length w/i. Taxed costs may be adjusted by way of de-
duction or set-off (e), and such right of set-off is not inter-
fered with by solicitor's lien (/). Thus, costs due to a
party on an administration suit may be set off against
costs due from him on an unsuccessful motion for attach-
ment {{)). But costs in the High Court cannot be set off
against costs in Bankruptcy (h). Costs of an application
to extend time are, in the absence of any special Order,
in the discretion of the Taxing Master (i). Where each
(») In re Sanderson, 7 0L I». 176.
0. VI. 2.
I TiaptiKut v. Miilhiml Hull mil/ <\>., ~> (}. B. D. 1G7, 431.
(x) Homer v. Oyler, 41) L. J. Ch. D. 055.
v) 0. VI. :;.
I Pooley v. Driver, 5 Ch. D. 458.
d Prov. 8.
Mackley v. ChQlmgworth, 2 C. P. D. 273.
(c) Cracknatt v. Janson, 11 Ch. D. 1.
Gten. I'i'-v. 18.
• Do. 19.
(/) PrimgU v. Oloag, 10 Ch: I>. 676.
RobarU v . Bu - ' h. D. L98.
ih) Export* Oriffin, in re Adams, 14 Ch. I). 37.
(<', Ccn. i'rov. 22a.
TAXATION OF COSTS. 87
party succeeds on some counts, the Taxing Master may
properly assign costs proportionately (j). Certain allow-
ances, as, e.g., refreshers (k) and special journey or other
expenses under the head of general retainer (I) are within
the discretion of the Taxing Master (in). He may dis-
allow unnecessary or improper costs charged against a
third party (n), as, e.g., abortive garnishee summonses (o).
The Rules of any of the old Courts, whose jurisdiction
is transferred, remain in force where not inconsistent
with the Acts and Rules (}>), including the Rules of the
old Court of Chancery where not altered (q). So, where
a creditor brings an administration action on behalf of
himself and other creditors, or obtains the conduct of
such an action which had been originally brought by a
legatee or next-of-kin, he is entitled to his costs as be-
tween solicitor and client (r). But, where an Order for
costs is made by the Court of Appeal, the old practice
does not justify any postponement of taxation without
special direction (s). The Taxing Master may arrange
what parties are to attend before him (t), and a solicitor
has no statutory right to have the amount of his charges
settled by taxation only, as, e.g., against the trustee in
bankruptcy (w). An} 7 party dissatisfied may, before the
signing of the certificate or allocatur, deliver to the other
party, and carry in an objection in writing, specifying the
items or parts objected to (c), and without stating the
reasons for such objections (w) ; and the Taxing Master
shall reconsider his taxation (x), and if the certificate or
allocatur is objected to in respect of any such items
(j) Knight v. PurseU, 49 L. J. Ch. D. 1-20.
(A) Harrison v. Wearing, 11 Ch. D. 206.
;/: In n Snell (a .solicitor), 5 Cb. D. 815.
(m) Gen. Ppov. 29.
(n) Gen. Prov. 26.
(o) Simmons v. S/orcr, 14 Ch. D. 154.
(p) Gen. Prov. 28.
(q) Pringle v. Qloag, 10 Ch. D. 676.
(r) In re RicKardson, Richardson v. Richardson, 14 Ch. D. 611.
\s) Phihpps v. PhUipps, 5 Q. B. D. 60.
(0 Gen. Prov. 24.
(«) Ex parte JJitton, in re Woods, 13 Ch. D. 318.
(v) Gen. Prov. 30.
(w) Simmons v. Storcr, 14 Ch. D. 154.
it) Gen. Prov. 31.
8S THE LAW OF PRACTICE,
already objected to, such Order as may seem just may he
made on application to a -Judge at Chambers (y), on the
original evidence, or on further evidence if directed by
the Jndge (z). Costs cannot ordinarily be taxed by a
District Registrar {<i).
119. On appeals to the House of Lords, the appellant
shall give security to the Clerk of Parliaments by recog-
nizance to the amount of £500, and sureties or payment
down to the amount of £200 (6) ; and where any Order is
made for payment of costs without specifying the amount,
the Clerk of Parliaments or Clerk Assistant shall on ap-
plication appoint a person to tax costs, and shall give a
certificate in accordance with his report (c).
