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It will be readily observed by those members of the Profession, whose daily and nearly sole practice is in the Court of Chancery, that this Manual will afford them little more than a more convenient inode of reference to materials with which they are already familiar. But even to these practitioners this ready means of reference may be found of some service. To other members of the Profession, — to the country practi- tioners, and to those who have not hitherto hf>en much in this Court— the arrangement of the Rules of the Court in a compendious shape, as is here attempted, would seem necessary for the purpose of enabling them, without much discouraging inconvenience and trouble, to conduct Causes in Equity. The Rules, or Orders, by which the Practice was governed, were to be searched for among the English orders passed prior to March, 1837, the date of our first Chancery Act — among the several Orders of this Court issued prior to the Act of 1849, excepting out of them such as are abrogated by the Orders of 1850 ; and with them were to be incorporated the Orders of 1849, 1850, and 1851. It was thought, that to arrange these with reference to their svibject matter would be useful to the practitioner and the student; and especially to those who, practising out of Toronto, had not hitherto been enabled to attend personally to the conduct of Equity Causes, but to whom the practice is now opened by the Orders of 1851, which are published at the close of this volume. With respect to these last mentioned Orders, it was the intention to incorporate them with the others according to their subject matter ; but, as they have not been promulgated so early as was expected, and the writer having; II. INTRODUCTORY REMARKS. been strongly advised not to delay the publication of the work, all that part containing the former Orders was at once sent to the press, thereby rendering it necessary to print the new Rules by themselves at the end ; but short notes have been appended, showing their connec- tion with, or effect upon, the provisions of the former Orders. v A circumstance, which might possibly be supposed to render a work of this kind not altogether necessary, is^ that there is an opinion in some quarters to this effect, that the Court of Chancery, as now established in Upper Canada, is not likely to remain a permanent institution — that, like many other creatures of Canadian Parliamentary birth, it .nay soon suffer annihilation at the hands of the parent, and that indeed such an event would be rather popular than otherwise. On this subject it would be presumption to offer an opinion here. The benefit, or otherwise, of this particular Court is a question of public economy, and not of law. Those whose duty it is to consider and decide upon such questions*, will no doubt give it sufficient consideration. But one conclusion is inevitable, whether this or that Court be suffered to remain or be abolished, some tribunal, having power to try causes, such as those now brought before the Court of Chancery, must exist. There must be a Court, in which claimants can have redress in cases which the present common law tribunals cannot reach. Such cases will arise, and by some Court they must be decided. This is sufficient for our purpose ; and it is therefore unnecessary to enter into an argument as to which kind of Court would be most popular for the purpose, or which system would be most efficient. If, whatever changes in the jurisdictions take place, there must still be Equity administered by some Court, (and this seems undeniable) then it must be useful for the Profession to have kept clearly before them, from time to time, as alterations take place, the Rules by which the practice in the adminis- tration of Equity is governed. When further important alterations happen to be made in the practice, the writer hopes that he, unless some one more fitted for it shall undertake the task, will keep the Profession supplied with the necessary supplementary publications. INTRODUCTORY REMARKS. in. It may not be out of place, — but chiefly with a view to those readers whose business may not have led them to pay much attention to Equity, — to refer to a few of those cases, in which the proper relief cannot be had at law, and the intervention of some tribunal, empowered to administer Equity, becomes necessary. A party has purchased a lot of land. He pays a portion of the purchase money, but is in arrear as to the remainder. The vendor brings an action of Ejectment and turns the purchaser out of posses- sion. The purchaser afterwards tenders his purchase money, but the vendor refuses it, saying that the payment was not made in time, and he will not now take it. He prefers keeping the part of the purchase money which has been paid, and taking also the benefit of the im- provements which the purchaser may have made. The Ejectment clearly could not have ^been defended. Such a purchaser can in Equity, unless there are special circumstances against him, have a specific performance of his contract, and a conveyance of the Estate on making payment. A recent case on this subject is Macdonald vs. Elder. — Grant''s CJmncery Reports, Vol. 1. The ordinary mortgage transactions, which are constantly occurring^ cannot be adjudicated upon completely by the Common Law Courts. The right of the mortgager to redeem is no unreason:'ble indulgence, limited, as it now is, to six months instead of twelve as formerly, after the account is taken. The Court of Chancery is the only Court by proceedings in which, this right can be foreclosed, or extinguished. There are many cases where the right to redeem, does not rest on the express words of a mortgage in the usual form, but upon special circumstances and extrinsic evidence, which in some cases have been deemed sufficient to sustain the right to redeem, although such a per- mission might seem contrary to the words of the deed. Where, for instance, there has been fraud, accident, or mistake, and the holding of the deed to be an absolute conveyance would be inconsistent with the dealings between the parties. In such cases the Rules of Common Law prevent any relief being granted in those Courts, and resort is necessary to an Equitable jurisdiction. A case of this kind is IV. INTRODUCTORY REMARKS. i I 1 M ■ I H II ii. Letarge rs. De Tuyll, — GnmCs Chancery Bqwi-tSfYoi. 1, p. 227 ; and the distinction is very clearly drawn in the judgment of the Cofirt of Apjieal in the case of Stewart r.s. IIowland between the cases in Avhich relief can, and where it cannot, be given in opposition to the words of the conveyance — in short, where the Statute of Frauds must prevail, and where it can be held inapplicable, because to use it as a shield would be to make it the means of effectuating fraud. The case of Stewart vs. IIowland wqs decided ir December 1850, and will be found in Grant''s. Exports, The Jurisdiction of the Court of Chancery is frequently invoked in cases of fraud, where an advantage has been gained by one party over another, who may have his Cidvantage strengthened by having the Laiv on his side. This is the case often enough, where a person has, in ignorance of his actual rights, and not being in a position clearly to understand the efiects of his act, executed papers Avhich must have their full effect at Law, but which may be considered in Equity with reference to the real merits of the transaction arising out of all the circumstances. On this subject, though the case goes to other points, the reader is referred to Stuart vs. Horton, — Gratifs Chancery Reports. The Jurisdiction of Equity embraces the whole numerous class of partnership cases, and those wherein the relations of trustee and cestui-rjue-trust are in question. A partnership has to be dissolved, and the affairs wound up, and in the meantime one partner desires to be protected against the frau- dulent collection and expenditure of the partnership funds. A decree is made, under which the Master has to take the accounts. An injunction is granted, which prevents any improper interference with the assets ; and the business is directed to be managed by a " Re- ceiver," who, as the Agent of the Court, collects the assets, and the Court disposes of them in favour of those whom the event of the suit may show to be properly entitled. Such is the case of Prentiss vs. I5RENNAN, — Gra?it'*s Cha?icenj Reports, Vol.1, p. 371. An Agent or Trustee, possessing advantages with respect to I INTRODUCTOny REMARKS. V. property which he may hold in such capacity, deals with it in a manner to serve his own ends, and contrary to the real interests of those for whom he acts. The interference of the Court is invoked in manner similar to that above stated. Arthurton vs. Dalley, — Grant^s Chancery Reports. ; and to these may be added, the large class of cases of administration of Testators and Intestates eflects, and the mann:gemcnt of the Estates of Infants and Lunatics. These are a few, and very far from the whole, of the classes of cases, in which an Equitable jurisdiction under the system of laws which obtains in England and here is absolutely necessary. In what- ever Court that jurisdiction may be vested, is a matter of comparatively little importance to the lawyer or to the student, or even to the public, provided that it be a Court competent for the purpose, and such as to sat- isfy the wants, but not to form a disproportionate drag upon the resources of the country. The Equity must be somewhere administered, and it must therefore be studied and practised. Nor will it continue to be studied and practised by a few only of the Profession. The more sum- mary mode of proceeding, and the great reduction of costs in all the Courts, will render it almost out of the question for any one class of men to confine themselves to one branch of the Profession, however desirable that might, under some circumstances, be considered with a view to greater efficiency. These considerations, although perhaps stated at too great length, may be given as fair reasons among others for believing, that a publication of this kind may be useful. The few authorities cited in these Introductory Remarks are selected, as being in a certain sense leading cases, and having been decided since the establishment of the new Courts. In the ensuing pages it has not been attempted, in such explana- tory notes as are given, to state what the precise practice may be under the New Orders, where any reasonable doubt may exist. And for this reason, that the practice is too new, to ren- der it possible, that the construction of the Orders should be as yet settled by Decisions. In course of time, when other publications of this kind become necessary, the practice may be more clear. A year or two may give occasion, for iustance, for m^ny important deci- VI. INTRODUCTORY REMARK8. III '• 1 I '•' s. '■■ t sions affecting questions upon which there are now many doubts, namely, What cases may be referred to the Master under the 15th Ord"r ? And hmv far is a defendant concluded by such refer ence, if anoxic before he could jMssibly answer the Bill ? Afid to tvhat ex- tent may tlie motioti be resisted on affidavit 1 These questions, and many more such, cannot be answered satisfactorily in the present infancy of the practice ; and therefore it is hoped that the omission to attempt showing what the practice is, where it is undeniably in doubt, will be readily excused. What few annotations appear, may be useful to some ; but the chief object has been, to give all the Orders in the prder of the proceedings in a Cause, and to supply a sufficient Index. hi bts, '»«/ ex- and ient to >bt, ;ful the CHAPTER I. ^\iz statutes. The Court of Chancery for Upper Canada, as at pres- ent constituted, owes its existence to, and is governed by, the following mentioned Enactments of the Provin- cial Legislature. The first Establishment of the Court was by an Act of the Parliament of Upper Canada, — 7th Wm. 4-, ch. 2, dated the 4th March, 1837. This Act created a Court, to be called " The Court of Chancery for the Province of Upper Canada", of which Court the Governor of the Province was to be Chancellor, but the Judicial powers of the Court, " both Legal and Equitable", were to be exercised by the Vice Chancellor. Sec. 2, enacts, that the Court shall have Jurisdiction, and "possess the like potvers and authority as by the laws of England are possessed by the Court of Clian- cery in England''' in respect of the following matters : — 1. "In all cases of Fraud ; 2. " In all matters relating to Trusts ; 3. "In all matters relating to Executors ; and 4. " Administrators ; 5. " In all matters relating to Mortgages ; 6. "In Dower. 