mission of interest or liability, and praying the usual relief consequent thereon: provided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect as against such party until a guardian or guardians ad litem shall have been duly appointed for such party, and such time shall have elapsed thereafter as shall be prescribed by any general order of the lord chancellor in that behalf. taken, court may taking same. LIV. It shall be lawful for the court, in any case where any account is Where account required to be taken, to give such special directions, if any, as it may think required to be fit in respect to the mode in which the account should be taken or vouched, give special and such special directions may be given, either by the decree or order directions as to directing such account, or by any subsequent order or orders, upon its the mode of appearing to the court that the circumstances of the case are such as to require such special directions; and particularly it shall be lawful for the court, in cases where it shall think fit so to do, to direct that in taking the account the books of account in which the accounts required to be taken have been kept, or any of them, shall be taken as primâ facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objections thereto as may be advised. LV. If after a suit shall have been instituted in the said court in relation Court may order to any real estate it shall appear to the court that it will be necessary or real estate to be expedient that the said real estate or any part thereof should be sold for the sold, if required. purposes of such suit, it shall be lawful for the said court to direct the same to be sold at any time after the institution thereof, and such sale shall be as valid to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause; and any party to the suit in possession of such estate, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser or such other person as the court shall direct. Before sale of estate abstract of title to be laid before some con veyancing LVI. Before any estate or interest shall be put up for sale under a decree or order of the court of chancery, an abstract of the title thereto shall, with the approbation of the court, be laid before some conveyancing counsel to be approved by the court, for the opinion of such counsel thereon, to the intent that the said court may be the better enabled to give such directions counsel. as may be necessary respecting the conditions of sale of such estate or interest, and other matters connected with the sale thereof; and when an estate or interest shall be so put up for sale, a time for the delivery of the abstract of title thereto to the purchaser or his solicitor shall be specified in the said conditions of sale. Time of delivery of abstract to be specified in con ditions of sale. proceedings, LVII. Where any real or personal estate shall form the subject of any Where real or proceedings in the court of chancery, and the court shall be satisfied that personal property the same will be more than sufficient to answer all the claims thereon which is the subject of ought to be provided for in such suit, it shall be lawful for the said court at any time after the commencement of such proceedings to allow to the parties interested therein, or any one or more of them, the whole or part of the annual income of such real property, or a part of such personal property, or a part or the whole of the income thereof, up to such time as the said court shall direct, and for that purpose to make such orders as may appear to the said court necessary or expedient. annual income. Commencement of act. Short title. Power to court of damages in cer tain cases. An Act to amend the Course of Procedure in the High Court WHEREAS it is expedient to amend further the practice and course of proceeding in the high court of chancery, the court of chancery in Ireland, and the court of chancery of the county palatine of Lancaster: Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, as follows: I. This act shall commence and take effect from and after the first day of November, one thousand eight hundred and fifty-eight, and may be cited and referred to as "The Chancery Amendment Act, 1858." II. In all cases in which the court of chancery has jurisdiction to enterchancery to award tain an application for an injunction against a breach of any covenant, contract or agreement, or against the commission or continuance of any wrongful act, or for the specific performance of any covenant, contract or agreement, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction or specific performance, and such damages may be assessed in such manner as the court shall direct. Damages may be assessed or question of fact arising in any suit may be tried by a jury before the court itself. Questions ordered to be tried by jury to be reduced into writing. Damages may be III. It shall be lawful for the court of chancery, if it shall think fit, to cause the amount of such damages in any case to be assessed or any question of fact arising in any suit or proceeding to be tried by a special or common jury before the court itself; and the court of chancery may make all such rules and orders upon the sheriff or any other person for procuring the attendance of a special or common jury, for such assessment of damages or the trial of such question of fact, as may be made by any of the superior courts of common law at Westminster, and may also make any other orders which to the court of chancery may seem requisite; and every such jury shall consist of persons possessing the qualifications, and shall be struck, summoned, balloted for, and called in like manner, as if such jury were a jury for the trial of any cause in any of the said superior courts; and every juryman so summoned shall be entitled to the same rights and subject to the same duties and liabilities as if he had been duly summoned for the trial of any such cause in any of the said superior courts; and every party to