(y) In Millard v. Burroughes, W. N. 1879, 198, application by motion
before Fry, J., was allowed.
(z) <ifcii. Prov. '.VI, 33.
(a) Day v. Whittaker, 6 Ch. D. 734.
(b) St. 0. IV.
(c) Do. X.
PART VI.
MISCELLANEOUS.
120. An action may be transferred (1) by an Order of
the Lord Chancellor to another Division with the consent
of the Presidents of both Divisions, or to another Judge
of the Chancery Division (a) ; and (2) to another Division,
but not to another Judge (b), by an Order of Court of the
original Division (c), or semble, of any Judge of any
Division at Chambers (d), on application made on
notice (e), with the consent of the President of the
Division to which such action is to be transferred, but
whether without the consent of the President of the
Division from which, qmcre (/). Where the Judge to
whom an action is assigned is absent, urgent applications
will be heard by the Master of the Ptolls or a Lord Justice
of Appeal, on request to the Lord Chancellor, under
Judicature Act, 1873, s. 51, and not under O. LI. r. 2 (g).
In the Chancery Division, a transfer may be made of a
cause to another Judge for trial or hearing only, and all
other proceedings therein shall be taken as if no such
transfer had been made, unless the Judge to whom such
transfer for hearing is made shall direct any such proceed-
ings to be taken before him or a Peferee (/<) ; an&semble,
the Judge who transfers a cause for hearing has no juris-
(a) 0. LI. r. 1.
(b) Chapman v. Real Property Trust, 7 Ch. D. 732.
(c) 0. LI. r. 2.
(d) HiUmam v. Mayhew, Kelly, C. B., dubUante, 1 Ex. D. 132.
(e) Humphreys v. Edwards, -lf> L. J. Ch. D. llii.
(/) Storey v.' Waddle, 4 Q, B. D. 239.^
(g) Chapman v. Real Property Trust, 1 Ch. D. 732.
(h) 0. LI. r. la.
90 THE LAW OF PRACTICE.
diction to force an interlocutory application on the hear-
ing of the -Indue to whom such cause is transferred (/).
121. A Judge of the Chancery Division who has made
:i winding-up or administration Order has power, without
any further consent (,/), on ex parte application (A;), to
order the transfer to himself of any action in any other
Division by or against the company or representatives of
the testator or intestate (I). So, after decree, he may
transfer to his own Court an action of devastavit (m), and
while an administration action is pending, he may thus
transfer any action brought elsewhere against the executor
qua executor, hut not otherwise (/?). But where a
creditor's action is thus transferred after an administration
Order, it will not necessarily be stayed (o).
122. The Court or a Judge may, at the instance of
a defendant (}>), consolidate actions (q), and after con-
solidation may add new defendants (r) ; and on the
application of different plaintiffs, may enlarge the time for
the next step until one has been tried as a test-action (s),
and where for any reason (as non-appearance of the
plaintiff) such an action fails, may substitute another as a
test-action (t).
123. Where an action has been brought on a contract,
and the plaintiffs right has appeared from the pleadings,
or (if none) by affidavit or otherwise, but the defendant
alleges a right to be relieved from liability, an Order may
be made for the preservation or interim custody of the
subject-matter, or for bringing into Court or otherwise
securing the amount, in dispute (tt). And generally, the
Court or -Judge may, on application by a party, make an
(/ Uoyd v. Jones, 7 Ch. D. 390.
{j, 1 a n StiMs' Estate, Hanson v. Stubbs, 8 Ch. D. 154.
('/ /,, re Landore Siemens sir, l Co., 10 Ch. D. 489; Field v. Fitld,
W. .'.'. 1-77, 98 ; Whittaker v. Robinson, do. 201.
[I) o. LI. r. 2a.
(m) In n Tvnrns, 38 L. T. 679.
in) Chapman v. Mason, 40 L. T. 678.
o /„ n Timms, W. X. 1878, 1 tl ; 38 L. T. 679.
Amos v. Chadwick, 1 Ch. D. 869.
I. I.I. p. i.
(r) In n WorOey, 1 Qh, D. 180.
(,) Amos i Chadwick, t Ch. \). 869; Bennett v. LordBwry, 5 C. P. D. 339.