7. " In all matters relating to Infants, Idiots, and Luna- tics, and their Estates, except where special pro- vision hath been or may hereafter be made with respect to them or cither of them by any law of this Province ; Court established. Statute of 1837. A Vice Chan- cellor to be the Judge. Same powers as the Court in England. Matters over which the Court has Ju- risdiction. 8 THE STATUTES. I, I ,'t Not to super- sede the Heir and Devisee Commission! Vide 8 Vic. Ch.8. Lnfants. Guardian Act, 8 Geo. 4 Ch. 6. Guardian, how appointed. 8. " In all matters relaii.ig to Awards ; 9. " To compel the specific performance of Agree- ments ; 10. " To compel the discovery of concealed Papers or Evidence, or such as may be wrongfully withheld from the party obtaining the benefit of the same ; 11. "To prevent multiplicity of Suits and to stay pro- ceedings in a Court of Law prosecuted against Equity and good conscience ; 12. " To institute proceediiigs for the repeal of Letters Patent erroneously or improvidently issued ; 13. " To stay Waste ; 14. " In all cases of Accident ; 15. " In all cases of Account ; 16. " In all cases relating to Co-partnership." With a proviso, that nothing in the Act should extend to supersede the authority of the Heir and Devisee Com- missioners. The powers of these Commissioners are now defined by the Act of 8 Vic. Ch. 8, dated 10th February, 1845. The claims adjudicated upon by them are those of any party " claiming any lands within Upper Canada, for which no patent hath issued, as being the Heir, Devisee, or Assignee of the original Nominee of the Crown, or as having derived a title or claim to such lands from or through any such Heir, Devisee or Assignee." Under the above Clause (7) with respect to Infants the jurisdiction of the Court is confined to cases which do- not fall within the " Act respecting the appointment of Guardians," being the 8th Geo. IV. Ch. e, dated 17th February, 1827. Revised Statutes, page 465. When the case comes within that A-'t, the application for the appointment of a Guardian must be to ihe Probate or Surrogate Court, and not to the Court of Chancery. It would undoubtedly be more convenient, had the Court of Chancery a concurrent jurisdiction. In cases where the Estate of an Infant, whose father is not living, and who has no legal Guardian, is in Chancery, although that Court has full power over the Estate, it does not seem, under THE STATUTES. the exception above mentioned, to have power to appoint ; a Guardian of the person. Such a jurisdiction has been exercised by this Court, it is true, prior to the Act of 12th Vie. Ch. 64 ; but it was only in Exparte Cases, and an application of the kind would, it is believed, now meet with a refusal ; for the Court would feel bound by the expressed exception, however convenient and useful to all parties the exercise of the jurisdiction might be. An important jurisdiction is given to the Court in the Partition of the case of Infants by the Act of 12th Vic. Ch. 72, dated f^^ts under 12 30th May 1849. The first Section enacts, " That any Vic. Ch. 72.' Infant seized or possessed of, or entitled to any Ileal Estate in foe, for a term of years, or othermse howsoever, in Upper Canada, may by his or her next friend, or by his or her Guardian, apply to the Court of Chancery in and for Upper Canada for the sale or other disposition of such property, or a competent part thereof, in manner and for any of the purposes hereinafter directed." The " purposes" are, the support, maintenance and education of the Infant ; and the Court must be satisfied that the advantage of the Infant is consulted. If over seven years of age, the Infant must be a consenting party. The disposition of the proceeds is controlled by the Court and see 2 W. 4, ch. 35, sec. 9, as to partition of Infant's Estates. Lunacy Cases. The practice in Lunacy Cases is regulated by 9t:h Vic. Ch. 10, dated May 18th, 1846. The jurisdiction in respect to the Repeal of Letters Patent is extended by the 29th Section of 4 and 5 Vic- toria, (1842), Chap. 100, which enacts " That itshalUnd may be lawful for the Court of Chancery in that part of this Province formerly called Upper Canada, and for the Court of King's Bench in that part of this Province formerly called Lower Canada, upon Action, Bill or Plaint, to be exhibited in either of the said Courts, re- spr-'ting grants of Land situate in the said Parts of this Pi ince respectively, and upon hearing of the parties int..ested, or upon default of the said parties, after such notice of proceedings as tho said Court shall respectively order, in all cases wherein Patents for Lands luive or Repeal of Patents. I *■ 10 THK STATUTES. Court remodelled. How Court constituted. Alterations in the practice suggested by 12 Vic. Ch. 64 sJuill have issued through fraud, or in error, or 7Uisicike, to decree the same to be void ; and upon the Registry of such Decree in the Office of the Provincial Registry of this Province, such Patents shall be deemed void, and of none effect to all intents and purposes whatsoever, and that the practice and proceeding in Court in such cases shall be regulated by orders to be from time to time made and issued by the said Courts respectively." No orders of Court have been made expressly under this Act, but the proceedings are of course governed by the General Orders. The Constitution of the Court was materially altered by the 12th Vic. Ch. 64, intitled ^^ Aft Act for the more effectual Administration of Justice ifi the Court of Chancer^/ of the late Province of Upper Canada^ Under this Act the number of Judges was increased to three, and the offices of Registrar and Master were sep- arated. The^ had formerly been filled by one person. The Court now consists of the Chancellor and two Vice Chancellors. There are a Master, and Master's Clerk, a Registrar, who is also Registrar of the Court of Appeals, and Registrar's Clerk, and a Reporter. The payment of Officers by fees is abolished by this Act, and the fees are funded, the Officers being paid by Salaries. The 12th Section of the Act recites the appointment of the Chancery Commissioners, and that " Whereas the " said Commissioners by the Report respectively made on " the Tiventieth day of April in the Eighth year of the " Reign of Her Present Majesty, and on the Twenty- "fifth day of January then next c;iS2ecting the pleadings " and practice of the said Court, for the purpose of " carrying out the afores-^id suggestion, as well as such " others as to them may seem expedient for the purposes " mentioned in the hereinbefore recited Commission, and " for atnendingor modifying any of the rules or aiders " which have been or may be made for that purpose, and " for regulating the Offices of the Master and Registrar " of the said Court of Chancery, as well as for rescinding " the said rules and orders, or any of them. Be it " therefore enacted. That it shall be lawful for the Judges " to be appointed under the Act for the time being, to " make sucfi rules aiid orders as to them inay seem ex- " pedient for regulating the Offices of the Master and " Registrar of the said Court of Chancery, and for carry- " ing into effect the recommendations. of the said Commis- " sioners as aforesaid, and from time to time to make other " rules and orders, amending, altering or rescinding the " same or any of them, and also to make all such rules " and orders as to them may seem meet for the purpose " of adapting the proceedings of the said Court of " Cliancery to the circumstatices of this ProvincQ, as " well in regard to the Process and Pleadings as in the " practice and proceedings of the said Court, and more " especially the taking, publisldng, usi?ig and hearing " of testimony in any suit tJierein jtending, or the ex- " amination of all, or any of the parties to any such " suit upon their oaths vivA voce or otherwise, including " also the power to regulate by rules or orders the I 'V^' 12 THE STATUTES. " allowance and amount of costs. Provided always, " tJiat no such rule or order sfiall liave the effect of alter- " ing the pritvdples or rules of decision of the said Court j " or any of tliem, or of abridging or affecting the right " of any party to such remedy as, before the passing of " this Act, might have been obtained in the said Court, " but may in all respects extend to the manner of obtain- " ing such remedy by regulating the nature and form of " process and pleadings, and the practice of said Court as " regards the method of taking, receiving, publishing, " using, and hearing of testimony, the examination of " witnesses or parties, or any other matter or thing vrhich " may seem expedient for better attaining the ends of " Justice, and advancing the remedies of Suitors in the " said Court." Under the very ample powers given by this section, the Court has issued the orders of 1850 and 1851, which will be found in thteir proper order in the following pages. The conduct of causes in Chancery has been, until recently, necessarily confined to Toronto, where the Court is situated, and the Master's and Registrar's Offices kept. An Act of last Session, 13th and Hth Vjc. Ch. 50, dated 10th August, 1850, entitled, " An Act for the more effectual Administration of Justice in the Court of Chan- cery in Upper Canada," effects an important change in this respect. It empowers the Judges to appoint Masters and Deputy Begistiars " in such localities as the said Judges may consider necessary and expedient for the purpose of promoting as far as possible the local admin- istratioii of Justice ;" and to make rules and orders for regulating such offices of Master and Deputy Registrar, and specifying what business may be transacted in them. The Orders made under this Act will be found near the end of this volume. This Statute also provides for the Partition of Estates held in joint tenancy, tenancy in Common or Coparcenery. ^3 and ^4 Vic. rpjjg ^^m& power in this respect is given to the Court as Sec. 4,5,6. is exercised by the Court of Chancery in England, and as Country prac- tice. Partitiun. I \ THE STATUTES. 13 is given to the Courts of Queen's Bench and the County ' Courts in Upper Canada. Among the numerous questions arising in a Court of Change in the Equity was one of frequent occurrence, as to which the law *^ notJe to"^ is materially altered by a nicent Act. It was the acknowi- purchasers, of edged rule in Equity, that a bona fide purchaser of real encumbrances, estate for value, purchasing and paying his money with- out notice of any previous Conveyance, could defend his title against a prior purchaser. And under the Registry Laws of this Province, as they formerly stood, such a title could be so defended,although the holder of it had not reg- istered his deeds. Nor was the mere fact of registration necessarily notice to a purchaser, unless he searched. But, if he searched the Registry Books, he was bound by notice of their contents. And the same with regard to Judgments. It may here be noticed with regard to this subject of notice, that a purchaser should always make himself acquainted with all circumstances afl'ecting the possession of the land. If a third party, and not the vendor, is in possession, the purchaser should enquire of the third party by what title he holds, for he will be bound by his title if he have one. And it was a rule with re- spect to the plea of " bona fide purchaser for valuable con- sideration without notice," that it must contain an aver- ment that the vendor was at the time of the purchase in possession. And, although pleas are now abolishsd, if under the present practice such a defence is set up by answer, this averment should still be made. The Act of 1850 altt the law as to all conveyances 13 and 14 Vic. executed after the 1st of January, 1851. The following Re^j^strtti u sections it has been thought advisable to give in full : — Notice. 