; Hewitson v. Todhunter, 22 L. J. Ch. 76; 1 W. R. 78.

Accordingly the Court has dispensed with the represve of a person in the same interest with the Plt: Cox v. Taylor, 22 L. J. Ch. 910.

with the represves of some members of classes of children entitled under a will per stirpes or per capita: Abrey v. Newman, 17 Jur. 153; 10 Ha. App. lvii; 22 L. J. Ch. 627.

- with a represve of one of two exors who had died intestate and insolvent, and to whom representation could not be obtained: Moore v. Morris, 13 Eq. 139; Band v. Randle, 2 W. R. 331; 2 Eq. R. 439; Rogers v. Jones, 1 Sm. & G. 17.

But a represve could not be dispensed with:

-where the estate of the deceased person was that which was being administered, or against which relief was sought in the action: Silber v. Stein, 1 Drew. 295; Rowlands v. Evans, 33 Beav. 202; Bruiton v. Birch, 22 L. J. Ch. 911; 1 Éq. R. 136; or, being subject to liability, was not otherwise

represented in the action: Cox v. Stephens, 11 W. R. 922; 9 Jur. N. S. 1144; 8 L. T. 721.

-nor where the represve of the deceased person had active duties to perform: Fowler v. Bayldon, 9 Ha. App. lxxviii.

-nor to enable the solrs of a sued party to receive a small sum out of Court: Rawlins v. M'Mahon, 1 Drew. 225.

-nor where Deft in a foreclosure action died insolvent before foreclosure absolute: Aylward v. Lewis, (1891) 2 Ch. 81.

The Court would not appoint a person against his will to represent the estate of a deceased person: P. of Wales Co. v. Palmer, 25 Beav. 605; Hill v. Bonner, 26 Beav. 372; Joint Stock Discount Co. v. Brown, 8 Eq. 380; and see Re Curtis and Betts, W. N. (87) 126; nor where there was personal responsibility attached to the position: Fyfe's Case, 17 W. R. 870.

The

proper person to be appointed was the person who would be appointed admor ad litem: Dean of Ely v. Gayford, 16 Beav. 561; and where the will was disputed, the person named as exor: Hill v. Ld. Bexley, 15 Beav. 340; Robertson v. Kemble, W. N. (67) 305.

The represve of a policy holder who died insolvent and intestate was dispensed with in an action by an equitable mortgagee of the policy against the insurance co., the next of kin disclaiming and declining to take out admon: Curtius v. Caledonian Ins. Co., 19 Ch. D. 534, C. A.; but quære, whether the mere fact of the insolvency of the assured would be sufficient: Webster v. British Empire Ass. Co., 15 Ch. D. 169, C. A.

Where a sole Plt died insolvent and intestate, a person to represent his estate was appointed, so that the Deft might have some one against whom to move for dismissal for want of prosecution: Wingrove v. Thompson, 11 Ch. D.

419.

CHAPTER X.

CONSENT AND COMPROMISE.

1. Judgment or Order made by Consent.

AND the Plt and the Defts A. and B. [or all parties] by their counsel consenting to the following judgment [or order], This Court doth order &c.

This form is to be used where the judgment or order contains several directions, all of which are consented to; in other cases the words "by consent" should preface the particular direction, as in Form 2, and every order made by consent should show that fact on its face: Michel v. Mutch, 34 W. R. 251; 54 L. T. 45; 55 L. J. Ch. 485.

2. Direction inserted by Consent in Judgment or Order. AND it is by consent ordered &c.

For forms of waivers, undertakings, or submissions prefatory to decrees, judgments, or orders, see inf. Chap. XIV., "FRAME OF JUDGMENTS."

3. Stay of Proceedings on the Terms of a Compromise. UPON motion &c. that the Defts might be restrained &c., And upon reading &c., And the Defts having paid to the Plt the sum of £— (agreed sum) in full satisfaction of all damages and costs, This Court doth by consent order that all further proceedings in this action, except such as may be necessary for enforcing this order, be stayed upon the terms set forth in the schedule hereto [add schedule stating terms of the proposed compromise,-as that the Defts be at liberty to carry up and build their building &c. to the top of the third storey from the ground, and to roof the same in with a slanting roof as shown in the plan made by P., in the Plt's affidavit mentioned, the Defts by their counsel undertaking not to carry the said building higher than the top of the said third storey from the ground with such slanting roof as aforesaid].-See Fawcett v. Nevile, Greenlay v. Nevile, Lush, J., for V.-C. H., 23 Oct. 1878, A. 2013, 2033.

A compromise ought not to be introduced into the body of the order, but either identified or scheduled.

For orders to stay proceedings upon terms imposed by the Court, see inf. p. 131.

NOTES.

By the Jud. Act, 1873, s. 49, no order made by the High Court of Justice, or any Judge thereof, by the consent of the parties, shall be subject to any appeal, except by leave of the Court or Judge making such order.