â– Robin Ml v. Chadwick, 7 Ch. I). 878 ; Akmh v. Chadwick, S Ch. D. 459.
0. LIJ. rr. 1, 5.
TRANSFER. — INTERLOCUTORY APPLICATIONS. 01
Order on terms for mandamus, injunction, or for a
receiver; or otherwise for detention, preservation, or
inspection of the subject-matter of the action (v), or for
sale of any goods which it is desirable to have sold at once
as being perishable, likely to be injured by keeping, or for
any other just and sufficient reason (w). And a writ of
injunction being abolished, injunction can only be obtained
by Judgment or Order (x). A defendant may apply before
judgment for injunction or for a receiver, even where the
plaintiff has given notice of a similar motion, but the
plaintiff himself will generally be appointed (y). Such"
jurisdiction may be exercised by the Court of Appeal even
where no previous application has been made to a
Divisional Court (z). But no such jurisdiction as to
inspection may be exercised by the Masters of the
Common Law Divisions (a).
An application (1) by the plaintiff for mandamus,
injunction, or a receiver, may be ex parti' or with notice ;
if for detention, preservation, or inspection, on notice to
the defendant after writ of summons : ("2) by an}' other
party, after his appearance and on notice to the plan-
tiff (b). Where a specific chattel claimed in an action is
retained by the other party b}' virtue of a lien or other-
wise as securit}-, the Court or Judge, on being satisfied by
the pleadings or affidavit or otherwise, may order the
property to be delivered up on payment into Court of the
amount claimed in respect of such lien with or without
interest and costs (c). But solicitor's lien does not pro-
tect any papers in the solicitor's hands from production
for inspection, if ordered (</). And the Court may on
motion during an action, or after decree for account,
order an undisputed minimum (e), or a sum sufficiently
{v) 0. LII. r. 3.
(w) Do. r. 2 ; and see Bartholomew v. Freeman (sale of a horse), 3 C. P. D.
316.
(.(â– ) 0. LII. r. 8. For cases on injunctions and receivers see Part I. para. o.
(//) San/ant v. Read, 1 Ch. I). (Kill.
(2) ////»/<- v. Warden, 1 Ex D. 309.
(a) 0. LIV. r. 2, Nov., 1878.
(b) O. LII. r. i.
(c) Do r. 6.
(d) Ex parte Bramble, in re Tdeman <(• England, W. N. 1880, 45.
(e) London Syndicate v. Lord, 8 Ch. D. 84.
9-Z THE LAW OF PRACTICE.
admitted as due by non-appearance of a party (/), to be
paid into Court.
124. In the administration of trusts for sale, or with
powei of sale, the sale, unless otherwise ordered, will be
given to the trustees (g). And where one trustee brings
an action against the rest, the sale will be given by pre-
ference to them (h). Where it has been given to deter-
minate persons, others (especially if parties) who interfere,
as by advertising, may be stopped by injunction (i).
125. Applications in an action, under the Rules, to a
Divisional Court or to a Judge in Court shall be by
motion (j ) ; and, except where expressly authorised by
the Rules, shall not be for a Rule or Order to show
cause (A). Two clear days' notice of any motion [except
by special leave (/)] shall be given to parties affected,
unless (1) where, by the previous practice, an Order or
Rule has been used to be made ex parte absolute; (2)
where otherwise provided under the present Rules ; (3)
where the Court or Judge, being satisfied that delay
might entail serious mischief, makes an Order ex parte on
terms, which Order the party affected may move to set
aside, and the Court will not so interfere by an inter-
locutory Order on behalf of one party in a way which may
injure the other in case he succeed in the cause itself (in) ;
(4) on motion for a Rule to show cause only (/?). Thus,
notice must be given in case of a motion calling on a
sheriff to show cause why he should not pay money
levied under a fi. fa. (o), of a motion to discharge with
costs a notice of appeal withdrawn by the appellant after
the respondent's brief had been delivered {p), of a motion
to send back a case to a Referee (q), Sec. But ex parte
application may be made for an Order nisi to vacate the
(/) Freeman v. Cox, 8 CL D. M8.
<</i 0. I-I I. r. 6a, March, 1879.
(h) In re Gardiner, 43 L. J. Ch. D. 644.
