Equity Act 1866 (SA)

ANNO TRICESIMO

No. 20.

An Act to consolidate and amend the Laws relathy to the jurisdiction,

practice, and procedure of the Supreme Court of South Australia

in its Bquitable Jwisdiction..

[Assented to, l l th January, 1867.1

HERE AS it is expedient to consolidate and amcnd the Laws relating to the jurisdiction, prtlctice, and procednre of the Preamble. P R E ~ ~ A R T.

Supreme Court of South Australia in its Equitable Jurisdiction, and to define the powers of such Court-Be i t Enacted, by the Governor- in-Chief of the Province of South Australia, with the advice and consent of the Legislative Council and H o w of Assembly of the said Province, in this present Parliament assembled, as follows :-

l. This Act shall come into operation on the first day of February, Cmm*naem*at.

1867.

2. This Act may be cited for a l l purposes as " The Equity Act, short title.

1866,"

3. From and after the commencement of this Act, the Act B e p d.

No. 14 of 1853, intituled " An Act to amend the practice and pro- ceedings in the Equitable Jurisdiction of the Supreme Court of South Australia," and '' The Equitable Procedure Amendment

Act, 1862," shall be and the same are hereby repealed, except so far as may be necessary for supporting any proceedings heretofore

had under the said Acts or either of them; but nothing in this

clause contained shall have the effect of reviving any Acts or Ordi-

nances repealed by the Acts hereby repealed.

2 T 4. All

Eqaity Act. -1866-7.

P ~ ~ L I M ~ N A E Y * 4. All suits, petitions, or other proceedings pending in the said

aaringpmrdntss zitcs. Court in its Equitable Jurisdiction at the time of the commencement

of this Act shall be proceeded with, and brought to a conclusion under the provisions of this Act, and where any doubt or difficulty shall exist as to the applicability of this Act to such proceedin S,

application may be macle to a Judge who shall have power to nia e f such order, as in each case may appear to him necessary.

Interpretation. 5. In the construction of this Act, unless inconsistent with the

context or subject matter, the following words shall have the mean-

ings hereby assigned to them respectively, that is to say-

The word "Affidavit" shall mean and include affirmation and

attestation upon honor, and the word Sworn" shall mean

and include affirmed and attested upon honsr:

The words " Bill," or Bill of Complaint," shall mean and include

information:

The word '' Court" shall mean the Supreme Court in its Equitable

Jurisdiction:

The word " Receiver" shall include consignee or manager:

The word Guardian" shall include testamentary guardian, or guardian appointed by the Court, but not guardian ad Eitem, or guardian appointed for a special purpose:

Th s word " Decree " or Order " shall include dismission, and

decree shall include order.

I3i~hion8. 6. This Act shall be divided into eight parts having relation to the

following matters, namely-

PART I.--Jurisdiction and Officers of the Court:

PART 11 .-Pleading and Evidence:

PART 11.1.4earing of Causes, Petitions, and Matters, and Proceed-

ings after Decree:

PART 1v.-Proceedings in Chambers and in Master's Office :

PART v.-Trustees, Executors, and Administrators:

PART vr.-Arbitration and Special Case:

PART	VII.--Trial by Jury, Issues of fact, and Assessment of
Damages:

PART v111.-General Matters :

30° VICTORIiE, No. 20.

Equity Act.-l 866-7.

PART I. Jurisdiction and Officere of the Court: PART r.

7. The Supreme Court in its Equitable J~zrisdiction shall have the Jurisdiction of Court.

like jurisdiction, power, and authority to administcr justice, and to do, exercisc, and perform all the like acts, matters, and things within the said Province, as the Lord High Chancellor of Great Britain, or the High Court of Chancery now has within the realm of England, and shall also have jurisdiction, pwer, and authority to do, exercise, and perform all the like acts, matters, and things as can or may be done by the said Lord High Chancellor within the realm of England, in the exercise of the Common Law Jurisdiction

to him belonging, together with the jurisdiction, powers, and

authorities conferred by this Act.

8. Where, by any Act or Ordinance, now or hereafter to be in Statutoryjurisdiction.

force in the said Province, any jurisdiction is vcsted in the Supreme Court, or any power, authority, or duty is to be exercised or per-

I

formed by the said Court, similar or analagous to any jurisdiction, power, authority, or duty now veqted in, or by usage, or positive law exercised and perforrncd by the said Lord High Chancellor judicially, or the High Court of Chancery, all such jurisdiction, power, authority, and duty, and the ministerial powers and autho- rities incident thereto, or consequent thereupon, shall, from and after the commencement of this Act, be had, exercised, a i d performed by the said Court in its equitable jurisdiction,

of the Executive Council, to nominate and appoint, from time to time, powers. 9. It shall be lawful for the Governor, with the advice and consent Primary Judge; hii

one of the Judgcs of the Supreme Court to sit, and hcar, and dctcr- mine, without the assistance of the other Judges, or either of them, all causes and matters at any time depending in the said Supreme Court, in its equitable jurisdiction, and every decree or o r d e ~ of such Judge so appointed, shall in every such cause or matter,

effectual, and binding to all intents and purposes as if such decree or unless appealed from in the manner hereinafter provided, be as valid, order had been pronounced and made by the Court; and such Judge, so to be appointed, shall be called the Primary Judge.

10. Either of the other Judges of the said Court may, in the Prorisionforabae~e~

absence of the Primary Judge, sit in open Court, or in chambers, for the Primary Judge, and all decrees, and orders, and other acts whatsoever, made, decreed, pronounced, or done by such Judge, ~ i t t ing on behalf of the Primary Judge, shall, in the books and records of the Court, be stated to have been made, decreed, pro- nounced, or done by the Judge so acting for the Primary Judge;

and such orders, decrees, and other acts, so made, decreed, pro-

nounced, or done shall have the same force and validity as if they had been made, pronounced, decreed, or done by tho Primary Judge.

11. Any person aggrieved by any decree or order of the Primary A P P Q ~.

Judge may, within fourteen days next after the making or p m

nouncing

l48 30" VICTOREE, No. 20.

P ~ ~ 2 I. nouncing of the same, or within such further time as may be allowed by a Judge, appeal to the Court against such decree or order in such manner as is provided by the rules and regulations in

4	,CL/!	the first shedule hereto, or as may be provided by any rules and re- gulations to be made bv the Judges, under the power in that behalf Lereinafter contained: l~rovided-nevertheless, ̂ that nothing in this Act contained shall abridge or affect any right of appeal ag&st any decree or order, or against any reversal or affirmance thereof.
Security on appeal.	12. Any person appealing to the Court from a decree or order of the Primary Judge shall, within fourteen days from the time of lodging or filing such appeal, deposit in the hands of the Master such sum of money, not exceeding the sum of One Hundred Pounds, as the Primary Judge shall in each case direct; or such person may, at his option, give and deposit with the Master of the Court a bond of two persons, to be approved of by such Master, in such sum of money, not exceeding One Hundred Pounds, as the Primary Judge shall in each case direct; such bond being conditioned to be void if the person by whom such appeal shall be made shall prose- cute the same with all due diligence, and shall pay such costs of and occasioned by such appeal as the Court shall adjudge or award; and which said sum of money or bond shall be paid, apportioned, or assigned to such person, or such bond may be ordered to be can- celled, as the Court may direct.
Extraordinary appb
oationa	13. Any Judge may hear and determine ex parte or otherwise, at all times, and at any place within the said Province, any application for any extraordinary relief sought by any suitor in the equitable juris- diction of the said Court, and may mike all such interim orders for the protection of property, or the restraint or liberation of persons as to such Judge shall seem meet: Providcd that every such order shall be signed by the Judge making the same, and entered in same manner as any order of the Court or Primary Judge; and provided that every
to reversa!, review, and appeal in the same manner as if the same had such order and all subsequent proceedings thereon, shall be subject
been made by the Primary Judge.

As t o the duties and powers of the Master-

Duties of Marter, 14. Until the Court shall otherwise order, the Master of the Court shall have and exercise the powers hereinafter mentioned, and shall, subject to the rules and regulations before mentioned, perform the following duties, that is to say:-

To attend the Judges. First--The Master shall attend in Chambers on the Primary Judge, or such other Judge as may for the time being, be acting for him:

0 a t 3 Second-The Master shall, where no other person shall be specially appointed by the Court or Primary Judge, act as examiner of witnesses, and shall have full power to issue advertisements to s m ~ n parties and witnesses, to adrniiaster oaths, to take

affidavits,

30" VICTORIE, No. 20. 149

affidavits, attestations of honor, and aeknowledgrnents, to receive affirmations, and when so directed by the Court or Primary Judge, to examine parties or witnesses, &her upon interrogatories or viv& V O C F, as such Court or Primary Judge shall direct:

Third--The Master shall issue and sign all writs and process TO sign writ..

which by virtue of this Act, or by any order or decrcc of the Court or Primary Judge, may be ordered to issue forth of the said Court:

Fourth-The Master shall have the custody of the seal of Court, Tokeep fiealand

and of a11 records and proceedings of the Court in its rccords.

equitable - jurisdiction, and shall keep the same filed in

proper order:

Fifth-The Master shall be the accountant of the said Court, and To keep and accounte.

shall receive and pay into some Bank in Adelaide, to be ap- proved of by the Primary Judge, to an account to be called the " Suitors Account, Equity," all moneys belonging to or paid on account of any suitor in the said Court, and shall keep proper and correct accounts of the moneys so received, and shall on the thirtieth day of January, and the thirtieth day of July in every year, make out a full, true, and par- ticular account of all moneys in his hands, or standing to his credit at the bank, and in such account shall precisely specify the parties, suits, or matters, to whose credit such moneys are standing, and to what amount, and such account shall be open to inspection by any person, on payment of a fee of One Shilling. The Master shall make all payments ex- ceeding Five Pounds by cheque, and all chequcs shall be countersigned by the Primary Judge, and shall plainly specify the particular credit intended to be operated upon:

Sixth-The Master s l d l attend all the sittings of the Court TO act ns Re&trar.

or Primary Judge, and shall perform the like duties as are

now pcrforrned by the ~ e ~ i s t r i r s of the IIigh Court of Chancery England, and by the Clerks of the Petty Bag or Enrolment Office in Chancery, and shall draw up and settle all decrees and orders of the Court or Primary Judge, and scttle all writs and process, ancl shall cause to be entered all decrees and orders of the Court or Primary Judge, which acccording to the present practice of the Court or the rules and regula- tions before mentioned, shall be accustomed or ordered to be entered in thc book of the records of the Court, and shall cause all proper calendars and indexes of such decrees or orders to be made for more convenient reference:

Seventh-The Master shall cause office copies of all documents to To niaka office w

be prepared at the expense of the person requiring the same, and shall perform such further and other duties as may from time to time be directed by the rules and regulations herein- after mentioned,

15. The

30" VICTORTB, No. 20.

Equity Act.-1866-7.

PART I. 15. The Governor, with the advice and consent ~f the Executive in the office of Master, appoint some fit and proper person being a Barrister at Law or Practitioner of the said Court, of not less than

Governor may appoint	Council, may from time to time, so often as any vacancy shall occur
Mnster.
six years atanding, to be Master of the Court.

