c. 35, s. 30. 22 & 23 Vict. rested in such application, or such of them as the said judge shall think expedient; and the trustee, executor or administrator, acting upon the opinion, advice or direction given by the said judge, shall be deemed, so far as regards his own responsibility, to have discharged his duty as such trustee, executor or administrator in the subject-matter of the said application: provided nevertheless, that this act shall not extend to indemnify any trustee, executor or administrator, in respect of any act done in accordance with such opinion, advice or direction as aforesaid, if such trustee, executor or administrator, shall have been guilty of any fraud or wilful concealment or misrepresentation in obtaining such opinion, advice and direction; and the costs of such application as aforesaid shall be in the discretion of the judge to whom the said application shall be made (m). General order. (m) In applications under this section the petition or statement shall be signed by counsel, and the judge by whom it is to be answered may require the petitioner or applicant to attend him by counsel either in chambers or in court where he deems it necessary to have the assistance of counsel. (23 & 24 Vict. c. 38, s. 9, post, p. 695.) All petitions, summonses, statements, affidavits and other written proceedings under this section shall be intituled, "In the matter of the said act, and in the matter of the particular trust, will or administration," and every such petition and statement shall be marked in manner directed by the 6th of the Consolidated General Orders, rule 6; and every such petition or statement shall state the facts concisely, and shall be divided into paragraphs numbered consecutively, and every such summons shall, except as to its title, be in the form of the general summons in schedule (K.), No. 1, subjoined to the Consolidated General Orders. (Con. Ord. 1, March 20, 1860; 6 Jur., N. S. 121, part 2.) At the time when any such summons is sealed, the statement upon which the same is grounded shall be left at the chambers of the judge, and shall on the conclusion of the proceeding be transmitted to the registrar by the chief clerk with the minutes of the opinion, advice or direction given by the judge, and the registrar shall cause such statement to be transmitted to the Report Office to be there filed. (Ord. 2, Ib.) Every such petition or summons shall be served seven clear days before the hearing thereof, unless the person served shall consent to a shorter time. (Ord. 3, Ib.) The opinion, advice or direction of the judge shall be passed and entered and remain as of record in the same manner as any order made by the court or judge, and the same shall be termed “a judicial opinion” or “judicial advice" or "judicial direction” as the case may be. (Ord. 4, Ib.) The fees of court and the fees and allowances to solicitors on proceedings under this section shall be the same as are now payable under the Consoli. dated General Orders 38 and 39, and by the practice of the court for business of a similar nature. (Ord. 5, Ib. See Morgan's Chancery Acts, pp. 682, 683, 3rd ed.) This act is retrospective in its operation. (Re Simpson, 1 Johns. & H. 89; 8 W. R. 388.) A petition ought not in the first instance to be served upon any one, but an application should be made in chambers as to the persons upon whom the petition should be served. No affidavits can be read on such petition. (Re Muggeridge, Johns. 625; 6 Jur., N. S. 192; 29 L. J., Ch. 288; 8 W. R. 235.) But Kindersley, V. C., decided that, when a petition is presented under this section, the petitioners must serve such persons as they think proper, and must not bring on the petition merely in order to ascertain who ought to be served. (Re Green, 6 Jur., N. S. 530; 29 L. J., Ch. 716.) On such a petition the court will not direct an inquiry at chambers. (Re c. 35, s. 30. Mockett, Johns. 628; 29 L. J., Ch. 294.) Where an important and difficult 22 & 23 Vict. question is involved the proper course is to file a bill instead of presenting a petition under the act. (Ib.) The court will not give an opinion under this section upon matters of detail which cannot be properly dealt with without the superintendence of the court and the assistance of affidavits. (Re Barrington, 1 Johns. & H. 142; 6 Jur., N. S. 1073; 29 L. J., Ch. 807; 8 W. R. 577.) Therefore, where trustees of a settlement having a power of purchasing lands on the request of tenants for life desired the opinion of the court as to the propriety of applying 1,2007. on such request in repairs and permanent improvement, no answer was given on the petition, but it was intimated that on a bill filed there would be no objection on principle to the course proposed to be taken, and subsequently the order was made in a suit instituted