Court, in such cases, are usually made by summons, supported by affidavit or other evidence of the facts.1 CH. XXIX. § 2. For leave to bring or defend action or suit. Getting in Where the object is to commence or defend any action, suit, or other legal proceeding, the opinion of counsel, in actual practice, is usually required that there is a good ground of suit or defence.2 Where the outstanding estate of a testator or intestate is directed to be got in with the approbation of the Judge, applications estate. may be made by summons for leave to sell or convert the same, or to take proceedings or accept a composition in respect thereof.* outstanding of property. Among other subjects of application at Chambers, relating to Management the management of property under the direction or control of the Court, may be mentioned: drainage; investments in the purchase, or on mortgage, of land; repairs; renewing leases, and admission to copyholds; and cutting and selling timber." 8 leases: agreement. Summons to carry it into Where the sanction of the Court or Judge is necessary to the Granting letting of property on lease,10 the terms thereof are reduced into writing, in the form of an agreement conditional on the approval Conditional thereof by the Court or Judge." A summons for an order to carry such agreement into effect is thereupon taken out and served; and the application is supported by the production of the agreement, effect. and by the affidavit of a land agent, or other competent person, support. stating the grounds on which, in his judgment, the agreement should be adopted.12 The power to demise on the terms of the agreement must also be shown, by the production of the probate of the testator's will, the settlement, or other evidence thereof. Evidence in on. If the agreement is approved, an order is made, directing it to be Order therecarried into effect, and that the lease to be granted pursuant thereto be settled by the Judge, either absolutely or in case the parties differ. Where it is necessary for the Judge to settle the Settlement of lease, a certified copy of the order, if drawn up, is left at Cham- lease. 1 For form of summons, see Vol. III. 2 See ante, p. 310. 3 As to the duties of trustees and executors, in respect of outstanding property, see 2 L. C. Eq. 733-739; 2 Spence Eq. Jur. 923-924; and see 23 & 24 Vic. c. 145, § 30. For various forms of orders relating to outstanding estate or securities, see Seton, 189-191. For form of summons see Vol. III. 5 Seton, 527. 6 Ante, p. 1339 et seq. 7 Seton, 506, 510, 513. 8 lb. 513-521. 16. 505-513; and post. 10 As to powers of leasing, see Sugd. Pow. 711-835; 22 & 23 Vic. c. 35, §§ 1-9; 23 & 24 Vic. c. 38, § 6; Sugd. Stat. 310313; Shelford R. P. Acts, 683-686, 695; and post, Chap. XLV., Statutory Jurisdiction (Settled Estates). As to contracts be tween landlord and tenant; the rights and 11 As to agreements relating to land, see 12 For forms of summons and affidavit, see Vol. III. 2 4 bers, and a summons to settle the lease is taken out and served;1 the draft is brought in and settled, either by the Judge or his Chief Clerk, with the assistance, if necessary, of one of the conveyancing counsel; the draft is then engrossed; an affidavit verifying the engrossment of the lease, and of the counterpart, if any, is brought in; the Chief Clerk signs a memorandum of allowance in the margin of each engrossment; and thereupon ordinarily issues his certificate of the result of the proceeding: which is completed in the usual manner. Where, however, as often happens, the draft lease is settled at Chambers before the order approving the contract is drawn up, the order may combine the approval of the engrossments, and thereby save the expense of a certificate." Raising Money by Sale or Mortgage. 8 Where an order directs money to be raised by a sale or mortgage of an estate, upon the return of the summons to proceed on the order, or at an adjournment thereof, the proximate sum required is ascertained, and the mode of raising it determined upon. Where the amount is to be raised by sale, the sale is conducted and the purchase-money paid into Court, and subsequently dealt with, in the manner hereafter stated." Where the amount is to be raised by mortgage, and a person willing to advance the money has been found by the parties, an abstract of the title to the estate proposed to be mortgaged is furnished to his solicitor: by whom, or whose counsel, the title is investigated, and the draft of the mortgage prepared.10 A copy of the draft is then left at Chambers, and is settled there, in the same manner as other deeds." At this point, the precise sum required is usually ascertained: for which purpose, subsequent interest will be computed; and the costs, including the costs of the mortgage, will be taxed by anticipation, and certified by the Taxing Master.12 The total amount to be raised having been 1 Ord. XXXV., 15, 16, ante, p. 1103. For form of summons, see Vol. III. 2 Ante, p. 1327-1330. 