April 22, same rules as writs of subpoena to appear to and answer bills (t).

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Time for showing

cause.

Setting down claims for hearing.

(t) The service of a printed claim shall be effected in the same manner as service of a subpoena was effected, save only that it shall not be necessary to produce the original claim. (15 & 16 Vict. c. 86, s. 5, ante, p. 4.) As to the service of a claim, see 15 & 16 Vict. c. 86, s. 5, ante, pp. 4, 5, and n. (g). A motion was granted for leave to serve a defendant with a writ of summons out of the jurisdiction of the court, and for a day to be fixed for the return of the writ. (M'Coy v. Cross, 14 Jur. 613; 19 Law J. Ch. 570; James v. Bartley, 14 Jur. 847.) Leave was given under this Order to serve a writ of summons upon a defendant resident in America. (14 Beav. 208.) On a claim for foreclosure, service of the writ of summons on the wife of a party interested in the equity of redemption, who was travelling in America, was ordered to be deemed good service on the husband, under the stat. 4 & 5 Will. 4, c. 82, the wife being in possession and receipt of the rents and profits of the mortgaged property. (Carwardine v. Wishlade, 15 Jur. 913.) As to service of process out of the jurisdiction, see ante, p. 5, n. (g). The court ordered substituted service of a writ of summons issued upon the master's certificate of a claim. (Buker v. Anthony, 14 Beav. 26.) As to substituted service, see 15 & 16 Vict. c. 86, s. 5, p. 4, and pp. 6, 7, n.

XI. The time for showing cause named in any writ of summons (except a writ of summons to revive or carry on proceedings) is to be fourteen days at the least after service of the writ; [service of the claim, 15 & 16 Vict. c. 86, schedule, ante, p. 58] but, by consent of the parties, and with the leave of the court, cause may be shown on any earlier day (u).

(u) The following notice respecting claims was issued on the 6th of June, 1850-Every claim filed under the orders of court of 22nd April, 1850, is to be set down for hearing with the registrar, which will be done (without fee) as soon as the writ of summons has been served on the defendant; or (if more than one) on all the defendants, upon production to the registrar by the plaintiff, or his solicitor, of a certificate from the clerk of the records and writs of the filing of such claim. Every claim so set down will be heard in rotation in the respective courts of the Master of the Rolls and ViceChancellor, on such days as they shall respectively appoint. All motions arising out of claims filed are to be made on the general seal and motion days.

In the month of November, 1850, the Vice-Chancellors Knight Bruce and Rolfe made the following additional

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regulations:-All claims filed under the orders of court April 22, of the 22nd of April, 1850, are to be set down in the registrar's book, in the same list with the causes. They may be so set down by either party for the day appointed for showing cause, and are to be heard indiscriminately with the causes. But such of them as the parties may desire to have heard in the same manner as short causes, are to be so marked upon production to the registrar of a similar certificate as is required in the case of short causes, and will be heard as such on the days appointed for hearing short causes.

The Master of the Rolls directed that all claims filed in the Rolls Court be set down in rotation with the causes, and that such only as can be certified to be short, will be taken every Saturday with the short causes and petitions. Notice 16th November, 1850. (12 Beav. xxxiii.) If a claim be set down as a short claim, on the certificate of one counsel only, and on its coming on the court is not satisfied that it is short, the party setting it down must pay the costs of the day. (Hills v. Treacher, 15 Jur. 267; Waldron v. Sloper, ib. 187.)

XII. At the time for showing cause named in How cause the writ [in the endorsement on the claim, ante, p.58] shown. or on the seal or motion day then next following, or so soon after as the case can be heard, the defendant, having previously appeared, is personally or by counsel to show cause in court, if he can, (and if necessary by affidavit,) why such relief as is claimed by the claim should not be had against him (v).

