Bank of England and companies must comply with such orders. The Trustee Act, 1852, 8. 6. And are indemnified by the order. The Trustee Act, 1852, s. 7. Jurisdiction of Court to advise trustees. "made, being free from any disability, had duly done and "executed such acts and instruments."-13 & 14 Vict. c. 60, s. 28. 66 66 66 "When any order being or purporting to be under this Act, " or under "The Trustee Act, 1850,' shall be made by the Lord "Chancellor intrusted as aforesaid, or by the Court of Chancery, "vesting the right to any stock, or vesting the right to trans"fer any stock, or vesting the right to call for the transfer of any stock, in any person or persons, in every such case the legal right to transfer such stock shall vest accordingly; and "the person or persons so appointed shall be authorized and empowered to execute all deeds and powers of attorney, and "to perform all acts relating to the transfer of such stock into "his or their own name or names, or otherwise, to the extent "and in conformity with the terms of the order; and the Bank "of England, and all companies and associations whatever, and "all persons, shall be equally bound and compellable to comply "with the requisitions of such person or persons so appointed "as aforesaid, to the extent and in conformity with the terms "of such order, as the said Bank of England, or such "companies, associations, or persons would have been bound " and compellable to comply with the requisitions of the "person in whose place such appointment shall have been "made."-15 & 16 Vict. c. 55, s. 6. 66 66 66 "That every order made or to be made, being or purporting to be made under this or The Trustee Act, 1850,' by the "Lord Chancellor intrusted as aforesaid, or by the Court of Chancery, and duly passed and entered, shall be a complete indemnity to the Bank of England, and all companies and "associations whatsoever, and all persons, for any act done pursuant thereto; and it shall not be necessary for the Bank "of England, or such company or association, or person, to "inquire concerning the propriety of such order, or whether "the Lord Chancellor intrusted as aforesaid, or the Court of "Chancery, had jurisdiction to make the same."-15 & 16 Vict. c. 55, s. 7. 66 SECTION III.-PROCEEDINGS BY TRUSTEES TO OBTAIN FROM The Act, 22 & 23 Vict. c. 35 ("An Act to further Amend the Law of Property and to relieve Trustees "), enacts that :"Any trustee, executor, or administrator shall be at liberty, "without the institution of a suit, to apply by petition to any Judge of the High Court of Chancery, or by summons upon a written statement to any such Judge at chambers, for the 66 66 66 66 66 66 opinion, advice, or direction of such Judge on any question 22 & 23 Vict. 66 respecting the management or administration of the trust c. 35, s. 30. property or the assets of any testator or intestate, such appli"cation to be served upon or the hearing thereof to be attended by all persons interested in such application, or such of them "as the said Judge shall think expedient; and the trustee, executor, or administrator acting upon the opinion, advice, or direction given by the said Judge shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor, or administrator in the subject-matter "of the said application; provided nevertheless, that this Act "shall not extend to indemnify any trustee, executor, or ad"ministrator in respect of any act done in accordance with "such opinion, advice, or direction as aforesaid, if such trustee, "executor, or administrator shall have been guilty of any fraud "or wilful concealment or misrepresentation in obtaining such "opinion, advice, or direction; and the costs of such applica"tion as aforesaid shall be in the discretion of the Judge to "whom the said application shall be made."-22 & 23 Vict. c. 35, s. 30. As already pointed out (b), "The County Courts Act, 1865," provides that the jurisdiction conferred by the above enactments on the Chancery Division of the High Court, may be exercised by the County Courts where the trust estate or fund does not exceed in amount or value the sum of £500. The proper persons to apply for advice, under section 30 of Parties. 22 & 23 Vict. c. 35, are "any trustee, executor, or adminis trator" (c). And the proper persons to be served are "all per sons interested in such application" (c). Trustees applying for advice from the County Court, under In what dis22 & 23 Vict. c. 35, should, it seems, make their application to trict applicathe County Court within the district of which any of the cestuis que trust reside. A very few remarks will suffice to dispose of the practice in proceedings under the enactment now being considered. Applications to the Court by trustees for advice are required to be made by petition (d). The Act, 23 & 24 Vict. c. 38 ("An Act to further Amend the Law of Property "), enacts that : "Where any trustee, executor, or administrator, shall apply "for the opinion, advice, or direction of a Judge of the Court "of Chancery under the thirtieth section of the Act of the twenty-second and twenty-third of Her present Majesty, "chapter thirty-five, the petition or statement shall be signed "by counsel, and the Judge by whom it is to be answered may 66 (b) Ante, Book II. cap. i. p. 200. 22 & 23 Vict. c. 35, s. 30. See Ord. xxxi. r. 15, ante, p. 1061. tion must be made. Practice in proceedings. -Proceedings must be com- counsel. c. 38, s. 9. -Generally the same as on other petitions. 