8 For forms of affidavit, see Vol. III. 4 For form of memorandum, see Vol. 5 The certificate is sometimes dispensed 6 For form of minute of order in such CH. XXIX. § 2. ascertained, the draft is engrossed, and verified by affidavit, as in other cases. An order will then be made, on summons, approving the mortgage; giving leave to the mortgagee to pay the money into Court; and directing that, upon such payment, the mortgage be executed by the proper parties: who will be named in the order. Upon production at Chambers of an office copy of the Application of Accountant-General's certificate of the payment having been made, mortgage and an affidavit of the due execution of the mortgage, a certificate will be made of the manner in which, or the persons to whom, the amount raised by the mortgage is to be applied or paid; and on production of an office copy of such certificate, the AccountantGeneral will pay the money accordingly.2 5 Where the estates of any deceased person have been ordered to be sold or mortgaged for the payment of his debts, the Court may direct, and, if necessary, compel, any infant heir or devisee to convey such estate, in such manner as the Court shall direct; and such conveyance is to be as effectual as if the infant was of full age; and where an estate devised in settlement has been ordered to be sold or mortgaged for the payment of the debts of the testator, the Court may direct any tenant for life or other person having a limited interest, to convey the whole interest in the estate so to be sold or mortgaged, in such way as the Court thinks proper; and such conveyance is to be as effectual as if the person executing it was seised of the whole estate." 6 The surplus of the money raised by the sale or mortgage, which remains after answering the purposes for which it was raised, and defraying all reasonable costs and expenses, is to be considered in all respects of the same nature, and descend or devolve in the same manner, as the estate or the lands so sold or mortgaged, and to belong to the same persons, be subject to the same limitations and 1 For form of order, see Seton, 245, No. 13; and for form of summons, see Vol. III. 2 See post, Chap. XLI., Payment out of Court. 8 2 & 3 Vic. c. 60, § 1; Shelford R. P. Acts, 485; Seton, 688. + 11 Geo. IV. & 1 Will. IV. c. 47, § 11; Shelford, 483. Including copyholds, since 3 & 4 Will. IV. c. 104; Branch v. Browne, 2 De G. & S. 299; 12 Jur. 768; and extended by 11 & 12 Vic. c. 87, to estates which are by descent, or otherwise than by devise, vested in the heir or co-heirs of the debtor, subject to an executory devise over to a non-existing or unascertained person. Shelford, 486. 62 & 3 Vic. c. 60, § 1; Shelford, 485; Seton, 688. 7 11 Geo. IV. & 1 Will. IV. c. 47, § 12; see Brook v. Smith, 2 R. & M. 73; Scholefield v. Heafield, 8 Sim. 470; Penny v. Pretor, 9 Sim. 135; Radcliffe v. Eccles, 1 Keen, 130. For the mode of enforcing the execution of deeds, see ante, pp. 1042 et seq., 956. The execution of the conveyance may still be enforced under the above Acts: Sugd. Stat. 411-412, 417, n., 419; Headlam, 2, n.; but the usual practice now is for the decree or order directing the sale or mortgage to declare that the infant, heir, devisee, or tenant for life, is a trustee within the meaning of the Trustee Act, 1850, see post, Chap. XLV., Statutory Jurisdic tion (Trustee Acts), and then to obtain a vesting order; Seton, 688. For cases under the above Acts, see ibid.; Shelford, R. P. Acts, 483-486; Sugd. Stat. 418, 419; and for forms of orders, see Seton, 825-827. money. Conveyances under order and by limited owners. Surplus of money raised to be con sidered real property. CH. XXIX. § 2. Proceedings at Chambers under order. General jurisdiction in the case of infants. provisions, and be applicable to the same purposes, as such estate or lands would have belonged and been subject and applicable to, in case no such sale or mortgage had been made.1 Apportionment of Deficient Fund. Where, from a deficiency in the assets or any other cause, a fund has to be apportioned amongst a class,2 the fund, if small, is usually directed to be apportioned in amounts to be verified by affidavit. In other cases, the apportionment is directed to be made at Chambers in which case, upon the return of the summons to proceed * on the order directing the apportionment, a concise statement is directed to be brought in, showing the fund to be apportioned, the charges upon it, and the persons amongst whom, and in what amounts, it is divisible." If any costs are payable out of the fund, they will be taxed by anticipation. A certificate of the apportionment, showing in a schedule the amount payable to each person, and the debt or sum in respect of which it is an apportionment, is then made and filed, and upon production of an office copy thereof to the Accountant-General, he will pay the apportioned amounts accordingly.7 Appointment and Removal of Guardians of Infants. 8 The power of appointing guardians, and making orders for maintenance, constitutes a part of the general and important jurisdiction which the Court of Chancery exercises for the protection of the property of infants, and the safe custody of their persons, Summary ex- during their minorities; and this jurisdiction has long been exer ercise. 