In re Brooking, 2 Giff. 31; In re Smyth, 10 Ir. R. Eq. 66. See contra, In re Holden, 1 H. & M. 445; Soury v. Sowry, 6 Jur. (N.S.) 337; In re Tyler, 8 W. R. 540. On payment out to a married woman the Court does not require a deed acknowledged, but will make the order upon her examination only: In re Hayes, 9 W. R. 769. Examination was dispensed with where the fund in Court was small, and it was asked that the whole of it should be paid out to a mortgagee: Pollock v. Birmingham etc. Ry. Co.; In re Clarke's Estate, 13 W. R. 401. The object is to examine the married woman as to her election to have the money as money and not as land, and this examination could before the Fines and Recoveries Act be made in Court: Cunningham v. Moody, 1 Ves. Sen. 174; Binford v. Rawden, 2 Ves. 38; Standering v. Hall, 11 Ch. D. 652. Where a settlement is made of the fund in Court belonging to a married woman, the ultimate limitation in the deed is made in favour of the husband: In re Noake's Will, 28 W. R. 762. The Court will not pay out a fund to trustees for a married woman and her children: In re Horwood, 3 Giff. 218. Where the lands taken belonged to a corporation, subject, however, to certain rights of pasturage vested in the freemen of the borough, a portion of the fund representing the lands was appropriated for the benefit of the freemen in respect of their rights, and a scheme prepared relating to it, the remainder of the funds being paid out to the corporation; ex p. Mayor of Lincoln, 21 L. J. Ch. 621. In such a case the appropriated money was invested, and the dividends paid to the resident freemen at the same time in each year as they had been accustomed to enter upon the enjoyment of their rights of common, until the money could be invested in the purchase of other land, to be settled to the same uses as the land taken: Nash v. Coombes, L. R. 6 Eq. 51. In Fox v. Amhurst, L. R. 20 Eq. 403, the proceeds of waste and lammas lands belonging to a manor over which the copyhold tenants of the manor were entitled to common of pasturage, subject to bye-laws made by the homage, were divided among the copyhold tenants of the manor and the freeholders within the manor, according to the stint fixed by the bye-laws. See now the Commonable Rights Compensation Act, 1882, post, p. 219. Appeal from Order for payment out.-An order for 8 Vict. c. 18, s. 69. 8 Vict. c. 18, 8. 69 s. 70. Order for application and investment meanwhile. payment out of Court in stated proportions to several persons whom the Court declares to be absolutely entitled in such proportions respectively is really a final order, and the time for appealing from it will not be limited to twenty-one days, under Order LVIII. Rule 9 of the Rules of the Supreme Court: In re Leonard Jaques, 18 Ch. D. 392. LXX. Such money (a) may be so applied as aforesaid upon an order (b) of the Court of Chancery in England or the Court of Exchequer in Ireland, made on the petition (c) of the party who would have been entitled to the rents and profits of the lands in respect of which such money shall have been deposited; and until the money can be so applied it may, upon the like order (d), be invested by the said Accountant General (a) in the purchase of Three per Centum Consolidated or Three per Centum Reduced Bank Annuities, or in Government or real securities, and the interest, dividends, and annual proceeds thereof paid to the party who would for the time being have been entitled to the rents and profits of the lands. Petition-generally.-A large proportion of the applications under this section will henceforth be made on summons at Chambers [see R. S. C. 1883, O. LV. r. 2, in the Appendix, post], but the prior cases will still govern the practice. Where two funds paid in by separate corporations are to be invested together in the same purchase of lands, one petition only should be presented: In re Gore Langton's Estates, L. R. 10 Ch. 328; even though the funds have been dealt with by separate branches of the Court, S.C., in which case leave will be given to present one petition in both matters without transferring either of the latter: In re Lord Arden's Estates, L. R. 10 Ch. 445. Similarly, where two funds represent different estates subject to different trusts, one petition alone is allowed if the facts relating to both can conveniently be stated together: In re Pattison, 4 Ch. D. 207. Where an order has been made by one branch of the Court, all subsequent orders should be made in the same branch of the Court: In re Browne, 14 W. R. 298. Where a sole petitioner dies after an order made on a petition, and pending inquiries directed by that order, the Court will allow the petition to be continued and carried on by the executors of the deceased petitioner: In re Atkin's Estate, 1 Ch. D. 82; In re Youl, L. R. 16 Eq. 107. A new petition is requisite where, owing to a transmission of interest, the income has become payable to another person, but an order relating to arrears of income can be obtained on summons: In re Jolliffe's Estate, L. R. 9 Eq. 668. A petition for reinvestment in land may pray that part of the fund in Court may be invested in the purchase of given lands, and that the balance of the fund may be invested in purchases to be approved by the Judge at Chambers: In re the Dunraven Estates, 10 W. R. 56. In re Clarke's Devisees, 6 W. R. 812, Kindersley, V.C., held that a petition was the proper course even where the fund required to be dealt with was under 3001., and that an order could not be made upon summons at Chambers under Cons. Order xxxv. Rule 1. Petitioner-"party who would have been entitled to the rents and profits."