In case of infant tenant in tail.

(e) Grey v. Jenkins, (1859) 26 Beav. 351 ; Re Potts, (1867) 15 W. E. 29.

(/) Eyre v. Saunders, (1858) 4 Jur. N. S. 830; 28 L.J. Ch. 439.

(g) Re Ives, (1876) 3 Ch. D. 690 ; Re Bendy, (1877) 4 Ch. D. 878 ; 46 L. J. Ch. 417 ; and see remarks in the former case on the cases last cited.

(h) Re Boughton, (1863) 12 W. R. 34 ; and see Re Chamberlain, (1875) 23 W. R. 852.

{i) Re Enrle's S. E., (1864) 2 H. & M. 196, 202 ; Re Hutchinson, (1866) 14 W. R. 473; Re Merry's S. E., (1867) 15 W. R. 307; 36 L. J. Ch. 168.

Again too, by s. 26, where, on an application under the Act, the concurrence or consent of any person, whose concurrence or consent is required, has not been obtained, notice is to be given in such manner as the Court shall direct, requiring him to notify, within a specified time, whether he assents to, or dissents from, such application, or submits his rights or interests to be dealt with by the Court; and in case no notification shall be delivered in the manner specified by the notice, the person affected by the notice will be deemed to have submitted his rights and interests to be dealt with by the Court. The notice is, unless the Judge shall otherwise direct, within the jurisdiction to be given by personal service, except in the case of a person of unsound mind not so found by inquisition (I). In the latter case (m), or where the person is out of the jurisdiction, an ex parte application may be made to the Court for directions (n). And, by s. 27, if (1) the person whose consent is necessary cannot be found, or (2) it is uncertain whether he is alive or dead, or (3) he cannot be served without expense disproportionate to the value of the subject-matter of the application, the Court may dispense even with notice, 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 on any other ground ; and the effect of the notice being dispensed with is that the persons not served are to be deemed to have submitted their rights and interests to be dealt with by the Court (o). The application for an order dispensing with notice may, it seems, be made either before or at the hearing of the petition (p).

Court may-direct notice to be given.


Mode of giving notice.

Notice may in some cases be dispensed with.

(k) As to obtaining consent of infant, see inf. pp. 1128, 1129.

(/) S. E. Act, Orders 1878, 0. IV.

(m) See Re Crabtree's S. E., (1875) 10 Ch. at p. 203; 41 L. J. Ch. 261 ; Re Franklin s S. E., (1858) 7 W. R. 45.

(n) See Re Rylar, (1876) 24 W. R. 949; and Re Stark's S. E., (1875) W. N. 224.

(o) See Re Earl of Kilmorey' s S. E., (1877) 26 W. R. 54. Cf. s. 3 of Partition Act, 1876, inf. p. 1140.

(p) Seton, 6th ed. 1791.

The Court also, by s. 28, has power to make an order upon any application, notwithstanding that the concurrence or consent of any person, whose concurrence or consent is required, has not been obtained, or has been refused; but the Court, in dealing with the application, is to have regard to the number of the parties who concur in or consent to it, and who dissent from it, or submit their rights and interests to be dealt with by the Court, and to the estates or interests which they have or claim to have; and every order so made is to have the same effect as if all such persons had been consenting parties thereto. The discretion of the Court under this s. is to be exercised having regard to two sets of circumstances, namely, "number and value," and not simply according to its own notion of what would be best to be done with the property; and the jurisdiction, in fact, will be exercised only in cases of comparatively unimportant persons - i.e., unimportant as regards value or interest in the estate- dissenting (q). Thus, the concurrence of a person, who would be entitled only in the event of four children all dying, sons under twenty-one, and daughters under that age or before marriage, was dispensed with (r). So, also, was that of a woman who, under a settlement made by her first husband, was entitled to a life interest in one-tenth of the property (s) ; so, too, where a married woman was entitled to one-eighth of the property, and the seven other persons all consented, her concurrence was dispensed with, on the petition being served on her and her husband (t). But notice under s. 26 must be given to the persons whose concurrence has been dispensed with (u), unless the Court has expressly dispensed with service of such notice (x).

Court may even dispense with consent in some cases; but its power limited.

(q) Taylor v. T., (1875) 1 Ch. D. 426, 433, per Jessel, M. R. ; affd. (1876) 3 Ch. D. 145 ; 45 L. J. Ch. 373.

(r) Re Spurway's S. E., (1878) 10 Ch. D. 230 ; 48 L. J. Ch. 213.

(s) Re Cundee's S. E., (1877) 37 L. T. 271.

(0 Re Thorp's S. E., (1876) W. N. 251.

(u) Re Rylar, (1876) 24 W. R. 949 ; and see Re Thorp"s S. E., sup.

(x) Re Leu-is' S. E., (1875) 24 W. R. 103 ; Re Hoolce, (1875) W. N. 29.

The Court may also, by s. 29, 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 has not submitted, or is not deemed to have submitted, his 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 (y).

Court may make order saving rights of persons not consenting.

Notice of any application under the Act must, by s. 30, unless dispensed with by the Court, be served on all trustees who are seised or possessed of any estate in trust for any person whose consent or concurrence is required, and on any other persons who, in the opinion of the Court, ought to be served (z). In every case where there are such trustees, evidence must be produced at the hearing that such notice has been served (a) ; and, if upon the hearing of the petition, the Court is of opinion that any other person should be served, the petition will stand over generally, or so long as the Court shall direct (b).