clerk has power to issue summonses for parties or witnesses to attend and be examined before him.

The following is the form of summons given by the Orders of October, 1852, for this purpose:

In Chancery.

In the matter of the estate of John Thomas, late of — in the county of, deceased, or

Joseph Wilson
against
William Jackson.

The defendant William Jackson [or A. B., of &c.] is hereby summoned to attend at the chambers of the Master of the Rolls [or Vice-Chancellor ], in the Rolls Yard, Chancery Lane, [or Square, Lincoln's Inn, Middlesex,] on the day at of the clock in the noon, to be examined

No.

of

[or to be examined as a witness] on the part of the, for the purpose of the proceedings directed by the Master of the Rolls [or the said Vice-Chancellor] to be taken before me.

A. B., Chief Clerk. The summons was taken out by A. and B., of Lincoln's Inn, in the county of Middlesex, solicitors for .

It will be recollected that, under the 45th sect. of 15 & 16 Vict. c. 86, a power is given to creditors' legatees and next of kin to proceed at once without bill filed for a summons upon the personal representative of the deceased person, in whose estate they are interested, and that, by the 47th section, a similar power is given in the case of real estate, which is by devise vested in trustees, who are authorized by the Act to sell the same, and to give receipts for the rents and profits, and for the produce of the sale.1 A form of summons for a person proceeding in this form is given in the Orders of the 7th August, 1852.

In Chancery.

In the matter of the estate of John Thomas, late of the parish of H., in the county of M., deceased.

Joseph Wilson against William Jackson.

1 See Acaster v. Anderson, 19 Beav. 161; Ashley v. Sewell, 3 De Gex, M. & G. 933, as to the circumstances under which such a summons will be granted.

Upon the application of Joseph Wilson, of Russell Square, in the county of Middlesex, Esq., who claims to be a creditor upon the estate of the above-named John Thomas, Esq., William Jackson, the executor of the said John Thomas, attend at my chambers, in the Rolls Yard, Chancery Lane, Middlesex, [or at No. Square, Lincoln's Inn, Middlesex,] on the

day of

at of the clock in the afternoon, and show cause, if he can, why an order for the administration of the personal estate of the said John Thomas by the High Court of Chancery should not be granted.

John Romilly, Master of the Rolls, [or
Richard T. Kindersley, Vice-Chancellor.]

NOTE. If the above-named William Jackson does not attend
either in person or by his solicitor at the time and place
above mentioned, such order will be made in his absence
as the Judge may think just and expedient.

This summons was taken out by A. and B., of Lincoln's Inn, in the county of Middlesex, solicitors for the above-named Joseph Wilson.

One or other of the foregoing forms of summons, "or with such variations as the circumstances of the case may require "1 will be found applicable to all cases in which such a document is required. The 3d Order of October, 1852, then provides, that "A seal is forthwith to be prepared for the chambers of the Master of the Rolls and each of the Vice-Chancellors, and summonses are to be prepared by the parties and sealed by one of the clerks at the chambers of the Judge from whose chambers they are issued, and a copy of such summons is to be left at the Judge's chambers by the party obtaining such summons."

Moreover, with respect to proceedings originating in chambers the 4th Order directs, that "In cases of application under 15 & 16 Vict. c. 86, s. 45, applications for guardianship and maintenance of infants originating-in chambers (and of all other applications originating in chambers) a duplicate of the summons is to be filed in the Record and Writ Office, and in cases where service is required the copies served are to be stamped in the manner prescribed by sect. 46 of 15 & 16 Vict. c. 86."

1 Order 1 of 16th October, 1852.

The 46th section here referred to is as follows: — "A duplicate or copy of such summons shall, previously to the service thereof, be filed in the Record Office of the said Court; and no service thereof upon any executors or administrators shall be of any validity unless the copy so served shall be stamped with a stamp of such office, indicating the filing thereof, and the filing of such summons shall have the same effect with respect to lis pendens as the filing of a bill or claim."

By the 21st of the same Orders "At the time any summons or appointment is obtained an entry thereof is to be made in a book, called The Summons or Appointment Book,' stating the date on which the summons is issued or appointment made, the name of the cause and matter, and by what party, and shortly for what purpose such summons or affidavit is obtained and at what time returnable.”

The foregoing regulations provide for everything connected with the preparation of the summons.