1 2 & 3 Vic. c. 60, § 2; and see Jermy v. Preston, 13 Sim. 356, 366; Cooke v. Dealey, 22 Beav. 196; Shelford R. P. Acts, 485. 2 As to the distinction between real and personal, and legal and equitable assets, see Haddan, 66-79; 2 L. Č. Eq. 88-104; Ram on Assets, 181-203; Smith's Comp. 500; Trower, 268-275; Williams's Real Assets, 1-14; and for the principles on which assets are applied and distributed in Equity, see Haddan, 90-139; Ram, xix.-xxvii.; Smith's Comp 502-514; Trower, 295–306; Williams's Real Assets, 95-118. 8 See forms of orders in Seton, 141, 142, 5 For form of statement, see Vol. III. 7 See post, Chap. XLI., Payment out of 8 As to the various kinds of guardianship of infants, see Macpherson on Infants, 2-114, liii.-lxii.; Chambers on Infants, 5480, 861; 2 L. C. Eq. 563-570. As to the appointment of guardians by the Court of Chancery, and its control over guardians, see Macpherson, 95-151, Ix.-lxii.; Chambers, 81-105, 158-200, 862-864; 2 L. C. Eq. 570-588; Seton, 702. As to the custody of infants, under 2 & 3 Vic. c. 54, and guardianship of infant felons, under 3 & 4 Vic. c. 90, see post, Chap. XLV., Statutory Jurisdiction. See as to interference on appeal with discretion of Judge in making appointment, Re Kaye, L. R. 1 Ch. Ap. 387, L. JJ. As to the respect shown to guardian appointed by a foreign Court, see Nugent v. Vetzera, L. R. 2 Eq. 704; 12 Jur. N. S. 781, V. C. W. 9 For the origin and history of this jurisdiction, see Co. Litt. 89, a, Hargrave's note (70), § 16; 2 Fonb. Eq. 226, n.; F. N. B. 232; Story Eq. Jur. § 1327 et seq.; Macpherson on Infants, 95; 1 Spence Eq. Jur. 611 et seq.; Wellesley v. Duke of Beaufort, 2 Russ. 120; S. C. nom. Wellesley v. Wellesley, 2 Bligh N. S. 124; Ex parte Birchel, 3 Atk. 813; Re Bond, 11 cised in a summary way: formerly on petition, and now by summons,' without requiring a bill to be filed.2 Where a suit is instituted for the direction of the Court in relation to the estate or person of an infant and for his benefit, or for the administration of property in which he is interested, the infant, whether plaintiff or defendant, becomes a ward of Court the instant that the suit is commenced. In this character, he is considered to be under the particular care of the Court; and he is equally entitled to its protection, whether he is under the immediate tutelage of a father, of a statutory or common-law guardian, or of a guardian appointed by the Court: but the Court does not assume to itself the actual guardianship of infants. Where a fund, in which a female infant was interested, had been paid into Court under the Trustee Relief Act," and an order made for maintenance thereout, it was held that she thereby became a ward of Court. But payment into Court under the Legacy Duty Act,' of a legacy to which an infant is entitled, or under the Lands Clauses Act, of the purchase-money of land belonging to an infant taken for public purposes,1o does not constitute the infant a ward of Court. In order that the benefit arising from the protection of the Court may be extended to all cases in which interference is desirable, it is permitted to any person to commence proceedings on behalf of infants; subject, however, to the risk of incurring the censure of the Court, and of being compelled to pay the costs of the suit, in the event of its subsequently appearing that the proceedings were improperly instituted." Jur. 114, V. C. K. B.; Jones v. Powell, 9 1 15 & 16 Vic. c. 80, § 26, ante, p. 1323. 2 It is stated, that the earliest case upon record of the exercise of this power of appointing a guardian upon petition, without suit,"occurred in the year 1696, in the case of Hampden;" Co. Litt. 89 a, Hargrave's note (170), § 16. It appears, however, upon reference to the Registrar's books, that cases of a similar kind occurred at an earlier period. Ex relatione, Mr. Monro. 3 Macpherson, 103; Hughes v. Science, ib. Ap. 1; Ambl. 302, ed. Blunt, n.; 2 Eq. Ca. Abr. 756, pl. 14. Macpherson, 103; and see Story Eq. Jur. § 1352; Eyre v. Countess of Shaftsbury, 2 P. Wms. 118; Goodall v. Harris, ib. 560, 562; Butler v. Freeman, Amb. 302; Hughes v. Science, ubi sup. ; Wright v. Naylor, 5 Mad. 77; Wellesley v. Wellesley, and S. C. nom. Wellesley v. Duke of Beaufort, ubi sup. ; Gynn v. Gilbard, 1 Dr. & S. 356; 7 Jur. N. S. 91; Stuart v. Moore, 4 Macq. H. L. 1; 7 Jur. N. S. 1129; 9 H. VOL. II. L. C. 440; S. C. nom. Marquis of Bute v. 25 5 10 & 11 Vic. c. 96. 6 Re Hodges, 3 K. & J. 213; 3 Jur. N. S. 860; and see Re Hoare, 4 Giff. 254; Re Tweedale, John. 109; and post, Chap. XLV., Statutory Jurisdiction (Trustee Relief Acts). 736 Geo. III. c. 52, § 32; see post, Chap. XLV., Statutory Jurisdiction (Legacy Duty Acts). 8 Re Hilary, 13 W. R. 959, V. C. K.; 2 Dr. & Sm. 461. 9 8 & 9 Vic. c. 18; see post, Chap. XLV., Statutory Jurisdiction ( Lands Clauses Act)." 10 Re Wilts Railway Company, Ex parte Brewer, 13 W. R. 959, V. C. K. 11 Starten v. Bartholomew, 6 Beav. 143; Sale v. Sale, 1 Beav. 586; Fox v. Suwerkrop, ib. 583; Raven v. Kerl, 2 Phil. 692; ante, pp. 74, 75, 79. CH. XXIX. § 2. What consti tutes a ward of Court. Any person inay comceedings on behalf of mence pro infants. |