40 & 41 Vict. c. 18, s. 31. No applica- this act to ment. Notice of the exercise of powers to be given as directed by the court. Payment and arising from sales or set aside out of rent, &c. reserved on mining leases. exceptional cases (Re Chilcott, 1877, W. N. 259; see S. E. Act Orders, Nos. 18-21, post, p. 651; Form 13, post, p. 657; Seton, 6th ed. 1791, 1792). The following cases were decided under the former act. Substantial agreement between the petition and the advertisements is sufficient (Re Whiteley, 8 Eq. 574; Re Bicknell, 14 Eq. 467; Re Snell, 19 W. R. 1000); especially where all parties are before the court (Re Hemsley, 16 Eq. 315). Where the petition is amended, the court did not necessarily direct fresh advertisements to be issued unless the amendment involved new facts and new parties (Re Bunbury, 13 W. R. 370; Ex p. Puxley, I. R. 2 Eq. 237). As to dispensing with the repetition of advertisements, see further Re Horton (34 Beav. 386); Re Corbet (1866, W. N. 318); Re Wilkinson (9 Eq. 71); Re Marshall (15 Eq. 66); Re Wilkinson (21 W. R. 537); Re Kentish Town Estate (1 J. & H. 230); Wheeler v. Tootel (16 W. R. 273). 32. The court shall not be at liberty to grant any application under this act in any case where the applicant, or any party entitled, has previously applied to either House of Parliament for a private act to effect the same or a similar object, and such application has been rejected on its merits, or reported against by the judges to whom the bill may have been referred. See S. E. Act Orders, No. 17 (post, p. 651). A rejection by either House will be presumed to have been on the merits, if the contrary is not shown (Re Wilson, 1 L. T. 25). 33. The court shall direct that some sufficient notice of any exercise of any of the powers conferred on it by this act shall be placed on the settlement or on any copies thereof, or otherwise recorded in any way it may think proper, in all cases where it shall appear to the court to be practicable and expedient for preventing fraud or mistake. See S. E. Act Orders, No. 23 (post, p. 651); Re Cross (27 B. 292); Re Burnley (1868, W. N. 148). For form of order, see Seton, 6th ed. 1794. 34. All money to be received on any sale effected under the authority of this act, or to be set aside out of the rent or payments reserved on any lease of earth, coal, stone, or minerals as aforesaid, may, if the court shall think fit, be paid to any trustees of whom it shall approve, or otherwise the same, so far as relates to estates in England, shall be paid into court ex parte the applicant in the matter of this act, and so far as relates to estates in Ireland, shall be paid into the Bank of Ireland to the account of the Accountant-General ex parte the applicant in the matter of this act; and such money shall be applied as the court shall from time to time direct to some one or more of the following purposes, namely, So far as relates to estates in England the purchase or redemption of the land tax, and so far as relates to estates in Ireland the purchase or redemption of rentcharge in lieu of tithes, crown rent, or quit rent (g) ; c. 18, s. 34. The discharge or redemption of any incumbrance affecting 40 & 41 Vict. the hereditaments in respect of which such money was paid, or affecting any other hereditaments subject to the same uses or trusts; or The purchase of other hereditaments to be settled in the same manner as the hereditaments in respect of which the money was paid; or The payment to any person becoming absolutely entitled (h). (9) The express provision as to the redemption of tithe rentcharge, crown rent, or quit rent on Irish estates is new. But with this exception this section corresponds with 19 & 20 Vict. c. 120, s. 23, the decisions under which appear to be applicable. (h) A charge created to pay a fine on renewal has been discharged out Discharge of money received on a sale under this act (Re Barber, 18 Ch. D. 624), of incumand an assessment for paving a new street (Re Hilliard, 38 L. T. 93). brances. Where money received on a sale under this act was laid out in land, the Purchase of court required now trustees to be appointed to accept a conveyance (Re other hereSexton Barnes, 10 W. R. 416). Moneys liable to be laid out in the purchase ditaments to of hereditaments, &c., may be applied in payment of the expenses of be settled. laying out roads and streets (sects. 20 and 21, ante, p. 632). It has been laid down in general that under this section money may be Buildings applied in erecting new buildings on the settled land, whether in addition and repairs. to existing buildings or in substitution for ruinous buildings (Drake v. Trefusis, 10 Ch. 367; Re Leigh, 6 Ch. 887; Re Speer, 3 Ch. D. 262; Donaldson v. Donaldson, 3 Ch. D. 743; Vine v. Raleigh, 1891, 2 Ch. 13; as to a mansion-house burnt down, see Jesse v. Lloyd, 48 L. T. 656); but cannot be applied in executing repairs or permanent improvements (Drake v. Trefusis, sup.; Brunskill v. Caird, 16 Eq. 493; see, however, Re Newman, 9 Ch. 681; Re Leadbitter, 30 W. R. 378). Compare the orders made under the general jurisdiction of the court providing for the expenditure of money on settled land, where a case of salvage was established (Conway v. Fenton, 40 Ch. D. 512; Re Household, 27 Ch. D. 553; Re Jackson, Jackson v. Talbot, 21 Ch. D. 786); but refused where the case did not amount to salvage (Re De