any such proceeding shall be entitled to the same rights as to challenge and otherwise as if he were a party to any such cause; and generally for all purposes of or auxiliary to the assessment of damages or the trial of questions of fact by a jury before the court itself, and in respect of new trials, the court of chancery shall have the same jurisdiction, powers and authority in all respects as belong to any superior court of common law, or to any judge thereof for the like purposes; provided that from any order made by the court on an application made for a new trial there shall be the same right of appeal as from any other order of the court. IV. Any question of fact and any question as to the amount of damages which shall be so ordered to be tried by a jury before the court itself shall be reduced into writing in such form as the court shall direct, and at the trial the jury shall be sworn to try the said question, and a true verdict to give thereon according to the evidence; and upon every such trial the court of chancery shall have the same powers, jurisdiction aud authority as belong to any judge of any of the said superior courts sitting at nisi prius. V. It shall also be lawful for the court of chancery, if it shall think fit, to before the court cause the amount of such damages in any case to be assessed, or any ques- assessed or question of fact arising in any suit or proceeding to be tried before the court tions of fact tried itself without a jury, and to cause the evidence on the trial of that question itself without a to be taken by the oral examination of witnesses and other proofs in open jury. court; and any question of fact, and any question as to the amount of damages which shall be so ordered to be tried before the court itself, shall be reduced into writing in such form as the court shall direct; and the verdict of the judge shall be of the same effect as the verdict of a jury under this act; and the proceedings upon and after such trial, as to the power of the court, the evidence and otherwise, shall be the same as in the case of trial by jury under this act: provided that, in the case of a trial under this section, any person may apply for a new trial, either to the judge before whom the trial was had, or to the court of appeal in chancery. VI. It shall also be lawful for the court of chancery, in any case in which it shall think fit so to do, to cause the amount of such damages to be assessed by a jury before any judge of one of the superior courts of common law at nisi prius, or at the assizes, or before the sheriff of any county or city, and for that purpose to issue a precept to the sheriff of such county or city as the court of chancery shall think fit, or where the sheriff is interested then to the coroner, requiring him to return, summon and impanel a common or special jury for the purpose aforesaid, in like manner as is done in cases of writs of inquiry at common law, which are to be executed before a judge or before the sheriff; and the court of chancery shall have the power to set aside the verdict or inquisition on such inquiry, and to direct a new inquiry, in such manner and on such terms as the court shall think fit. VII. In any case in which all parties to a suit are competent to make admissions, any party may call on any other party by notice to admit any document, saving all just exceptions; and in case of refusal or neglect to admit, the cost of proving the document shall be paid by the party so neglecting or refusing, whatever the result of the cause may be, unless the court shall certify that the refusal to admit was reasonable; and no costs of proving any document shall be allowed unless such notice be given, except in cases where the omission to give the notice is, in the opinion of the taxing master, a saving of expense. Damages may be assessed by a jury before any judge of one of the superior courts of common law at nisi prius, or before the sheriff of any county or city. Where parties are competent to make admissions, any party may call on any other party to admit documents. SALES BY AUCTION. An Act for the Relief of the Suitors of the High Court of [1st July, 1852.] 42. Whereas by the act of the session holden in the eighth and ninth years of the reign of her present Majesty, chapter fifteen, a certain duty of excise is imposed upon every licence to be taken out by every person exercising or carrying on the trade or business of an auctioneer in any part of the United Kingdom; and it is thereby enacted, that every person who exercises or carries on the business of an auctioneer, or who acts in such capacity at any sale or roup, and every person who sells or offers for sale any goods or chattels, lands, tenements or hereditaments, or any interest therein, at any sale or roup where any person or persons become the purchaser of the same by competition, and being the highest bidder, or by any other mode of sale by competition, shall, except as hereinafter mentioned, Persons may sell by auction under an order of the without being liable to do duty imposed by 8 & 9 court of chancery Vict. c. 15. be deemed to carry on the trade or business of an auctioneer, and shall be required to take out such licence as thereby directed; and that every person who carries on the trade or business of an auctioneer as aforesaid without taking out such licence shall, except as thereinafter mentioned, forfeit one hundred pounds: And whereas doubts have arisen whether any sale or sales by way of auction can now be made under any order or decree of the court of chancery before any officer of the said court, or the persons by such officer in that behalf appointed, without rendering such officer or other person liable to take out such licence as by the said last-mentioned act is directed to be taken out by all persons acting as auctioneers; and it is expedient that such doubts should be removed: Be it therefore enacted, that it shall be lawful for any master in ordinary of the court of chancery, and for the chief clerk of any such master, and for every other person appointed in that behalf by any such master, to sell any goods or chattels, lands, tenements or hereditaments, or any interests therein, under any decree or order of the said court, by auction, or by any other mode of sale by competition, without any licence as an auctioneer, and without being liable to the duty imposed by the said last-mentioned act, or any other act or acts now in force. As to the term 'the court." Power to court to order sale instead of division. Sale on application of certain proportion of parties interested. As to purchase of share of party desiring sale. An Act to amend the Law relating to Partition. 