-Just as in private settlements a power of sale and exchange to be exercised with the consent of the trustees is commonly given to the tenant for life, so under the Act the tenant for life has the control over the application of purchase-moneys, the Court occupying the place of the trustees: In re Browne, 6 Ry. Cas., 733; and the tenant for life being made a sort of protector of the settlement: ex p. Staples, 1 De G. M. & G. 294. The only person to petition is the person who would have been entitled to the rents and profits, and the Court has no authority under the Act to make an order on the petition of an annuitant or incumbrancer: ex p. Back, 2 Y. & J. 386; or of a remainderman: Nash v. Nash, 37 L. J. Ch. 927. Compare, as to the proper interpretation of these words, Taylor v. Taylor, L. R. 20 Eq. 297; 1 Ch. D. 426; 3 Ch. D. 146, in which the similar words contained in sec. 46 of the Settled Estates Act, 1877, came under discussion. Where church lands are taken by a company, the person 8 Vict. c. 18, s. 70. 8 Viot. o. 18, s. 70. entitled to the receipt of the rents and profits within the above section is the rector, although the freehold of the land taken was vested in trustees: In re St. Pancras Burial Ground, L. R. 3 Eq. 173; ex p. Rector of St. Martin's Birmingham, L. R. 11 Eq. 23; although the fund represents the value of a burial-ground which has been closed for burials by an Order in Council: S. C., and ex p. Rector of Liverpool, L. R. 11 Eq. 15. Petition-on whom to be served. The practice as to service varies according to the object of the petition. 1. Where the petition prays for the application of monies in Court in any other manner than in the purchase of land, it must be served upon the persons interested in remainder: In re Leigh's Estate, L. R. 6 Ch. 887. 2. Where the petition prays for reinvestment in land, and there are mortgagees and annuitants whose rights are not otherwise affected by the petition, the proper course is to serve such mortgagees or annuitants with a copy of the petition, and to pay them 428. for costs, giving them at the same time an intimation that if they appear upon the hearing they will probably have to pay their own costs: Order vI., Rule 17 of the Rules of the Supreme Court (Costs), August, 1875; In re Gore Langton's Estates, L. R. 10 Ch. 328; In re Halstead United Charities, L. R. 20 Eq. 48; ex p. Jones, 14 Ch. D. 624; ex p. L. and S. W. Ry. Co., 38 L. J. Ch. 527 (where a similar rule was laid down in the case of parties whose names appeared in the title of the account and were necessarily served, but who had ceased to have an interest in the fund). It need not be served on the persons entitled in remainder ex p. Staples, 1 De G. M. & G. 294; In re Browne, 6 Ry. Cas. 733; In re Lancashire and Yorkshire Ry. Co., 5 Jur. (N.S.) 113; In re Legge, 8 W. R. 559; Wilson v. Foster, 26 Beav. 398; nor upon trustees of terms for raising portions or for other purposes: In re Bowes' Estate (2), 12 W. R. 929; Wilson v. Foster, 26 Beav. 398. See, as to the practice on petition for the reinvestment in land of the proceeds of sale of lands belonging to a corporation, ex p. Mayor etc. of Lincoln, 6 Ry. Cas. 738. But where a suit is pending, and the petition is presented by the trustees, the parties to the suit must be served, unless the Court gives an express direction to the contrary In re Brandon, 2 Dr. & Sm. 162; Carpmael v. Proffitt, 17 Jur. 875. 3. Where the petition prays for payment out to persons becoming absolutely entitled it must be served on all the persons interested In re Long, 10 Jur. (N.S.) 417; on mortgagees: In re Brooke, 12 W. R. 1128; on trustees for the petitioner whose names appear in the title of the account: In re Burnell, 12 W. R. 568 ; ex p. Metr. Ry. Co., 16 W. R. 966; on the defendants to an action for administration: Eden v. Thompson, 2 H. & M. 6; Haynes v. Barton, L. R. 1 Eq. 422. If a mortgagor petitions for the payment out of the entire fund in Court to his mortgagee, the latter need not be served; or if served, the costs of his appearance will be borne by the petitioner: In re Hadfield, 7 Jur. (N.S.) 383; but if there are other incumbrancers these must be served: ex p. Baroness Braye, 32 L. J. Ch. 432. A petition praying that a fund in Court under this Act might be carried over and invested in trust in a pending suit, was held to have been properly served upon all the parties to the suit: In re Hull and Selby Ry. Co., 5 Ry. Cas. 458. Secus where the suit was in the nature of adverse litigation: In re Hore's Estate, ibid, p. 592; but where the parties are numerous an attempt should be made to join them as co-petitioners, when if they do not consent they appear at their own risk: Melling v. Bird, 17 Jur. 155. If they appear unnecessarily, the company can only be called upon to pay the costs of serving the respondents and not the costs of their appearance: Sidney v. Wilmer, 31 Beav. 338. 4. Where the petition is only one for the interim investment of money and for the payment of income, it is unnecessary to serve persons having charges on the inheritance, e.g. a jointress, portioners, or mortgagees: In re Morris' Settled Estates, L. R. 20 Eq. 470; or upon mortgagees of the life estate, unless they are in possession: In re Webster's Settled Estates, 2 Sm. & G. App. vi. ; ex p. Smith, 6 Ry. Cas. 150; In re Hungerford, 3 K. & J. 455 (contra, In re Brooke, 30 Beav. 233); or upon trustees: In re Dowling, 45 L. J. Ch. 568; or upon remaindermen: In re Finch, 14 W. R. 472. If the petition is under sec. 74, post, p. 161, as well as under this section, the remainderman should be served, though there is no question between him and the tenant for life: In re Crane's Estate, L. R. 7 Eq. 322. When the rents and profits were taken by a receiver appointed by deed for the benefit of the creditors of the tenant for life, the petition was held to be properly served on the mortgagees and receiver: In re Nash, 1 Jur. (N.S.) 1082. 8 Vict. c. 18, s. 70. |