such leave he should file a copy of such notice with the proper officer and serve it on the same persons and in the same way as if it were a writ of summons. The notice must state the nature and grounds of the claim, and must, unless otherwise ordered by the Court or judge, be served within the time limited for delivering his statement of defence. There must be served with such notice a copy of the statement of claim, or if there be no statement of claim, then a copy of the writ of summons in the action. Such person not a party to the action so served with such notice must enter an appearance to the action within eight days, or obtain leave to appear after such eight days have expired. If he does not appear, he is thereby deemed to admit the validity of the judgment obtained against such defendant, whether obtained by consent or otherwise.

If he does appear the defendant giving the notice may apply to the Court or a judge for directions as to the mode of having the question in the action determined; and the Court or judge upon the hearing of such application may if it shall appear desirable so to do give the person so served liberty to defend the action upon such terms as shall seem just, and may direct such pleadings to be delivered or such amendments in any pleadings to be made and generally may direct such proceedings to be taken and give such directions as to the Court or a judge shall appear proper for having the question most conveniently determined and as to the mode and extent in or to which the person so served shall be bound or made liable by the decision of the question. (Rules of the Supreme Court, Order XVI., rr. 18, 20, 21.)

197. What is the practice for bringing in a person not a party to the action against whom a defendant claims indemnity in respect of the matter on which he is sued, and what is the effect on the party so brought in?

The answer to this question is contained in the preceding

answer.

198. State shortly the principal steps in an action by a creditor for the administration of a testator's real and personal estate, where a statement of claim is delivered, but the debt is not contested. How should the writ be indorsed, and to what costs is the plaintiff entitled?

(1.) Writ of summons. The indorsement thereon will be as

follows:

"The plaintiff's claim is as a creditor of X. Y. of Whiteacre Farm, Blackacre, in the County of Berks, farmer. deceased, for £125, for money lent to X. Y. during his lifetime, to have the real and personal estate of the said X. Y. administered. The defendant C. D. is sued as the administrator, and the defendant E. F. is sued as the heir-at-law of the said X. Y."

If the higher scale of charges is not applicable, a certificate of the lower scale being applicable should be engrossed in duplicate, and one copy filed with the writ, and the other part, sealed by the proper officer, should be kept for production when required to pay any Court fees on the lower scale in the subsequent proceedings in the action. (2.) Statement of claim.

(3.) Statement of defence, if any, is delivered by the defendant or defendants.

(4.) Summons for affidavit of documents by both or either parties or party (if thought necessary).

(5.) Interrogatories by both or either parties or party (if thought necessary).

66

(6.) Notice of motion for judgment, which must be set down for hearing, and may if necessary be marked as a short cause" on the certificate of plaintiff's counsel where no argument on the construction of the will is needed.

(7.) Draw up judgment and take out summons to proceed thereon after having left a certified copy at chambers.

(8.) Proceed at chambers. Advertise for creditors, adjudication

on the claims. Take in list of debts as settled. Certificate of chief clerk as to debts. Take in list of assets as settled. Certificate of chief clerk as to assets.

(9.) Give notice of motion for, and proceed with hearing on further consideration, with or without further reference to chambers. Taxation of costs. The plaintiff is entitled to the full costs as between solicitor and client when taxed. (See Haynes's Chancery Practice.)

199. State briefly the principal directions which an order for administration of a testator's real and personal estate at the suit of a beneficiary should in an ordinary case contain.

How are the costs of suits to be borne? Has the rule been modified by any recent decision?

The judgment or order made in an administration action usually directs the following accounts to be taken :-(1.) Of the personal estate of the deceased. (2.) Of his debts. (3.) Of his funeral expenses; and the legacies and annuities bequeathed by his will. And (4.) an inquiry is ordered to be made as to what parts of his personal estate are outstanding or undisposed of. If there is any real estate to be administered, it is further ordered that an inquiry be made as to what real estates the deceased died seised or possessed of, and what (if any) incumbrances affect the same; and such estate is usually directed to be sold with the approbation of the judge. The information necessary to work out directions of this description is ordinarily required to be furnished by the personal and real representatives respectively by affidavits and schedules and exhibits thereto. (Haynes's Chancery Practice, 430.)

Where real and personal estates are being administered by the Court the general costs are borne by the personal estate; but though both estates are being administered by the Court in one action the costs exclusively occasioned by the administration of the real estate must be borne by the real estate. It is the proper course for the judge to apportion the costs between the two estates, and not to leave the apportionment to the taxing master. (Patching v. Barnett, 51 L. J. Ch. 74.) In other words, the costs of administration, so far as they have been increased by the administration of real estate, are to be borne by the real estate. (Re Middleton, Thompson v. Harris, (App.) 51 L. J. Ch. 273.)