31 & 32 Be it enacted, &c. 1. This Act may be cited as the Partition Act, 1868. 2. In this Act the term "the Court" means the Court of Chancery in England, the Court of Chancery in Ireland, the Landed Estates Court in Ireland, and the Court of Chancery of the County Palatine of Lancaster, within their respective jurisdictions. 3. In a suit for Partition, where, if this Act had not been passed, a decree for Partition might have been made, then if it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of the parties interested or presumptively interested therein, or of the absence or disability of some of those parties, or of any other circumstance, a sale of the property and a distribution of the proceeds would be more beneficial for the parties interested than a division of the property between or among them, the court may, if it thinks fit, on the request of any of the parties interested, and notwithstanding the dissent or disability of any others of them, direct a sale of the property accordingly, and may give all necessary or proper consequential directions. 4. In a suit for Partition, where, if this Act had not been passed, a decree for Partition might have been made, then if the party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, request the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly, and give all necessary or proper consequential directions. 5. In a suit for Partition, where, if this Act had not been passed, a decree for Partition might have been made, then if any party interested in the property to which the suit relates requests the court to direct a sale of the property and a distribution of the proceeds instead of a division of the property between or among the parties interested, the court may, if it thinks fit, unless the other parties interested in the property, or some of them, undertake to purchase the share of the party requesting a sale, direct a sale of the property, and give all necessary or proper consequential directions, and in case of such undertaking being given the court may order a valuation of the share of the party requesting a sale in such manner as the court thinks fit, and may give all necessary or proper consequential directions. 6. On any sale under this Act the court may, if it thinks fit, allow any Authority for of the parties interested in the property to bid at the sale, on such terms parties interested as to nonpayment of deposit, or as to setting off or accounting for the to bid. purchase-money or any part thereof instead of paying the same, or as to any other matters, as to the court seem reasonable. Trustee Act. 7. Section thirty of The Trustee Act, 1850, shall extend and apply to Application of cases where, in suits for Partition, the court directs a sale instead of a division of the property. (13 & 14 Vict. c. 60, s. 30.) 8. Sections twenty-three to twenty-five (both inclusive) of the Act of Application of the session of the nineteenth and twentieth years of her Majesty's reign proceeds of sale. (chapter one hundred and twenty), "to facilitate Leases and Sales of (19 & 20 Vict. c. 120, ss. 23, 24, "Settled Estates," shall extend and apply to money to be received on any 25.) sale effected under the authority of this Act. 9. Any person who, if this Act had not been passed, might have main- Parties to tained a suit for Partition may maintain such suit against any one or partition suits. more of the parties interested, without serving the other or others (if any) of those parties; and it shall not be competent to any defendant in the suit to object for want of parties; and at the hearing of the cause the court may direct such inquiries as to the nature of the property, and the persons interested therein, and other matters, as it thinks necessary or proper with a view to an order for partition or sale being made on further consideration; but all persons who, if this Act had not been passed, would have been necessary parties to the suit, shall be served with notice of the decree or order on the hearing, and after such notice shall be bound by the proceedings as if they had been originally parties to the suit, and shall be deemed parties to the suit; and all such persons may have liberty to attend the proceedings; and any such person may, within a time limited by general orders, apply to the court to add to the decree or order. 10. In a suit for Partition the court may make such order as it thinks Costs in partition just respecting costs up to the time of the hearing. 11. Sections nine, ten, and eleven of The Chancery Amendment Act, 1858, relative to the making of general orders, shall have effect as if they were repeated in this Act, and in terms made applicable to the purposes thereof. suits. As to general orders under this Act. (21 & 22 Vict. c. 27, ss. 9, 10, 11.) county courts (28 & 29 Vict. c. 99, s. 1.) in partition. 12. In England the county courts shall have and exercise the like Jurisdiction of power and authority as the court of chancery in suits for partition (including the power and authority conferred by this Act) in any case where the property to which the suit relates does not exceed in value the sum of five hundred pounds, and the same shall be had and exercised in like manner and subject to the like provisions as the power and authority conferred by section one of The County Courts Act, 1865. |