c. 86. the same manner as if they had been originally made parties 15 & 16 Vic. Rule 9. In all suits concerning real or personal estate which proceed in any suit, &c., with out representative of de XLIV. If in any suit or other proceeding before the Court it Court may shall appear to the Court that any deceased person who was interested in the matters in question has no legal personal representative, it shall be lawful for the Court either to proceed in the absence of any person representing the estate of such deceased ceased person, person, or to appoint some person to represent such estate for all or may apthe purposes of the suit or other proceeding, on such notice to such point one. person or persons, if any, as the Court shall think fit, either specially or generally by public advertisements; and the order so made by the said Court, and any orders consequent thereon, shall bind the estate of such deceased person in the same manner in every respect as if there had been a duly constituted legal personal representative of such deceased person, and such legal personal representative had been a party to the suit or proceeding, and had duly appeared and submitted his rights and interests to the protection of the Court. to show cause granted. XLV. It shall be lawful for any person claiming to be a creditor, Creditor, &c., or a specific pecuniary or residuary legatee, or the next of kin, or may summon some or one of the next of kin, of a deceased person, to apply for executor, &c., and obtain as of course, without bill or claim filed, or any other why an order preliminary proceedings, a summons from the Chief Justice or for adminisAssistant Justice requiring the executor or administrator, as the tration of percase may be, of such deceased person, to attend before him at sonal estate Chambers, for the purpose of showing cause why an order for the should not be administration of the personal estate of the deceased should not be Power to granted; and upon proof by affidavit of the due service of such Judge to order summons, or on the appearance in person or by his solicitor or administration counsel of such executor or administrator, and upon proof by of such estate. affidavit of such other matters, if any, as such Judge shall require, it shall be lawful for such Judge, if in his discretion he shall think fit so to do, to make the usual order for the administration of the estate of the deceased, with such variations, if any, as the circumstances of the case may require; and the order so made shall have the force and effect of a decree to the like effect made on the hearing of a cause or claim between the same parties; provided that such Judge shall have full discretionary power to grant or refuse such order, or to give any special directions touching the 15 & 16 Vic. carriage or execution of such order, and in the case of applicac. 86. tions for any such order by two or more different persons or classes of persons, to grant the same to such one or more of the claimants or of the classes of claimants as he may think fit; and if the Judge shall think proper, the carriage of the order may subsequently be given to such party interested, and upon such terms as the Judge may direct. XLVI. A duplicate or copy of such summons shall, previously to the service thereof, be filed in the Record Office of the said Court; and no service thereof upon any executor or administrator shall be of any validity unless the copy so served shall be stamped with a stamp of such office indicating the filing thereof; and the filing of such summons shall have the same effect with respect to Lis pendens as the filing of a Bill or Claim. XLVII. It shall be lawful for any person claiming to be a creditor of any deceased person, or interested under his will, to apply for and obtain in a summary way, in the manner hereinbefore provided with respect to the personal estate of a deceased person, an order for the administration of the real estate of a deceased person where the whole of such real estate is by devise vested in trustees who are by the will empowered to sell such real estate, and authorized to give receipts for the rents and profits thereof, and for the produce of the sale of such real estate; and all the provisions hereinbefore contained with respect to the application for such order in relation to the personal estate of a deceased person, and consequent thereon, shall extend and be applicable to an application for such order as last hereinbefore mentioned with respect to real estate. XLVIII. It shall be lawful for the Court in any suit for the foreclosure of the equity of redemption in any mortgaged property, upon the request of the mortgagee, or of any subsequent incumbrancer, or of the mortgagor, or any person claiming under them respectively, to direct a sale of such property, instead of a foreclosure of such equity of redemption, on such terms as the Court may think fit to direct, and if the Court shall so think fit, without previously determining the priorities of incumbrances, or giving the usual or any time to redeem; provided that if such request shall be