As to the duties and powers of the Chief Clerk-

Duties, &C., of Chief 16. The Chief Clerk shall have and exercise the following

Clerk. powers, and perform the following duties, that is to say--

To rign writr. First-The Chief Clerk shall seal and sign all ordinary write and process issued out of the said Court, and also all such special writs as may have been ordered by a Judge to be issued, or the form whereof may be settled by the rules and regulations before mentioned, or by the Master.

To take affidavih, &c. Second-Thc Chief Clerk may take all affidavits, answers, affir-

mation~, declarations, and attestations of honor and acknow- ledgments, and may sign all orders of course, and file all proceedings.

Third-The Chief Clerk may in the absence of the Master, or when he is oth'erwise engaged, do and perform all such other acts and things of a merely ministerial nature as the Master is empowered to do, and shall also perform all such other duties, and have and exercise such other powers as the rules and regulations before mentioned may from time to time direct or empower him to do or perform.

Ueneral power.

As to the duties of the Sheriff-

17. For all the purposes of this Act IIer Majesty's Gaol at Adelaide shall be considercd as the Prison of the Court, and shall have the same relation to the Court as the Queen's Prison in London	has to the High Court of Chancery, and all other Her Majesty's	Gaols in the Province shall have the same relation to the Court and
to Her Majesty's Gnol at Adelaide, as County Gaols in England have to the High Court of Chancery and the said Queen's Prison.

18. All the like writs and process as are now directed to a Sheriff

in England by the High Court of Chancery, shall be directed to, and

executed by the Sheriff of the said Province, in the same manner and subject to the same rules and liabilities as similar writs and process are executed by Sheriffs in England: Provided that when the bheriff of the Province is in any way directly or indirectly interested in the execution of such writ or process, the Court or Primary Judge may order some fit and proper person willing so to do to execute such writs or process subject however to such terms, and

on such conditions as to\uch Court or Judge may seem fit.

!	I I appoint	deputise.	19. The Sheriff may by special order of the Court or any Judge thereof,
30" VICTORIX, No. 20. 151

Equity Act.-1866-7.

thereof, appoint any person or persons his deputies or bailiffs to	PART	r.
execute any writ or process of the Cou~t, and whenever my such appointment shall be madc, the responsibility of the Sheriff for anything done or assumed to be done by virtue or in obedience
to such writs or process shall cease, and no action shall be brought
against the Sheriff for any rnisfeazance by, or nonfeazance of the person or persons to be appointed in pursuance of such order.

20. All duties discharged in the High Court of Chancery in Sergeant-at-Am.

England by a Sergeant&-Arms, in respect of process issued out of the said Court or otherwise, shall be discharged within the said Province by the Sheriff, and all process which in England would be directed to a Sergeant-at-Arms, shall in the Supreme Court be directed to and exccutcd by the Sheriff; and the Sheriff may receive to his own use in respect of such duties and upon the execution, of such process all fees which may be provided in respect thereof by the rules and regulations before mentioned.

21. The Sheriff shall perform such other cluties as may from time Other duties, $0.

to time, by the rules and regulations before mentioned be from time

to time directed to be performed by him.

As to the duties of Messenger:

22. The Messenger of the Court shall be in attendance on the To a t t e d the Judge.

sitting of the Court, and shall attend the Primary Judge, and shall have power, without warrant, to apprehend and lodge in the custody

of the Sheriff all persons who shall, by the Court or Primary Judge,

be ordered to be apprehended or committed into custody for con-

tempt of Court or otherwise.

23. The Messenger shall perform all such other duties as may Other duties, &c.

from time to time, by the rules and regulations before mentioned

be from time to time directed to be performed by him.

As to the process of the Court:

24, All writs issued out of the said Court shall be tested in the Wits) how tasted.

name of the Chief Justice or Acting Chief Justice for the time being, or, in case of there being no Chief Justice, or acting Chief Justice, or of his being a party to the proceedings, in the name 6

of the senior Puisne Judge for the time being.

25. Every writ hereafter to be issued out of the said Court may In term or raontion.

be issued or tested on any day, not being Sunday, Good Friday, or Christmas Day, whether such day shall be in term time or vacation, and every such writ so issued or tested on any day in vacation, and which, according to the present law, practice, or usage, ought to be tested on some day in term time, shall be of the like validity, force, and effect as if the day of the issuing or testing of such writ were actually a day in term time.

26. Every

30" VICTORIE, No. 20.

PART I. 26. Every writ hereafter to be issued out of the said Court thc Supreme Court or not, may be made rcturnablc and returncd m any day, certain, to be in such writ mentioned (not being a Sunday, Good Friday, or Christmas Day), whether such day shall be in term time or in vacation, or forthwith after the executiou thereof; and every such writ which shall be made returnable or returned on any clay in vacation and which, according to any present law, usage, or practice of the said Court in its equitable jurisdiction ought to be made returrlable or returned on some clay in term time, shall be of the like validity, force, and effect as if the day upon which the same writ shall or inay he returned or made returnable were actually a day in term time: Provided always that in cvery case in which any particular pcriod of time ought to elapse between the tcste and return of any writ, such writ, if made returnable forthwith after the execution thereof, shall be returned immediately after the execution thereof or after such period shall have elapsed: Provided

Returnable in term

whether the same shall be returnable on the common law side of

or in vacation.

Return at particular

also that it shall be lawful for the Court or Primary Judge, on

times.

special application, to order any writ to be returnable or returned at

any particular time.

No attachment with

proclamatioll nor writ 27. No writ of attachment with proclamations, or writ of rebellion,

of rebellion.

shall be hereafter issued for the purpose of compelling obedience

to any process, order, or decree of the Court.

Power to writ*. 28. The Court or Primary Judge may from time to time, as occa- sion shall require: fiaine such writs as may be necessary and requisite to meet the requirements of any particular case.

P A ~ T i r. PART 11.-Pleading and Evidence:

h i t s by or against	29. A11 informations or bills by or suits against the Crown shall in the Supreme Court, and act for and represent Her Majesty, Her
the CAOKU.	be prosecuted in the name of or brought against the Attorney- General of the said Provincc for the time being, who may appcar

heirs and successor, as fully and effectually, and in the like manner, and to all intents and purposes, as the Attorney-General of England may now by law appear for and represent Her Majesty in the High Court of Chancery in England, or before the Lord High Chancellor, sitting in the exercise of his common lam jurisdiction; and all process,

and other proceedings, acts, matters, and. things, which in like cases

in the said High Court of Chancery, or before the said Lord High Chan- cellor in his coinrnon law jurisdiction are usually issued, done, had, received, filed, recorded, or taken by or before the Attorney-General of England, and which may be required, or necessary, or propcr to be issued, done, had, received, filed, rccorded, or taken in the said Supreme Court, may be issued, done, had, received, filed, recorded, or taken by or before the Attorney-General of the said Province as fully

and effectually as the same may in the like cases be issued, done, had,

received, filed,recorded, or taken in England by or before the Attorney- General thereof; and upon the production by the Attorney-General

of

30" VICTORIB, No. 20. 153

Equity Act.-1866-7.

PART IZ.

of the said Province to thc Supreme Court, of the pate& or corn- mission of his appointment as such Attorney-General, the same shall be notcd by t h e ~ a s t e r in the Record Book of the said Court, and thereupon, the Supreme Court, and every Judge thereof, in all the jurisdictions of the said Supreme Court shall take judicial notice of such appointment accordingly: Provicted that no information or bill shall abate by reason of the death or resignation of any Attorney- General, but the same shall be continued in the name of the Attorney-General for the time being without the necessity of any order to revive, or to add, or to substitute parties.

30. Every bill of complaint to be filed in the said Court, after Bills to contain con-

the commencement of this Act, shall contain, as concisely as may '"

narratiyeso

be, a narrative of the material facts, matters, and oircumstances, on which the plaintiff relies, such narrative being divided into para- graphs nnmbered consccutively, and each paragraph containing, as nearly as may be a separate and distinct statement or allegation, and shall pray specifically for the relief which the plaiiitiff may con- ceive himself entitled to, and also for general relief; but such bill of complaint shall not contain any interrogatories for the examination of a defendant,

otherwise provided, shall be by bill of complaint or information, commenced by bill. 31. The mode of procceding in the Court in cases where it is not fiooeedinse to br

which, with the writ of summons and other particulars, shall be en- grossed or printed on parchment, and filed in the office of the Court, and shall be marked by the Master, or other officer of the Court, to be appointed in that behalf, with the date of the filing thereof: And before the name of any person shall be used in any suit to be instituted in the said Court, as the next friend of any infant, married woman, person of unsound mind, or other party, or as relator in any information, such person shall sign a written authority to the solicitor for that purpose, and such authority shall be filed with the

bill ar information.

Court, with such writ and endorsement thereon, and marked as service of bill. 32. The filing of an information or bill of complaint in the said Effectoffiling and

aforesaid, shall have the same effect as the filing of an information or bill of complaint and the issuing of a subpcena, had in theHighCourt of Chancery immediately before the first day of November, one thousand eight hundred and fifty-two, and thc service upon the defendant of a copy of such information or bill of complaint so filed, with such endorse-

m m t thereon so marked as aforesaid, shall be effected in the same

manner, and shall have the same effect as the service upon him of a writ of s u b p ~ n a had at the time last aforesaid, and shall entitle a plaintiff in the suit to such remedies for default of appearance and otherwise as he is by this Act entitled to.

33. In case any bill shall be filed against any person having the Pr0ceaaa@"Pem*

privilege of peerage, a certified copy of such bill shall be trans-

mitted to such person by the Chief Justice of the Court, together

with

2X

Equity Act.-1866-7.

PART	31.	with a request to such person to enter appearance to such bill, and
in case such person shall neglect to appear, then the suitor prosecu-
ting such bill may compel an appearance and answer to such bill as if such person were a corporation; but in no case shall any process issue against the person of any one having the privilege of peerage.

Court may direct 34.

The Court or Primary Judge shall be at liberty to direct substi- tuted service o f a bill of complaint in such cases and in such manner as such Court or Primary Judge shall think fit; and when a defendant is out of the jurisdiction, the Court or Primary Judge may, u p o ~ ap- plication, supported by satisfwtory evidence as to the place or country the defendant is in, or may probably be found, order service of the bill on such defendant in such place or country or within such limits as the Court or Primary Judge may think fit to direct.

substituted service.

Hervice as ordinnv 35. Unless the Court or Prima~y Judge shall otherwise direct in

cases; and proceed-

ings on default,

the particular case, substituted service of a bill is to be effected by rrervhg a copy thereof, as in ordinary cases, upon the person upon

whom such substituted service has been ordered to be made, together

with a copy of the order giving the plaintiff leave to make such service, and if after the expiration of the time for appearing, i t shall appear to the satisfaction of the Court or Primary Judge that such service has been duly effected, such Court or Primary Judge may, upon the application of the plaintiff, order an appearance to be entered for the defendant.