Teissier, 1893, 1 Ch. 153; Re De Tabley, Leighton v. Leighton, 1896, W. N. 162; Re Montagu, Derbis hire v. Montagu, 1897, 2 Ch. 8; Re Willis, Willis v. Willis, 1902, 1 Ch. 15; Re Legh, 1902, 2 Ch. 274). Compare also the effect of the Thellusson Act on a trust for repairs, discussed in Re Mason, Mason v. Mason (1891, 3 Ch. 467); and see the note to sect. 25 of the S. L. A. 1882 (post, p. 680). Under this section money will not be applied in repaying to the tenant for life money expended by him in new buildings (Re Leigh, 6 Ch. 887; see Jesse v. Lloyd, 48 L. T. 656). Where money received on a sale under this act had been invested in Other inconsols until it could be applied under this section, the court permitted vestments. the consols to be sold and the proceeds re-invested under sect. 21 of the S. L. Act, 1882 (Re Tennant, 40 Ch. D. 594). Proceeds arising from leaseholds for lives sold under this act (as to which there was a trust for renewal out of rents) were invested in ordinary securities and the income paid to the tenant for life (Re Barber, 18 Ch. D. 624), 66 The concluding words of the section are similar to those of sect. 69 of Payment to the L. C. C. Act, 1845, under which it has been held that trustees with a persons power of sale are persons becoming absolutely entitled" (Re Hobson, becoming 7 Ch. Div. 708; Ex p. Bowman, 1888, W. N. 179; Re Ward, 28 Ch. D. absolutely 100; Re Morgan, Smith v. May, 1900, 2 Ch. 474; but see Re Smith, 40 entitled. Ch. Div. 391; compare the wider language of the S. L. Act, 1882, s. 21, sub-s. ix., post, p. 674). Money received from sales under the S. E. Act, 1877, has been paid to trustees to be held on the trusts of the settlement (Re Morgan, 9 Eq. 587; Re Hemsley, 29 L. T. 173; see Re Evans, 14 Ch. D. 511). Before payment out to a tenant in tail, a disentailing deed should be executed (Re Broadwood, 1 Ch. D. 438; Re Reynolds, 3 Ch. Div. 61; contra, Re Wood, 20 Eq. 372); and an affidavit of no incumbrances should be made (Thornhill v. Millbank, 12 W. R. 523). Where the survivor of a husband and wife was entitled absolutely in default of issue, and the wife was past child-bearing, money was paid to their joint account on the execution of a deed acknowledged by the wife (Re Belt, 37 L. T. 272; 25 W. R. 901). Payment of the purchase-money of a lunatic's land into court to the credit of a lunacy is not a payment "to a person becoming absolutely entitled" (Re Barker, 17 Ch. Div. 241). As to the effect of this section on conversion, see Re Lloyd (9 P. D. 65), and note to sect. 8 of the Partition Act, 1868, post. For form of order as to appointment of trustees to receive rents or proceeds of sales, &c., see Seton, 6th ed. 1797, 1801. 35. The application of the money in manner aforesaid may, if the court shall so direct, be made by the trustees (if any) without any application to the court, or otherwise upon an order of the court upon the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land. This section corresponds to 19 & 20 Vict. c. 120, s. 24, under which the following cases were decided. The court directed the application of money by the trustees in Re Peacock (15 W. R. 100); Re Hoare (30 W. R. 177). Petitions under this section are not affected by sect. 24 (ante, p. 634), as to consents (Re Cleveland, 1 Dr. & S. 481), or by sect. 31 (ante, p. 237), as to advertisements (Re Sexton Barnes, 10 W. R. 416); as to service, see Re Bolton (19 W. R. 429). For form of order, see Seton, 6th ed. 1799. 36. Until the money can be applied as aforesaid, the same shall be invested as the court shall direct in some or one of the investments in which cash under the control of the court is for the time being authorised to be invested, and the interest and dividends of such investments shall be paid to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land. The order should specify the particular investment (Re Taylor, 28 W. R. 594). The mode of investment must be according to the course of the court (Re Woodcock, 13 Eq. 183; see Supreme Court Funds Rules, 1894). As to what investments are authorised for cash under the control of the court, see R. S. C. Ord. 22, rr. 17, 17a. An investment on mortgage has been authorized (Wall v. Hall, 11 W. R. 298). For form of order as to an investment, see Seton, 6th ed. 1796, 1800. 37. Where any purchase money paid into court under the provisions of this act, shall have been paid in respect of any lease for a life or lives or years, or for a life or lives and years, or any estate in lands less than the whole fee simple thereof, or of any reversion dependent on any such lease or estate, it shall be lawful for the court on the petition of any party interested in such money to order that the same shall be laid out, invested, accumulated, and paid in such manner as the said court may consider will give to the parties interested in such money the same benefit therefrom as they might lawfully have had from the lease, estate, or reversion in respect of which such money shall have been paid, or as near thereto as may be. For an order as to the proceeds of leaseholds, see Re Walsh (7 L. R. Ir. 554). 