for the purpose. (Ib.) Sir J. Romilly, M. R., said, the object of this section is to enable trustees and executors to obtain upon petition the advice and opinion of the court upon matters of discretion vested in them, but it was not intended thereby to enable them in this summary way to determine questions of construction. (Re Hooper's Will, 30 L. J., Ch. 795; 9 W. R. 729; 7 Jur., N. S. 595; 29 Beav. 656.) The court will not upon a petition presented by a trustee or an executor under this section for the opinion, advice or direction of the court, construe an instrument or make any order affecting the rights of parties to property. Such petitions should relate only to the management and investment of trust property. (Re Lorenz, 1 Drew. & Sm. 401; 7 Jur., N. S. 402; 9 W. R. 567.) The court declined upon a petition for its opinion under this section to decide whether an intestate's estate was liable upon a covenant to be implied in his marriage settlement. (Re Evans, 30 Beav. 232.) Where the opinion of the court is sought by petition under this act by executors of a will upon which questions of difficulty arise and the assets are not distinctly ascertained, the court will not give its opinion unless at the wish and with the consent of all parties interested. (Re Mockett, 6 Jur., N. S. 142; 8 W. R. 235.) The opinion of the court upon a petition under the act gives an indemnity to the trustees only upon the facts stated in the petition, is subject to no appeal, and will not preclude the filing a bill, which would seem the better course under the circumstances above stated. (Ib.) The court will not under this section give its opinion for the guidance of trustees on the effect of a limitation contained in an instrument. (Re Hooper, 29 Beav. 656.) The court will not give an opinion on an hypothesis, therefore, where a petition was presented under this section to obtain the advice of the court as to the mode in which calls not yet made on account of certain shares specifically bequeathed by the testator were to be met, the court ordered the petition to stand over till the call had been actually made. (Re Box, 11 W. R. 945.) 31. Every deed, will or other instrument creating a trust, either expressly or by implication, shall, without prejudice to the clauses actually contained therein, be deemed to contain a clause in the words or to the effect following; that is to say, "That the trustees or trustee for the time being of the said deed, will or other instrument, shall be respectively chargeable only for such monies, stocks, funds and securities, as they shall respectively actually receive, notwithstanding their respectively signing any receipt for the sake of conformity, and shall be answerable and accountable only for their own acts, receipts, neglects or defaults, and not for those of each other, nor for any banker, broker or other person, with whom any trust Every trust indeemed to contain clauses for the inbursement of the trustees. strument to be demnity and reim c. 35, s. 31. 22 & 23 Vict. monies or securities may be deposited, nor for the insufficiency or deficiency of any stocks, funds or securities, nor for any other loss, unless the same shall happen through their own wilful default respectively; and also that it shall be lawful for the trustees or trustee for the time being of the said deed, will or other instrument, to reimburse themselves or himself, or pay or discharge out of the trust premises all expenses incurred in or about the execution of the trusts or powers of the said deed, will or other instrument" (n). As to investments by trustees. (n) See Wilkins v. Hogg, 3 Giff. 116; 9 W. R. 688; 10 W. R. 47. 32. When a trustee, executor or administrator shall not, by some instruments creating his trust, be expressly forbidden to invest any trust fund on real securities, in any part of the United Kingdom, or on the stock of the Bank of England or Ireland, or on East India stock, it shall be lawful for such trustee, executor or administrator, to invest such trust fund on such securities or stock; and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper (o). (o) See 23 & 24 Vict. c. 38, ss. 10, 11, post, pp. 696, 697. This section of the act shall operate retrospectively. 23 & 24 Vict. c. 38, s. 12, post, p. 697. Extent of Act. Act not to extend to Scotland. 33. This act shall not extend to Scotland. [The 1st, 2nd, 3rd, 4th and 5th sections of this act, as to the registration of judgments, are inserted ante, pp. 610-612.] 23 & 24 Vict. c. 38, s. 1. 