Interrogatoriee, how

36. Within a time to be limited by the rules and regulations before mentioned the plaintiff in any suit in the said Court com- menced by bill may, if he requires an answer from any defendant thereto, file in the office of the said Court, interrogatories for the examination of the defendant or defendants, or such of them as he shall require an answer from; and shall deliver to the defendant or defendants so required to answer, or to his or their solicitor a copy

filed.

of such interrogatories, or of such of them as shall be applicable to the paxticular defendant or defendants; and no defendant shall be

callid upon or required to put in any answer to a bill unless in- terrogatories shall have been so filed, and a copy thereof delivered

to him or his solicitor within the time so to be limited, or within

such further time as the Court or Primary Judge shall think fit to

direct.

Timeforanswering.

37. Whether the plaintiff in any suit in the said Court com- menced by bill does or does not require any answer from the defend- ant or any one or more of the defendants to the bill, such defendant

or defendants may, without leave, put in a plea, answer, or demurrer

to the plaintiff 'S bill within a tirne to be allowed to the defendant for demurring alone to a bill, or within such other time as shall be fxxed by the rules and regulations before mentioned; but after that tirne a defendant or defendants, not required to answer the plaintiff's bill, shall not be at libegty to put in a plea, answer, or demurrer

to the bill without the leave of the Court or Primary Judge : Pro-,

vided Q

30" VICTORIIE, No. 20.

Equity Act.-1 866-7.

vided that the power of the Court or Primary Judge to grant further

PART 11.

time for pleading, answering, or demurring to any bill, upon the application of any defendant or defendants thereto, whether re- auircd to answer the bill or not, shall remain in full force, and shall i o t be in anywise prejudiced or affected: Provided also, that if the Court or Primary Judge shall grant any further time to any defendant for pleading, answering, or demurring to the bill, the plaintiff's right to move for a decree under the provisions hereinafter contained shall in the meantime be suspended.

38. If a defendant before the hearing of the cause neglects or fails Defendant not de. mmring.

to demur to the plaintiff's bill for any defects apparent on the face thereof, he shall not be entitled to any costs of his defence in case on his demurring at the hearing he shall succeed on the demurrer.

39. The answer of the defendant to any bill of complaint in the Defendant's answer

said Court may contain, not only the answer uf the defendant to the statements.	may contain material
interrogatories so filed as aforesaid, but such statements material to the case as the iiefendant may think it necessary or advisable to set forth therein; and such answer shall also be divided into paragraphs, numbered consecutively, each paragraph containing as nearly as may be a separate and distinct statement or allegation.

40. In suits in the said Court commenced by bill, where notice of Joidcr of ism^.

motion for a decree or decretal order shall not have been given, or, having been given, where a decree or decretal order shall not have been made thereon, issue shall be joined by filing a replication in the form or to the effect of the replication now in use in the said Court;

and where a defendant shall not have been required to answer, and

ahall not have answered the plaintiff's bill, he shall be considered to have travcrsed the case made by the bill: Provided that on the hearing of the cause the plaintiff's bill shall not be dismissed by reason only that his case is not proven by the oath of two witnesses

or their equivalent.

41. Pleas, answers, disclaimers, and examinations upon oath, ode of taking pleas,

BC*

taken within the jurisdiction of the Court, may be taken in open taking affidavits in the Supreme Court, and may bz filed without any further or other formality than is required in the swearing and filing of an affidavit.

42. All pleas, answers, disclaimers, examinations, affidavits, de- Pleas, how taken

clarations, aftirmations, and attestations of honor, in causes depend- abroad.

ing in the said Court may be sworn, taken, or affirmed before any

person authorized to take affidavits in the said Court out of the said

Province.

by commission out of the jurisdiction of the said Court or otherwise, oath of messenger, &c. 43. Pleas, answers, disclaimers, or examinations, whether taken Answers, &c*, without

may be filed without the oath of a messenger, and any alterations

made

156 30° VICTORIX, No. 20.

Equity Act.-1866-7.

P n n ~	11-	made therein previously to the taking thereof, shall be authenticated	*
according to the practice now in use with respect to affidavits.

Exception, Cc., for

impertinence

44. No exceptions to bills, answers, or other proceedings in the said Court for impertinence shall be allowed, but the Court or Primary Judge may direct the costs occasioned by any impertinent

aboliaheti.

natter introduced into any proceeding in the said Court to be paid

by the party introducing the same, upon application being made

to the Court for that purpose.

New to be iutro-

duced as amendments. the said Cpurt for the purpose only of stating or putting in issue 45. I t shall not be necessary to exhibit any supplemental bill in

facts, or circumstances, which may have occurred after the insti- tution of any suit; but such facts or circumstances may be introduced by way of amendn~cnt 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 with respect to the proof thereof, and the affording the defendant leave and opportunity of meeting the same, as shall in that behalf be provided by the rules and regulations before mentioned.

In case ofab tcment, 46.

Upon any suit in the said Court becoming abated by death, transmission of interest or liability, i t shall not be necessary to exhibit any bill of revivor, or supplemental bill, in order to obtain the usual order to revive such suit, or the usual or necessary decree or order to carry on the proceedings; but, an order to the effect of the usual order to revive, or of the usual supplemental decree, may be obtained as of course upon an allegation 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 practice

an ordtr may havc

effect of bill of	marriage, or otherwise, or defective by reason of some change or
revivor.
of the said High Court of Chancery, before the first day of November,
one thousand eight hundred and fifty-two, would be defendant or de-
fendants to a bill of revivor or supplemental bill, shall, from the time of such service, be binding on such party or parties in the same manner and in every respect as if such order had been regularly obtained according to the then existing practice of the said High Court of Chancery; and such party or parties shall thence- forth become a party or parties to the suit, and shall be bound to enter an appearance thereto in the office of the said Supreme Court, within such time, and in like manner, as if he or they had been duly served with process to appear to a bill of revivor or supple- mental, bill filed against him: Provided, that i t shall be open to the party or parties so served, within such time after service as shall be in that behalf prescribed by the general rules and regulations aforesaid, to apply to thecourt by motion or petition, to discharge such order on any ground which would have been open to him on a bill
of revivor or supplemental bill, stating tlie previous proceedings in the suit, & the alleged change or transmission of interest or liability,

and

30~ICTORIAE, No. 20.

Equity Act,-1866-7.

and praying the usual relief consequent thereon: Provided, also,	PART I I.
that if any person so served shall be under any disability other than covcrture, such order shall be of no force or effect as against such person until a guardian or guardians ad litem shall have been duly appointed for such person, and such time shall have elapsed thereafter ai shall be prescrib& by the rules and regulations befoie mentioned.

Proceedings after bill served, and process to take bill pro confess0

in case of absconding dafendant:

47. Where a defendant within the jurisdiction of the Court is Defendants to appear.

duly served with a copy of the bill, he must appear thereto within the time limited by the rules and regulations before mentioned; and in case a defendant not being an infant, or a person of weak or unsound mind, unable of hlmself to defend the suit, shall be duly served with the bill, and shall neglect to appear thercto as afore- said, the plaintiff may, within three weeks from the time limited for such defendant's appearance, apply to the Master to enter an appearance for such defendant, and no appearance having been entered, the Master shall enter such appearance accordingly, upon being satisfied by affidavit that the copy of the bill with such endorsement thereon has been duly served upon the defendant, and aftcr the expiration of the said term of three weeks, the plaintiff may apply to the Court or Primary Judge for leave to enter such appearance for such defendant, and the Court being satisfied that the copy of the bill, with the endorsement thereon, was duly served, and that no appearance has been entered for him, may order such appearance to be entered: Provided that a defendant may afterwards enter an appearance for himself, but such appearance shall not affect any proceedings duly taken, or any right acquired by the plaintiff, aftcr or under any appearance entered by him.

48. If in any suit which has been or hereafter shall be corn- Proceedings an non- appearance within

menced in the said Court it be made to appear to the Court or usual	time,
jurisdiction of the Court, or that, upon inquiry at his usual place Primary Judge, by affidavit, that such defendant is out of the	of abode, he could not be found, so as to be served with the bill, and
that there is just ground to believe that such defendant is gone out of the said Province, or otherwise absconded, or remains concealed, to avoid being served with the process of the Court, then and in such case the Court or Primary Judge may make an order directing and appointing such defendant to appear at a certain day to be therein named; and a copy of such order shall be inserted in the Government Gazette, and in one daily paper published in Adelaide, and posted in the Police Office, nearest to where such defendant made
his usual abode, within thirty days next before such his absenting;
and if the defendant do not appear within the time limited by such order, or within such further time as the Court or Primary Judge shall appoint, then, on proof being made of such publication of such order as aforesaid, the Court or Primary Judge may order the plaintiff's bill to be taken pro eonfcsso, and make such decree there-

upon.

2 P

30" VICTORIB, No. 20.

P*aT	upon as shall be thought to be just, and may thereupon issue process to compel the performance of such decree, either by an immediate sequestration of the real and personal estate and effects of
the party so absenting or such part thereof as may be sufficient to
satisfy the demands of the plaintiff in the said suit, or by causing 2ossession of the estate or effects demanded by the bill to be delivered to the plaintiff or otherwise, as the nature of the case shall require; and the said Court or Primary Judge may likewise order such plaintiff to be paid and satisfied his demands out of the estate or effects so sequestered, according to the true intent and meaning of such decree, such plaintiff first giving sufficient security in such sum as the Court or Primary Judge shall think proper, to abide such order touching the restitution of such estate or effects as the Court or Primary Judge shall think proper to make concerning the same: upon the defendant's appearance to defend such suit, and paying such costs to the plaintiff as the Court or Primary Judge shall order; but in case such plaintiff shall refuse or neglect to give such security as aforesaid, then the said Court or Primary Judge shall order the estate or effects so sequestered, or whereof the possession shall be decreed to be delivered, to remain under the direction of the Court, either by appointing a receiver thereof or otherwise, as to such Court or Primary Judgc shall seem mcet, until the appearance of the defendant to defend such suit, and his paying such costs to the plaintiff, or until such order shall be made therein, as the Court or Primary Judge shall think just.
49. If any person against whom any decree shall be made, upon neglect or refusal to enter an appearance, or appoint a practitioner to act in his behalf, shall be in custody or forthcoming, so that he may be served with a copy of such decree, then he shall be served with a copy thereof before any process shdl be taken out to compel the performance thereof.

Pemna to be served in mrstody with

copy of decree.

Also persona out of 50. If any decree shall be made against any person being out of such person shall, within seven ).ears after making such decree, return within the jurisdiction of the Court, then and in such case he shall likcwisc be served with a copy of such dccrce, within a reasonable time after his return shall be known to the plaintiff; and in case any defendant against whom such decree shall be made shall, within seven years after the making such decree, happen to die,'and shall not in the meantime have returned as aforesaid, or shall, within the time last before mentioned, die in custody before being served with a copy of such decree, then his heir, if such defendant shall have any real estate sequestered, or whereof posses- sion shall have been delivered to the plaintiff, and such heir may be found, or if such heir shall be a fmme couert, infant, or person of unsound mind, the husband, or committee of such heir respectively, or if the personal estate of such defendant be sequestered, or possession thereof delivered to the plaintiff, then his

the Colony.

in manncr aforesaid, at the time such decree is pronounced, and the jurisdiction of the Court, absconding, or remaining concealed, executor

30" VICTORIB, No. 20.