2. And be it enacted, That a judgment to be entered 13 and 14 Vic. up against any person in any Court of Record in Upper „ ^^' '°h j ri J ^4^ ii r ^ 1 J- T 7 ' ' , How registered Canada ajtcr the first day of January, one thousand judgments dght hundred and fifty-one, shall operate as a charge, shall affect so soon as a certificate of such judgment shall have been lands, &c. duly registered, upon all lands, tenements, and heredita- ments situate within the county where such certificate shall have been registered as aforesaid, of or to which such person shall at the time of registering such judg- 14. Remedies of judgment creditor. Proviso as to notice. All deeds, devi^ ses, &c., exe- cuted after Ist January, 1851, to be regis- tered. THE STATUTES. ment, or at any time afterwards, be seized, possessed or entitled, for any estate or interest whatever at law or in equity, whether in possession, reversion, remainder or ex- pectancy, or over which such person shall at the time of registering such judgment, or at any time afterwards have any disposing power, which he might without the assent of any other person exercise for his own benefit, and shall be binding against the person against whom judgment shall be so entered upon and registered, and against all persons claiming under him after such judgment and regis- try, and shall also be binding as against the issue of his body, and all other persons whom he might without the assent of any other person cut off and debar from any remainder, reversion or any other interest, in or out of the said lands, tenements,or hereditaments ; and that every judgment creditor shall have such and the same reme'' ^s in a Court of Equity against the hereditaments so charged by virtue of this Act or any other part thereof as he would be entitled to in case the person against whom such judgment shall have been so entered up and registered, had power to charge the said hereditaments, and had by writ- ing under hi^ hand agreed to charge the same with ths' amount of such judgments—debt and interest ; and all such judgments shall be claimed and taken to be valid, and effectual according to the priority of registering such certif- icates. Provided nevertheless, that nothing therein contai?tcd sJiall be deemed or taken to alter or affect any doctrine of Courts of Equity, whereby protection is given to imrcliasers for valuable considantion tvithout notice. 3. And be it enacted, That after any Grant from the Crown of any lands in Upper Canada, and Deed Patent thereof issued, every deed, devise, or other conveyance which shall be executed at any time after the first day of January, one thousand eight hundred and fifty-one, where- by any lands, tenements or hereditaments in Upper Can- ada may be in any wise affected in Law or Equity, shall be adjudged fraudulent and void, not only against any sub- sequent pLrchaser or mortgagee for valuable consideration, but also against a subsequent judgment creditor, who shall have registered a certificate of his judgment, unless such memorial be registered as by the said first recited Act* is specified before the registering of the memorial of the deed, devise or conveyance, or the certificate of the judgment, under which such subsequent purchaser, mort- • This is the Registry Act of 1816, 9 Vic. Ch. 34. THE STATUTES. 15 Proviso. gagee or judgement creditor respectively shall claim, sub- ject nevertheless as to devisees, to the pro', ' ions contain- ed in the twelfth section thereof. Provided always, that nothing herein contained shall be construed to affect the fights of equitable mortgagees as now recognised in the Court of Chancery in this Province. 4. And,whereas the Doctrine of Tacking has been found Deeds, &c., to to be producive of injustice, and requires correction : take priority Be it enacted, That every deed and conveyance executed .J^*^ j°'^'"? *** . after the first day of January, one thousand eight hupdred igt^y. and fifty one, a memorial whereof shall be duly registered, and every judgement recovered after the date last afore- said, a certificate whereof shall be duly registered, shall be deemed and taken as good and eflectual both in Law and in Equity according to the priority of the time of register- ing such memorial or certificate ; and, when no memorial of such deed or conveyance shall have been duly regis- tered, then such deeds or conveyances shall be deemed and taken to be valid and effectual, both at Law and in Equity, according to the priority of time of execution. 7. And be it enacted. That the Registry, or Registry Certificate of of any certificate of judgment as hereinbefore mentioned, judgment may shall be deemed and taken to be a registry of such judg- ^^ registered, ment for the purposes of this Act. 8. And be it enacted. That the Registry of any deed. Registry to be conveyance, will or judgment under the first recited Act, deemed notice, or this Act, affecting any lands or tenements, shall in Equity constitute notice of such deed, conveyance, will or judgment, to all persons claiming any interest in such lands or tenements subsequent to such registry. 9. And iJe it enacted, That the Register of every Separate book County in Upp«r Canada shall, after the passing of this for registry of Act, enter in a separate book to be kept for that purpose ^" °'"*'* *' the certificates of all judgments brought to him for re- gistration, and prepare an alphabetical index thereto. As regards judgments which have already been register- ed under 9 Vic. Ch. 34, they may be rendered of the same effect as if registered under the above Act, by com- plying with the following provision of the first section? •' that whenever any judgment shall have been registered before the passing of this Act, the party in whose favour the same shall have been rendered, may require the Registrar of any County to mark on the margin of such ^^'f^^!^^% registry, and sign the same " Registered this day of judgments A. D. eighteen, ^»"Sed?"- 16 THE STATUTES. P 1 n Intention and effect of the Act. Judgment cre- ditore parties to Bills.' Proviso as to bona fide purchasers. Tacking. and such entry of registry shall have the same effect from such dates as if it had been registered under this section." That is, (he same effect as docketted judgments in Eng- land before the practice of docketting was there discon- tinued. And it is submitted, that under the above 7th and 8th sections, taken with the first, such formerly registered judgments with the new entry made as above prescribed, will stand in precisely the same position from the date of the new entry, as judgments entered up and registered after the 1st January, 1850 ; and such would seem to have been the intention of the Act. All the holders of such registered judgments and con- veyances will have the right to redeem as against a prior encumbrancer, and will be proper parties to bills, to re- deem and foreclose ; and their rights cannot be extin- quished without their being so made parties. The proviso at the close of the above second section, taken in connectiop with 8th section, can only affect a small class of cases. The old rules will hold in cases where the question lies between two encumbrancers, neither of whom have registered, and the same would have been the result, had the above proviso been omitteu, for the other provisions of the Act do not apply to such cases. The doctrine of Tacking,which is done away with by the above 4th section, had been, though with some remarks as to its inconvetience, held to apply in this country. It is thus defined by Mr. Justice Story in his Equity Juris- prudence, sec. 412, " Uniting Securities given at differ- ent times, so as to prevent any intermediate purchasers from claiming a title to redeem, or otherwise to discharge, one lien, which is prior, without redeeming or discharging the other liens also, which are subsequent to his own title. Thus, if a third mortgagee, without notice of a second mortgagee, should purchase in the first mortgage, by which he would acquire the legal title, the second mortgagee would not be permitted to redeem the first mortgagee without redeeming the first mortgage also ; for in such a case Equity tacks both mortgages together in his favor. THE STATUTES. 17 ind in such a case it will make no difference, that the third mortgagee had notice of the second mor^igage ; for he is still entitled to the same protection." In cases arising upon titles acquired prior to the opera- tion of the above Statute, the same doctrine will still ap- ply; but to no other cases. As regards judgments un- registered, they are of course cut out by a registered deed under the above Act, whether or not it bo true that a judgment creditor, whose judgment is not registered, has a right to redeem — a question on which there is here some difference of opinion. The better opinion seems to be that a judgment creditor, who has placed his writ against lands in the Sheriff's hands, has a right to redeem a prior mortgage, and should be a party to a bill to foreclose ; although it has been othervdse decided by Mr. Vice Chancellor Jameson. But of course under the above Act, such a creditor, neglecting to register his judgment, can be completely shut out by a subsequent encumbrancer who registers. f B CHAPTER II. l-t Ehe 3SfU. r i:i ■J ?,'. First proceed- T^e first proceeding in a suijt in Chancery is by Bill. *"8" This Bill formerly consisted of nine parts, — 1. The ad- dress. — 2. The names of the parties. — 3. A statement of the facts. — 4. A general charge against the Defendant. — 5. Particular charges in answer to what the Defendant pretends to be his case. — 6. An averment that the Defendant's conduct was contrary to equity and good conscience. — 7. The interrogatories, which the Defendant was bound to answer substantially and literally. — 8. The prayer for relief. — And 9. The prayer for process or writ of subpoena, to compel the defendant to appear and answer ; and the bill was to be signed by the Counsel. The form is now much shortened, and embraces only the 1st, 2nd, 3rd, 8th and 9th of the above mentioned parts ; and neither the bill, nor any other pleading, needs be signed by Counsel. The Bill is now in the shape pre- scribed by the following order : — 1850. The bill shall in future be in the form of a petition, ad- XI. ! dressed to the Chancellor. The address and conclusion Form of Bill. ^\^^\\ |,e as in Schedule A. to these Orders appended. It must contain — 1. The name and description of each party complainant. 2. A statement of the plaintiffs case in clear and con- cise language. 'V \ ' THE BILL. 19 3. It must pray the specific relief to which iU« plain- tiff supposes himself to be entitled. 4. Besides the prayer for process the prayer for general relief may be added. The bill needs not be signed by Counsel, nor shall k contain any interrogatories, and all merely formal partv shall be omitted except only the address and conclusion. The form is as follows : — In Chancery. To tJte HotwraMe William Hume BlaJce, Chancellor of Upper Canada : The Bill of Complaint of A. B., of &c. (here follow the names and additions of all the parties complainant) Showeth, that (state the complainant^s case as succinct- ly as can be done consistently with due certainty, and in any language suitable for the purpose) To the end, therefore, that (state the relief sought) your complainant prays that (if an injunction or other special writ be required, introduce an appropriate prayer) a subpoena may issue under the seal of this Honorable Court, directed to the said C. D. (name all the parties defendant), calling upon him to appear to this bill and observe what this Honorable Court shall direct in that behalf. And your complainant shall ever pray, &c. There is no English Order similar to this, the change having been there from the old Bill with Interrogatories and formal parts to the Short Claims under Lord Cotten- ham's Orders of 1850. The other modes of proceeding in Chancery are othermode* of those prescribed by the Orders of 1851, which are commencing a given at the conclusion. This was found more conveni- ent than embracing the Orders in this part of the book. The proceedings here stated apply to all such cases as are not excepted by the more recent Orders, the object of which has been, to simplify the proceedings in all cases which involve ito points on which evidence is required to be entered upon prior to the decree. The practitioner then will find it necessary to ascertain whether each case conges under the provisions of the now stated Orders, or those of 1851. 