\i) Dean v. Wilson, 10 Ch. D. 136.
(;) O. LIU. r. 1.
(/.-) Do. r. 2.
</> Do. r. 4.
m) Evans v. Pvleston, W. N. 1880, 127.
n) 0. I. III. r. 'â– ',.
(o) Delmar v. Freemanile, 3 Ex. D. 'I'M.
In re Oakwell Collieries, 7 Ch. L>. 706.
((£) (Jraiie v. Taylor, 27 W. H. 412.
SALE. — CHAMBERS. 93
registration ns a lis pendens of an action which lias now
been dismissed (/•), such motion to be intituled "In the
mutter of 80 & 31 Vict. c. 47 and in the matter of [the
action j" Is), for making an Order of the House of Lords
an Order of the High Court (t), &c. And applications to
assign an administration bond (u), and to make a Kule to
pay money under an agreement of reference a rule of
Court (v), are not motions in an action, and do not
require notice. Where the party giving notice does not
appear, and the party served does, the latter may be al-
lowed costs (w). But if a party served has no interest (x),
or if the notice is clearly invalid (y), he is not entitled
to appear by Counsel merely to ask for costs.
126. A. Without hare, a plaintiff may serve any
notice, petition, or summons on any defendant who has
not appeared within the time limited (z).
B. With leave, obtained ex parte, he may serve notice
of motion along with the writ of summons, or before the
expiration of time limited for appearance ((/).
C. The Court or a Judge may, where necessary notice
has not been given, dismiss the application, or adjourn the
hearing until such notice is given (b), and generally may
adjourn the hearing of any application from time to time
on terms (c), and also may discharge an interlocutory
Order made by consent given under error on the side of
one party thereto (d).
127. Applications at Chambers are made by summons
in a summary way {e), and may be made before a Master
in the Common Law Divisions, except such as concern
(1) criminal proceedings and the liberty of the subject,
(r) Pon'e;/ v. Bosanquet, 7 Ch. D. 541.
(s) Glutton v. Lee, 7 Ch. D. 541 n.
(t) British Dynamite Co. v. Krebs, 11 Ch. D. 443.
(u) /â– / tin goods of Man/ Cartwright, 1 P. D. 422.
(v) In re Phillips v. Gill, 1 Q. B.' U. 78.
tw) Berry v Exchange Trading <'<>., 1 Q. B. D. 77.
(x) Campbell v. Holy Land, 7 Ch. 1». 136.
(y) Daubney v. Shuttleuorth, 1 Ex.. D. 53.
(z) O.LI II r. 7.
(a) Do. r. 8.
(b) Do. r. 5.
(c) Do. r. ti.
(d) Mullins v. Howell, 11 Ch. D. 763.
(e) 0. L1V. r. 1.
91 THE LAW OF PRACTICE.
(2) transfer of actions, (3) settlement of issues not by
consent, (4) discovery and inspection under 0. LI I. r. 3
(/), (5) appeals from District Registrars, (6) prohibitions,
injunctions, and similar Orders, (7) awarding or reviewing
taxation of costs, (8) charging Orders on stock not being
Orders nisi, (9) acknowledgements of married women.
As to interpleader : — where (1) all parties consent to a
final determination without a Jury or a Special Case, and
where (2) one party desires such a determination as to a
sum less than £50, the question shall be determined by
tlic Judge, unless the parties agree to refer it to the
Master; in all other cases the Master has jurisdiction (g),
A master or a District Registrar has no jurisdiction as to
leave tor serving a writ of summons or notice out of the
jurisdiction (//).
128. An appeal lies from a Master to a Judge at
Chambers by summons made returnable (i) within four
days after the Master's decision, or further time as
allowed (./'), and such time may, under certain circum-
stances, be enlarged (k) ; but an appeal shall be no stay
of proceedings, unless so ordered by a Judge orMaster(Z).
An appeal to the Court in the Common Law Divisions
shall be by motion on notice so made that the motion
itself may be heard within eight days (m), or nine, if the
eighth day be a Sunday (u), or, if no Court be mean-
while sitting, on the first du} T on which the Court sits
alter the eight days (o).
129. Where the facts are undisputed, questions of law
may be stated in the form of a special case
A. by concurrence of the parties, after issue of the
writ of summons { j>).