(v) The court upon the application of the plaintiff in any suit by claim, may order the production by the defendant, upon oath, of documents in his possession relating to the matters in question in the suit. (15 & 16 Vict. c. 86, s. 18, ante, p. 20, and n. (y).) The court, upon the application of any defendant in a suit by claim, may order the production by the plaintiff, on oath, of documents in his possession relating to the matters in the suit. (15 & 16 Vict. c. 86, s. 20, ante, p. 25.) The judges sitting at chambers are to dispose of applications for the production of documents. (15 & 16 Vict. c. 80, s. 26, ante, p. 67.) Any defendant in a suit by claim may file interrogatories for the examination of the plaintiff, to which shall be prefixed a concise statement of the subjects on which a discovery is sought. In determining the relevancy of the answer to any such interrogatories, the court is to regard the statements in the claim, and in any affidavits which may have been filed, either in support thereof or in opposition thereto. (15 & 16 Vict. c. 86, s. 19, ante, pp. 22, 23.) Affidavits. The affidavit of the defendant was treated as an answer, so as to give him the benefit of it after taking the accounts. (Hubbard v. Child, 14 Jur. 544.) The court will not make

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April 22, any order in the absence of the defendant, unless upon the production of proper evidence in support of the claim. (Anon. 19 Law J. Ch. 570.) Where a claim was unopposed, but no affidavit had been filed in support of it, the claim was ordered to stand over for the production of an affidavit. (Hutchinson v. Taylor, 14 Jur. 845.) But it was held that no evidence of the plaintiff's title was necessary, unless the claim was disputed. (Slade v. Robinson, 14 Jur. 584.) A plaintiff's affidavit in support of a claim will be treated as evidence, where there is no opposition or conflict of affidavits. (Shardlow v. Gaze, 20 Law J. Ch. 395.) Claims may be decided on affidavits on both sides on a contested matter of fact, or the court may, if it sees fit, direct a bill to be filed, or direct proceedings at law. (Smith v. Constant, 15 Jur. 97; 20 Law J. Ch. 126.) When at the hearing of a claim, a fact is alleged by the plaintiff on his own affidavit (which affidavit the court will not receive as evidence), but which fact is not admitted by the defendant, the court will direct the claim to stand over, in order that the fact may be otherwise substantiated. (Ib.) The affidavit of the defendant has the same degree of weight as an answer. (Ib.) Where in a claim the plaintiff and defendants have made affidavits, in any order made thereon, those affidavits are to be entered as read, and a direction given to the master that those of the plaintiff are not to be considered as evidence, and those of the defendants are to be treated in all respects as if they were their answers to a bill filed against them. (Cockburn v. Green, 15 Jur. 981; 20 Law J. Ch. 216.) In a claim to foreclose, the defendant had not appeared, and a decree was asked. The plaintiff had not filed any affidavit: it was held, that the orders were not intended to make a claim have the same effect as that of taking a bill pro confesso, and that an affidavit must be filed. (Lloyd v. — 14 Jur. 568.)

Power of court on hearing.

XIII. At the time appointed for showing cause, upon the motion of the plaintiff, and on hearing the claim, and what may be alleged on the part of the defendant, or upon reading a certificate of the appearance being entered by the defendant, or an affidavit of the writ of summons [the claim with the endorsement thereon] being duly served, the court may, if it shall think fit, make an order granting or refusing the relief claimed, or directing any accounts or inquiries to be taken or made, or other proceedings to be had, for the purpose of ascertaining the plaintiff's title to the relief claimed; and further, the court may direct such (if any) persons or classes of persons as it shall think necessary or fit to be summoned or ordered to appear as parties to the

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claim, or on any proceedings before the master, with April 22, reference to any accounts or inquiries directed to be taken or made, or otherwise (x).

(r) Upon the hearing of any cause by claim the court may Proceedings require the production and oral examination before itself of at the hearany witness or party in the cause, and may direct the costs ing. thereof. (15 & 16 Vict. c. 86, s. 39, ante, p. 35.) The attendance of any witness before an examiner of the court, or before an examiner specially appointed, for oral examination, may be enforced for the purpose of using his evidence upon any claim. The attendance of any party having made an affidavit, used or to be used on any claim, may be required for his cross-examination. (15 & 16 Vict. c. 86, s. 40, ante, pp. 35, 36. See 36th & 37th Orders, 7th August, 1852.)