8Uit. 20 THE BILL. ! 1^ i : \h. Amendment. After the Bill is filed, several circumstances may ren- der it advisable to alter or amend it. Some fact may come to the PlaintifTs knowledge, which it may be found necessary to put in issue before the Defendant has an- swered the Bill ; and at that early period the amendment may be made as of course. Or, after the Bill is answer- ed, it may be found advisable to make an amendment with a view to meeting the case set up in defence ; and frequently several amendments may become necessary. The terms on which these can be made are provided for by the following Order — 1850. XII. Amendment of Bill on motion or petition. Clerical error. One Order of course. Without preju- dice to an in- junction. Amend within seven days. AMENDMENT OF BILL. An Order for leave to amend the Bill may be obtained at any time before answer, upon motion or petition in the Cause without notice. An Order for leave to amend the Bill, only for the pur- pose of rectifying a clerical error in names, dates, or sums, may be obtained at any time upon motion or peti- tion in the Cause without notice. One Order of course for leave to amend the Bill, as the plaintiff may be advised, may be obtained by the plaintiff at any time before filing the replication, and within feur weeks after the answer, or the last of several answers shall be filed ; but no further Order of course for leave to amend the Bill is to be granted, after an answer has been filed, except in the case provided for by the second section of this Order. The plaintiff, having obtained an Order for leave to amend his Bill, has, in all cases in which such Order is not made without prejudice to an injunction, fourteen days after the date of the Order within which he may amend such Bill. If such Bill be not amended within such fourteen days, the Order for leave to amend becomes void, and the Cause as to dismissal stands in the same situation as if such Order had not been made. And the plaintiff, having obtained an Order for leave to amend his Bill, without prejudice to an injunction, must amend such Bill within seven days from the date of the Order. If such Bill be not amended within such seven days, the Order for leave to amend becomes void, and the cause as to dismissal stands in the same situation as if such Order had not been made. THE BILL. tl SuppJi^ental Bills are hereby abolished. Where a .suit is uefcctive by rea8on of some imperfection in the bill, and not in consequence of any event occurring sub- sequent to its institution, the Court may at any time per- mit an amendment of the Bill in furtherance of justice, and on such terms ns may be proper, for the purpose of altering the allegations in the Bill, or of putting new mat- ter in issue, as well as for the purpose of adding or strik- ing out the names of parties, or of varying the relief prayed, or praying further relief. Such Order shall be applied for by motion, stating the required amendment, of which motion notice must be served upon the parties or their solicitors, unless dispens- ed with. The motion must be supported by affidavit satisfying the Court — 1. Of the Truth of the Amendment. 2. Of the propriety of permitting the Amendmrnt at the particular stage of the Cause under all the cir- cumstances. 3. That the Order will promote the ends of justice, unless these requirements may sufficiently appear from evidence before the Court. Upon pronouncing such Order for amendment, the Court shall give such directions as to the future conduct of the Cause, in relation to answering such amendments, as also respecting the evidence taken, or to be taken, and in all other respects, as the circumstances of the case may require. Bills of Revivor, Bills of Revivor and Supplement, ori- ginal Bills in the nature of Bills of Revivor, and original Bills in the nature of Supplemental Bills, are hereby abol- ished. When a suit becomes defective, or abates by any event subsequent to its institution, and before final decree, it shall be competent to the Court to direct an amendment of the Record, in order that such defect may be remedied, and the suit continued, and the benefit thereof obtained. The order for such amendment shall be applied for by motion, specifying the nature of the amendment and the applicant's title to the same. Notice of this motion must be served on the parties to the suit or their solicitors, unless the Court under special circumstances shall dispense therewith; and it may be made by any person who could have heretofore obtained the desired object by Supplamental Bill, or by any form of Bill by this Order abolished. • 1850. XIII. Amendment in lieu of Supple* mental Bill. Order, how applied for. 1850. XIV. Atrendinent in lieu of Bills of Revivor, BilU of Revivor and Supplement, and Bills in nature of Sup- plemental Bills. ii THE BILL. K I ^h 'i I' English Order LXVI. Motion, how The motion must be supported by such evidence as shall """'«• satisfy the Court— 1. Of the Applicant's Title to Relief. 2. Of the propriety of permitting the amendment at the particular stage of the Cause under all the circum- stances. 3. That the Order will be a furtherance of Justice. The Court, upon pronouncing any Order fo. zr'ondment under this rule, shall give sue directions as to the future conduct of the Cause, in relation to answering such amend- ments, the evidence taken, or to be taken, and in all other respects, as the circumstances of the case may require. The first two clauses of the above Order XII are in the words of the English Orders LXIV, LXV, of 1845. The English Order LXVI of 1845 is in the words of the third Clause of the above 12th Order, except that, instead of the words " before filing a replication", it says, " before filing (or undertaking to file) a replication." Compared with The words " last of several answers" in the 66th English Orders. English Order of 1845, which answers to the 3rd Clause of the above Order 12, have been held to mean, the last answer to be put in before replication, and not the last answer filed before the application to amend. That is, the Plaintiff may wait for all the answers, and then amend within four weeks, unless put upon terms by a motion to dismiss. (See post under head of " Speeding the Cause"). Arnold vs. Arnold, 1 Phillips, 805 ; DcdtvH vs. Hayter, 7 Beav«n, 586 ; Forman vs. Chay, 9 B^a.-en, 200). The statement that the Plaintiff may wait for ail the answers before amending, may be subject to this ex- ception, that, if a Defendant is stated to be out of the jurisdiction, and all the others have answered, and more than a month has elapsed, an Order of course may be held irregular. — {King of Spain vs. Hullett, 3 Sim. 338). It is advisable generally not to take the Order f-) amend until all the Defendants, who are likely to answer, have answered, for a subsequent answer may suggest a new amendment, and there cannot be a second Order of course to amend. The above 3rd clause of Order 12 says "o«e THE LILL. 23 Re-engro8S- ment. one Order of course^ &c." And see Davis vs. Praut, 5 Beaven, 375 ; and, even when the first Order has not been acted upon, a second taken as of course will be irregular, (Brooks vs. Purton, 4 Beaven, 494). When a Bill is amended, if any of the amendments ex- tend to more than two folios, the Bill must be re-engrossed and filed, and the Plaintiff pays 20s. to the Defendant; if a further answer is required, but not otherwise. By an Order of 1843 it is directed : That where a Bill is amended, and a re-engrossment thereof filed, and a copy of such re-engrossment served on the opposite party under the foregoing Orders, it shall not hereafter bf necessary for the Plaintiif to pay such opposite party the usual sum of twenty shillings, unless a further answer be required. It will be seen, that by the foregoing Orders many descriptions of Bills are abolished, the purposes being at- tained by simple amendments. All other kinds of Bills, except Original Bills, are abolished by the following Orders : — • When a suit becomes abated after decree, any party entitled to revive the same may do so by petition in the cause, which shall state the title of the petitioner to the relief sought. This petition must be verified by aflidavit, and be served upon the solicitors of all parties interested, and, in case any such party has no solicitor, upon such party. Bills of Review are hereby abolished. When the re- ^ ^^p'rb. versal of a decree is sought upon the ground of error ap- yi^^ abolish- parent upon the face of the decree, that object may be ed. attained by rehearing the cause, whether the decree have Rehearsino or have not been enrolled. One rehearing may be had on Petition, upon petition, signed by counsel, as in the case of an or- dinary rehearing, as well before as pfter enrolment, but no petition for a second rehearlnfj' shall be filed without leave of the Court first had, upon special motion for that purpose. Provided that tb's order sliiill not be construed to authorise the rehearing a cause, in the ordinary accep- tation of the term, after enrolment. Bills in the nature of Bills of Review ; Bills to impeach decrees on the ground of fraud ; Bills to suspend the operation of decrees ; Bills to carry decrees into expf'u- tion ; are hereby abolished. Any party heretofore enti- Reversal of tied to file a UW of review, praying the variation or rever- p^etUton"''*'" XV. Suits how revised. Petition. XVII. Other Bills abolished. m w fsm 24 Rescinded Orders as to amendment. Application to amend must now be to the Court on motion, not- withstanding Order 181 of 1846. THE BILL. sal of a decree upon the ground of matter occurring sub- sequently to the decree, or subsequsntly discovered, or any description of bill by this Order abolished, may in future proceed by petition in the cause, which shall specially pray the relief sought, and state the ground upon which it is claimed. This petition must be verified by affidavit and served upon the solicitors of all parties interested ; and in case any '"ch party has no solicitor, then upon such party ; and, where the reversal or variation of a de- cree is sought upon new matter, such proof as would have been requisite upon a motion to file a bill of review must be supplied. Upon the hearing of this petition the Court may, in its discretion, either make a final order, or direct the petition to stand over, with liberty to the parties in- terested in sustaining the decree to file a special answer to the same ; and may make such order as to the production of further proof, and the manner thereof, and the future hearing of the petition, as to the Court may seem maet. The 1st Order of 1850 rescinds many of the former Orders specifically, and such rescinded Orders are of course omitted. The 2nd Order of 1850 is as follows :— All former Orders and parts of Orders not specified in Order 1, so far as the same are now in force and consis- tent toith these Orders,sire to remain in full force and effect. The Order 181 of 184<6 is not specifically rescinded, and it provides, among other things, that applications *' for leave to withdraw replication and amend Bills are to be to the Master, with an appeal, by motion, to the Court. But it will be seen, that this part of the Order of 1846 