With respect to the service of the summons

The 5th Order of 16th October, 1852, provides, that "In cases where proceedings originate in chambers the original summons is to be served seven clear days before the return thereof. All other summonses not being summonses referred to in Order 21 are to be served two clear days before the return thereof."

And by the 6th Order, "In cases where proceedings originate in chambers, and where from any cause the summons may not have been served upon any party seven clear days before the return thereof, an indorsement may be made upon the summons, and upon a copy thereof stamped for service, appointing a new time for the parties not before served to attend at the chambers of the Judge, and such indorsements are to be sealed at the Judges' chambers, and the service of the copy so indorsed and sealed is to have the same force and effect as the service of an original summons; and where any party has been served before such indorsement the hearing thereof may, upon the return of the summons, be adjourned to the new time so appointed."

No precise directions with respect to the service of a summons are given. Consequently, it may be well inferred, that, with respect to proceedings originating in chambers, when persons are

1 The summons here referred to is that to be issued by the chief clerk for the examination of parties.

summoned not at the time before the Court, the same practice will apply as before stated concerning the service of a copy of a bill and other documents that require personal service.1 When the person to be served is before the Court the summons will be served in the same manner as documents not requiring personal service.2

It will be observed, that "seven clear days" must intervene between the service and the return of the summons. The word "clear" takes this order out of the ordinary rule of computation. It would appear that the day of service and also the day of return must be excluded from the computation. In computing the "seven clear days," and the "four clear days," Sundays and the days when the offices are closed are included, unless the day of return falls upon them, in which case the return must necessarily be postponed to the following day.

With respect to the persons to be served in administration suits, the course of proceedings is this: - having ascertained who are the parties interested in the estate, upon the first summons before the Judge in chambers to proceed with the decree, the Judge will consider any circumstances which may be brought before him with reference to any of the parties, and direct who are the parties to be served, and whether service on any of them can be dispensed with.3

The summons having been duly served, an affidavit of service should be made and filed, and an office copy preserved. It is incumbent on the person served, if he is not already before the Court, to enter an appearance; for the 7th Order directs, that "In all cases when proceedings originate in chambers the parties served are, before they are heard in chambers, to enter appearances in the Record and Writ Office, and give notice thereof."

The appearance will be similar in form to the appearance to a bill. It will give an address for service, and notice will have to be given to the solicitor of the person serving the summons.

When the time comes for hearing the matter, concerning which the summons has issued, it will then be taken in its turn. By the 22d Order, lists of matters appointed for each day are to be made

1 Ante, p. 428.

Ibid., et seq.

De Balinhard v. Bullock, 9 Hare, App. xiii. And see Orders 18 & 19 of 16th October, 1852.

out and affixed outside the doors of the chambers of the respective Judges, and subject to any special direction, such matters are to be heard in the order in which they appear on such list.

With respect to the course of proceeding upon the hearing any matter in chambers, the following General Orders apply. "The course of proceeding in chambers is ordinarily to be the same as the course of proceeding in Court upon motions. No state of facts, charges or discharges are to be brought in; but when directed, copies, abstracts or extracts, of or from accounts, deeds or other documents, and pedigrees and concise statements are to be supplied for the use of the Judge and his chief clerk, and where so directed copies are to be handed over to the other parties. But no copies are to be made of deeds or documents when the originals can be brought in without special direction."

The practice of the Court on motions, which is by this Order made to apply in general to proceedings in chambers, will be stated in a subsequent chapter; but it may be here stated, that the notice of motion contains the form of order sought to be obtained, and is all that the Court has before it to determine the issue between the parties. The whole case for or against the motion is submitted in the shape of affidavits. This practice is very convenient and inexpensive for the hearing of the particular application; but it is open to the objection, that, on reference back to the proceedings at any future time, the foundation for the order, or the grounds for the refusal of the order, and everything else explanatory of it, are to be sought for from the contents of a variety of documents. Moreover, neither the orders themselves, made by the Judge or his clerk, nor the evidence wherein they were based, will be found in the proceedings of the office. This must in many cases produce confusion and some repetition in affidavits, but probably the balance of convenience is in favor of the simplest form of practice.

By the 24th Order of 16th October, 1852, "The party intending to use any affidavit in any proceeding in chambers is to give notice to the other parties concerned of his intention in that behalf." The rules with respect to filing affidavits in proceedings before the Court have been before fully stated,2 and they are made generally applicable to proceedings in chambers.

1 23d Order, October, 1852. Cannon v. Evans, 10 Hare, App. iii. Ante, p. 893 et seq.