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Court of Appeal-Claims-New Orders.
10. Decrees or orders of Court of Appeal may be appealed from to the House of Lords..
140 11. One judge appointed under this act sitting with Lord
Chancellor, or both judges sitting apart from him, to
to have co-ordinate jurisdiction with Court of Appeal 140 12. Lord Chancellor to regulate sittings and business of Court of Appeal
141 13. Saving of ministerial and certain other powers of Lord Chancellor
141 14. One of the judges of the Court of Appeal may sit for
Master of the Rolls or Vice-Chancellor during his
143 15. Judges of Court of Appeal, if privy councillors, to be of the judicial committee .
143 16. No matter to be heard by judicial committee, unless three
members are present exclusive of lord president ... 143 17. Provision made as to Lord Chancellor's salary .... 144 18. Salary of the Master of the Rolls reduced to 60001. 144 19. Salary of 60001. to be paid to each of judges of Court of Appeal
145 20. Power to her majesty to grant an annuity to each of such judges on his resignation
146 21. Lord Chancellor empowered, if he think it necessary, to appoint an additional registrar
147 22. Salary of such registrar to be paid out of suitors' fund.. 147 23. Additional salary to the eleventh clerk to the registrars 148 24. Interpretation of term Lord Chancellor
PROCEEDINGS BY CLAIM.
148 175 188
NEW GENERAL ORDERS.
GENERAL ORDERS, 27th July, 1852, made in pursuance of 15 & 16 Vict. c. 80
200 GENERAL ORDER, 28th July, 1852
261 GENERAL ORDERS, 7th day of August, 1852, made in pursuance of act 15 & 16 Vict. c. 86
201 Table of fees annexed to last Orders
213 Forms prescribed by last Orders
214 GENERAL ORDERS, 7th day of August, 1852, as to the enrolment of decrees, &c. ....
AMENDING THE PRACTICE
COURT OF CHANCERY,
IMPROVEMENT OF THE JURISDICTION OF EQUITY.
15 & 16 Vict. c. 86. An Act to amend the Practice and Course of Proceeding in the High Court of Chancery.
[1st July, 1852. WHEREAS it is expedient to amend the practice and 158 16Vict. course of proceeding in the High Court of Chan
C. 86. cery: Be it enacted as follows:
I. From and after the time hereinafter appointed Practice of for the commencement of this act, the practice of bills on engrossing on parchment bills of complaint or
discontinued, claims to be filed in the said court, and of filing and a printed such engrossment, shall be discontinued; and the bid to be clerks of records and writs of the said court shall receive and file a printed bill of complaint or claim(a), in lieu of an engrossment thereof, in like manner as they now receive and file such engrossment.
(a) Bills and claims are to be printed on writing royal paper, quarto, in pica type, leaded ; and the copy to be filed is to be interleaved with paper of the same description. (1st Order, 7th August, 1852.)
II. The writ of subpæna to appear to and answer Writs of sub. a bill of complaint (b) in the said court, and the poena and writ of summons upon a claim, shall respectively be abolished. be abolished (c).
(b) The words bill of complaint include an information, sect. 67, post.
(c) See post, sect. 9, p. 11, which authorizes the Lord Chan
158 16Vict. cellor to revive the present practice as to filing bills and
claims, and the issuing and service of subpænas and writs of summons. See 12th and 13th Orders, 7th August, 1852.
Defendants to be served
ed bill in
III. In lieu of serving the defendant to a bill of with a print- complaint in the said court with a writ of subpæna lieu of the
to appear to and answer the same, and in lieu of writs of sub- serving the defendant to a claim in the said court pona and
with a writ of summons upon such claim, in the mode and according to the practice now adopted in the said court with reference to such writs respectively, the defendant shall be served with a printed bill of complaint or claim, with an indorsement thereon, in the form or to the effect set out in the schedule to this act, with such variations as circumstances may require (d), such printed bill of complaint or claim so to be served being previously stamped with a proper stamp by one of the clerk's of records and writs, indicating the filing of such bill of complaint or claim, and the date of the filing thereof (e).
(a) The 17th Order, 26th October, 1842, requires the indorsement upon the writ of the names and place of business of solicitors suing out writs, and 20th Order, 26th October, 1842, requires the indorsement upon the writ of the name, residence and address of a party suing in person.
(e) The Orders of the 22nd April, 1850, as to proceedings
by claim, are inserted post. The filing IV. The filing of a printed bill of complaint or and service
claim in the said court shall have the same effect of a printed bill or claim as the filing of a bill of complaint or claim in the
same court, and the issuing of a subpoena or writ as the filing of summons thereon respectively, now have, and of writs of the service upon the defendant of a printed bill of subpoema and complaint or of a claim so filed, with such endorse
ment thereon, so stamped as aforesaid, shall have the same effect as the service on him of a writ of subpæna or writ of summons respectively now has, and shall entitle the plaintiff in such suit to such remedies for default of appearance (J) and otherwise as he is now entitled to in case of due and proper service of a subpoena to appear to and an
to have the same effect
swer a bill of complaint or of a writ of summons 15 & 16Vict.
upon a claim.
