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c. 35.

any of them, and by decree to declare its opinion 13& 14 Vict. thereon, and, so far as the case shall admit of the same, upon the right involved therein, without proceeding to administer any relief consequent upon such declaration; and that every such declaration of the said court contained in any such decree shall have the same force and effect as such declaration would have had, and shall be binding to the same extent as such declaration would have been, if contained in a decree made in a suit between the same parties instituted by bill: provided always, that it Proviso that shall be lawful for the said court, if it shall see fit a case may be so to do, before proceeding to make such decree as mon law aforesaid, to send any case or cases for the opinion of any of her majesty's courts of common law, reserving the consideration of all further directions and of the costs, and to make such decree as aforesaid upon such further directions; provided also, Proviso that that if upon the hearing of such special case as refuse to deaforesaid the court shall be of opinion that the cide. questions raised thereby or any of them cannot properly be decided upon such case, the said court may refuse to decide the same (d).

(d) The Court of Chancery is not to direct cases to be stated for the opinions of courts of common law, but to decide the same. (15 & 16 Vict. c. 86, s. 61, ante, p. 55.) Vice-Chancellor Turner expressed his opinion that it is desirable for the Court of Chancery to avoid, as far as possible, sending cases for the opinion of another court: "I think the aid of a court of law, or the assistance of the judges of that court, may be properly resorted to in cases where the question is one of importance to the general laws of the country, or where the decision may have an extensive operation in a public point of view; but my opinion is, that this court ought not to require the assistance of another court on questions which turn merely on the construction of particular instruments." (Falkner v. Grace, 9 Hare, 283, 284.) See 14 & 15 Vict. c. 83, s. 8, post, p. 139.

sent to com

court.

court may

be afforded to

XV. That every executor, administrator, trustee Protection to or other person making any payment or doing any trustees by act in conformity with the declaration contained in declaration. any decree made upon a special case shall in all respects be as fully and effectually protected and indemnified by such declaration as if such payment had been made or act done under or in pursuance

13& 14 Vict. of the express order of the said court made in a

c. 35.

The court

tion.

suit between the same parties instituted by bill, save only as to any rights or claims of any person in respect of matters not determined by such declaration.

XVI. That where any person shall be desirous may suspend the acting to have a special case re-heard, or to appeal from upon declara- the decision thereon, it shall be lawful for the said court, upon application for that purpose, either at the time of the decree upon such special case being made or at any time afterwards, and upon such conditions, if any, as the court shall think fit, to order that the declaration contained in such decree shall not be acted upon from such time as the said court shall think just.

Special case

to be a lis

tered.

XVII. That the filing of a special case, and the pendens, and entering of appearances thereto by the persons may be regis- named as defendants therein, shall be taken to be a lis pendens, and may be registered under the provisions of an act made and passed in the second year of the reign of her present majesty, intituled "An Act for the better Protection of Purchasers against Judgments, Crown Debts, Lis pendens, and Fiats in Bankruptcy," in like manner as any other lis pendens in a court of equity may now be so registered, and, unless and until so registered, shall not bind a purchaser or mortgagee without express notice thereof (e).

Mode of identifying docu

order produc

tion.

(e) See 2 & 3 Vict. c. 11, s. 7, ante, p. 45, n. (d).

XVIII. That any documents referred to in a ments, and special case, and any copies thereof or extracts court may therefrom, identified by the signature of the solicitors for all parties or of the London agents of such solicitors, may be produced and read at the hearing of such case, without further proof; and that it shall be lawful for the said court, at any time after the filing of the special case, and the entering of appearances thereto by the persons named as defendants therein, to order any document which may be admitted thereby to be in possession of any party to such case to be deposited and produced in

such manner and for such purposes as the court 13&14 Vict. shall think fit (f).

(f) See ante, p. 20, n. (b).

c. 35.

executors or

order of

ferred to a

take an ac

ties.

XIX. And whereas it is expedient to provide Court, on apmeans for enabling executors or administrators of plication of deceased persons to ascertain whether there are any administraoutstanding debts or liabilities affecting the personal tors, may by estates of such persons, without the delay and ex- course direct pense of suits to administer such estates: be it it to be retherefore enacted, that it shall be lawful for the master to said court, upon the application of the executors or count of debts administrators of any deceased person, by order to and liabilibe made upon motion or petition of course(g), and to be in the form or to the effect set forth in the schedule hereto, 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 (h): 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.