is not " consistent" with the foregoing Orders of 1850, and is therefore not in force, and all applications for leave to amend must now be to the Court, by motion, on notice. These Orders, abolishing Supplemental and other Bills, are not after 'iny English Orders, and therefore there is no English practice analogous to that established by them. Such Bills are still in use in England. CHAPTER III. Efitmvtt' \ 1850. XVIII. Subpoena to original Bill. The first process against a Defendant is the st^hpoena, Subpcena. obtained on prsecipe on filing the Bill, but it cannot be obtained until the Bill is filed. The 18th Order of 1850 provides that Subpoenas to appear and answer, and to answer re- spectively, shall be in the form specified in Schedule B, to these Orders appended, with such memoranda subjoined as therein mentioned. The form of a subpoena to appear and answer is as follows : — In Chancery. Canada. Victoria, by the Grace of God, of the United Kingdom of Great Britain arid Ireland, Quee?i, Defender of the Faitiv. To {liere insert the names of all the defendants in full, as in the Bill). Greeting. We command you, that you cause an appearance to be entered for you in our Court of Chancery of Upper Canada, within (fourteen days, if the Defendant is within the jurisdiction — in other cases such time as the Court may order) days after the service of this Writ upon you, exclusive of the day of such service, and that you answer a Bill of Complaint exhibited against you in - f<: i I, I! U ! I 26 Memorandum at foot of Subpcena. Defendant has only fourteen days to demur alone, notwith- standing the words of the memorandum. Mode of serrice of Subpoena. THE WRIT. our said Court by (here insert names of Plaintiff in full, as in the Bill,) and observe what our said Court shall direct in that behalf. Witness the Honorable William Hume Blake , our Chancellor, this day of 185 in year of our reign. (Name of Registrar.) Registrar. (Name of Solicitor.) Plaintiff^s Solicitor. The folloioing Memorandum to be placed at the foot. Appearances are to be entered at the Registrar's oflSce at Osgoode Hall in the City of Toronto ; and, if you do not cause your appearance to be entered within the time limited by the above writ, an appearance will be entered for you at your expense ; and, if you do not answer or demur to the bill within you will be subject to such order or decree being made against you as the Court shall think just upon the plaintiff's own shomng-— (where the defendant is to be served out of tJie jurisdiction, add the following words) — without further notice. ^ The form of this Memorandum would seem to give rise to reasonable doubt, whether or not the Diefendant has the same time to demur alone as to answer, or answer and demur. The 27th New Order, (1850), commences with these words. — " A Defendant is to answer or demui*, not demurring alone, to any original bill, or bill amended before answer, within one month after appearance," &c. And the 26th New Order gives only fourteen days to de- mur alone. Whatever may be the apparent meaning of the above form of notice then, a defendant on receiving it is to understand, that, if he elects to demur alone to the Plaintiff's Bill, he must do so within fourteen days after his appearance. It has been suggested, that it v^ould be as well to insert in the memorandum the words " not demurring alone," but this, it has been intimated by the Court, would be a departure from the Order, which pre- scribes the form, and therefore incorrect. Service of the Subpoena is by delivering a copy to the Defendant personally (with some exceptions) and produc- ing and showing the original writ. The affidavit of service must state when and how the service was effected. THE WRIT. 27 The service of the Subpoena is generally, as we have stated, a personal service ; but there are cases where leaving the copy at the residence of^ the Defendant, and the like, is deemed good service. It is recommended, however, that the service be personal in every case when it can be effected ; but, were it peremptory in every case, the ends of justice might be defeated by the concealment of a Defendant. There are cases in which service not personal has been held sufficient. See Earl Oie^erfield vs. Bond. 2. Beaven, 263. • Under the 20th Order (see post p. 29), it will be seen that the service, in order to enable the Plaintiff to appear for the Defendant, may be at his'dwelling house or usual place of abode. Still it is apprehended that there must be some good reason for omitting to make the personal service. (See Pultney vs. Skelton, 5 Vesey, 147). Under special circumstances the Court may order service of a Subpoena on the Agent or Solicitor of the Defendant. The following are some of the cases on the subject : — Smith vs. H. M. Co., 1 Schoales & Lefroy, 238 ; Bromley vs. Bank of England, 7 Jurist, 120 ; Hchhouse vs. Courtney, 12 Simons, 140 j Murray vs. Vibait, 1 Phillips, 521 ; Cooper vs. Wood, 5 Beaven, 391 ; Woodall vs. Walker, 3 Hare, 339 ; Hornby vs. Holmes, 4 Hare, 306 ; Cope vs. Russell, 11 Jurist, 463 ; Hurst vs. Hurst, 12 Jurist, 152 ; Waterton vs. Croft, 5 Simons, 502 ; Kinder vs. Forbes, 2 Beaven, 503 ; Lane vs. Hardudcke, 5 Beaven, 222. After amendment of a Bill, it is sufficient, as regards all Defendants to the Original Bill who have appeared to it, that the Subpoena to answer be served on the Solicitor for such Defendants, the 14th Order of June, 1837, re- maining, in that respect, in force. That Order is as fol- lows : aIV. That service on the Solicitor of any Subpoena to rejoin, or to answer an amended Bill, or to hear judg- ment, shall be deemed good service. That part of the above Order relating to Subpoenas to rejoin needs not be attended to, for that writ was abolished When lerrice of Subpoena not personal. SubstitutionAl service. Service of Subpoena to amended Bills. Order of 1837. Subpoena to amended Bill. THE WRIT. f:«r,.''i^ 1850. XIX. Form of subpoena to amended Bill by the 157th Order of 1845, and although that Order is among the Orders rescinded by the Orders of 1850, the Subpoena to rejoin is not now necessary, but the cause may be at once set down after replication, and proceeded with by Subpcena to hear Judgment, as hereafter shown. The above Order (14th of 1837) is in the precist words of the English Order, 26th of May, 1845, under which it has been decided that the Order is not applicable where the Defendant is abroad and his Solicitor only was served ; (Marquis of Hertford vs. Suisse, 13 Sim., 489.) In the case of a Corporation, service on any member is said to be sufficient. In default of appearance the Defendant cannot be attached as formerly, but the Plaintiff is enabled to ap- pear for him, and proceed with his cause. The follow- ing rule abolishes process of contempt for non-appearance. All process of contempt for the purpose of compelling appearance is bereby abolished. The form of the subpoena to answer an amended bill differs from the above form, where the Defendant to whom it is directed is already a Defendant to the original bill. As respects such Defendant, the writ is as follows : — We command you, that within days after the service of this writ upon you, exclusive of the day of such service, you do answer the amended bill of complaint ex- hibited against you in our Court of Chancery of Upper Canada, by and observe what our said Court shall direct in that behalf. "Witness the Honorable William Hume Blake , our Chancellor, day of 185 in year of our reign. (Name of Registrar.) Registrar. (Name of Solicitor.) Plaintiff^s Solicitor. Memorandum at the foot. The Bill of complaint filed against you by has been amended by Order bearing date . If you do not answer or demur to the said Bill, or obtain further time for that purpose, within days after the service of this writ upon you, ex- clusive of the day of such service, the Plaintiff will be at liberty to file his replication. ' \ THE WRIT. 29 Where a New Defendant is added, the writ, it would seem, should be in the form first given, putting the word " amended" before the word " bill." For such New Defendant is entitled to his time to appear as well as answer. (1 CHAPTER IV. STHe Appearance. Orders of I860. The Subpoena having been duly served, the Defendant Appearance, '""^^ within the limited time enter his appearance, as in and proceed- the Subpoena directed, or the Plaintiff may appear for ings in default , , , • j <• u r j / u • r of appearance. "^^) &nd m deiault of answer may proceed to a heanngof the cause, as if the statements in the Bill were admitted, or traversed, in the manner prescribed by the Orders pres- ently following. The time limited for appearance in ordinary cases is fourteen days, under the following Orders : — (The Italics show where the words differ from those of the English Order 29th). Order XX ^^ ^"X defendant, not appearing to be an infant, or a person of weak or unsound mind, unable of himself to de- fend the suit, shall, when within the jurisdiction of the Court, be duly served with a subpoena to appear and answer a bill, and sfiall refuse or neglect to appear thereto within fourteen days after such service, the plaintiff may, after the expiration of such fourteen days, and within four weeks from the time of such service,apply to the Registrar If after four ^q enter an appearance for such defendant : and, no ap- application to pearance having been entered, the Registrar is to enter the Court, such appearance accordingly, upon being satisfied by affidavit that the Subpoena was duly served upon such defendant personally, or at his dwelling-house or usual place of abode ; and, after the expiration of such four weeks, or after the time allowed to such defendant for appearing has expired, in any case in which the Registrar V THE APPEARANCE. 31 is pot hereby required to enter such appearance, the • plaintiff may apply to the Court for leave to enter appear- ance for such defendant ; and the Court, being satisfied that the subpoena was duly served, and that no appearance has been entered for such defendant, may, if it think fit, order the same accordingly. Any appearance entered at the instance of the plaintiff XXI. for a defendant, who at the time of the entry thereof shall be an infant, or person of weak or unsound mind, unable of himself to defend the suit, shall be irregular and of no validity. If upon default, made by a defendant, in not appearing Appointment of to or not answering a bill, it appear to "the Court that such Guardian, defendant is an infant, or person of weak or unsound mind, not so found by inquisition, so that he is unable of himself to defend the suit, the Court may upon the application of the plaintiff order that one of the solicitors of the Court be assigned guardian of such defendant, by whom he may appear to and answer, or may answer the bill and defend the suit. But no such Order is to be made unless it appears to Service ofSub- the Court on the hearing of such application, that the P®"* *"^ subpoena to appear and answer the bill was duly served, o^n^n^^"' of and that notice of such application was after the expiration Guardian, of the time allowed for appearing or for answering the bill, and at least six days before the hearing of the application, served upon or left at the dwelling-house of the person wif.h whom or under whose care such defendant was at the time of serving such subpoena, and (in the case of such person being an infant, not residing with or under the care of his father or guardian) that notice of such ap- plication was also served upon or left at the dwelling- house of the father or guardian of such infant, unless the Court, at the time of hearing such application, thinks fit to dispense with such last mentioned notice. The English Orders on this practice are as follow : — English Orders Order 29 of 1845 corresponds to the above Order 20,°" ^'''' ?'"