made by any such subsequent incumbrancer, or by the mortgagor, or by any person claiming under them respectively, the Court shall not direct any such sale, without the consent of the mortgagee or the persons claiming under him, unless the party making such request shall deposit in Court a reasonable sum of money, to be fixed by the Court, for the purpose of securing the performance of such terms as the Court may think fit to impose on the party making such request. XLIX. No suit in the said Court shall be dismissed by reason only of the misjoinder of persons as Plaintiffs therein, but wherever it shall appear to the Court that notwithstanding the conflict of interest in the co-Plaintiffs, or the want of interest in some of the Plaintiffs, or the existence of some ground of defence affecting some or one of the Plaintiffs, the Plaintiffs, or some or one of them, are or is entitled to relief, the Court shall have power to grant such relief, and to modify its decree, according to the special circumstances of the case, and for that purpose to direct such amendments, if any, as may be necessary, and at the hearing, c. 86. before such amendments are made, to treat any one or more of the 15 & 16 Vic. Plaintiffs as if he or they was or were a Defendant or Defendants in the suit, and the remaining or other Plaintiff or Plaintiffs was or were the only Plaintiff or Plaintiffs on the Record; and where there is a misjoinder of Plaintiffs, and the Plaintiff having an interest shall have died leaving a Plaintiff on the Record without an interest, the Court may, at the hearing of the cause, order the cause to stand revived as may appear just, and proceed to a decision of the cause, if it shall see fit, and to give such directions as to costs or otherwise as may appear just and expedient. L. No suit in the said Court shall be open to objection on the No suit to be ground that a merely declaratory decree or order is sought thereby, objected to and it shall be lawful for the Court to make binding declarations of right without granting consequential relief. because only declaratory order sought. Court may interested parties to the suit. LI. It shall be lawful for the Court to adjudicate on questions arising between parties notwithstanding that they may be some decide between only of the parties interested in the property respecting which the some of the question may have arisen, or that the property in question is com- parties without prised with other property in the same settlement, will, or other making others instrument, without making the other parties interested in the property respecting which the question may have arisen, or interested under the same settlement, will, or other instrument, parties to the suit, and without requiring the whole trust and purposes of the settlement, will, or other instrument to be executed under the direction of the Court, and without taking the accounts of the trustees or other accounting parties, or ascertaining the particulars or amount of the property touching which the question or questions may have arisen: Provided always, that if the Court Proviso. shall be of opinion that the application is fraudulent or collusive, or for some other reason ought not to be entertained, it shall have power to refuse to make the order prayed. order may be LII. Upon any suit in the said Court becoming abated by In case of death, marriage, or otherwise, or defective by reason of some abatement, &c. change or transmission of interest or liability, it shall not be of suit, an necessary to exhibit any Bill of Revivor or supplemental Bill in made, which order to obtain the usual order to revive such suit, or the usual or shall have necessary decree or order to carry on the proceedings; but an same effect as order to the effect of the usual order to revive or of the usual a Bill of Resupplemental decree may be obtained as of course upon an alle- vivor. gation of the abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability; and an order so obtained when served upon the party or parties, who according to the present practice of the said Court would be defendant or defendants to the Bill of Revivor or supplemental Bill, shall from the time of such service be binding on such party or parties in the same manner in every respect as if such order had been regularly obtained according to the existing practice of the said Court; and such party or parties shall thenceforth become a party or parties to the suit, and shall be bound to enter an appearance thereto in the office of the Clerks of Records and Writs, within such time and in the like manner as if he or they had been duly served with process to appear to a Bill of Revivor or supplemental Bill filed against him; provided that it shall be open to the party or parties so served, within such time after service as shall be in that behalf prescribed by any general order of the 15 & 16 Vic. Lord Chancellor, to apply to the Court by motion or petition to c. 86. discharge such order on any ground which would have been open to him on a Bill of Revivor or supplemental Bill, stating the previous