(g) The terms "motion or petition of course

mean that

no service is necessary, but the same must be mentioned to the court. (In re Harrold, 15 Jur. 763; 20 Law J. Ch. 168.)

the 13 & 14

(h) Every petition or motion paper for a reference under Applications the 19th section of the said act is to be marked at or near under the the top or upper part thereof in the same manner as a bill 19th sect. of is now marked with the name of the Lord Chancellor and Vict. c. 35, one of the Vice-Chancellors, or with the name of the Master and orders' of the Rolls; and every order for any such reference is to be thereon, to be marked in the same manner as the said petition or motion attached to paper; and the matter in which such order is made is thence- court. forth to be considered as attached to the court of the judge whose name shall be so marked upon such order, in like manner and for the like purpose as causes are attached to

particular

13&15Vict. such court, but shall be subject to be transferred from such c. 35. court in the same manner as causes are so transferred; and the provisions of the order comprised in the General Order of the 5th of May, 1837, which is numbered 15, and of the General Order of the 5th of August, 1842, shall apply to every matter so attached. (27th Order, 2nd Nov. 1850.)

Master's re

port may be

XX. That it shall be lawful for any person who objected to by may have come in before the master under any motion to the such order, and claimed to be a creditor upon the which notice estate of the deceased person, or to have any de

court, of

shall be

given.

Proceeding of

the court on

mand upon such estate by reason of any liability, and whose debt or claim may not have been wholly allowed by the said master, to apply to the said court by motion, of which notice shall be given within fourteen days after the filing of the master's report, to have such claim allowed by the court, either wholly or partially; and it shall be lawful for the said executors or administrators, and for any creditor of the deceased person who may be authorized by special leave of the said court so to do, to apply to the said court by motion, of which notice shall be given within the time aforesaid, to have any debt or claim allowed by the said master disallowed by the court, either wholly or partially; and at the expiration of fourteen days after the filing of the said report the same shall, except as to any debt or claim as to which any such notice as aforesaid may have been given, be absolute, as if the same had been confirmed by order of the court.

XXI. That upon the hearing of any such motion such motion. as aforesaid the said court may either dismiss such motion, or may order the debt or claim to which such motion relates to be allowed or disallowed, as the case may be, and either wholly or partially, or may direct further inquiry or further proceedings, by way of action or otherwise, touching such debt or claim, and after such inquiry or proceedings may, upon further motion, deal with such debt or claim as to the said court shall seem just: provided always, that no new evidence shall be received by the said court upon the hearing of any such motion without special leave of the said court.

If debts or certain liabi

XXII. That in case any debt or any certain lia

c. 35.

and not paid

for payment or accounts.

bility shall have been allowed as aforesaid, and 13& 14 Vict. shall not within fourteen days after the report has become absolute as to such debt or liability, or after lities allowed, the same shall have been allowed by the said court, or provided be paid or provided for by appropriation to the for, order satisfaction of the person who has established such may be made liability, it shall be lawful for the said court, by order, to be made, in case of any debt remaining due, upon the application by motion or petition of the person to whom the debt remains due, and on notice to the executors or administrators, and in case of any certain liability remaining unprovided for by appropriation, upon the application by motion or petition of the person by whom such liability has been established, or of the executors or administrators, and on notice by the party applying to the other of them, to order payment of the debts which may have been allowed and remain unpaid, and to provide for the certain liabilities which may have been allowed and remain unprovided for, in like manner as the same could or might have been paid or provided for in a suit for that purpose instituted by bill, or to refer it to the master to take an account of the debts and certain liabilities allowed as aforesaid which remain unpaid or unprovided for, and also the usual accounts of the personal estate of the deceased person, with all usual and proper directions; and every such order shall have the same force and effect and shall be prosecuted and carried on in like manner as a decree in a creditor's suit instituted by bill.

executors or

tors, may

money to

XXIII. That in case any contingent liability Court, on apshall be allowed by the said report or by the said plication of court, it shall be lawful for the said court, by order, administrato be made upon the application of the executors or direct approadministrators, by motion or petition, on notice to priation of the person who have established such contin- answer congent liability, to order such sum of money, part of tingent liabithe estate of the deceased person, as to the said court shall seem just, to be set apart and appropriated for answering such contingent liability, and to give such directions as the said court shall think

may

lity.

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