326
THE NEW ZEALAND GAZETTE.
[No. 11

proceeds with the action in respect of such cause
of action or any part thereof, and recovers less
than the amount paid into Court, the amount
paid in shall be applied, so far as is necessary, in
satisfaction of the plaintiff’s claim and costs, and
the balance (if any) shall (under an order of the
Court in that behalf) be paid to the defendant. If
the defendant succeeds in respect of such cause
of action, the whole amount shall under a like
order be repaid to him.

221D. The provisions of the foregoing Rules 221A and 221C
shall apply to counter-claims.

Disposal of Action.

267A. Whenever the plaintiff fails to prosecute his action
or any part thereof, or whenever the defendant fails to pro-
secute his counter-claim or any part thereof to hearing or
decree, the defendant to the action or counter-claim, as the
case may be, may move to dismiss the action or counter-
claim, or such part thereof as aforesaid, out of Court, and
the Court may on such motion make such order as may be
just.

SUMMONSES.

Rule 416 shall be amended by adding the following
thereto:—

416A. A summons may be made returnable at any time,
and affidavits in support of or in opposition thereto may be
filed at any time before hearing.

416B. If the Judge is of opinion that a summons has been
made returnable within an unreasonably short time, he may
order the party issuing the summons to pay the costs of any
adjournment.

416C. A summons taken out relating to a step in an action
which the party applying has a limited time for taking, shall,
by special leave of the Judge, or, in his absence, of the Regis-
trar, operate as a stay of proceedings from the time it is
returnable until it is disposed of.

416D. A summons which cannot be heard at the time it is
returnable stands adjourned to the next ensuing day on
which there shall be an ordinary sitting in Chambers.

PART VI.—CHAPTER III.
ORIGINATING SUMMONSES.

519A. The executors or administrators of a deceased per-
son, or any of them, and the trustees under any deed or in-
strument, or any of them, and any person claiming to be
interested in the relief sought as creditor, devisee, legatee,
or next-of-kin of a deceased person, or as cestui que trust
under the trust of any deed or instrument, or as claim-
ing by assignment or otherwise under any such creditor or
other person as aforesaid, is or are entitled to commence a
suit for the administration of any trust, and may take out,
as of course, an originating summons, returnable before the
Court, for such relief of the nature or kind hereafter men-
tioned as may by the summons be specified, and as the cir-
cumstances of the case may require—that is to say, the
determination, without an administration of the estate or
trust, of any of the questions or matters in the rule next
hereafter set forth.

519B. The following matters may be the subject of origin-
ating summonses:—

(a.) Any question affecting the rights or interests of
the person claiming to be creditor, devisee,
legatee, next-of-kin, or cestui que trust.

(b.) The ascertainment of any class of creditors, lega-
tees, devisees, next-of-kin, or others.

(c.) The furnishing of any particular accounts by the
executors, or administrators, or trustees, and the
vouching when necessary of such accounts.

(d.) The payment into Court of any money in the hands
of the executors, or administrators, or trustees.

(e.) Directing the executors, or administrators, or trus-
tees to do or abstain from doing any particular
act in their character as such executors, or ad-
ministrators, or trustees.

(f.) The approval of any sale, purchase, compromise, or
other transaction.

(g.) The carrying-on of any business authorised to be
carried on by the deed or instrument creating the
trust, or by the Court.

(h.) The interpretation of the deed or instrument creat-
ing the trust.

(i.) The determination of any question arising in the
administration of the estate or trust, or which it
may be necessary or desirable to determine for
the protection of the executors, administrators, or
trustees.

519C. Every such summons shall be in the form set forth
in the First Schedule hereto, with such variations as the
circumstances may require.

519D. When such summons is taken out by the executors,
or administrators, or trustees, the same shall be served upon
such persons as the Judge shall in each case direct, and any
such directions may be given at the time when the sum-
mons is issued, or subsequently.

519E. When any such summons is taken out by any other
person the same shall be served upon the executors, or ad-
ministrators, or trustees, as the case may be, and upon such
other persons as by analogy to Rules 65, 88, and 90 of the
Code of Civil Procedure the Judge may direct.

519F. Any order made on any such summons shall have
the effect of a judgment in an ordinary action, and shall bind
such parties as have been served with such summons, and
such parties as by virtue of Rules 65, 88, and 90 of the Code
of Civil Procedure, or of any order made under Rule 79 of
the said Code, would be bound by such judgment.

519G. Leave may be given as in an ordinary action to
serve any such summons on any person residing or being
abroad.

519H. In case any party ordered to be served with any
such summons shall be under disability, the same course
may be taken as in an ordinary action.

519I. Any solicitor issuing or attending any such summons
shall, before the same shall be heard, file in the Court an
authority to issue, support, or attend the same.

519K. Should any question of fact arise upon any such
summons, the Court or a Judge shall direct how the same
shall be determined, and shall be at liberty to order the
same to be placed in the list of actions to be tried in such
manner as the Court or such Judge shall think fit.

519L. Such a summons shall not be heard less than seven
days after service unless by consent, and the Judge may give
further time to attend the same.

519M. The costs of any such summons shall be dealt with
as the Court or a Judge shall direct.

519N. In all other respects such a summons shall be
treated as, and shall have the effect of, an action com-
menced in the ordinary way.

AMENDMENT OF RULES AS TO COSTS.

524A. Rule 524 shall not apply to proceedings on bills of
exchange commenced under Rule 480 when judgment goes
by default.

532A. Rule 532 shall be read as if the words “greater or”
appeared therein before the word “smaller”; and Table C,
in the Second Schedule hereto, shall be substituted for
Table C in Rule 532.

FIRST SCHEDULE.

IN THE SUPREME COURT OF NEW ZEALAND,
DISTRICT.

Originating Summons.

In the matter of the estate of A.B., deceased [or the
settlement of X.Y., deceased].

Between C.D., plaintiff, and E.F., defendant.

Let E.F., the executor of A.B., deceased [or G.H. and J.K.,
the trustees under the settlement of X.Y., deceased], attend
before the Supreme Court at
, on the
day of
, at
o’clock in the forenoon, or as soon there-
after as parties may be heard, upon the application of C.D.,
who claims to be a creditor upon the estate of the above-
named A.B., for an order for the administration of the
said estate [or the equitable tenant for life of Limestone
Ridge farm in the will (or settlement) mentioned, for a
order interpreting the said will (or settlement) and
defining her right, or as the case may be], and for such
order as in the circumstances may be just.

Dated the
day of
, 18
.

(Seal.)

This summons was taken out by
, of
Street,
solicitors for the above-named C.D.

This summons is to be served on
and
,
residuary legatees under the said will.

, Judge.

SECOND SCHEDULE.

TABLE C.—SCALE OF COSTS.