(46 L. J. Ch. 667); Belcher v. Williams (45 Ch. D. 510). When there are incumbrances on the shares only one set of costs in respect of each share will be allowed out of the fund (Catton v. Banks, 1893, 2 Ch. 221; Ancell v. Rolfe, 1896, W. N. 9; Re Vase, Langrish v. Vase, 1901, W. N. 124; see, however, Belcher v. Williams, 45 Ch. D. 510; and see Wilkinson v. Joberns, 16 Eq. 14). As to costs of trustees, see IIervey v. Olliver (57 L. T. 239). The costs must be taxed as between party and party, unless by consent of all parties (Ball v. Kemp- Welch, 14 Ch. D. 512). The costs of perusing the conveyance by the solicitors of the parties not conducting the sale are costs in the action, under the Solicitors' Remuneration Act, 1881 (General Order, 1882, r. 2 (c); Humphreys v. Jones, 31 Ch. Div. 30). As to the lien of a solicitor on the shares for his costs, see Lloyd v. Jones (40 L. T. 514); and as to his costs of appearing where he had obtained a charging order, see Mildmay v. Quicke (6 Ch. D. 556).

[Sect. 11 of the Partition Act, 1868, read in connection with sect. 11 of 21 & 22 Vict. c. 27, gave power to make general orders for carrying this act into effect. But these provisions have been repealed by 44 & 45 Vict. c. 59, 8. 3, as to England; where the power to make rules of court is now given by sect. 17 of the Jud. Act, 1875. As to Ireland and the County Palatine of Lancaster, power to make general orders was given by sect. 11 of 31 & 32 Vict. c. 40, and sects. 9 and 10 of 21 & 22 Vict. c. 27.]

12. In England the county courts shall have and exercise the like power and authority as the Court of Chancery in suits for partition (including the power and authority conferred by this act) in any case where the property to which the suit relates does not exceed in value the sum of five hundred pounds, and the same shall be had and exercised in like manner and subject to the like provisions as the power and authority conferred by section one of "The County Courts Act, 1865."

See now sect. 67 of County Courts Act, 1888. Where in a case commencing in a County Court the proceeds of sale exceeded 5007., the matter was transferred to the High Court (Rawlinson v. Miller, 1 Ch. D. 52).

39 & 40 Vict. c. 17, s. 1.

Short title.

Application of act.

Power to

1. This act may be cited as the Partition Act, 1876, and shall be read as one with the Partition Act, 1868.

2. This act shall apply to actions pending at the time of the passing of this act as well as to actions commenced after the passing thereof, and the term "action" includes a suit, and the term "judgment" includes decree or order.

3. Where in an action for partition it appears to the court dispense with that notice of the judgment on the hearing of the cause cannot be served on all the persons on whom that notice is by the Partition Act, 1868, required to be served, or cannot be so served

service of

notice of

decree or

without expense disproportionate to the value of the property to 39 & 40 Vict. which the action relates, the court may, if it thinks fit, on the c. 17, s. 3. request of any of the parties interested in the property, and order in notwithstanding the dissent or disability of any others of them, special cases. by order, dispense with that service on any person or class of persons specified in the order, and, instead thereof, may direct advertisements to be published at such times and in such manner as the court shall think fit, calling upon all persons claiming to be interested in such property who have not been so served to come in and establish their respective claims in respect thereof before the judge in chambers within a time to be thereby limited. After the expiration of the time so limited all persons who shall not have so come in and established such claims, whether they are within or without the jurisdiction of the court (including persons under any disability) shall be bound by the proceedings in the action as if on the day of the date of the order dispensing with service they had been served with notice of the judgment, service whereof is dispensed with; and thereupon the powers of the court under the Trustee Act, 1850, shall extend to their interests in the property to which the action relates as if they had been parties to the action; and the court may thereupon, if it shall think fit, direct a sale of the property and give all necessary or proper consequential directions.

There must be either service or advertisement of the judgment; the court cannot dispense with both (Hacking v. Whalley, 51 L. J. Ch. 944; 1882, W. N. 135; Phillips v. Andrews, 56 L. T. 108; see, however, Barton v. Barton, 1877, W. N. 23). For form of order dispensing with service, see Re Hardiman, Pragnell v. Batten (16 Ch. D. 360).

4. Where an order is made under this act dispensing with Proceedings service of notice on any person or class of persons, and property where service is sold by order of the court, the following provisions shall have is dispensed

effect:

(1.) The proceeds of sale shall be paid into court to abide the

further order of the court:

(2.) The court shall, by order, fix a time, at the expiration of
which the proceeds will be distributed, and may from
time to time, by further order, extend that time:
(3.) The court shall direct such notices to be given by adver-
tisements or otherwise as it thinks best adapted for
notifying to any persons on whom service is dispensed
with, who may not have previously come in and estab-
lished their claims, the fact of the sale, the time of the
intended distribution, and the time within which a
claim to participate in the proceeds must be made (c) :
(4.) If at the expiration of the time so fixed or extended the
interests of all the persons interested have been ascer-
tained, the court shall distribute the proceeds in accord-
ance with the rights of those persons:

(5.) If at the expiration of the time so fixed or extended the

with.

39 & 40 Vict. c. 17, s. 4.

Provision for case of suc

cessive sales in same action.