(1) If a defendant be served with the subpæna to appear Conseto, or to appear to and answer a bill, he is to appear thereto quences of within eight days after the service of such subpæna. If he default of apdoes not, he becomes subject to the following liabilities : defendant. 1. An attachment may be issued against him. 2. An appearance may be entered for him on the application of the plaintiff. 3. If the bill prays for an injunction to stay pro. ceedings at law, the plaintiff may obtain an order for the common injunction, if no injunction has been previously obtained. (16th Order (Art. 3), May, 1845.) If any defendant, not appearing to be an infant or a person of unsound mind, unable of himself to defend the suit, is, when within the jurisdiction of the court, duly served with a subpæna to appear to, or to answer a bill, and refuses or neglects to appear thereto within eight days after such service, the plaintiff may, after the expiration of such eight days, and within three weeks from the time of such service, apply to the record and writ clerk to enter an appearance for such defendant, and no appearance having been entered, the record and writ clerk is to enter such appearance accordingly, upon being satisfied, by affidavit, that the subpæna was duly served upon such defendant personally, or at his dwelling-house or usual place of abode ; and after the expiration of such three weeks, or after the time allowed to such defendant for appearing has expired, in any case in which the record and writ clerk is not hereby required to enter such appearance, the plaintiff may apply to the court for leave to enter such appearance for such defendant; and the court being satisfied that the subpæna was duly served, and that no appearance has been entered for such defendant, may, if it so thinks fit, order the same accordingly. (29th Order, May, 1845.) In cases where a subpæna has been served in the manner specified by Order XXIX., and a defendant is in default for want of appearance, the plaintiff may, within three weeks after such service, cause an appearance to be entered for such defendant by a record and writ clerk, without special order. (16th Order (Art. 4), May, 1845.) A defendant, notwithstanding that an appearance may have been entered for him by the plaintiff, may afterwards enter an appearance for himself in the ordinary way; but such appearance by such defendant is not to affect any proceeding duly taken, or any right acquired by the plaintiff under or after the appearance entered by him, or prejudice the plaintiff's right to be allowed the costs of the first appearance. (36th Order, May, 1845.) If upon default made by a defendant in not appearing to, or not answering a bill, it appears to the court that such defendant is an infant, or a person of weak or unsound mind, not so found by inquisition, so that he is unable of himself to defend the
158 16Vict. suit, the court may, upon the application of the plaintiff,
order that one of the solicitors of the court be assigned guardian of such defendant, by whom he may appear to and answer, or may answer the bill and defend the suit. But no such order is to be made unless it appears to the court, on the hearing of such application, that the subpæna to appear to and answer the bill was duly served, and the notice of such application was, after the expiration of the time allowed for appearing to or for answering the bill, and at least six days before the hearing of the application, served upon or left at the dwelling-house of the person with whom or under whose care such defendant was at the time of serving such subpæna, and (in the case of such defendant being an infant not residing with or under the care of his father or guardian) that notice of such application was also served upon or left at the dwelling-house of the father or guardian of such infant, unless the court, at the time of hearing such application, thinks fit to dispense with such last-mentioned service. (32nd Order, May, 1845.) The court will not, as a general rule, appoint the plaintiff's solicitor to be the guardian ad litem of an infant defendant; the solicitor to the Suitors' Fund should in general be the person appointed. (Sheppard v. Harris, 10 Jur. 24.) In an application for the appointment of a guardian ud litem to a person of unsound mind, not found so by inquisition, it should appear that none of the relatives would undertake the defence. (Moore v. Platel, 7 Beav. 583.) And where the wife of the lunatic is a party also, the court will not order the solicitor of the wife to be appointed guardian ad litem, unless it appear that the husband has no interest adverse to the wife. (Biddulph v. Lord Camoys, 10 Jur. 485.) The notice of the application should be served upon or left at the dwelling-house of the person with whom, or under whose care the defendant was residing, and personal service upon the defendant is not sufficient. (Taylor v. Ansley, 9 Jur. 1055; Hitch v. Wells, 8 Beav. 576.) But where the infant defendant appeared voluntarily by a solicitor, it was held that notice served on that solicitor was sufficient service, and that it was unnecessary to prove service of the subpoena. (Cookson v. Lee, 15 Sim. 302.)
As to service of printed bill.
V. The service upon any defendant of a printed copy of a bill of complaint or of a claim in the said court shall be effected in the same manner as service of a writ of subpæna to appear to and answer a bill of complaint is now effected (e), save only that it shall not be necessary to produce the original bill or claim, which will be on the files of the court; provided that the court shall be at liberty to direct substituted service of such printed bill or claim, in