(/) fee para. 123.
0. LTV n: 2, 2a, Nov., 1878.
Do. r. 21,.
</) Bell v. North Staffordshire Railway Co., 4 Q. B. D. 205.
l.i v. r. 1.
QVihmix v. f,oi>'/nn i'litmif'fil Association. 4 C. P. D. 2b'3.
1 I.IV. r. r,.
(m) Fox \. Wallis, 2 C. P. D. 15.
n) Taylor v. Jones, 1 C. P. D. 87 ; and cf. 0. LVII. r. 3, para. 130.
(o) 0. LIV. r. 6; &8 amended March, 1879, subsequently to Crom v.
Samuels, - C. P. I». '-1 ; Hunt- v. Sheffield, i Ex. D. 150 ; Forrest v. Davies,
2'i \\". K. '•'■'■I. ( 'n in,' titled Rule, see Stirling v. Da Barry, 5 (j. B. 1). 65.
(p) 0. XXXIV. r. 1.
CHAMBERS. — TIME. 95
B. by Order of the Court or Judge (q), at any stage
between appearance and trial (r) ; wherever it appears,
from the pleadings or otherwise, that it is convenient to
raise such question first, and to stay all proceedings
which the decision of such question may render unneces-
sary. Except in extreme cases, the Court of Appeal
will not interfere with a Judge's discretion in so doing (s).
And by analogy, at the trial, if it appears that the decision
of a question of law may render a question of fact un-
necessary, the Court will hear the question of law first (t).
But where a married woman, infant, &c. is a party, no
special case shall be set down without leave on applica-
tion, supported by evidence that the facts are true so far
as the interests of such person are concerned (u). The
parties to a special case may agree in writing on a liqui-
dated sum payable by one to the other on judgment, with
or without costs, and enforceable by execution (v). But
no special case can be stated under 13 & 14 Vict,
c. 35 (w).
Where questions of fact are not sufficiently defined in
the pleadings, they may be directed to be stated in the
form of issues, to be settled, if the parties differ, bv the
Judge (.<•).
130. In computing time, months are generally
calendar months (//) ; Sunday, Christmas Day, and (food
Friday, are not counted in time limited to less than six
days (a); nor Sunday or other office holiday, when by
the expiration of the time limited, any act or proceeding
cannot be done or taken on that day (a). But service of
notice (as of an appeal) is not an act which requires the
offices to be opened (6). Pleadings shall not, without
direction, be amended or delivered in the Long Vaca-
te) Do. r. 2.
(r) Metropolitan Board of Works v. New Nicer Co., 2 Q. B D 67
is) Do.
(t) Pooleu v. Driver, 5 Ch. D. 460.
(tt) <». XXXIV. r. 4.
(r) Do. r. b'.
(w) Do. r. 7.
(.r) O. XXVI.
()/) O. LVI1. r. 1.
(2) Do. r. 2.
(a) Do. r. 3.
(b) Ex parte Xaffcry, re Lambert, 5 Ch. D. 365.
On THE LAW OF PRACTICE.
tion (c), nor shall it, without direction, be reckoned in
the time allowed for filing, amending, or delivering any
pleading (d). Service of notice or proceedings after six
o'clock shall count as on the following day, and after two
o'clock on Saturday as on the following Monday (e).
131. A. Time for delivering or amending pleadings
may be enlarged by written consent (/), or senible, further
enlarged (g).
B. Time for any act or proceeding may be enlarged or
abridged upon terms by a Court or Judge, even though
application is not made until after the expiration of such
time (//). But no Order can be made for leave to do one
act after another, where the Rules direct it to be done
before [e.g. leave to join another cause of action with an
action for recovery of land, cannot be obtained after the
issue of the writ(i)], or at the same time [e.g. no Order
that costs should not follow the event of a trial by a jury,
can be obtained on application to the Judge after the
trial (,/ )]. Nor can the time be extended for renewing a
writ, where the claim is already barred by the Statute of
Limitations (k). The Court of Appeal has original
jurisdiction to extend or abridge time (I).