----p -p

-Equity Act,--1 866-7.

PART XI.

executor or administrator (if any such there be) may, and shall be served with a copy of such decree, within a reasonable time after it shall be known to the plaintiff that the defendant is dead, and who is his heir, executor, or administrator, or where he may be served therewith.

six months after such service, or if any person not being so served, within seven years. 51. Any person so served with a copy of such decree, may within Petition for rehearing

may within seven years next after the making such decree, appear in Court, and petition to bc heard with respect to the matter of such decree upon paying down or giving security for payment of such costs

as the Court or Primary Judge shall think reasonable in that behalf,

and thereupon the person so petitioning, or his representatives, or any person claiming under him by virtue of any act done before the commencement of the suit, may be admitted to answer thc bill exhibited, and issue may be joined, and witnesses on both sides examined, and such other proceedings, decree, and execution may be had thereon, as there might have been in case the same party had originally appeared, and the proceedings had then newly begun, or as if no former decree or proceedings had been in the cause; other wise such decree shall stand absolutely confirmed against the person against whom such decree shall bc made, his heirs, cxecutors, and administrators, and against all persons claiming, or to claim, by, from, or undcr him, or any of them by virtue of any act clone, or to be done, subsequent to the commencement of such suit; and at

the end of such seven years the Court or Primary Judgc may

make E U C ~ further order as shall be just and reasonable according

to the circumstances of thc case,

52. Nothing in the last preceding section contained shall be held \men not to affect

to warrant or make good any proceeding against any person out of	bey0nd the
the jurisdiction of the Court, unless it shall appear to the satisfaction of the Court or Primary Judgc, by affidavi< bcfbrc the making of such decree, that such person had within two years next before tllc

filing of the bill been within the jurisdiction of the Court.

53. If any defendant, by virtue of any writ of habeas c o r p s or other process issuing out of the Court, shall be brought into Court,	Appearance for dcfcn-
dant in custody.
and shall refuse or neglect, or being within the walls of any prism in the said Provincc under or charged with an attachment or other process of contempt, shall, after fourteen days' notice in writing requiring him to enter an appearance, refuse or neglect to enter his appearance, or to appoint a practitioner of such Court to act on his behalf, such Court, or the Primary Judge, may appoint a practi- tioner to enter an appearance for such defendant, and such pro- ceedings may thereupon be had in the cause as if the party had aci;ually appeared.

54. In case any defendant having privilege of Parliament, shall, fendants having pri- Appearances for de-

upon a return of process of sequestration issued against him for not

vilcgc iu Yarliamont.

putting in an appearance to any original or other bill filed against

him

30" VICTOItIB, No. 20.

him in the Court for enforcing discovery and relief, or discovery

alone (as the case may be), neglect to appear, then and in such case the Court or Primary Judge, upon production of the return of such sequestration in Court, may, on the motion or other appli- cation of the plaintiff in such case, appoint a practitioner to enter an appearance for such defendant so having privilege of Parliament, and such proceeding may be thereupon had in the cause as if the party had actually appeared.

In default of anawer

bill shall be taken pro	55. When any defendant having privilege of Parliament shall have appeared to any bill filed against him seeking a discovery upon oath, or when an appearance shall have been entered for such defendant according to the provisions aforesaid, and such person shdl refuse or ncglect to answer the plaintiff's interrogatories in due time, then and in such case the plaintiff may apply for an order that such bill shall be taken pro conjksso against such defendant, and upon such application the Court or Yrimary Judge shall make an order that such bill shall be taken pro co?zfcsso, unless the defen- dant shall within eight days, or such other time as the Court or Primary Judge may direct, after being served with such order, show good cause to the contrary.
confeeso.
Bill shall bo evidence
ss an answer admitting	56. When any such order shall have becn pronounced by the Court or Primary Judge for taking such bill pro confesso, such bill, or an examined copy thereof, so taken pro co?lfesso shall be taken and read in any Court of law or equity as evidence of the facts, and matters, and things therein contained, in the same manner as if such facts, matters, and things had been admitted to be true by the answer of the defendant put in to such bill; and such bill so taken pro cnfifesso shall be received and taken as evidence of such and the same facts, and on behalf of such and so many persons as the answer of the defendant to the said bill could and might have becn read and received in evidence of in case such answer had been put in by the defendant thereto, and had admitted the same facts,
facta.
in likc manner every other bill of discovery taken pro coqfcsso under matters, and circumstttnces as in such bill stated and set forth, and
any of the provisions of this Act, shall or may be taken and read as evidence of the facts and matters and things therein contained to the extent aforseaid.
Prooeedinea on d e f m
dant not answering	57. If any defendant having been required to answer the interro- gatories administered to him by the plaintiff, shall not answer the same in due time, the plaintiff, on filing an affidavit of the due fiervice of such in&rrogGories, may sue out against such defendant all like process of contempt as might before the f is t day of November, one thousand eight hundred and fifty-two, be issued out of the Highcourt of Chancery in like cases, or the plaintiff may file a tra- versing note against the defendant in the like manner and with the like effect as might be done in the said High Court of Chancery before the said first day of November, one thousand eight hundred and fifty-two, or the plaintiff may move the Court or Primary Judge, upon notice to
interrogatories.

b ~.

SOe VICTORIX, No. 26.

-

Equity Act. -1866-7. .-

be given to the defendant that so much of the bill as the interrogatories

so served relate to may be takenpro cofifesso against the defendant, and the Court or Primary Judge may upon such motion make order accord- ingly, and thereupon such bill shall, to the extent aforesaid, be read and taken in the same manner as provided in the last preceding section.

58. When a writ of attachment shall have duly issued against any party for contempt in not answering the bill, and such party shall not have been taken under such writ, and the Sheriff shall ma'ke a return of non est inventus to the same, the Court or Primary Judge shall, upon motion by or on behalf of the plaintiff (notice of which shdl not be required), order a commission of sequcstration to issue against the lands, tenements, goods, chattels, and effects of such

party: Provided that before such order shall in any such case be

made, the plaintiff applying for the same shall be required to satisfy the Court or Primary Judge, by the affidavit of the solicitor of the plaintiff or of his town agent, if the writ of attachment was issued by such town agent, that due diligence was used to ascertain the place where such party was at the time of issuing such writ, and

in endeavoring to apprehend such party under the same.

59. If any defendant, being in contempt for not answering the bill, shall have been brought to the bar of the Court under process	Bill pro m	fcaao.
for such contempt, and shall have been committed or remanded back to the prison of the Court, the plaintiff may upon motion, of which notice shall be given, apply for and obtain an order to take the bill pro confess0 against such defendant: Provided that there shall be at least twenty-eight days between the day on which such defendant was so committed or remanded back, and the day of making such motion; and if upon or after fhe time for making such motion, such defendant shall not have put in his answer, the Court or Primary Judge shall order the bill to be taken

pro confess0 against such defendant.

The party prosecuting any contempt shall be at liberty, without order, to sue out the several writs in process of contempt, returnable	Procecdinga for
contempt.
immediately in case the party in contempt resides, or is in Adelaide, or within twenty miles thereof; and in other cases, the party prose- cuting a contempt shall be at liberty, without order, to sue out such several writs returnable at any time, provided that there be fifteen days between the teste and the return of each of such writs,
61. In any case where, upon the application of the party prose- cuting the contempt, the Court or Primary Judge shall be satisfied	not answering in cua-
Power to retain party
tody.
that justice cannot be done to the party administering interrogatories without an answer thereto from the party required to answer, the Court or Primary Judge may order such party to remain in custody until answer or further order, but without prejudice to the plaintiff wailing himself of any of the provisions of this Act: Provided that in all cases, whether a party shall be in custody or not, the

60.

Court

f 62 $00 VICTORIE, No. 20.

3 Court or Primary Judge may, after a second insufficient answer, order him to attend the Master and be examined viva voce on the interrogatories.

Proceedings by defendant against plaintiff in lieu of cross bill:

When and how

defendant may file	62. Any defendant, after he shall have put in a sufficient answer to the bill, if required to answer, may, without filing a cross bill for discovery, filc-in the Master's offick a concise stitement con- taining particulars of the subjects in which a discovcry is sought, and to annex thereto interrogatories for the examination of any plaintiff from whom a discovery is sought, and to serve upon such plaintiff or his solicitor a certified copy of such concisc stcltement and interrogatories, and from the time of such service, such plaintiff shall be deemed to have been served with a cross bill for discovery,
interrogatories,
and to have at such time appeared to the same, and to have been
served with interrogatories thereon, and shall be bound to answer such interrogatories accordingly: Provided that the defendant may, if he shall tlliilk fit, instead of filing such concise statement, file a cross bill,
To be relevant to

matters in original 63. Such concise statement and interrogatories to be exhibited by

bill.	a defendant as last aforesaid, shall be relevant and material to the relicf or discovery sought b; thc bill, and the statements therein contained, and to the interrogatories, if any, exhibited by the plaintiff,
and in case i t shall be made to appear to the Court or Primary
Judge, upon motion, that such concisc statcmcnt or interrogatories are irrelevant and immaterial to the object of the suit, or are exhibited for the purpose of delaying the hearing of the cause, then
the Court or Primary Judge may make order that the plaintiff' shall
not be required $0 answer such interrogatories as may be considered irrelevant and immaterial, or exhibited for the purpose of delay as aforesaid: Provided that the plaintiff may apply to the Court or
may contain scandalous or impertinent matter, in the same manner Primary Judge to strike out any or all of such interrogatories as as if such interrogatories had been exhibited after the filing of a
cross bill for discovery: And provided also, that a plaintiff may by

- his answer demur to the whole or a portion of the discovery sought

in tke same manner, as he might on a cross bill for discovery being

exhibited against him.

Plaintiffto~roceedin 64. Notwithstanding the filing of such concise statement, the original suit.

plaintiff shall proceed in the original suit, as if no concise statement

and interrogatories had been filed, unless the Court or Primary

Judge shall otherwise order: Provided that the defendant shall not be compelled to close his evidence until his interrogatories shall

have been answered.

Plaintiff to answer

interrogatories.

65. If within the time to be allowed for the plaintiff to answer

such concise statement and interrogatories, he do not answer the

same, then he shall be liable to all process of contempt and other

proceedings,

30" VICTORIB, No. 20. l 6 3

PART 11.

procccdings, and to have the concisc statement taken pro confess0 against him, in the same manner as if he were a defendant to an original bill, and had neglected or refused to answer interrogatories administered to him.

66. I n addition to the before mentioned proceedings, the Court If awwer. plaintiff do not

or Primary Judge may on the continued refusal or neglect of the plaintiff to answer such interrogatories, make an order dismissing the plaintiff 'S bill with costs.

67. So soon as thc plaintiff shall l l a ~ answered the interrogatories ~ ~ d proemling e

administered by the defendant, the defendant may file a replication, On C0nCi3eBtntementg~

and thereuponthe concise statemcnt and answer 6.hall be c&siclered

at issue, and the defendant and plaintiff shall be at liberty to verify

their respective cases arising out of such issue, by evidcncc oral or

otherwise as in the origirial suit, or the defendant may require the

plaintiff to set the concise staterncnt and answer down for hcaring

on the same day as the original bill.