Prima facie any order made in the presence and with the consent of counsel is binding on all parties to the proceedings or action, and on those claiming

under them: Stannard v. Harrison, 19 W. R. 811; 24 L. T. 570; Harrison v. Rumsey, 2 Ves. 488; Moss v. Leatham, 2 Moo. P. C. 73, and cannot be varied or discharged unless obtained by fraud, or collusion, or by an agreement contrary to the policy of the Court: see Buck v. Fawcett, 3 P. W. 242 ; Cole v. Langford, (1898) 2 Q. B. 36; Bowker v. Hunter, 2 Dick. 611, where agreements not to appeal were held bad; or if the consent was given without sufficient materials, or in misapprehension or ignorance of material facts, or in general for a reason which would enable the Court to set aside an agreement: see Wilding v. Sanderson, (1897) 2 Ch. 534, C. A.; Huddersfield Banking Co. v. Lister, (1895) 2 Ch. 273, C. A.; Holt v. Jesse, 3 Ch. D. 183, 4; Davenport v. Stafford, 8 Beav. 508; Furnival v. Bogle, 4 Russ. 142; Exp. Banner, Re Blythe, 17 Ch. D. 480, C. A.; and see Carew v. Cooper, 12 W. R. 767; A. G. v. Tomline, 7 Ch. D. 388; and though the mistake was on one side only: Mullins v. Howell, 11 Ch. D. 763; if such mistake was induced by the other party: Wilding v. Sanderson, (1897) 2 Ch. 534, C. A.; Jennings v. J., (1898) 1 Ch. 378. And the admission of an exor as to his testator's liability, if made bona fide, is binding on the residuary legatee: Re Youngs, Doggett v. Revett, 30 Ch. D. 421, C. A.

Even on application of both parties a judgment by consent cannot be set aside, if a third person would thereby be prejudiced, e.g., an alleged joint contractor with Deft: The Bellcairn, 10 P. D. 161, C. A.; Hammond v. Schofield, (1891) 1 Q. B. 452; and see Huddersfield Banking Co. v. Lister, sup.

As a general rule both the solr in the action (not, however, it seems, his clerks, unless specially authorized, see Hodson v. Drewry, 7 Dowl. Prac. Ca. 569) and counsel have power to bind their client by a contract or compromise, or abandonment of claim made in Court, unless the compromise includes matters not within the scope of the action, or their authority to compromise has been expressly restricted or prohibited, or the terms consented to by the client have, by misapprehension, been departed from: see Lewis's v. Lewis, 45 Ch. D. 281; Matthews v. Munster, 20 Q. B. D. 141, C. A.; Strauss v. Francis, L. R. 1 Q. B. 379; Rumsey v. King, 33 L. T. 728 ; Butler v. Knight, L. R. 2 Ex. 109; Re Wood, 21 W. R. 104; Thomas v. Harris, 27 L. J. Ex. 353; Prestwich v. Poley, 18 C. B. N. S. 806 (limiting and explaining Swinfen v. S., 2 D. & J. 381; 1 C. B. N. S. 364; 18 C. B. 485; Fray v. Voules, 1 Ell. & E. 839); Cordery, Solicitors, 88; and counsel has authority to consent not to appeal: Re West Devon Great Consols Mine, 38 Ch. D. 51, C. A.

Where acting upon general instructions, counsel consents to a compromise under misapprehension, neither the counsel nor the client is bound; and upon the question of the extent of the authority of counsel, the Court will accept the statement of counsel if made from his place at the Bar, without requiring it to be made on oath: Hickman v. Berens, (1895) 2 Ch. 638, C. A.; approving Holt v. Jesse, 3 Ch. D. 177.

After a judgment has been passed and entered (by being filed, see O. LXII, 2 (1), whether taken by consent or otherwise, the Court cannot set it aside otherwise than in a fresh action brought for the purpose (Ainsworth v. Wilding, (1896) 1 Ch. 673; Preston Banking Co. v. Allsup, (1895) 1 Ch. 141, C. A.; Gilbert v. Endean, 9 Ch. D. 259, 266; Emeris v. Woodward, 43 Ch. D. 185; and see Flower v. Lloyd, 6 Ch. D. 297), unless (1) there has been a clerical mistake or an error arising from an accidental slip or omission within 0. XXVIII, 11, or (2) the judgment as drawn up does not correctly state what the Court actually decided and intended to decide (in which cases the application may be made by motion in the action Ainsworth v. Wilding, sup.), but in general and in the absence of conflicting evidence (see S. C.) until the judgment or order by consent has been drawn up, passed, and entered-but not afterwards-it is open to any of the parties to withdraw a consent given under mistake, misapprehension, or ignorance of material facts: A. G. v. Tomline, 7 Ch. D. 388; Craven v. Stanley, M. R., 5 May, 1876, Reg. Min. fo. 39; S. C., 4 Ch. D. 251; and see Rogers v. Horn, 26 W. R. 432; but the consent, once given, cannot be withdrawn arbitrarily : Harvey v. Croydon Union, 26 Ch. D. 249, C. A.; Elsas v. Williams, 54 L. J. Ch. 336; West Devon Great Consols Mines, 38 Ch. D. 51, C. A.; Holt v. Jesse, 3 Ch. D. 177; or on the mere allegation that the consent was given inadvertently, without evidence of mistake or misapprehension: Davis v. D., 13 Ch. D. 861.