6. Where any actual waiver of the benefit of any covenant or Restriction of condition in any lease on the part of any lessor, or his heirs, effect of waiver. executors, administrators or assigns, shall be proved to have taken place after the passing of this act in any one particular instance, such actual waiver shall not be assumed or deemed to extend to any instance or any breach of covenant or condition other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear. cases of future 7. Where by any instrument any hereditaments have been or Provision for shall be limited to uses, all uses thereunder, whether expressed and contingent or implied by law, and whether immediate or future, or con- uses. tingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise by force of and by relation to the estate and seisin originally vested in the person seised to the uses, and the continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of or to give effect to future or contingent or executory uses, nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere. Sect. 24 of 22 & 23 tended to mort Vict. c. 35, ex 8. The section twenty-four (a) in the act of the session of the twenty-second and twenty-third of Queen Victoria, chapter thirty-five, shall be read and construed as if the words " or gagees. mortgagee" had followed the word "purchaser" in every place where the latter word is introduced in the said section. (a) Ante, p. 688. for advice of judge, &c. under 9. Where any trustee, executor or administrator shall apply Form of applying for the opinion, advice or direction of a judge of the court of Chancery under the thirtieth section of the act of the twentysecond and twenty-third of her present Majesty, chapter thirty Vict. c. 35. 23 & 24 Vict. five (b), the petition or statement shall be signed by counsel, c. 38, s. 9. and the judge by whom it is to be answered may require the petitioner or applicant to attend him by counsel either in chambers or in court where he deems it necessary to have the assistance of counsel. (b) Ante, p. 691. 10. It shall be lawful for the Lord Chancellor, Lord Keeper or Lords Commissioners for the custody of the Great Seal of England, with the advice and assistance of the Master of the Rolls, the Lords Justices of the Court of Appeal in Chancery, and the Vice-Chancellors of the said court, or any three of them, and for the Lord Chancellor of Ireland, with the advice and assistance of the Lords Justices of Appeal and the Master of the Rolls in Ireland, to make such general orders from time to time as to the investment of cash under the control of the court, either in the three per cent. consolidated or reduced or new bank annuities, or in such other stocks, funds or securities as he or they shall, with such advice or assistance, see fit; and it shall be lawful for the Lord Chancellor, Lord Keeper or Lords Commissioners in England, and for the Lord Chancellor in Ireland, to make such orders as he or they shall deem proper for the conversion of any three per cent. bank annuities now standing or which may hereafter stand in the name of the accountantgeneral of the said Court of Chancery, in trust in any cause or matter, into any such other stocks, funds or securities upon which, by any such general order as aforesaid, cash under the control of the court may be invested; all orders for such conversion of bank annuities into other funds or securities to be made upon petition to be presented by any of the parties interested in a summary way, and such parties shall be served with notice thereof as the court shall direct (c). (c) The following General Order was issued under this section on February 1st, 1861: 1. "Cash under the control of the court may be invested in Bank Stock, East India Stock, Exchequer Bills and £2: 10s. per cent. Annuities, and upon mortgage of freehold and copyhold estates respectively in England and Wales as well as in Consolidated £3 per cent. Annuities, Reduced £3 per cent. Annuities and New £3 per cent. Annuities." 2. "Every petition for the purpose of the conversion of any £3 per cent. Bank Annuities into any other of the stocks, funds or securities hereinbefore mentioned shall be served upon the trustees, if any, of such Bank £3 per cent. Annuities, and upon such other persons, if any, as the court shall think fit." (II.) Upon applications under this order, the court at first sanctioned investments in East India Stock, which it seems meant only the old East India Stock (Equitable Reversionary Interest Society v. Fuller, 1 Johns. & H. 382; Colne Valley and Halstead Railway Company, 1 De G., F. & J. 53), upon the petition of the tenant for life, even though the market price of investment exceeded, as it commonly does, the fixed rate at which the stock will be redeemable in 1874, viz. 2001. per cent. (Equitable Reversionary Interest Society v. Fuller, 1 Johns. & H. 379; Bishop v. Bishop, 9 W. R. 549.) But subsequently the Lord Chancellor and Lords Justices upon appeal concurred in refusing the application on the ground that it would work an injury to the remainderman. Lord Campbell, C., observed, that no |