Prior to the last-mentioned decisions it was understood that the whole of the costs were always paid exclusively out of the personal estate.

200. A tenant for life under a settlement having obtained a renewal to himself of a lease forming part of the settled property, and having died, a judgment in the Chancery Division is pronounced against his personal representatives, directing them to assign the renewed lease to the trustees of the settlement. What other directions would you suggest that the judgment should contain?

It would be proper, as the estate is to benefit by the lease, that the judgment should contain an inquiry as to the value of the original term, and also the value of the residue, and the portion of the term remaining, thus to arrive at the extent of the benefit the tenant for life had received. There should also be an inquiry as to the amount of the interest on the money paid by the tenant for life in obtaining the renewal, and the interest allowed would be compound interest. (Indermaur's Law Students' Journal, Vol. II., 39, citing Lewin on Trusts, 7th ed., 340, 341.)

Defendant denies

201. Action brought to recover commission. the claim, and claims by way of counterclaim the price of goods sold to plaintiff. The jury find a verdict for the plaintiff on his claim for £100, and for the defendant on his counterclaim for £200, and judgment is entered for the plaintiff for £100 and costs of suit, and for the defendant for £200 with costs of counterclaim. Upon what principle are the costs taxed?

The plaintiff is entitled to have taxed and paid to him the general costs of the action, and the defendant only the costs incurred in consequence of the counterclaim.

The principle will best appear from the following extract from the judgment of Brett, L.J., in Baines v. Bromley (50 L. J. Q. B. 465; 44 L. T. 916): "Here the judgment is in form, not that the defendants have a set-off, but counterclaim only. It is as if the defendants chose to deny the whole of the plaintiff's claim, and to rest on their cross-action. The costs have been taxed, however, as if the plaintiff had not succeeded at all in his action, but only on certain issues, and I think that that was wrong. That alone is sufficient to sustain the appeal. I have a firm opinion that where there is a claim with issues taken on it, and a counterclaim, not a set-off, but in the nature of a cross-action with issues on it, and where the plaintiff succeeds on the claim and the defendant on the counterclaim, the proper principle of taxation, if not otherwise ordered, is to take the claim as if it and its issues were an action, and then to take the counterclaim and its issues as if it were an action, and then to give the allocatur for costs for the balance to the litigant in whose favour the balance turns. In such a case where items are common to both actions the master would divide them. Where the so

called counterclaim is a set-off there is but one action." For the proper mode of taxation where there is a claim and pure set off, see Lowe v. Holme, 52 L. J. Q. B. 270.

202. Is there any, and, if any, what advantage gained by a plaintiff who has recovered judgment in an action for a sum of money over £50 issuing and putting in force a writ of elegit, instead of a writ of fi. fa., against the goods of the debtor (a trader), with reference to the provisions of the Bankruptcy Act, 1869?

There is the advantage of the plaintiff obtaining payment of his debt, although the trader-debtor files a liquidation petition or is adjudicated bankrupt, or both; whereas if he issues a writ of fi. fa. and he does not obtain actual payment from the sheriff of the amount levied before either or both the above events happen, the sheriff is bound to hand over the proceeds of the execution to the trustee under the bankruptcy proceedings, instead of to the execution creditor, if the sheriff receives notice of such proceedings within fourteen days after the sale of the debtor's goods. (Re Gourlay, Ex parte Abbott, 50 L. J. Ch. 80.) This arises in consequence of sect. 87 of the Bankruptcy Act, 1869 (32 & 33 Vict. c. 71), requiring besides the levy a sale of the goods and chattels, and under a writ of elegit there is in fact no sale, the goods and lands (if any) being handed over to the creditor at a valuation set upon them by a jury empannelled before and by the sheriff or his deputy upon the evidence of a valuer. The creditor thereupon becomes a secured creditor within 32 & 33 Vict. c. 71, s. 16, sub-s. 5, which he can enforce by sect. 12 notwithstanding adjudication. (See Re Watkins, Ex parte Evans, (App.) 49 L. J. Bkcy. 7; Turner v. Bridgett, 51 L. J. Q. B. 374.)

The creditor who issues a writ of elegit does not, however, avoid the doctrine of relation back if the levy is made after an act of bankruptcy has been committed by the debtor beforehand, though unknown to him. (Ex parte Sulger, 50 L. J. Ch. 687.)

203. What are estates held by “statute merchant," "statute staple," and "elegit," and to what extent have such estates been superseded?

A statute merchant was a bond of record under the hand and seal of the debtor authenticated by the King's seal, which rendered