132. Proceedings in a District Registry to final judg-
ment included, shall be taken in the District Registry, in
the Books of which shall be entered (1) every final judg-
ment and every Order for account on a defendant's
default, but except on default, a District Registrar has no
power to order account (m), (2) interlocutory judgment,
and final judgment after assessment of damages on
defaull of appearance or of pleading, unless otherwise
ordered by the Rules of Court or Judge (it). Actions in
(<r) 0. LVII. r. 4.
(d Do. r. 5.
[t Do r. 8. (/) Do. r. On.
(-/) K in'j v. Davenport, 4 Q. B. D. 402, was ilecided before the issue of
r. 6a.
</o 0. LVIII. r. 6.
(t) In re PUcher, PUcher r. Ifind, 11 Ch. D. 905.
(j) Baker v. Oaket, 2 Q, K. I>. 171.
(k) Doyle t. Kaufman, S Q. li. D. 340.
(/) Per Jessel, M. It., in /'uracil v. Great Western Railway Co., ] Q. B. D.
686.
(to) Irlam v. hlam, 2 Ch. D. 608.
(»; O. XXXV. r. Is.
TIME. — DISTRICT REGISTRY. 97
the Common Law Divisions shall be entered with the
Associates, and in the District Registry (o). An action
in the Chancery Division commenced in a District,
Registry, ought to be tried in London before the Judge
of* the Chancery Division to whom it has been assigned (p).
And where, by a decree of the High Court, account is
ordered in a District Registry, a subsequent sale under
direction of the Court may be held in London, at the
Judge's discretion (q).
133. Writs of execution arising out of an action in a
District Registry, Orders for examination of debtors for
garnishee purposes, garnishee Orders, and charging
Orders nisi, shall issue out of the District Registry,
unless otherwise directed (r). Costs shall be taxed in a
District Registry only (1) where the District Registrar
has power to enter final judgment on default of the
defendant («<?), or (2) where, under special circumstances,
the Court so directs (t). A petition by a solicitor for a
charging Order nisi on property recovered in a trial by a
jury must be presented to the Judge who tried the action,
and not to the Judge of the Chancery Division to whose
Court the action was attached (u). The District Regis-
trar has generally the same and similarly limited authority
and jurisdiction as a Master at Chambers (r). He cannot
make an administration decree, direct accounts or in-
quiries (w), appoint a receiver, or direct banking accounts
to be opened, or money to be paid into them (x). The
rules as to applications to him, reference by him to a
•Judge, appeals from him, and interim stay of proceedings,
are similar to those which govern proceedings before a
Master (//).
134. A. Where a writ issuing out of a District Registry
(o) 0. XXXV. r. lb., Dec. 1S79.
(/>) In re Smith, Hutchinson v. Ward, 6 Ch. D. 692.
(q) Macdonald v. Foster, 6 Ch. 1). 193.
(r) 0. XXXV. rr. 3, 3a.
(») Do. r. 3 ; and see Irlam v. Irlam, 2 Ch. D. 608.
(t) Day v. Whittaker, 6 Ch. I>. 734.
(u) Owen v. /lens/taw, 7 Ch. D. 385.
(v) O. XXXV r. 5.
[tc) Irlam v. Irlam, 2 Ch. D. 608.
(x) In n Smith, Hutchinson v. Ward, 6 Ch. D. 692.
(</) 0. XXXV. rr. 5—10.
'.'-• THE LAW OF PRACTICE.
is specially indorsed, Bind the plantiff (1) hns not within
tour days after appearance given notice of application
with n view to signing final judgment, or (2) has applied,
but the defendant has obtained leave to defend, and the
defendant has not in either case delivered a defence, the
defendanl may as of right remove the action from the
District Registry to London, before expiration of the
time limited for defence, by delivering notice to the
Registrar and service on the other parties (z).
B. Where the writ is not specially indorsed, the de-
fendant may similarly remove the action at any time
between appearance and expiration of the time limited
for defence (a).
C. In any other case, any party on showing sufficient
reason may apply for an order on terms (b) ; but if the
plaintiff ought to have brought the action in the High
Court on the ground that the amount exceeds £500, he
may, though successful, be ordered to pay the County
t ourt costs (c).
135. An Order on terms maybe made on application
by any party for sufficient reason to remove an action to
a' District Registry (d). But semble, without such Order
as above, the documents may be directed to he sent up
to London for the hearing, or an action may be set down
in the District Registry on motion for judgment in