proceedings in the suit and the alleged change or transmission of interest or liability, and praying the usual relief consequent thereon: Provided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect as against such party until a guardian or guardians ad litem shall have been duly appointed for such party, and such time shall have elapsed thereafter as shall be prescribed by any general order in that behalf. New facts, &c. Where accounts re quired to be taken, Court may give special directions as to the mode of taking same. Court may order real estate to be sold, if required. Before sale of of title to be LIII. It shall not be necessary to exhibit any supplemental Bill in the said Court for the purpose only of stating or putting in issue facts or circumstances which may have occurred after the institution of any suit; but such facts or circumstances may be introduced by way of amendment into the original Bill of Complaint in the suit if the cause is otherwise in such a state as to allow of an amendment being made in the Bill, and if not, the Plaintiff shall be at liberty to state such facts or circumstances on the record, in such manner and subject to such rules and regulations with respect to the proof thereof, and the affording the Defendant leave and opportunity of answering and meeting the same as shall in that behalf be prescribed by any General Order of the Lord Chancellor. LIV. It shall be lawful for the Court, in any case where any account is required to be taken, to give such special directions, if any, as it may think fit with respect to the mode in which the account should be taken or vouched, and such special directions may be given, either by the Decree or Order directing such account or by any subsequent Order or Orders, upon its appearing to the Court that the circumstances of the case are such as to require such special directions; and particularly it shall be lawful for the Court, in cases where it shall think fit so to do, to direct that in taking the account the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as primâ facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as they may be advised. LV. If after a suit shall have been instituted in the said Court in relation to any real estate it shall appear to the Court that it will be necessary or expedient that the said real estate or any part thereof should be sold for the purposes of such suit, it shall be lawful for the said Court to direct the same to be sold at any time after the institution thereof, and such sale shall be as valid to all intents and purposes as if directed to be made by a Decree or Decretal Order on the hearing of such cause; and any party to the suit in possession of such estate, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser or such other person as the Court shall direct. LVI. Before any estate or interest shall be put up for sale under estate abstract a Decree or Order of the Court of Chancery, an abstract of the title thereto shall, with the approbation of the Court, be laid before some Conveyancing Counsel to be approved by the Court, for the opinion of such Counsel thereon, to the intent that the said laid before some convey ancing counsel. Court may be the better enabled to give such directions as may 15 & 16 Vic. be necessary respecting the Conditions of Sale of such estate or interest, and other matters connected with the sale thereof; and when an estate or interest shall be so put up for sale, a time for the delivery of the abstract of title thereto to the Purchaser or his Solicitor shall be specified in the said Conditions of Sale. c. 86. Time for delivery of ab stract to be specified in LVII. Where any real or personal property shall form the sub- Conditions of ject of any proceedings in the Court of Chancery, and the Court Sale. shall be satisfied that the same will be more than sufficient to Where real or answer all the claims thereon which ought to be provided for in personal prosuch suit, it shall be lawful for the said Court at any time after the commencement of such proceedings to allow to the parties interested therein, or any one or more of them, the whole or part of the annual income of such real property, or a part of such personal property, or a part or the whole of the income thereof, up to such time as the said Court shall direct, and for that purpose to make such orders as may appear to the said Court necessary or expedient. perty is the whole of the PART II. CLASS V. BANKRUPTCY AND INSOLVENCY. 29 Vic. c. 17. An Act to continue three several Acts of Assembly, relating to Bankruptcy and Insolvency. (Assented to 11th May, 1866.) HEREAS three several Acts of Assembly relating to PREAMBle. the printed copies of the Laws, as 8 Vict. c. 31, 8 Vict. c. 32, and 23 8Vict.cc. 31,32, Vict. c. 34, will expire with the termination of the present Session 23 Vict. c. 34. of Assembly, and it is expedient that the same should be further continued in force; May it, &c. I. That the three recited Acts shall be and the same are hereby Laws made continued in force as, and declared to be permanent Laws of the permanent. Colony. |