As to Production and Inspection of Documents.

68. The Court, or Primary Judge may, upon the application of the plaintiff, whether the defendant may or may not h v e been re-	Defendant to produce
documents, &c,, on
oath.
quired to answer the bill, or may or may not have Fecn interrogated as to the possession of documents, ~nalrc an ordcr for the production by any defendant, upon oath of such of the documents in his posses- sion, or power, relating to matters in qucstion in the suit, as the Court or Primary Judge shall think right; and the Court or Primary Judge may deal with such docurncnts, whcn produced, in such
manner as shall appear just,
69. Upon the application of any defendant in any suit, but where such defendant is required to answer the plnintifT's bill, not until	Plaintiff to produce
docurnuuts on oath.
after he has put in a fill1 and sufficient answei. to the bill, the Court
or Primary Judge may make an order for the production by the plaintiff or any CO-defendant in such suit, on oath, of such of the	documents in his possession or power, relating to the matters in
question in the suit, as the Court or Primary Judge shall order; and the Court or Primary Judge may deal with such documents, when produced, in such manncr as shall appear just: Yroviided that in any particular case the Court or Primary Judge may make such order before such clcfcndant has put in his answer.

70, The Court, or Primary Judge, may at any time during the Inspection of premiser

progress of a suit, inspect any lands, tenements, or premises, which

may be ordered.

may be the subject mattcr in respect of which the suit is brought, and may at any time on application for that purpose, order a view of any such lands, tenements, or. premises, to be had, by the Master of the Court, if the facts in dispute are to be tried by the Court; or by a competent number of Jurymen, in cast: the f'acts in dispute are to

be tried by a Jury, and in case of the Master viewing the premises,

he shall inform the Court of the rcsult of his view, and the pmceed-

ings,

Equity Act.-- 1866-7.

P * ~ T IT- ings, or such view by a Jury shall as nearly as possible be similar to the like proceedings had on the common law side of the Court And all persons acting on such inspection or view, shall, for the pur- poses hereof, have power without being liable to any action, to enter on the lands, tenements, and premises, so to be inspected or viewed, and also on and upon any adjoining lands if necessary, and a11 persons in possession of any of such lands are hereby required to allow such entry for the purposes aforesaid, and in case of any obstruction or refusal of such entry, after production of the order for such inspection or view, the person or persons so obstructing or refusing such entry, shall be deemed guilty of a contempt of Court, and be liable to punishment accordingly.

Evidence before the hearing:

Practi"of C ~ ~ r t ~ ~ t ~	7 L.	The mode of examining witnesses in causes in the said Court,
examining witncssca,

abolished.

and all the practice of the said Court in relation thereto, so far as

such pactice shall be inconsistent with the mode hercinafte~

prescribed of examining such witnesses, and the practice in relation

thereto, shall, from and after the time appointed for the commence-

mencement of this Act, be abolished: Provided always, that the

Court or Primary Judge may order any particular witness or wit-

nesses within the jurisdiction of the said Court, or any witness or

witnesses out of the jurisdiction of the said Court, to be examined

upon interrogatories in the mode practised in the High Court of

Chancery before the first day of November, 1858, and that with

respect to such witness or witnesses, the practice of the said Court

in relation to the examination of witnesses shall continue in full

force, save only so far as the same may be varied by the rules and

regulations before mentioned, or by any order of the Court with

reference to any particular case.

plaintiff may C e n o -

tice to adduceevidence 72. When any suit commenced by bill shall be at issue, the plain.

orally, or by affidavit. tiff shall, within such time thereafter as shall be prescribed in that

behalf by the rules and regulations before mentioned, give notice to the defendant that he desires that the evidence to be adduced in the cause shall be taken orally, or upon affidavit, as the case may be; and if the plaintiff shall desire the evidence to be adduced upon affidavit, and the defendant or some or one of the defendants, if more than one, shall not, within such time as shdl be prescribed in that behalf as aforesaid, give notice to the plaintiff, or his solicitor, that he or they desire the evidence to be oral, the plaintiff and defendant respectively shall be at liberty to verify their respective cases by aadavit.

Evidence mny be

taken orally, the Court	'73. When any of the parties to any suit, commenced by bill, thereof to the opposite party, as hereinbefore provided; the same
may make an order,	desires t k t the evidence should be adduced orally, and gives notice
shall be taken orally in the manner hereinafter provided: Provided
that if the evidence be only required to be oral by a party withaut d
a sufficient interest in the matters in question, the Court or Primary Judge may upon application, in a summary way, make such order as shall be just. 74. All

30" VICTORIB, No. 20, 166

74. All witnesses to be examined orally under the provisions of this Act, shall be so examined by or before an officer of PART tr.

the Court, Wihesee8, how to be

or some person appointed by the Court or Primary Judge in any examhed.

particular case, who shall be furnished by the plaintiff with a copy

of the bill and of the answer, if any, in the cause; and the exami-

nation, cross-examination, and re-examination of such witnesses shall be conducted as nearly as may be in the mode now in use in Courts of common law with- respect to a witness about to go abroad, and not expected to be present at the trial of a cause.

75. The depositions taken upon such oral examination as afore- Depa8itions how to b .

said, shall be taken down in writing by the examiner, or by some tak0ndown.

person appointed by him and in his presence, showing, not ordinarily

by question and answer, but in the form of a narrative, and when

completed shall be read over to the witness, and signed by him in

the presence of the parties, or such of them as may think fit to

attend: Provided that in case the witness shall refuse to sign the said

depositions, then the examiller shall sign thc same, and such examiner

may, upon all examinations report as to the conduct of the witness,

or state any special matter to the Court or Primary Judge as he

shall think fit: Provided also, that it shall be in the discretion of the

examiner to put down any particular question or answer, if there

should appear any special reason for doing so, and any question or

questions which may be objected to shall be noticed or referred to

by the examiner in or upon the depositions, and he shall state his

opinion thereon to the counsel, solicitors, or parties, and shall refer

to such statement on the face of the depositions; but he shall not

have power to decide upon the materiality or relevancy of any ques-

tion or questions, and the Court or Primary Judge shall have power

to deal with the costs of immaterial or irrelevant depositions accord-

ing to its ox his discretion.

76. If any person produced before any such examiner as a witness, Course if parties

him by the examiner, or by either of the parties, or by his or their shall refuse to be sworn, or to answer any lawful question put to ~ f ~ ~ a ~ 9 ~ ~ w 0 r n

counsel, solicitor, or agent, the same course shall be adopted with respect to such witness as might have been pursued in the case of a witness produced for examination before an examiner of the High Court of Chancery before the first day of November, one thousand eight hundred and fifty-two, upon written interrogatories, and re- fusing to be sworn, or to answer ~iorne lawful question: Provided always, that if any witness shall demur or object to any question or questions which may be put to him, the question or questions so put, and the demurrer or objection of the witness thereto, shall be taken, down by the examiner and transmitted by him to the office of the said Court, to be there filed; and the validity of such demurrer or objection shall be decided by the Court or Primary Judge; and the costs of and occasioned by such demurrer or objection

ahall be in the discretion of the Court or Primary Judge.

77. When the examination of witnessee shall have been con- OAginaldepositionr to be transmitted to

8 A duded the Hartof8 aq,

166 30' VICTORIE, No. 20,

Equity Act.-1 866-7.

PABT 11. eluded but not before, the original depositions, and all exhibits in the custody of the examiner, authenticated by the signature of the examiner, shall be by him filed in the Court, and any party to the suit may have a copy thereof, or of any part or portion thereof, upon payment for the same, in such manner as shall be provided by the rules and regulations before mentioned.

No commission for

examination of	78. It shall not be necessary to sue out any commission for the examination of any witness within the jurisdiction of the Court; and any person appointed to act as examiner, by any order of the Court; or Primary Judge, shall have the like power of administering oatha
witnewes.
as Commissioners now have under commissions issued by the Court
for the examination of witnesses,

a B b ~ t a u t o ~ * -	70. Notwithstanding that the plaintiff	or the defendant in any
ticdar fa&, &C., may

be used.

suit in the said Court, may have elected that the evidence in the case should be taken orally, affidavits by particular witnesses, or a d m i t s as to particular facts and circumstances, may, by consent, or by leave of the Court or Primary Judge, obtained upon notice, be used on the hearing of any cause, and such consent, with the appro- bation of the Court or Primary Judge, may be given by or on the part of married women or infants, or other persons under disability; and the Court or Primary Judge may, without such notice, receive proof by affidavit of all such matters not directly in issue in the cause as in the opinion of the Court or Judge may safely and con- veniently be so proved.

~vidence~whentO

closed, &c.

80. The evidence on both sides in any suit in the said Court, whether taken orally or upon affidavit, shall be closed within such time or respective times after issue joined as shall in that behalf be prescribed by the rules and regulations before mentioned, but with power to the Court or any Judge thereof to enlarge the same as may

be necessary; and after the time fixed for closing the evidence no

further evidence, whether oral or by affidavit, shall be receivable,

without special leave of the Court or Primary Judge previously

obtained for that purpose: Provided always that any witness who has made an affidavit filed by any party to a cause shall be subject to oral cross-examination within such time after the time fixed for closing the evidence as shall be prescribed in that behalf by the rules and regulations before-mentioned, or before an examiner, in the same manner as if the evidence given by him in his affidavit had been given by him orally before the examiner, and after such cross-examination, may be re-examined orally, by or on the part of

the party by whom such affidavit was filed; and such witness shall be

bound to attend before such examiner to be so cross-examined and re- examined, upon receiving due and proper notice, and payment of his reasonable expenses in like manner as if he had been duly served with a writ of subpuma ad test$candzsm before such examiner; and the expenses attending such cross-examination and re-examination shall be paid by the parties respectively, in like manner, as if the witness so

to be cross-examined were the witness of the party cross-examining,

and

30' VICTORIB, No. 20.

-- p-

FART r r.

and shall be deemed costs in the cause of such parties respectircly, unless the Court or Primary Judge shall think fit otherwise to direct.

81. Upon the hearing of any cause the Court or Primary Judge Examination of witnesses before

may order the attendance, or production, and oral examination before	court,
such Court or Judge of any witness or party in the cause, and may direct the costs of and attending the production and examination of such witness or party to be paid by such of the parties to the suit,
or in such manner as to such Court or Primary Judgc shall think fit.

82. Any party in any cause or matter may, by a writ of subpoena Subpmna, for

ad testt$candum, or duces tecum, require the attendance of any witness witnesses.

before the Primary Judge, the Master, or any examiner of the said Court, and examine such witness orally for the purpose of using his evidence upon any motion, petition, or other proceeding before the Court, Primary Judge, or Master, and such witness shall be bound to attend accordingly: Provided that every witness so required to attend shall be entitled to the like conduct, money, and payment of expenses, and also for loss of time as upon attendance at a trial before a jury; and any party having made an affidavit to be used, or which shall be used on any motion, petition, or other proceeding shall be bound, on being served with such writ, to attend before the Primary Judge, Master, or an examiner of the said Court, for

the purpose of being cross-examined.