*'="•=«• and is as follows : — (the parts differing from the words of the above Orders are Italicised). If any Defendant, not appearing to be an infant or a English Order person of weak or unsound mind, unable of himself to de- XXIX. fend the suit, is, when within the jurisdiction of the Court, duly served with a Subpoena to appear to or to appear to and answer a Bill, and refuses or neglects to appear thereto within eight days after such service, the Plaintiff 32 English Order XXX. XXXII. Appointment of Guardian. Process of Con' tempt abolish- ed. ,,if: i V THE APPEARANCE. may, after the expiration of Mieh eight days, and within three weeks from the time of such service, apply to the Record and Writ Clerk to enter an appearance for such Defendant ; the Record and Writ Clerk is to en- ter such appearance accordingly, upon being satisfied by affidavit that the Subpoena was duly served upon such Defendant personally, or at his dwelling-house or usual place of abode ; and after the expiration of such three weeks, or after the time allowed to such defendant for ap- pearing has expired, in any case in which the Record or Writ Clerk is not hereby required to enter such appear- ance, the Plaintiff may apply to the Court for leave to en- ter such appearance for such Defendant ; and the Court, being satisfied that the Subpoena was duly served, and that no appearance has been entered for such Defendant, may, if it so thinks fit, order the same accordingly. The 30th English Order of 1845 is in the precise words of the first section of the above Order 21. The 32nd English Order of 1845 is in the precise words of the second and third sectioi) of the above Order 21. Except that the last word in the English Order is " service," where the above reads " notices,''^ but this evi- dently causes no difference in the meaning of the language. The New Orders having provided ample means for proceeding with a cause in the absence of the Defendant, and under the f jrm of Bill now used, a discovery (except in bills for discovery alone) not being required, the pro- cess of contempt is now abolished. Under the above 20th Order, answering to the English 29th Order of 1845, the appearance cannot be entered by the Plaintiff for the Defendant, as of course, if four weeks have elapsed from the service of the Subpoena, but a mo- tion must be made for leave to enter the appearance. This should be made within a reasonable time, or the Court may require a notice to be given to the Defendant, or even a new Subpoena to be taken out. {Radford vs. Roberts, 2 Hare, 96 ; Bointon vs. Parkinson, 7 Jurist, 367 ; Dcvenisib vs. Bevenish, 7 Jurist, 841 ; Edmonds THE APPEARANCE. 33 VS. Nicholls, 6 Beaven, 334 ; Walker vs. Hurst, 13 Simons, 490.) These cases were decided under the 8th English Order of 1841, but it is apprehended that the same principle would now apply ; for undfer the new Order the Court will only direct the appearance to be entered " if it thinkfits.''^ Under the English Orders of 1845, answering to the 2nd and 3rd classes of the above 21st Order, the fol- lowing cases have been decided : — Of the six days which the notice has to run, one day may be Sunday, {Brewster vs. TJiorpe, 11 Jurist, 6.) The Order applies in cases of absent Defendants, being infants, or of unsound mind, {Anderson vs. Stather, 10 Jurist, 383 ; Bid- dulph vs. Lord Camoys, 7 Beaven, 580). As to on whom the service may be made, see Hitch vs. Wells, 8 Beaven, 576. In case of the death of the Guardian, there must be another application, in the same manner, {Needham vs. Smith, 6 Beaven, 130.) The appearance, it will be seen by the foregoing Orders, must in ordinary cases be within fourteen days after service of the Writ. Where the Defendant (an in- fant or of unsound mind) is abroad, an application to serve the subpoena must be made, under the Order as to absent Defendants, (for which see a subsequent chapter), and after the time for appearance the Plaintiff may proceed as by the above Order prescribed. CHAPTER V. Btsent Betentiams. 1850. XXII. r ' Absent ' Defendants. Service of Sub- poena out of jurisdiction. Time to be limited for appearance. Service of copy of Bill and Order. In default, Order for ap- pearance by is Plaintiff. In cases where the Defendant is out of the jurisdic- tion, the proceedings are to be according to the following 22nd, 23rd, a^d 24.th Orders : Where a Defendant in any suit is out of the jurisdic- tion of the Court. 1. The Court, upon application, supported by such evidence as shall satisfy the Court in what place or country such Defendant is or may probably be found, may order that the Subpoena to appear to and answer, or to answer the Bill, may be served on such Defendant in such place or country, or within such limits as the Court may think fit to direct. 2. Such Order is to limit a time (depending on the place or country within which the Subi^Tena is to be served) after service of the Subpoena, within which such Defendant is to appear to the Bill, and also a time within which such Defendant is to answer or demur ; or obtain from the Court further time to make his defence to the Bill. 3. At the time when such Subpoena shall be served, the Plaintiff is also to cause such Defendant to be served with a copy of the Bill and a copy of the Order, giving the Plaintiff leave to serve the Sub- poena. 4. And if, upon the expiration of the time for appear- ing, it appears to the satisfaction of the Court that such Defendant was duly served with the Subpoena, and with a copy of the Bill and a copy of the Order, the Court may, upon the application of the Plaintiff, order an appearance to be entered for such Defend- ant. ABSENT DEFENDANTS. •S5 Affidavits, filed for the purpose of proving the ser- vice of a SubpcRim upon any Defendant, nre to state when, where and how, such Subp, and 36 of 1S45. The above Order 24 is taken from the English Order 31 of 1845, which is in the following words : — In case it appears to the Court by sufficient evidence, ABSKNT DEFENDANTS. 37 that any Defendant, against whom a Subpoena to appear or to appear to and ansiver a bill has been iasued, has been within the jurisdiction of the Court at some time not more than two years before the subpoena was issued, ant that such Defendant is beyond the seas, or upon inquiry at his usual place of abode (if he Imd any), or at any other place or places where, at the time when the sub- poena was issued, he might probably have been met with, he could not be found so as to be served with pro- cess, and that in either case there is just ground to believe that such Defendant is gone out of the realm, or otherwise absconded, to avoid being served with process, then and in s'.ch case the Court may order that such Defendant do appear at a certain day to be named in the Order ; and a copy of such Order, toj^ether with a notice thereof to the effect set forth at the foot of this Order, may, rithin fourteen days after such Order made, be inserted in the London Gazette, and be otherwise published as tue Court directs ; and in case the P "ifendant does not appear within the time limited by sucn Order, or within such further time as the Court appoints, then, on proof made of such application as aforesaid of the aforesaid Order, the Court may order an appearance to be entered for the Defendant on the application of the Plaintiff . The notice appended is in the words of that above given, at the foot of Order 24. Under the English Order 31 of 184-5, answering to the above Order 24, it has been decided, that it is not neces- sary to prove that the Deff. .dant absconded to avoid pro- cess in that particular su't. {Cope vs. Russell, 2 Phil- lips, 404 J 12 Jurist, 105.) CHAPTER VI. ISemurrn-. Demurrer must be within four- teen days after appearance. 1850. XXVI. Demurrer,four- tee?, nays. Settlns down. Order of 1851. Eight days notice of argu- ment of demur- rer. If the Defendant is advised thr.t the Plaintiff's bill is, for any thing apparent on the face of it, bad in law, and the Plaintiff therefore not entitled to the relief sought by the bill, he may, as we have seen, demur. This demurrer must be filed, and an office copy served on the Plaintiff's Solicitor within fourteen days from the time of appearance entere(i. In counting this time, the day of appearance is exclusive anu ihe day of demurring inclusive. When the aemurrer is filed, either party may set it down with the Registrar to be argued on praecipe. Eight days' notice must then be given to the opposite party of the day of argument, and care must therefore be taken, in setting down the demurrer, to have it set down for a day which will leave time for the eight days' notice. The following are the rules governing this practice : — A Defendant may demur alone to any bill, within four- teen days after his appearance thereto, but not afterwards. it needs not be entered with the Ilegistrar ; but, upon the filing thereof by a defendant, either party is to be at liber- ty to set the same down for a''gument immediately. The former practice was to allow the demurrer, unless the Plaintiff set it down to be argued within a limited time. The Rule, under which the eight days' notice is required, is the 158th .Order, of January, 1845, which, as so far as it is co?tsiste)it with the New Orders, is still in force. It is as follows : — The parts italicised are inconsistent with the New Orders, and therefore not in force. [That no subpcota to hear jiulgmcM sliall he si/rd out in any case bntl the partv setting down the [^plea or'\ demurrer, to be argued, [or the cause to h'. hearer] shall give a notice in writing, stating that the \j)Ica or] demurrer DEMUUUER. 39 [or the cause'] has been entered in the Cause Book with tlie Registrar for argument [or hearing], and stating the day on which the same is to be argued [or heard]. And that such notice shall be served eight days before the day of argument \or hearing], and that it shall be the duty of the party entering such [plea m] demurrer, [or cause] to be argued [or heard], at the time of entering thereof to furnish the Registrar with the day on which the same is to be argued [or heard], in order that the same may be entered in the Cause Book, The 111th Order of 1842, under which the Plaintiff had a time, within which to set down the demurrer, is ex- pressly repealed, and 97th Order of 1842, allowing the Defendant to set it down after ten days, is also abolished, being not " ■ onsistent with" the above 26th Order. The demurr* ri ow be set down and disposed of. The above language of this Order, so far as it abolishes the subptena to hear judgment, is not now in force, be- cause the 69th New Order establishes the practice of SubpcEnas to hear judgment. The rule does not apply to pleas, because they are abolished. And it does not apply to setting down Causes, because the 69th New Order provides for a different kind of notice, namely a service of the Subpoena to hear judgment. But, although the 69th Order says that Demurrers as well as Causes may be set down in vac'^tion, it does not provide for any notice or Subpcena ir .fN^fcct of demurrers, and therefore The above Order only ap' plies to demur'' ers. as to them, we hav^ .>) 69th Order says t', •("' r to the above Order. The '.' he party setting dmvn a Cause'''' &c., must sue i c a Subprena, but it does not make any provision of the kind for the setting down of demurrers. The Defendant may couple a demurrer with an answer, at any time within the time for answering ; but the demurrer must not be to the whole material part of the Bill with a mere 'Vnial of fraud and combination. Some fact must be ai^i.icd, traversed or denied. iWether- head vs. Blacldnu >t 2 ^'ese/ and Beames 123 ; Totnkin vs. LetJibridge, 9 Vesey 179, 463 ; Baker vs. MellisJi, 11 Vesey 73). 69th new Order requires no subpcena ad audiendum ibr the hearing of demurrer... CHAPTER VII. Efie ^ns^tV' 4i Form of, and time for answer. 