specified in such notice whether he assents to or dissents from such application, or submits his rights or interests so far as they may be affected by such application to be dealt with by the court, and every such notice shall specify to whom and in what manner such notification is to be delivered or left. In case no notification shall be delivered or left in accordance with the notice and within the time thereby limited, the person to or for whom such notice shall have been given or left shall be deemed to have submitted his rights and interests to be dealt with by the court (w).

(w) This section corresponds in substance with 37 & 38 Vict. c. 33, s. 2. As to the mode of giving notices required by this section, see S. E. Act, Ords. Nos. 4-9, 11, 12, and 22, post, p. 665, et seq. The court has ordered notice to be given to a person of unsound mind (Re Crabtree, 10 Ch. 201); to a married woman resident out of the jurisdiction (Re Rylar, 24 W. R. 949); to an infirm person (Re Slark, 1875, W. N. 224); to persons who might be included in a class determinable at a future date (Re Chamberlain, 23 W. R. 852); and to infants contingently entitled (Re Dendy, 4 Ch. D. 879). Notification in writing of submission to the court by a married woman is sufficient without separate examination (Re Stanley, 1889, W. N. 164).

Notice as well as consent may now be dispensed with under sect. 27 of the present act. It has been dispensed with in the case of a child en ventre sa mère (Re Rayner, 1891, W. N. 152), and annuitants whose security was increased (Re Harris, 42 L. T. 583), and was not required to persons subsequent to an infant tenant in tail (Ib.) Before the present act it was dispensed with in the case of infants contingently entitled (Re Chamberlain, 23 W. R. 852); persons of unsound mind remotely interested (Re Franklin, 7 W. R. 45; Re Turbutt, 2 N. R. 158). Leave to effect service out of the jurisdiction of proceedings under the act was refused in Re Mewburn (22 W. R. 752), but granted in Re Rylar (24 W. R. 949). See S. E. Act, Ord. No. 4, post, p. 665; Re Busfield (32 Ch. Div. 132). For form of order, see Seton, 1474, 1475, 4th ed.

40 & 41 Vict.

c. 18, s. 26.

with notice

under certain circum

stances.

27. Provided also, that where on an application under this Court may act the concurrence or consent of any such person as aforesaid dispense shall not have been obtained, and in case such person cannot be found, or in case it shall be uncertain whether he be living or dead, or in case it shall appear to the court that such notice as aforesaid cannot be given to such person without expense disproportionate to the value of the subject-matter of the application, then and in any such case the court, if it shall think fit, either on the ground of the rights or interests of such person being small or remote, or being similar to the rights or interests of any other person or persons, or on any other ground, may by order dispense with notice to such person, and such person shall thereupon be deemed to have submitted his rights and interests to be dealt with by the court (x).

(x) See note to sect. 26 (ante).

28. An order may be made upon any application notwithstanding that the concurrence or consent of any such person as aforesaid shall not have been obtained or shall have been refused, but the court in considering the application shall have regard to

Court may dispense having regard to the

with consent,

40 & 41 Vict. c. 18, s. 28.

number and interests of parties.

Petition may be granted without consent, saving rights of

the number of persons who concur in or consent to the application, and who dissent therefrom, or who submit or are to be deemed to submit their rights or interests to be dealt with by the court, and to the estates or interests which such persons respectively have or claim to have in the estate as to which such application is made; and every order of the court made upon such application shall have the same effect as if all such persons had been consenting parties thereto (y).

(y) This section corresponds with 37 & 38 Vict. c. 33, s. 3.