83. The Court or Primary Judge shall have a discretionary power C C W ~ may dacide on

of acting upon such evidence as may be before such Court or Judge cvidc''co	it.
~. t the time, and of making such interim orders, or otherwise, as may appear necessary to meet the justice of the case; and upon any ap- plication by motion or petition for an injunction or receiver, or to dissolve an injunction or discharge an order appointing a receiver,
the answer of the defendant shall, for the purpose of evidence on
such motion or petition, be regarded merely as an affidavit of the defendant, and affidavits may be received and read in opposition

thereto.

Dismission of a bill for want of prosecution:

been required to answer the said bill, and shall not have answered disuissal of bill. 84. Where a defendant in a suit in thc said Court shall not have Defendant may move

the same, such defendant shall be at liberty to move to dismiss the

bill for want of prosecution, at such times, and under such circum- stances, and subject to such restrictions as shall be in that behalf prescribed by the rules and regulations before mentioned; and whenever by virtue of the said rules and regulations or by this Act,

a defendant shall have regularly moved to dismiss the bill, the Court

or Primary Judge shall grant indulgence to the plaintiff only on

terms of his paying the defendant his just and reasonable costs

of such motion,

85. The plaintiff shall, after the defendant has put in a volun- Dismission of y i after voluntary

tary answer.

30° VICTORIAE, No. 20.

Equity Act.-1 866-7.

tary answer, file his replication, or set down the cause for hearing on bill and answer in the same manner as if the defendant had answered interrogatories administered to him by the plaintiff; and if the plaintiff shall neglect to file his replication, or to set down the cause as aforesaid, any defendant may move to dismiss the bill for want of prosecution, notwithstanding the pendency of a concise statement and interrogatories (if any) unanswered.

PART 1x1. PART 111.-Hearing of causes, petitions, and matters, and pro-

ceedings after decree:

On non-appearance,

plaintiff entitled to 86. If at the hearing of a cause the defendant do not appear, the

decree.

plaintiff shall be entitled to such relief as the Court or Primary Judge may consider him entitled to, but not necessarily to the fdl extent of the relief sought by the bill, and the same practice shall apply in all cases where the bill shall have been taken pro confesso against a defendant.

87. The plaintiff in any suit shall be at liberty at any time after the time allowed to the defendant for answering the same shall have expired (but before rcplication), to move the eourt or Primary Judge upon such notice as shall in that behalf be prescribed by the rules and regulations before mentioned, for such decree or decretal order as he may think himself entitled to; and the plaintiff and defendant, respectively, shall be at liberty to file affidavits in sup- port of, and in opposition to, the motion so to be made, and to use the same on the hearing of such motion; and if such motion shall be made after an answer filed in the cause, the answer shall, for the purposes of the motion, be treated as an affidavit.

when move for plaintiff a decree. may

Court ma g Or

grant 8uc motion,	88. Upon any such motion for a decree or decretal order, it shall be discretionary with the Court or Primary Judge to grant or refuse the motion, or to make an order giving such directions for or with	respect to the further prosecution of the suit as the circumstances	of the case may require, and to make such order as to costs as may
be thought right.

when defendant not	89. I t shall not be competent to any defendant, in any suit,T	to
to take objection for

want OP parties. set down n cause merely on an objection for want of parties or take any objection for want of parties to such suit, in any case to which the rules next hereinafter set forth extend; and such rules shall be deemed and taken as part of the law and practice of the said Court, and any l a ~ or practice of the said Court inconsistent therewith shall be, and is hereby, abrogated and annulled-

Rule 1. Any residuary legatee or next of kin,rnay, without serving the remaining residuary legatees or next of kin,hare a decree for the administration of the personal estate of a deceased person:

Rule 2. Any legatee interested in a legacy charged upon real

estate, and any person interested in the proceeds of real

estate

30"ICTORI2$ No. 20, 169

Equity Act.-1866-7.

estate directed to be sold, may, without serving any other	7 'T-
legatee or person interested in the proceeds of the estate, have a decree for the administration of the estate of a deceased person:

Rule 3. Any residuary devisee, or heir, may, without ~erving any

CO-residuary devisee or CO-heir, have the like decree:

Rule 4. Any one of the several cestuique trust under any deed or instrument, may, without serving any other of such cestwique trust, have a decree for the execution of the trusts of the deed or instrument:

Rule 5. In all cases of suits for the protection of property pending

litigation, and in all cases in the nature of waste, one person

may sue on behalf of himself and of all persons having the

same interest:

Rule 6. Any executor, administrator, or trustee, may obtain a decree against any one legatee, next of kin, or cestuique trust for the administration of the estate, or the execution of the trusts:

Rule 7. In all the above cases the Court or Primary Judge may require any other person or persons to be made a party or parties to the suit, and may give the conduct of the suit to such person as such Court or Judge may deem proper, and

may make such order in any particular case as may be deemed

just, for placing the defendant on the record on the same footing in regard to costs as other parties having a common interest with him in the matter in question:

Rule 8. In all the above cases the person who, according to the practice of the High Court of Chancery before the first day of November, one thousand eight hundred and fifty- two, would be necessary parties to the suit, shall be

they shall be bound by the proceedings in the same manner	served with notice of the decree; and after such notice
as if they had been originally made parties to the suit, and they may, by an order of course, have liberty to attend the proceedings under the decree; and any party so served may, within such time as shall in that behalf be prescribed by
the Rules and Regulations before mentioned, apply to the
Court or Primary Judge to add to the decree:

Rule 9. In all suits concerning real or personal estate which is vested in trustees under a will, settlement, or otherwise, such trustees shall represent the persons beneficially interested under the trust, in the same manner and to the same extent as the executors or administrators in ~luits concerning personal estate represent the persons beneficially interested in such personal estate; and in such cases it shall not be necessary to make the persons beneficially interested under the trusts

a B parties

170 30' VICTORIA.', No. 20.

-I

--" Equity Act.-1866-7.

TART Y rr. parties to the suit, but the Court or Primary Judge may, upon consideration of the matter, on the hearing, order such persons, or any of them, to be made parties.

Cnurt m3y proc (.a I

1s.i thr111t IY~DPI..-II t:r- 90. If in any suit or other proceeding it shall appear that my

tit-	lb f ~ W L ' R. C I ~	deccased person who was	interested	in the matters in q~xest~ion,	has
pet	.Q 311 or 111 l y

appoint anc.	nn !?gal personal representative, the Court or Primary Judge may either pvocecd in the absence of any person representing the estate of such deceased person, or may make an order appointing some 1 ~ s o n to represent such estate for all the purposes of the suit or other proceeding, on such notice to such person or persons if any, as
euch Court or Primary Judge shall think fit, either specially or
pcmerally, by public advertisements; and the order so made by the said Court, and any orders consequent thereon, shall bind the rstate 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 l e p l personal representative had
bwn a party to the suit or proceerllng, and had duly appeared and
sr~hmitted his rights and interests to the protection of the Court.

Co111.t mnr dircrt sal0 (1 1. The Court or Primary Judge may, in any suit for the fore-

of m111 tg *g 4 pro-

p~!,	&C.	closure of the equity of rc.clemption ill any mortgaged property, upon
thc request of the rnortgagec, or of any sn\3scqucnt encumbranc~r,
nl- of the mortgagor, or any person claiming under them respectively
direct a sale of such propcrtv, or a transfer of the mortgage debt and security, instead of a foreciosore of such equity of redemption, on such terms as the Court or Primary Jndgr may think fit to iiirect, and, if the Court or Primary Judge shall think fit, without pre- viously determining the priorities of iiicumbrances, or giving the usual or any time to redeem; provided that if such request shall be made by any such subsequent incumbranccr, or by the mortgagor,
or by any person claiming ander them respectively, no such sale
slid1 be directed without the consent of the mortgagee or the persons claiming under him, unlcss the party making such request shall deposit in Court a reasonable sum of money to be fixed by
formance of such terms as may be imposed on the party making the Court or Primary Judge, for the purpose of securing the per- such request.

8ait not fo he c%- missed for ~ ~ l i ~ j o i n ( ? c t 92. No suit shall be dismissed by reason only of the rnisjoinder

of pluinti~lj. of ~ C ~ S O O U S as plaintiffs thercin, but mhcrever it shall appear that

--notwithstanding the conflict of interest in the co-plaintiffs, or the

~ v m t of intercst in some of the plaintiffs, or the existence of some ground of defence affecting some or one of the plaintiffs-the plain- tiffs, some or one of them? are or is entitled to relief, the Court or Primary Judge shall have power to grant such relief, and to modify the decree, according to thc spccinl circumstances of the case, and for that purpose to direct such amendments, if any, as may be necl=ssarv, and at the hearing before such amenr'iinents are made, to treat" any one or more of the plaintiffs .as if he or they was or were a defendant or defendants in the suit, and the remaining

or

SO* VICTORIB, Ne. 26.

or other plaintiff or plaintitfs was or mere the only plaintiff or

Y * m r r K ~

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 or Primary Judge may, at the hearing of the cause, order the cause to stand revived, and

proceed to a decision of the cause, and give such directions as to

costs or otherwise as may appear just and expedient.

93. No suit shall be open to objection on the ground that a No objection because

merely declaratory decree or order is sought thereby, and the Court Bought.	only declaratory order
or Primary Judge may make binding declarations of right without
granting cor, sequential relief.

94. The Court or Primary Judge may adjudicate on questions between Court may some decide of the

arising between parties, notwithstanding that .they may be some

witbout

only of the parties interested in the property respecting which the 0 t h ~

question may have arisen, or that the property in question is com-

prised with other property in the same settlement, will, or other

instrument, without making the other parties interested in the

property, respecting which the question may have arisen, or in-

terested under the same settlement, will, or other ii~strument, par-

ties to the suit, without requiring the whole trusts and purposcs

of the settlement, will, or other instrument to bc 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 the Court or Primary Jud,	Proviso.
shall have power to refuse to make the order prayed if it appear that the application is fraudulent or collusive, or for some other

1. Any trustee desiring to pay money to the accoant of the Master, or transfer or

deposit stock or securities, into or in the Master's name, shall file an affidavit

entitled in the matter of the trust and in the matter of the Act, and setting forth-

(1.) His own namc and address.

(2.) The place wherc hc is to be served with any petition, or any notice of any proceeding or order of the Court relating to the trust fund.

(3.) The amount of money, stock, or securities which he proposes to pay, or transfer into, or deposit in Court to the credit of the trust.

(4.) A short description of the trust, and of the instrument creating it.

(5.) The names of the persons interested in or entitled to the fund, to the best

of the knowledge and belief of the trustee.

(6.) The submission of the trustee to answer all such inquiries, relating to the application of the money, stock, or securities paid in, transferred, or de- '

posited, under the Act, as the Court may think proper to make or direct.

2. The Master, on production of the affidavit, shall give the necessary directions for payment, transfer, or deposit, and place the money, stock, or securities to the account of the particular trust; and such payment, transfer, or deposit shall be cer- tified in the usual manner.