1850. XXVII. One month. Eight days to amended Bill. The answer formerly consisted of a complete, literal and substantial answer to the Interrogatories of the Bill. There are now no Interrogatories to the Bill, (except in Bills for Discovery, as to which the practice is peculiar,) and the answer may be as short a statement of the defence as the Defendant may think proper to put in. The answer must be filed within one month — twenty-eight days, — the first being inclusive, and the last exclusive after appearance, unless further time be granted, which may be done under certain circumstances on application to the Master as provided by the following Orders. The Order, by which the form of the answer is now governed, is the 27th Order of 1850. A Defendant is to answer or demur, not demurring alone, to any original bill or bill amended before answer, within one month after appearance thereto has been en- tered by or for him, or from the time of amendment, as the case may be. Where the Plaintiff amends his bill after answer, any Defendant desiring to answer the same must put in his answer thereto within eight days after ser- vice of the Subpoena to answer the amended bill, or with- in such further time as the Master may allow ; and a De- fendant, being served with Subpcena to answer an amended bill, praying an injunction to stay proceedings at law, and desiring to avoid a motion for an injunction on affidavit of the truth of the amendments, has for that purpose only eight days after service of Subpcena to answer, within which he is to answer or demur to such amended bill . THE ANSWER. 41 The commencement and conclusion of the answer shall be in the form prescribed in Schedule D. to these Orders :i}'pended. It must I e verified by the oath of the Defen- dant, as heretofore, but needs not be signed by counsel. It shall consist of a clear and concise statement of such defence or defences as the Defendant may desire to pre- sent. The silence of the answer as to any of the state- ments of the bill shall not be construed into an implied admission of their truth ; and statements introduced into the answer, for the purpose merely of preventing such im- plied admission, shall be considered impertinent. Pro- vided always, that nothing herein contained shall be con- strued so as to prevent a Defendant from introducing into his answer any matter which may be material, for the purpose of preventing an injunction from being granted, or of procuring the same to be dissolved. The following is the form given in the Schedule. COMMENCEMENT AND CONCLUSION OF ANSWER. The answer of C. D., one of the Defendants to the bill of complaint of A. B., complainant. This Defendant, for defence to the said bill, says that, &c. (state the defence as succinctly as can be done consis- tently with due certainty, and in any language suitable to the purpose.) This Defendant therefore humbly insists that (where the Defendant requires any peculiar relief, it should be specially stated), and prays to be hence dismissed with his reasonable costs in this behalf wrongfully sustained. A second or s' pplemental answer could only be filed, according to the old practice, under very spec'.al circum- stances, and was very rarely permitted. The practice is somewhat relaxed under the following Orders. It shall be competent to the Court, at any time, in furtherance of justice and upon such terms as may be prop- er, to permit a supplemental answer to be filed, for the purpose of putting new matter in issue. Leave to file a supplemental answer shall be applied for by motion, which shall set forth the proposed answer, and shall state the ground upon which the indulgence is asked. Notice of this motion must be served upon the solici- tors'of all parties to this suit ; and, when any party has no solicitor, then upon such party, unless the Court under special circumstances shall dispense therewith ; and it must be supported by such evidence as shall satisfy the Court of the propriety of permitting such supplemental Answer must be sworn to. Must be con- cise. Omission to deny Bill, no admission. Impertinence. 1850. XXIX. Supplemental answci -on motion. Motion how made, 42 THE ANSWER. '^, 1850. XXVIII. Decree may be 80 framed as to give the proper relief to the defendant as well as the plaintiff. answer und«r the circumstances, having reference to the subject matter of the answer, to the Defendant's former answer, and to the stage of the cause in which the appli- cation is made. There is no such Order in England, but it is now ne- cessary here, since the first answer may under the present practice be short, and not in the nature of a discovery. The ostensible object of a decree in Equity is to give that relief to all the parties. Defendants as well as Plain- tiffs, which the facts warrant, and in furtherance of that view, is the following Order : Where, in order to complete justice, relief ought to be given to the Defendant as well as the Plaintiff, or to the Defendant alone, it shall be competent to the Court, if it see fit, so to frame the decree as to attain such object, whenever the Defendant's right to relief grows out of the same transactions as form the subject matter of the Bill ; arid the facts necessary to ground such relief may be stated by the Defendant in his answer as part of his case. Pro- vided, that nothing herein shall be construed to authorise a defendant to state in his answer any distinct and inde- pendent matters, as the foundation for relief, not connect- ed with, and growing out of, the case made by the bill ; and it shall in all cases be discretionary with the Court whether to grant such relief upon the answer, or to direct a separate suit to be instituted. The application for further time to answer must be made to the Master, by taking out a warrant returnable on the fourth day from its date, that is, allowing two clear days between its date and the return ; and it must be re- turnable before the ordinary time for answering has ex- pired ; otherwise the Master cannot entertain the applica- tion, having no jurisdiction, but a special motion must be made to the Court. The practice before the Master in these applications is under the following Orders of 1846, which are not re- pealed except as to the parts italicised in brackets : — It is ordered — That the Master in ordinary of this Court . . shall hear and determine all ajiplicatioiis for time [to M^ster^fllrtimei'^^^^] answer or demur, [and for leave to amend Bills, to answer, and for leave to tvithdraw replication and amend Bills] , and for enlarging publication, and either party shall be at liberty to appeal by motion to the Vice Chancellor from the Order made by the Master upon such application. Application for time ' answer is to the Mas- ter. 1846. 181. THE ANSWER. 43 The abave language with regard to amendments is re- pealed by the 12th and 13th New Orders, which provide for amendments, either as of course, or on motion. Another Order of 1846 states the practice on the warrant : That such applications to the Master shall be made by ^^gg ' taking out a warrant which shall be under-written with warrant to run the object of the application, and the same shall be served two clear days, two clear days before the return thereof. The conditions of the Order for time, are prescribed by the 184th and two following Orders of 1846, as fol- lows : That in every Order granted by the INIaster for further 1846. time to answer shall be made a condition of such Order ^^}' that the defendant shall enter his appearance with the o^der^Sume Registrar and consent, that in case of default the plaintiff Defendant shall be entitled to a writ of sequestration, unless under must appear, any special circumstances the Master shall otherwise direct, and which circumstances shall be shortly stated in the Order made upon such application. The use of the above is not very clear. Unless the defendant had already appeared, or the plaintiff had ap- peared for him, in which case his own appearance is not necessary, the time could not be running against him for answering, and therefore the application could hardly be necessary. The rule has consequently not come in ques- tion in prActice. That upon such applications aforesaid the Master shall jgg ' be at liberty to direct, and shall accordingly in the Orders Costs on "appli- made thereon direct whether the costs of the application cations for shall be costs in the cause, or whether such costs, or any '•'"^ ^° answer. part thereof, shall be paid by any of the parties person- ally ; and in the latter case the Master shall in such Order either fix the sum to be paid for such costs or tax the same at his discretion, and the party, to whom such costs are directed to be paid, shall be entitled to sue out a subpcena for the same, or the Master ma; in his discretion award costs to neither party. That the Master shall draw up the Orders upon such '^^^• applications aforesaid in a short form, and the same, when orders for time signed by him, shall be entered in a book to be kept for drawn up by that purpose in the office of the Master ; and such Orders ihe Master, shall then be binding (unless reversed or varied on ap- u THE ANSWER. M 1 Defendant within one month may answer and demur, but must not demur ulone. Must clearly distinguish part answered from part demurred to. 1842. 113. Demurrer not bad because answer extends to part. peal), and shall be enforced in like manner as if made by the Court ; and the original Order or any duplicate there- of (which the Master is to grant on the application of any party) shall be a sufficient warrant to every officer of tl e Court to do the act therein mentioned, or to permit the same to be done, and each party shall be at liberty to inspect the entry of all such Orders in the said Entering- book without fee. The answer must, as v,e have seen, come in within one month after appearance, unless further time is given ; but the answer filed needs not be to the whole bill. So that there is some answer, the defendant may couple that answer with a demurrer to the Bill, provided he does not demur to the whole Bill, but answers as to some part. The demurrer, thus coupled with the answer, may then be set down by either party, and, if it is overruled, the defen- dant must answer over, and counsel should at once ask the Court for time to answer, or the Plaintiff may proceed by traversing note, under the 32nd New Order. If the demurrer is allowed, the Plaintiff's case fails as to so much of the Bill as has been demurred to, and he can only rely on the remaining part at the hearing. The answer and demurrer must clearly state and distinguish the respective parts of the Bill to which the answer and the demurrer relate. The practice may be considered somewhat relaxed in that respect by the following Orders, but still there should be clearness and particularity observed in stating what parts of the Bill the demurrer is meant to govern. Other- wise, were the demurrer allowed, it might be difficult to say how much of the Bill should be struck out by amend- ment. It had been held when the defendant answered and demurred, that a demurrer was bad if it had extended to any part of the Bill which the answer also covered. This is altered by the following Order : That no demurrer or plea shall be held bad and over- ruled upon argument only, because the answers of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea. THE ANSWER. 45 The following rule also remains in force, except, like ! the above, as the " plea." That no demurrer or plea shall be held bad and over- 1S42. ruled upon argument only, because such demurrer or plea p^my^gf q, shall not cover so much of the Bill as it might by law pi^^^ „„t \^^ have extended to. ibr covering The answer is sworn before a Master of the Court, and *"ieht! ' manner of swearing it is prescribed by the following Order. That in the case of answers the following oath or j^gjg Qf taking affirmation shall be administered to the party by the Master or Master Extraordinary. " You do swear, (or affirm as the case may be), that " you have read (or heard read) this your answer sub- " scribed by you, and that you know the contents thereof, ^^^^^ °^ oath. " and that the same is true of your own knowledge ex- " cept as to matters which are therein stated upon your " information and belief, and as to those matters you be- " lieve it to be true." That the Master or Master Extraordinary shall then subscribe or endorse on the answer a Jurat in the following form : — '« The Defendant C D on the — answers. 