66 require the petitioner or applicant to attend him by counsel "either in chambers or in Court where he deems it necessary "to have the assistance of counsel."-23 & 24 Vict. c. 38, s. 9. Speaking generally, the proceedings upon a petition by trustees for the advice of the Court are the same as on ordinary petitions; and for details of the practice, reference must be made to the Introductory Chapter of the present Book (e). The costs of every application, under section 30 of 22 & 23 Vict. c. 35, are, by the express terms of that section, in the discretion of the Judge to whom the application shall be made. (e) See ante, p. 886 et seq. BOOK V.-DIVISION IV. PROCEEDINGS UNDER STATUTES CONFERRING AN CHAPTER II. JURISDICTION AND PROCEEDINGS IN THE COUNTY COURT 66 UNDER THE PARTITION ACTS, 1868 AND 1876." Courts in In a previous chapter of this treatise (a) it was stated that Jurisdiction the County Courts, by a recent statute, have had conferred possessed by upon them jurisdiction to decree partition. It is now proposed, the County in the present chapter, to treat, as briefly as possible, of such jurisdiction and of proceedings to obtain a partition. The Court of Chancery has long possessed a jurisdiction in matters of partition. Such jurisdiction has been greatly improved, and it has moreover been extended to County Courts by two recent Acts of Parliament: the first of which-31 & 32 Vict. c. 40-was passed in the year 1868; and the other of which-39 & 40 Vict. c. 17-was passed in the year 1876. A section in the latter Act provides :: "This Act may be cited as the Partition Act, 1876, and shall be read as one with the Partition Act, 1868."-39 & 40 Vict. c. 17, s. 1. 66 "This Act shall apply to actions pending at the time of the passing of this Act as well as to actions commenced after the "passing thereof, and the term 'action' includes a suit, and "the term 'judgment' includes decree or order."-39 & 40 Vict. c. 17, s. 2. "The Partition Act, 1868," provides as follows:"In England the County Courts shall have and exercise the "like power and authority as the Court of Chancery in suits "for partition (including the power and authority conferred by "this Act) in any case where the property to which the suit "relates does not exceed in value the sum of five hundred pounds, and the same shall be had and exercised in like manner and subject to the like provisions as the power and 66 66 (a) Book II. cap. i. p. 204, 205. "The Partition Acts, 1868 and 1876." Short title and con struction of Acts. The Partition Act, 1876, s. 1. Id., s. 2. In partition Court to have jurisdiction. The Partition "authority conferred by section one of the County Courts Act, "1865."-31 & 32 Vict. c. 40, s. 12. Act, 1868, s. 12. Construction of above enactment. Power to transfer partition actions. In what cases a partition action may be brought. -As to freehold. -As to leasehold. -As to equitable interests. Practice and proceedings in a partition suit. It is to be noticed that the above section confers on the County Courts the like power and authority as the High Court in suits for partition where the subject matter does not exceed in amount or value £500. This jurisdiction is merely concurrent with that of the High Court of Justice. The latter Court has, however, exclusive jurisdiction over actions of partition where the subject matter does exceed the pecuniary limit of the County Court jurisdiction. It has been recently held that if a plaintiff, knowing before the commencement of the action, that the value of the property is above the County Court limit of value, alleges in his plaint that it is within the amount which gives the Court jurisdiction, such allegation shall not prevent the dismissal of the plaint under section 14 of "The County Court Act, 1867" (b). But that where the want of jurisdiction appears only from evidence produced after the institution of the action, the proper course is to order proceedings to be transferred to the Court of Chancery under the 9th section of "The County Court Act, 1865 " (c). It is not proposed in this chapter to treat fully of the power and authority of the High Court to decree partition. All that can be attempted will be to give a very brief outline of the cases in which such jurisdiction will be exercised. Freehold property has always been capable of partition (d). And a statutory power to partition copyholds and customary freeholds is conferred by 4 & 5 Vict. c. 35, s. 85 (e). Manors are likewise partitionable (ƒ). Leaseholds will not it seems be apportioned where the nature of the property and the interest of the parties does not appear to warrant such a proceeding (g). But, where there is no such objection to a partition of leaseholds, this will it appears be decreed (h). The Court in dealing with an action of partition will adjust the equitable rights of all who have an interest in the estate of which a partition is sought (i). Next, as to the practice and proceedings in a partition action. It is to be noticed that "The Partition Act, 1868," provides that the jurisdiction conferred by that Act upon the County Courts, "shall be had and exercised in like manner, and subject (b) Per Malins, V.-C., in Thomson v. Flinn, L. R. 17 Eq. p. 418. Ib. (f) 31 Hen. VIII. c. i.; and see Cattley v. Arnold, 4 K. & J. 595, and Walker's Partition Acts, p. 3. Walker's Partition Acts, pp. 2, 3. Ib. and see Ames v. Comyns, 16 W. R. 74. Per Lord Abinger in Story v. Johnson, 2 Y. & C. 586. |