3. Where it is deemed necessary to have the money, or the dividends or interests

of stock or securities invested in the meantime, the affidavit shall further contain a statement to that effect; but where the affidavit contains no such &atement, the Master shall be a t liberty to invest, as soon as conveniently may be, the money in Government Debentures or real securities, in the matter of the particular trust, or, in cases of dividends or interest on stock, or securities transferred, such dividends or interest in the like stock, and all accumulations of the dividends of the stock in which such money shall be invested, and of the dividends or interest on ~ u c h stock or

securitier~ as aforesaid, f r ~ m time to time, in the like matter, without any special order made

30" VICTORIB, No. 20.

..---- ---

Equity Act-1866-7.

made by the Court in that behalf, and without any formal request for that purpose: Prnvided always, that where at any time a request in writing, by or on behalf of any party claiming to bc entitled, and such investment be discontinued, is left with the Master, he shall bc at liberty to ccase making any further investment in the matter of the particular trust, until the Court shall have made some order in that behalf.

4. The trustee having made the payment, transfer, or deposit, shall forthwith give

notice thereof to the several pcrsons named in his affidavit as interested in or entitled

to the fond.

5. Such persons, or any of them, or the trustee, may apply by petition or motion,

as occasion may require, respecting the investment, payment out, or distribution of

the fund, or of the dividends or interest thereof,

6. The trustee shall be served with notice of any application made to the Court

respecting the fund, or the dividends or interest thereof, by any person interested

therein or entitled thereto.

7. Thc persons interested in or entitled to the fund, shall be served with notice of any application made by the trustee to the Court, respecting the fund in Court, or the interest or dividends thereof.

8. No petition shall be set down to be heard, and no motion made, until the peti- tioner or applicant has first named in his petition, or notice of motion, a place where

he may be served with any petition or notice of any proceeding or order of the

Court, relating to the trust fund.

9. Petitions presented, summonses issued, and notices of motion served, and affi- davits filed, and all proceedings had under any Act, shall be entitled in the matter of

the particular trust, and in the matter of the particular Act or Acts authorizing the

proceeding.

10. Whenever the accounts of any guardian, receiver, or committee, or any trustee appointed by the Court are not brought into the Master's office, or are not proceeded with and completed, in the manner and within the time respectively prescribed in that behalf, or whenever any party or solicitor lias omitted duly to prosccute and enforce the matter, or bring the case before the Court, within a time limited by the Master for that purpose, the Master may commit to the Crown Solicitor the conduct of such matter, and direct him to bring the case before the Court.

11. ,4ny order madc, or direction given, by the Master in such matters may be discharged or varied by the Court or Primary Judge in Chamber8; and the costa it1 every such matter shall be in the discretion of the Court or Primary Judge in Chambers, or auch other Judge as shall hear the same, and shall bo paid by slick person, or out of such fund as the Court or Judge shall direct.

11.-The Property Act, 1860.

12, All petitions, summonses, statements, affidavits, and other proceedings, under the last-mentioned Act, shall be iutituled in the matter of the particular trust, will, or administration, and in the matter of the Act. And every such petition or state-

ment shall state the facts conciselv, and shall be divided into ~aram-aphs numbered

z " S

consecutively; and ewry summo& shall, as nearly as may be, and except as to its

title, be similar to thc form - of an administration summons. &----p-

13. At the time when any such summons is issued, the statement upon which the same is grounded shall be filed in the Master's office.

14. ~ i e r ~ s w h petition or summons shall be served eight clear days before the

hearing thcreof, unless the person served shall consen:, to a shorter time.

15. The opinion, advice, or direction of the Judge shall be passed and entered, and remain of record, in the same manner as any order made by the Court or Judge; and the same shall be termed a "judicial opinion," or "judicial advice," or "judicial discretion," as the case may be.

16. Cash under the control of the Court may be invested in Government Securities and upon mortgages of freehold estates within the Colony, And any petition for the conversion of any auch investment in any other security or mortgage shall be served

upon such person and in such manner as the Court shall direct.

CHAPTER XXXII.

CIIAMBER BUSINESS AND MISCELLANEOUS POXNTd+

I. Election.

1. In all cases in which i t is alleged that the plaintiff is prosecuting the defendant

in thia Court, and also at law, for the same matter, the defendant, eight days after

filing his answer, or further answer, to the plaintiff's bill, shall be entitled, as of

course,

30" VICTORIB, No. 20,

Equity Act.--1 866-7.

course, on motion or petition, to the usual order for the plaintiff to make his election

in which Court he will proceed, with the usual directions in that behalf, unless the

plaintiff shall previously have delivered exceptions to the defendant's answer, or have

set down his further answer on former exceptions.

2. I n case the plaintiff shall have delivered such exceptions, or set down the de- fendant's further answer within such time, the defendant shall be at liberty, by notice in writing served on the plaintiff to require the plaintiff to set down for hearing euch exceptions within four days from the service of such notice; and if the plaintiff, being so served with such notice, shall not set them down, or if the exceptions shall not be allowed, the defendant shall then be entitled, as of course, on summons or peti- tion, to the usual order for the plaintiff to elect in which Court he will proceed, witk the usual directions to be given in Chambcrs.

3. A defendant, from whom an answer is not required, rtlleging that thc plaintiff is

prosecuting him and also at law, for the same matter muy, upon the expiration of the time within which he might have been served with interrogatories for his examina- tion in answer to such bill, obtain, as of conrse, on summons or petition, the usual order for the plaintiff to make his election in which Court he will proceed.

4, In cases referred to in these rules the plaintiff may more to discharge thc order on the merits confessed in the answer, or, if necessary, appearing by affidavit,

11.-Interest.

5. Where a decree or order is made directing an account of the debts of a

deceased person, unless otherwise ordered, interest shall be computed on such debts, as to such of them as carry interest, after the rate they respectively carry, and as to all others, after the rate of eight per cent. per annum from the date of the decree or order.

6. A creditor whose debt does not carry interest, who comes in and establishes the

same under a decree or order of the Court, shall be entitled to interest upon his debt

a t the rate of eight per cent. per mnum from the date of the decree or order, out of

any assets which may remain after ~iatisfying the costs of the suit, the debts estab-

blished, and the interest of such debts as by law carry interest.

7. Where a decree or order is made, directing an account of legacies, interest shall be computed cn such legacies after the rate of eight per cent. per annum from the end of one year after the testator's death, unless otherwise ordered; or unless any other time of payment or rate of interest is directed by the will, and in that case according to the will.

8. Where a decree or order is made directing the payment of any sum of money, whether fixed or to be ascertained, interest shall be allowed on an ascertained sum from the date of the decree, and on the unascertainetl sum from the date of the filing of the Master's certificate fixing the amount; and such interest shall be at the rate

of eight per cent. per annum.

111.-Proceedings in Cham6ers.

9. Except during the period between the first day of December and the fourth day

of February, one of the Judges will sit in Chambers daily (Public Holidays and	Saturdays excepted); and the Primary Judge will sit once in each week unless other-
wise engaged in public business.

10. The following matters may be disposed of in Chambers, that is to say-

(l.) As to the guardianship of infants including guardians ad litern, and special guardians to concur in a special case.

(2.) As to the maintenance and advancement of infants, and appointment of

receivers.

nder the Trustee Act, 1855.

13.)

(5.) For time to plead, answer, or demur, or to file interrogatories.

4.) For the administration of estates of deceased persons.

(6.) For leave to amend billq.

(7.) For enlarging publication, or the time for closing evidence.

(8.) For the production of documents.

(9.) Relating to the conduct of suits or motions.

(10.) As to matters connected with the management of property.

(11.) For payment into Court of purchaue moneys under sales by order of the

Court, and investing the same.

(12.) As to all other matters specified in the foregoing rules and regulations.

11. The following regulations are hereby established, to be observed in the con- duct of business before the Primary Judge:-

(1.) Upon every application for the appointment of a guardian to an infant, or

for

30" VICTORIB, No. 20.

allowance for maintenance, the evidence to support the same must show the

following particulars :-

(l.) The age of the infant.

(2.) The nature and amount of his property and income.

(3.) Where and under whose charge the infant generally resides, and at whose

expense 11c ir maintained. (4.) What relations he has.

(5.) The position in life of such an infant and of his parents.

(6.) The residence, age, and positton in life, of the proposed guardian.

(7.) Any other circumstances showing his fitness for that office.

(8.) The written consent of such proposed guardian to act.

12. These regulations apply severally to all infants-female as well as male.

13. Upon any application, by petition, for the appointment of new Trustees, the

evidence to support the same must show the following particulars:-

(1.) The nature of the trusts still subsisting.

(2.) The nature and value of the property subject to such trusts.

(3.) The persons beneficially entitled.

(4.) The fitness of the proposed new trustees.

(5.) Their written consent to act.

14. Unless special circumstances require a reference for such appointment, the

cost of an application to the Court for a direct appointment only will be allowed.

15. Where a party, required to complete a purchase, objects to the title, and seeks

to have i t investigated, he must show in his answer, or by affidavit (as the case may

be), in the first instance, what the grounds of objection are, both as regards the several

matters of fact, and of law, relied on by him.

16. If the circumstances require a reference as to title, and the party objecting shall then rely on additional grounds, he will, in general, be allowed no costs, even though successful on some ground specified in the answer, or affidavit, as well as on one or more of such additional grounds.

APPENDIX OF FORMS,

1, FORM OF BILL.

(Referred to in Rule 2 of Chaptor IV.)

In the Supreme Court of South Australia. I n Equity.

Between John Lee, plaintiff, and James Atylcs and Henry Jones, defendant#.

To the Honorable Riohard Davies Hanson, Chief Justice, and tho Honorable Ben'nmin Boothb y

and Edward Castres Gwynne, Esquires, Puisne Judges of the Suprcmo ourt of south Australia. d

H U M ~ L Y complaining, John Lcc, of King William-street, in tha City of Adelaide, in the Colony of

South Australia, Esquirc, the above-named plaintiff, shcweth unto their IIonors as follows :-

l. The defendant, Jarnes Styles, being scited in fee simple of afarm called Blackacre, in tho County of B, with the appurtenances did, by an indenture dated the 1st of May, 1850, and made between the defendant James Styles of the one part, and the plaintiff of the othcr part, grant and convey the said farm, with the appurtenances, unto and to the use of t7e plaintiff, his heire and assigns, subject to a proviso for redemption thereof, in case the defendant, Jamea Styles, his heirs, executors, administrators or assigns, should on the 1st of May, 1851, pay to the plaintiff, his executore, adrninistratore, or assigns, the sum of &5,000, with intcrest thcrcon at t h rate of $6 per oentum per annum, as by the said indenture will appcar.

2. The whole of the said sum of &6,000, together with interest thereon at the rate aforesaid, is now due to the plaintiff.

3. The defendant, Elenrp J o ~ e s, claims to have some charge upon the farm and premises com-

prised in the said indenture of mortgage, which charge is subsequent to the plaintiffs said mortgage.