40 & 41 Vict. c. 18, s. 37. Court powers exercise may powers re ercise them 38. The court shall be at liberty to exercise of the any conferred on it by this act, whether the court shall have already exercised any of the powers conferred by this act in respect of peatedly, but the same property or not; but no such powers shall be exercised may not exif an express declaration that they shall not be exercised is con- if expressly tained in the settlement: Provided always, that the circumstance negatived. of the settlement containing powers to effect similar purposes shall not preclude the court from exercising any of the powers conferred by this act, if it shall think that the powers contained in the settlement ought to be extended. An express declaration that the trusts for sale in a will should not be exercised during a certain period, was held not to prevent the court authorizing a sale (Re Peake, 1893, 3 Ch. 430; see Re Williams, 1878, W. N. 189; and also Re Hurle, 2 H. & M. 196; Re Cleveland, 22 W. R. 818, decided under 19 & 20 Vict. c. 120, s. 26, which was in somewhat wider terms). 39. Nothing in this act shall be construed to empower the court to authorize any lease, sale, or other act beyond the extent to which in the opinion of the court the same might have been authorized in and by the settlement by the settlor or settlors. Court not to authorize any could not act which have been authorized by the settlor. Acts of the dated. 40. After the completion of any lease or sale or other act under the authority of the court, and purporting to be in pur- court in prosuance of this act, the same shall not be invalidated on the suance of ground that the court was not hereby empowered to authorize this act not the same, except that no such lease, sale, or other act shall have to be invaliany effect against such person as herein mentioned whose concurrence or consent ought to be obtained, or who ought to be served with notice, or in respect of whom an order dispensing with such service ought to be obtained in the case where such concurrence or consent has not been obtained and such service has not been made or dispensed with. Orders under this section are valid in favour of a purchaser, notwithstanding any want of jurisdiction, and notwithstanding the exception in this section (Conv. Act, 1881, s. 70, ante, p. 603); even if the irregularity appear on the face of the order (Re Hall Dare, 21 Ch. D. 41; see also Beioley v. Carter, 4 Ch. 232; Re Shepheard, 8 Eq. 571; Re Clough, 15 Eq. 284, decided under 19 & 20 Vict. c. 120, s. 28). 41. It shall be lawful for the court, if it shall think fit, to Costs. order that all or any costs or expenses of all or any parties of c. 18, s. 41. 40 & 41 Vict. and incident to any application under this act shall be a charge on the hereditaments which are the subject of the application, or on any other hereditaments included in the same settlement and subject to the same limitations; and the court may also direct that such costs and expenses shall be raised by sale or mortgage of a sufficient part of such hereditaments, or out of the rents or profits thereof, such costs and expenses to be taxed as the court shall direct. Rules and orders. Rules and orders to be laid before Parliament. For form of order as to costs, see Seton, 6th ed. 1794, 1800; Re Tunstall (14 L. T. 352). 42. General rules and orders of court for carrying into effect the purposes of this act, and for regulating the times and form and mode of procedure, and generally the practice of the court in respect of the matters to which this act relates, and for regu. lating the fees and allowances to all officers and solicitors of the court in respect to such matters, shall be made [so far as relates to proceedings in England by any three or more of the following persons, of whom the Lord Chancellor shall be one, namely, the Lord Chancellor, the Lord Chief Justice of England, the Master of the Rolls, the Lord Chief Justice of the Common Pleas, the Lord Chief Baron of the Exchequer, and four other judges of the Supreme Court of Judicature to be from time to time appointed for the purpose by the Lord Chancellor in writing under his hand, such appointment to continue for such time as shall be specified therein, and] so far as relates to proceedings in Ireland by any three or more of the following persons, of whom the Lord Chancellor of Ireland shall be one, namely, the Lord Chancellor of Ireland, the Lord Chief Justice of Ireland, the Master of the Rolls in Ireland, the Lord Chief Justice of the Common Pleas, and the Lord Chief Baron, and four other judges of the superior courts in Ireland to be from time to time appointed for the purpose by the Lord Chancellor of Ireland in writing under his hand, such appointment to continue for such time as shall be specified therein, and such rules and orders may from time to time be rescinded or altered by the like authorities respectively, and all such rules and orders shall take effect as general orders of the court. See S. E. Act Orders (post, p. 648 et seq.). The part of this section relating to England has been repealed (42 & 43 Vict. c. 78, s. 29). 43. All general rules and orders made as aforesaid shall be laid before each House of Parliament within forty days after the making thereof if Parliament is then sitting, or if not, within forty days after the commencement of the then next ensuing session, and if an address is presented to her Majesty by either House of Parliament within the next subsequent forty days on which the said house shall have sat, praying that any such rule or order may be annulled, her Majesty may thereupon |