The court will not dispense with the consent of persons equal in number and nearly equal in interest to the applicants (Taylor v. Taylor, 1 Ch. D. 433; 3 Ch. Div. 145). The consents of the following persons have been dispensed with: a remainderman whose estate was contingent on the death of four children without issue (Re Spurway, 10 Ch. D. 230; see Re Hooke, 1875, W. N. 29); a married woman having a small share (Re Cundee, 37 L. T. 271; Re Thorp, 1876, W. N. 251; see Re Rylar, 24 W. R. 949); a married woman having a contingent interest represented by trustees (Re Kilmorey, 26 W. R. 54); an infant remainderman born since the presentation of the petition (Re Lewis, 24 W. R. 103); a person too infirm to concur in writing (Re Slark, 1875, W. N. 224); and also (in cases decided before 37 & 38 Vict. c. 33) persons only remotely interested (Re Cholmondely, 1866, W. N. 388); tenants for life in remainder (Re Hutchinson, 14 W. R. 473); and persons who could not be presently ascertained (Beioley v. Carter, 4 Ch. 230; Re Strutt, 16 Eq. 629).

For form of order, see Seton, 4th ed. 1475, 1486.

29. Provided nevertheless, that it shall be lawful for the court, if it shall think fit, to give effect to any petition subject to and so as not to affect the rights, estate, or interest of any person whose concurrence or consent has been refused, or who non-consent has not submitted or is not deemed to have submitted his ing parties. rights or interests to be dealt with by the court, or whose rights, estate, or interest ought in the opinion of the court to be excepted (z).

Notice of application to be served on all trustees, &c.

Notice of application to be given

(z) This section corresponds to 19 & 20 Vict. c. 120, s. 18, but is considerably wider. Under that section the rights of legatees having charges on the estate have been left unaffected (Re Legge, 6 W. R. 20; Re Parry, 34 Beav. 462).

For form of order, see Seton, 1488, 1489, 1499, 4th ed..

30. Notice of any application to the court under this act shall be served on all trustees who are seised or possessed of any estate in trust for any person whose consent or concurrence to or in the application is hereby required, and on any other parties who in the opinion of the court ought to be so served, unless the court shall think fit to dispense with such notice (a).

(a) The wording of this section corresponds with 19 & 20 Vict. c. 120, s. 19. See as to notice, the note to sect. 26 (ante, p. 653).

As to notices under this section, see S. E. Act Orders, Nos. 16, 18, 22 (post, p. 667, 668). For form of order, see Seton, 1487, 4th ed.

31. Notice of any application to the court under this act shall, if the court shall so direct, but not otherwise, be inserted

c. 18, s. 31.

direct.

in such newspapers as the court shall direct, and any person or 40 & 41 Vict. body corporate, whether interested in the estate or not, may apply to the court by motion for leave to be heard in opposition in newspapers to or in support of any application which may be made to the if court court under this act; and the court is hereby authorized to permit such person or corporation to appear and be heard in opposition to or support of any such application, on such terms as to costs or otherwise, and in such manner, as it shall think (b).

(b) The wording of this section corresponds with 19 & 20 Vict. c. 120, s. 20, the following words, however, being added: "if the court shall so direct, but not otherwise." It has been said that the court will only so direct in exceptional cases (Re Chilcott, 1877, W. N. 259; see S. E. Act Orders Nos. 18-21, post, p. 667, Form 13, post, p. 674; Seton, 1476, 1486, 4th ed.) 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 parte 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).

tion under

32. The court shall not be at liberty to grant any application No applicaunder this act in any case where the applicant, or any party this act to entitled, has previously applied to either House of Parliament be granted for a private act to effect the same or a similar object, and such where a application has been rejected on its merits, or reported against by the judges to whom the bill may have been referred (c). (c) See S. E. Act Orders, No. 17 (post, p. 667). 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).

similar application has been rejected

by Parlia

ment.

of

powers to

33. The court shall direct that some sufficient notice of any Notice of exercise of any of the powers conferred on it by this act shall be the exercise placed on the settlement or on any copies thereof, or otherwise be given as recorded in any way it may think proper, in all cases where it directed by shall appear to the court to be practicable and expedient for the court." preventing fraud or mistake (d).

(d) See S. E. Act Orders, No. 23 (post, p. 668); Re Cross (27 B. 292); Re Burnley (1868, W. N. 148).

For form of order, see Seton, 1488, 4th ed.