Ths plainkifFhas frequently applied to the defendants, James Styles and Henry Jonea and required them either to pay the said mortgage debt and interest, or else to release the equity of	redemption of
the premises, but they haw refused so to do.

4.

6. The defendants, James Styles and Hcnry Jones pretend that tbcrc are romo other mortgage#, charges, or incumbrsnces affecting the prcrniscs, but they refuse to discover the particulars thereof.

6. There are divers valuable timber and timber likc trees growing and standing on the farm and lands comprised in the indentue of mortgage on the 1st of May, 18S0, which trees and timber are a material part of plaintiff S aaid security; and if the same or any of them were felled and taken away, the said mortgaged premises would be an insdcient seczlrity to the plaintiff for the money dua thereon,

7. The defendant, James Styles, who is in possession of the said farm, has marked for felling a

large quantity of the said trees, and he has by hand-bills, published on the 2nd of December instant,

announced

3 Q

30' VICTORIB, No. 20.

Equity Act.-- 1866-7.

announced the same for sale, and threatens and intends forthwith to cut down and dispose of a con-

riderable quantity of the saidtrees on the said farm.

The plaintiff therefore humbly prays as follows: -

1, That an account may be taken of what is due for principal and interest on the said mortgage.

2. That the defendants, James Styles and ITenry Jones, may be decreed to pay to the plaintiff the amouut which shall be so found due, together with his costs of this suit, by a short day to be appointcd for that purpose; or, in default thereof, that thc defendants, James Stylea and Henry Joncs, and all persons claiming under thcm, may bo absolutely foreclosed of all right and equity of redemption in or to the said mortgaged premises.

8. That the defendant, James Styles, may be restrained by the Injunction of this Honorable Court from felling, cutting, or disposing of any of the timber or timber-like trees now stand- jng or growing in or upon the said farm and premises comprieed in thc said iudcnturo of mortgagc or any part thereof.

4. That .the plaintiff may have such further or other relief as the nature of the case may requira.

M. M,, Counsel for the Plaintiff.

NOTE.-This bill is filed by Messrs. B. & Co., =ug William-street, Adelaide, Solicitors for the

above-named plaintiff.

2. FORM OF ENDORSEMENT ON BILL OF COMPLAINT.

V I ~ O R X A R.-To the within-named defendant, C. D., greeting.-We command you (and every of

you, where there is more than one defendant) that within eight days after service hereof on you, exclusive c?f the day of such scrvice, you cause an appearance to be entered for you to the within bill of complaint [or information, ae the case may be] of the within-named A. B., and that you observe what our said Court shall direct.

Witness, &G.

Note.-If you fail to comply with the above directions the plaintiff may enter an appearance for you, and you

will be liable to have a decree or order made against you in your abaence.

Appearances to be entered at the Supreme Court Office, Victoria-square, Adelaide.

3. FORM OF INTER~O~ATORIEO.

(Referred to in Rule 1 of Chaptcr VI.)

f n the Bupreme Court of South Australia. I n Equity.

Between John Lee, plaintiff, and James Styles and Henry Jones, defendants.

Interrogatories for the examination of the above-namcd defendants, in answer to tho plaintifr bill ef

complaint.

1. Docs not the defendant, Henry Jones, claim to have some charge upon the farm and premisr

comprised in the indenture of mortgage of the 1st of May, 1850, in the pldntifPs bill mentioned 3

2. What are the particulars of such charge, if any, the date, nature, and short effect of the security

and what is due thereon ?

-3. Are or is thcre any other rnortgagcs or mortgage, charges or charge, incumbrances or in-

cumbrance, in any and what manner, affecting the aforesaid premises or any part thereof?

4. Set forth the particulars of such mortgages or mortgage, charges or charge, incumbrances or in-

cumbrance; the date, nature, and short effect of the security; what is now due thereon; anti who ia or are entitled thereto respectively; and when, and by whom, and in what manner every such mort- gage or incnmbrance was creatcd.

6. Are there not divers valuable, &C., &c.

MEMORANDUM.

The defendant, James Styles, is required to answer all these interrogatories.

The defendant, Henry Jones, is required to answer thc interrogatories numbered 1 and 3. Y. Y., Counrel for Plaintiff.

(Referred to R u b 1 A of Chapter X.)

In the Supremo Court of South Australia. I n Equity.

Between John Lee, plaintiff, and James Styles and EIenry Jones, defendants.

The answer of James Styles, one of the above-named defendants, to the bill of complaint of thr above-named plaintiff.

I n answer to the said bill, I, Jamer Styles, do on my oath say as follows :-

l. I believe that the defendant, Henry Jones, does claim to have a charge upon. the farm and pro-

mises comprised in the indenture of mortgage of the 1st of May, 1850, in the plaintiffa bill men-

tioned.

2. Such charge was created by an indenture datcd the 1st of November, 1880, between myself of the one part, and the said defendant, Homy Joncs, of the other part, whereby I granted and con- veyed the said farm and premises subject to the mortgage made by the said indenture of the 1st of rate of $6 per centum per annum, and the amount due thereon is the said sum of .S2,000, with May, 1850), unto the defendant, d enry Jones, for securing the sum of f12,000, and interest at thr

interest thereon from the date of such mortgage.

3. To the best of my knowledge, remembrance, and belief, there is not any other mortgage, charge,

or incumbrance, affecting the aforesaid premises.

JAMES STYLES.

S. W., Counsel foi &fendant.

This m w e r was sworn by the abo~enamed James Stylea, at Adelaide, this 16th day of Augunt,

1163, before me,

G, H. D., Maater in Equity.

6. FORM

30" VICTORIB, No. 20.

(Referred to in Rule 24 of Chapter XVIII.)

his Court] doth order [and decree] that the following accounts and inquiriea he t&ea

and made by t e Naster in Equity of this Honorable Court, that is to say-

l. An account of the personal estate not specifically bequeathed of A. B., deceased, the testator =Onor r

in the pleadings named, come to the hands, &c,

2. An account of the testator's dcbts.

3. An account of the testator's funeral expenses.

4. An account of the testator's legacies aud annuities (if any) by the testator's will.

6. An inquiry what parts (if any of the testator's aaid personal estate are outstanding or undin,.

posed of.

And it is ordercd that the testator's person11 cdate, not specific ~ l l y bequeathed, be appliel in pay- ment of hi9 debts and funeral cxp~nscs in a tluc courm of administration, and then in payment of the legacies and annuities (if any) given by his will.

(If ordered.)

And it is ordered that the following futther accounts and inquiriea be taken as aforesaid, that is t o

ray-

6. An inquiry what r cd cstatc thc testator was seized of, or cntitled to, at the time of his death.

7. An account of the rents and profits of the testator's real estatc rccoivod by, &c.

8 An inquiry what incumbrancee (if any) affect the testator's real estate, or any and what partr

thereof.

(If snle ordered.)

9. An account of what i s due to anch of the incumbrancers as shall consent to the salc herein-

after directed in respect of their incumbranccs.

10 An inquiry what are thc priorihics of such last meutioned incnmbranccs,

11. And it is ordered that the testator'a real estate be sold, with the approbation of the Master, &C., &c.

And it i s ordered that the consideration of all further directions nnd costs be reserved, an3 any of the perties are to be at liberty to apply as they may be advised.

6. FORK OF SUXMONS IN CHAMBERS,

ZTnder Part IF. of the foregoing Act.

(Referred to in Rule 5 of Chapter XXVII.)

In the Supremo Court of South Australia. I n Equity.

In the matter of the estate of John Thomas, dcccased.

UPON thc application of Joseph Wilson, of A, in the County of B, Esquire, who claima to bo a oreditor upon the estate of the above-named John Thomaa, let William Jackson, the cxecutor of tho said John Thomas, attend at my Chambers, in King William-street, Adelaide, on Monday, the 3rd day of June next, at ten in the forenoon, and show cause, if he can, why an order should not bo granted by the Supreme Court for the administration of the personal estate of the said John Thomau.

Dated this day of , 1866.

Primary Judge in Equity.

NOTE.--^^ the above-named William Jackson does not attend in person, or by his solicitor, at tha

time and place above mentioned, such order will be made in his absence as the Judge may think just.

a. H. D., Master in Equity.

This summons was taken out by Mr. B. K., King William-street, Adelaide, solicitor for the above-

anmed Joseph Wilson.

7. POEM OF SUMYONB I N ANY OTHER MATTER ORIOINATINQ IN ( ! E ~ A M ~ ~ K R s

Under thd Boperty Act, 1860. 4-

In the Supreme Court of South Australia. I n Equity.

I n the matter of the trust [will or administration] of and the matter of

the Act No. of 18 .

LBT all parties concerned attend at my Chambers, Supreme Court, King William-street, Adelaide, on

Tueaday, the 3rd day of September next, at 10 o'clock in the forenoon, on the hearing of an applica- tion on the part of [here rtate on whose behalf the application i s mndc, and thpreciar objcct of t h appli. cation.]

Datcd thie day of 186 .

Primary Judge in Equity.

NOTE.-If you do not attend, either in person or by solicitor, at the time and place above men-

tioned, such order will be made, and proceedings taken in his absence as the Judge may think just.

G. H. D., Master in Equity.

This summons was taken out bp Mr. B. K., of King William .street, Adelaide, solicitor for the -

above-named applicant.

8. FORM OF ORDEB UNDER PAXT V, OF THE FOREGO~NQ Am.

In the matter of A. B., late of , in the County of

banker [or as the case may be], deceased.

Upon motion this day made unto this Cou~ t by Mr. , of counsel of C. D., of

the exbcutsr (or administrator) of the above-named A. B. (or upon the humble petition of C. D., o f , the cxecutor or administrator) of the said 8. B., this day preferred unto this right honorable Court for the reasons therein contained. It is ordered that it be referred to the Master of this Court to take an account of the debta and liabilities affccting the personal estate of the

said

30" VJCTORIZ, No. 20.

For every application to inspect an afidavit ......................

For amending every record of a bill, petition, or special case ,,..... For every warrant or summons, but not more than one warrant or sum-

mons is to be issued on one bill or set of bills, unless the Maater

shall think it necessary to issue a new warrant or summona ......

Upon the taxation of every bill of costs, as taxed, where the amount

shall not exceed E20 ................................... .,.

Upon every additional S20 or fractional part thereof, a further fce of.. On all attendable petitio~s,. appeals, rehearings, and letters missive.. .. On all non-attendable petitions ..................................

On a matter of course order, on a petition of right ..............

On an order for a commission .........................,........

On every pctition set down for hearing, to include the fee on hearing..

On tho petition for every order of course ........................

Fcr transcript of accounts, at per folio of seventy-two words ........

Special Examiner's fees and charges-

For every day in which he is necessarily and without any default of his

own, detained in the performance of his duty as specisl examiner,

for his expenses, the sum of ................................

For every day in which hc is Bonri $de employed in the examination of

witnesses, the further sum of.. ..............................

For every mile he travels from hia place of residence to the place of

examination, and from lace to place where the examination is

adjourned, and from the $ace where he last acta in the emuination

of witnesses to his place of residence, the mm of ..........,...

..

Addaide: Printed by authority by W. C. Cex, Gorernment