It is in the discretion of the court, at the hearing of a claim, to grant or refuse the relief thereby sought, notwithstanding the case may fall within one of the classes referred to in these orders. (Penny v. Penny, 9 Hare, 39; 15 Jur. 445; 20 Law J. Ch. 339.) A testator devised his real estate to trustees, upon trust to sell and divide the produce among certain persons, of whom A. was one. He appointed A. and B. his executors, who proved the will in 1816. A. died in the following year, and administration to his estate was taken out by D. in 1850. B., the other executor, died in 1849, after appointing C. his executor. The administrator of A. filed a claim against the executor of B. for A.'s share of the purchasemoney of the original testator's real estate. The court refused to decide on a claim after so long a time whether the plaintiff was barred by the statute, but dismissed the same with costs, without prejudice to a suit by bill. (Pawsey v. Barnes, 15 Jur. 943; 20 L. J. Ch. 393.) At the hearing of a claim a defendant is at liberty to avail himself of the benefit of the Statute of Limitations without pleading it. (Sneed v. Sneed, 20 L. J. Ch. 630.) At the hearing of a claim for specific performance the original contract must be proved and produced. (Marshall v. Davies, 14 Jur. 997. In a claim for the administration of an estate, the probate or letters of administration must be produced. (Beaumont v. James, 15 Jur. 714.) A decree for specific performance was made on a claim, with a reference as to title. (Scargill v. Hurry, 14 Jur. 847.) In an administration claim by an executor, who had not possessed any assets, an order was made in the prescribed form without any variation on that account. (Holme v. Holme, 15 Jur. 1051.)

When a claim is called on, and the plaintiff does not appear, the defendant will not be entitled to a decree for the dismissal of the claim with costs, unless he produces an affidavit of service before the rising of the court. (Rackham v. Cooper, 15 Jur. 870; 20 L. J. Ch. 394.) Where a plaintiff did not appear on a claim, it was dismissed on the defendant's application, without any affidavit. (Bell v. Hornby, 14 Beav. 439.)

April 22, 1850.

In a claim for the administration of the real and personal estates of a testator, the devisee of the real estates charged with debts was allowed to disclaim at the hearing, without filing an affidavit of the fact of disclaimer. (Ladbroke v. Bleaden, 16 Jur. 630.)

This order does not authorize the court to make a decree against a defendant for whom an appearance had been entered, and therefore the court refused to make an order, under 31st Order, May, 1845, against a defendant to a claim who had absconded. (Smith v. Corles, 1 Sim. N. S. 250.)

In a claim on the motion of the plaintiff, the defendant was ordered to pay into court a sum of money admitted by him upon affidavit to be due, and also to produce a document admitted to be in his possession. (Jefferies v. Biggs, 20 L. J. Ch. 638.) In a claim of an annuitant of 201., under the will of a testatrix who died in 1826, it appeared that the executors invested in their names a sum in consols to answer the annuity, which was regularly paid down to 1849, though the surviving executor, in 1847, sold out the consols, and applied the produce, as the claimant in her affidavit stated to the best of her belief, to his own use. The defendant did not appear. A decree was made for payment of the arrears of the annuity, and for the transfer of the consols invested, into court, to meet the future payments of the annuity. (Iron v. Coe, 14 Jur. 845.)

After a claim against the representatives of deceased executors of a testator was filed, one of the two executors of a deceased (but not the last surviving) executor of the original testator had died. The court ordered the joint accounts to be taken, and also the separate accounts of the surviving executor. (Robson v. Jefferson, 14 Jur. 845.) In a claim for the administration of an estate, and for the payment of all the testatrix's debts, it appeared that the testatrix devised and bequeathed all her real and personal estate to A. B., and charged the whole with payment of her debts. A. B. died in the lifetime of the testatrix, and the real estate descended on her heir-atlaw. It was therefore sought by the claim that the debts should be paid out of the personal estate, so far as that should be adequate to such payment, and that a sufficient part of the real estate should be sold for payment of the debts for which the personal estate might prove insufficient. The decree was made accordingly. (Ferris v. Ferris, 14 Jur. 845.)

A claim was filed by a creditor of an intestate against his administratrix. The claimant had made an affidavit of the debt, and that the defendant was administratrix, who did not appear. The claimant asked not a decree for account, but for payment. The court refused to make an order for payment, but made a common administration decree. The production of the letters of administration was dispensed with, as the defendant, who was sworn to have them, did not appear. (Jones v. Swinford, 14 Jur. 568.) Leave was given to insert a direction in the