34. All money to be received on any sale effected under the Payment and authority of this act, or to be set aside out of the rent or pay- application ments reserved on any lease of earth, coal, stone, or minerals as arising from of moneys aforesaid, may, if the court shall think fit, be paid to any sales or set trustees of whom it shall approve, or otherwise the same, so far aside out of as relates to estates in England, shall be paid into court ex parte reserved on rent, &c. the applicant in the matter of this act, and so far as relates to mining estates in Ireland, shall be paid into the Bank of Ireland to the leases.

c. 18, s. 34.

40 & 41 Vict. 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,

Discharge

of incumbrances.

Purchase of other hereditaments to be settled.

Buildings and repairs.

Other investments.

Payment to persons becoming

absolutely entitled.

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 (e);

The discharge or redemption of any incumbrance affecting 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 (ƒ). (e) 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.

(ƒ) A charge created to pay a fine on renewal has been discharged out of money received on a sale under this act (Re Barber, 18 Ch. Ď. 624), and an assessment for paving a new street (Re Hilliard, 38 L. T. 93).

Where money received on a sale under this act was laid out in land, the court required new trustees to be appointed to accept a conveyance (Re Sexton Barnes, 10 W. R. 416). Moneys liable to be laid out in the purchase of hereditaments, &c., may be applied in payment of the expenses of laying out roads and streets (Sects. 20 & 21, ante, p. 650).

It has been laid down in general that under this section money may be applied in erecting new buildings on the settled land, whether in addition 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 order made under the original jurisdiction of the court in Conway v. Fenton (40 Ch. D. 512), where land and money were settled on A. for life with remainder over, and part of the money was laid out in repairing buildings on the land: as to which, see also Re Household (27 Ch. D. 553); Re Jackson, Jackson v. Talbot (21 Ch. D. 786). Compare also the effect of the Thellusson Act on a trust for repairs, discussed in Re Mason, Mason v. Mason, 1891, 3 Ch. 467. 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 consols until it could be applied under this section, the court permitted 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).

The concluding words of the section are similar to those of sect. 69 of the L. C. C. Act, 1845, under which it has been held that trustees with a

66

power of sale are persons becoming absolutely entitled" (Re Hobson, 7 Ch. Div. 708; Ex p. Bowman, 1888, W. N. 179; but see Re Smith, 40 Ch. Div. 391; compare the wider language of the S. L. Act, 1882, s. 21,

sub-s. ix., post, p. 688). 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, p. 742.

For form of order as to appointment of trustees to receive rents or proceeds of sales, &c., see Seton, 1490, 1496, 1498, 4th ed.

40 & 41 Vict.

c. 18, s. 34.

moneys in

35. The application of the money in manner aforesaid may, Trustees if the court shall so direct, be made by the trustees (if any) may apply without any application to the court, or otherwise upon an order certain cases of the court upon the petition of the person who would be without apentitled to the possession or the receipt of the rents and profits plication to of the land if the money had been invested in the purchase of land (g).

(9) 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. 652, as to consents (Re Cleveland, 1 Dr. & S. 481), or by sect. 31, ante, p. 654, 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, 1496, 4th ed.

court.

36. Until the money can be applied as aforesaid, the same Until money shall be invested as the court shall direct in some or one of the can be apinvestments in which cash under the control of the court is for plied to be invested, and the time being authorised to be invested, and the interest and dividends to dividends of such investments shall be paid to the person who be paid to would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land (h).

(h) 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, 1886). As to what investments are authorized for cash under the control of the court, see R. S. C. Ord. 22, r. 17. An investment on mortgage has been authorized (Wall v. Hall, 11 W. R. 298).

For form of order as to an investment, see Seton, 1490, 1496, 1500, 4th ed.

parties en

titled.

37. Where any purchase money paid into court under the Court may direct appliprovisions of this act, shall have been paid in respect of any cation of lease for a life or lives or years, or for a life or lives and years, money in or any estate in lands less than the whole fee simple thereof, or respect of of any reversion dependent on any such lease or estate, it shall leases or be lawful for the court on the petition of any party interested in may appear just.

S.

UU

reversions as