Request by married

woman, infant, or

person under disability.

interests of all the persons interested have not been
ascertained, and it appears to the court that they cannot
be ascertained, or cannot be ascertained without ex-
pense disproportionate to the value of the property or
of the unascertained interests, the court shall distri-
bute the proceeds in such manner as appears to the
court to be most in accordance with the rights of
the persons whose claims to participate in the proceeds
have been established, whether all those persons are
or are not before the court, and with such reservations
(if any) as to the court may seem fit in favour of any
other persons (whether ascertained or not) who may
appear
from the evidence before the court to have any
primâ facie rights which ought to be so provided for,
although such rights may not have been fully estab-
lished, but to the exclusion of all other persons, and
thereupon all such other persons shall by virtue of this
act be excluded from participation in those proceeds
on the distribution thereof, but notwithstanding the dis-
tribution any excluded person may recover from any
participating person any portion received by him of
the share of the excluded person.

(c) Where the order dispensing with service of notice of the judgment did not provide for issuing advertisements, the court, on an application to distribute, directed advertisements to issue, and postponed the distribution for six months (Phillips v. Andrews, 56 L. T. 108). This sub-section applies only to persons beneficially interested, not to trustees (Crossman v. Richards, 1888, W. N. 167).

5. Where in an action for partition two or more sales are made, if any person who has by virtue of this act been excluded from participation in the proceeds of any of those sales establishes his claim to participate in the proceeds of a subsequent sale, the shares of the other persons interested in the proceeds of the subsequent sale shall abate to the extent (if any) to which they were increased by the non-participation of the excluded person in the proceeds of the previous sale, and shall to that extent be applied in or towards payment to that person of the share to which he would have been entitled in the proceeds of the previous sale if his claim thereto had been established in due time.

6. In an action for partition a request for sale may be made or an undertaking to purchase given on the part of a married woman, infant, person of unsound mind, or person under any other disability, by the next friend, guardian, committee in lunacy (if so authorized by order in lunacy), or other person authorized to act on behalf of the person under such disability, but the court shall not be bound to comply with any such request

or undertaking on the part of an infant unless it appear that the 39 & 40 Vict. sale or purchase will be for his benefit.

The authority to act on behalf of the person under disability must be to act in the action (Rimington v. Hartley, 14 Ch. D. 632); and the authority must be given in some special manner (Wallace v. Greenwood, 16 Ch. D. 365).

In the case of a married woman, or an infant, a request by counsel is not sufficient (Wallace v. Greenwood, 16 Ch. D. 362; Howard v. Jalland, 1891, W. N. 210; contra, Crookes v. Whitworth, 10 Ch. D. 289). A written request, signed by the married woman, authorizing and requesting her solicitor to instruct counsel to ask for sale has been held sufficient (Grange v. White, 18 Ch. D. 612). The request of an infant may be made by his next friend or guardian ad litem, but the sale must be shown to be for his benefit (Rimington v. Hartley, 14 Ch. D. 630; Miles v. Jarvis, 50 L. T. 48; contra, Platt v. Platt, 28 W. R. 533). An action may be brought, or a request made by the next friend of a person of unsound mind, not so found, but it must be shown that the sale is for his benefit (Porter v. Porter, 37 Ch. D. 420; Watt v. Leach, 26 W. R. 475). A request by the committee of a lunatic was authorized in Re Pares, Lillington v. Pares (12 Ch. Div. 333).

As to the effect of a request under this section as regards conversion of the property into personal estate, see note ante, p. 735.

c. 17, s. 6.

include action

7. For the purposes of the Partition Act, 1868, and of this Action for act, an action for partition shall include an action for sale and partition to distribution of the proceeds, and in an action for partition it for sale and shall be sufficient to claim a sale and distribution of the proceeds, distribution of the proceeds. and it shall not be necessary to claim a partition.

c. 35, s. 1.

THE APPORTIONMENT ACT, 1870.

Payments.

33 & 34 VICT. c. 35.

An Act for the better Apportionment of Rents and other Periodical [1st August, 1870.] 33 & 34 Vict. WHEREAS rents and some other periodical payments are not at common law apportionable (like interest on money lent) in respect of time, and for remedy of some of the mischiefs and inconveniences thereby arising divers statutes have been passed in the eleventh year of the reign of his late Majesty King George the Second (chapter nineteen), and in the session of Parliament holden in the fourth and fifth years of his late Majesty King William the Fourth (chapter twenty-two), and in the session of Parliament held in the sixth and seventh years of his late Majesty King William the Fourth (chapter seventyone), and in the session of Parliament held in the fourteenth and fifteenth years of her present Majesty (chapter twentyfive), and in the session of Parliament held in the twenty-third and twenty-fourth years of her present Majesty (chapter one hundred and fifty-four):

Short title.

Rents and periodical payments shall accrue from day to day and be

apportionable

in respect of

time.

And whereas it is expedient to make provision for the remedy of all such mischiefs and inconveniences:

Be it therefore enacted as follows:

1. This Act may be cited for all purposes as "The Apportionment Act, 1870."

2. From and after the passing of this act, all rents, annuities, dividends, and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly.

As to questions of apportionment arising before 1st August, 1870, see the Apportionment Act, 1834; Shelford's R. P. Stat. 8th ed. 542; Tudor's L. C. Real Prop., 50-54, 4th ed.

The question frequently raised under the old law whether such a determination of the interest had occurred as would give rise to an apportionment (see Shipperdson v. Tower, 8 Jur. 485) cannot arise under the Act of 1870 (Olive v. Clive, 7 Ch. 433).