1837. 24. « in the year of our Lord, &c., appeared before *• me at my chambers in the of in the -day of Form of Jurat. « District of and answered that he had read the " foregoing answer, and signed the same in my presence, " and thereupon was sworn (or affirmed^ before me that *' he had read (or heard read) the foregoing answer sub- *• scribed by him, and that he knew the contents thereof, " and that the same was true of his own knowledge ox- " cept as to matters which are therein stated to be on *J his own information and belief, and as to those matters " he believed it to be true." That in the case of an illiterate Defendant the Jurat shall run thus : — " The Defendant C « or write, E F— D not being able to read In case of an -, Solicitor for the said Defendant, illiterate per- " was sworn that he had truly and faithfully read the '*'"• " contents of this answer to the said C I) and " that he appeared perfectly to understand the same : " and the said C D was thereupon sworn that " he had heard the said answer, subscribed by him with 4rt TH£ ANSWER. I' How to be folded and transmitted. 1843. 134, 133. No answer or demur- rer to be deem- ed filed until copy served . 1850. XXX. Exceptions abolished. '' his mark, read, and knows the contents thereof, and *' that the same is true of his own knowledge except as " to matters which are therein stated to be on his in- " formation, and as to those matters he believes it to be " true." That the Master or Master Extraordinary shall fold ' the answer, and bind it with tape, and set his seal at the several meetings or crossings of the tape, endorse his name on the outside and direct it thus "To , Esquire, llegistrar of the Court of Chancery, City of Toronto." The Master or Master Extraordina- ry shall immediately deposit the packet so directed in the nearest Post-OfBce, and endorse thereupon " Deposited in the Post-Office at this day of by me A B a Master or Master Extraordinary," as the case may be ; and he shall enclose at the same time the Registrar's fee of two shillings and sixpence for filing the answer. The postage and fee shall be paid by the Defendant or his solicitor. By Order 134 of 1843, the copies of proceedings for service, are first compared with the record filed, and then stamped and marked by the Registrar. And by Order 135 of 184<3, no answer or demurrer is considered filed, until a copy of it, so authenticated, is served upon the Plain- tiff's Solicitor or Agent. This practice remains in force. When the answer was to the whole Bill and interroga- tories, it was exceptionable if every part was not com- pletely answered. The exceptions were argued before the Master, and, if they were allowed, the Defendant was compelled to file a further answer. This practice is now of course abolished, or it would clash with the 28th New Order. The 30th New Order provides : — No exceptions to an answer on the ground of insuffici- ency shall in future be filed ; nor shall any process of contempt be issued for the purpose of compelling an an- swer. But, if upon the hearing of any cause, petition, or motion, the Court is of opinion that any pleading, peti- tion, or affidavit, which has not been referred for imper- tinence, or any part of such pleading, petition, or affidavit, is improper or of unnecessary length, the Court may either order such pleading, petition, or affidavit, to be taken off the file, or may declare such pleading, petition, or afiidavit, or any part thereof, to be improper or of un- necessary length ; and, if it shall declare such pleading. THE ANSWER. 47 petition, or affidavit, to be of unnecessary length, may direct payment of a sum in gross in lieu of taxed costs Costa of plead- therefor, or may fix the length at which the same shall '"^;j""jjf"''" be considered on taxation ; or may direct the taxing master to look into such pleading, petition, or affidavit, , and distinguish what parts or part thereof are or is im- proper or of unnecessary length ; and may direct the taxing-master to ascertain the costs occasioned to any party by such parts or part thereof, as in the one case may have been declared to be, and in the other case may have been distinguished as being improper or of unnecessary length ; and may make such order as is just for the pay- ment, set oft", or othe»- allowance of such costs, by the party, his solicitor or counsel, as to the Court may seem just. A notice of the filing of any appearance, or pleading, must be always served on the opposite party, under the following rule. When any solicitor or party shall cause an appearance Notice of filing to be entered, or an answer, demurrer or replication to be appearance and fded, he shall on the same day give notice thereof to the pleadings, solicitor of the adverse party, or to the adverse party himself, if he act in person. 1850. XLVII. CHAPTER VIII. STlie Heplfcatfon. :,'J I . 1 1 Replication. Setting down cause on Bill and answer. Not likely to be now usual. After the filing of the answer, the next proceeding is to file the Replication, which must be done by the Plain- tiff within the time limited by the following Orders, or to set down the cause to be heard upon Bill and answer. The effect of setting down the cause on Bill and answer is that the truth of the answer is admitted, and the Plaintiff must rely upon what he finds in the answer, and on noth- ing more, as his evidence, to support his claim to a decree. He cannot go out of the answer to prove his case, {Jones vs. Griffith, 8 Jurist, 733). Under the old practice, when the Defendant was compelled to make full discovery of all the facts, in answer to the specific Inter- rogatories of the Bill, he frequently could not avoid making 3uch admissions as were sufficient to sustain the Plaintiff's case, notwithstanding anything else in the answer contained. In such cases the Plaintiff might at once, without replying to the answer, set down the cause. If he replied, the Defendant was then, as now, at liber- ty to go into evidence ; but the Plaintiff might and still may read from the answer, as true, to support his cases any passages he may think proper as evidence. Under the present practice the Defendant, not being compelled to make full discovery, is unlikely to state such a case on his answer as will alone sustain the Plaintiff 's case, and therefore causes will very seldom be set down to be heard on Bill and answer. THIS REPLICATION. 49 The replication will then in most cases be necessarily filed. No subpcena to rejoin is hereafter to be issued, and only one replication is to be filed in the cause, unless the Court otherwise orders ; and the replication is to be in the form set forth in Schedule E. to these Orders append- ed, or as near thereto as circumstances admit and require ; and upon the filing of the replication the cause is to be deemed to be completely at issue. The following is the form : — Between A. B. Plaintiffs and C. D., E. F., G. H., &c. Defendants* The Plaintiff in this cause joins issue with the Defen- dant CD. (cdl the Drfendants ivho have amtoercd, or against whom a traversing note has been filed) ^ and will hear the cause upon bill and answer against the Defen- dant E. V.(.all the Defendants against tclwni the cause is to be heard on bill and ansicer) and on the order to take * 'nil as confessed against the defendant G. H. {as th mai/ be). The subpoena to rejoin had been already abolished by the 157th Order of 1845, which gave the following very 1850. XLV. Cauie put at iisue by replication. Form of replication. Subpoena to short form of replication. " The Plaintiff replies to the '■''J°''? nbolish- Defendant's answer." The above form under the New Order, it will be seen, is to meet any case of several De- fendants. If all the Defendants have answered, the first clause will of course be sufficient, and so on, according to the circumstances. The 157th Order of 1850 is re- pealed, and the replication will therefore always com- mence according to the above form under the Order of 1850. There should be only one replication to all the answers, and, a replication to one answer having been filed, and another answer afterwards coming in, an application to the Court will be required to withdraw the first one. (^Stinton vs. Taylor, 4 Hare, 608 ; 10 Jurist, 386). The Plaintiff (not obtaining an Order for leave to amend his bill) must either file his replication, or set down the cause to be heard on bill and answer, within one month after the filing of the last answer. The plaintiff having 1850. XLVI. Replication obtained an order for leave to amend after answer, must *"'® '"°"**' *^'' laat answer. 50 THE REPLICATIOHr. Amendme>it,. but no answer, plaint ifl' must reply after eight and within fourteen days. Within foMr- tcen days after further time to answer rfA'ied. If amendments answered. Re- plication with- in fourteen days after anitwer. Compared with English Orders. either fily his replication, or set dovrn the cause to be hearcl on bill and answer, within the times following, viz. : 1. Where the plaintiff* amends his bill, and no answer is put in thereto, and no warrant for further time to answer the same is served within eight days after service of the subpoer n to answer the amended bill, (he plaintiff is, after the expiration of such eight days, but within fourteen daj-s from the time of such service, either to file his replication, or set down the cause to be heard upon bill and answer. Otherwise any defendant may move to dismiss for want of prosecution. ?.. Where the plaintiff amends his bill after answer, and a defendant, within eight days after the service of the subpoena to answer the amended bill, serves a warrant for further time to answer the amendments, but the Master refuses to grant such further time, the plaintiff is, within fourteen days after such refu- sal, either to file his replication, or to set down the cause to be heard on bill and answer. Otherwise any defendant may raave to dismiss the bill for want of prosecution. 3. If a defendant puts in an answer to amendments, the plaintiff must, within fourteen days after the filing of such answer, either file his replication, or set down the cause to be heard on bill and answer, unless in the meantime he obtains from the Court a special order for leave to amend the bill. Otherwise any defendant may move to dismiss the bill for want of prosecution. The above introductory clause of the 46th Order is taken from Article 37 of the English Order 16 of 1845. Article 1 of the above Order 46 is from 38th Article of the English 16th Order Article 2 is from Article 40 of the said IGlli Order, and Article 3, from Article 41 of the 16th Order ; all with a few verbal alterations, necessary to adapt them to our practice, of never compel- ling an answer. The authorities on this subject will be ioMuC under the Orders as to Dismissal of Bill. CHAPTER IX. QTrabersCng Kote. Another mode of proceeding, which the Plaintiff may adopt, if, after the appearance the Defendant neglect to answer, is under the following Order : — At the expiration of the time allowed to a defendant to answer or demur (not demurring alone) to any original bill ir bill amended before answer, if such defendant have filed no answer or demurrer, the plaintiff may file a note to the following effect : " Thn plaintiff intends to proceed with his cause as if the defendant had filed an answer traversing the case made by the bih." A traversing note having been filed, a copy thereof shall be served on the defendant i gainst whom the same shall be filed, and thereupon such note shall ha /e the same efi'ect as if such defendant had filed an answer traversing the whole bill on the day on which such note shall be filed. After service of a copy of a traversing note, filed as aforesaid, a defendant is not at liberty to answer or demur to a bill without the special leave of the Court ; and the cause is to stand in the same situation as if such defendant had filed an answer to the bill on the day on which the nole was filed. Where a demurrer to the whole bill is overrulec*, the plaintiff may immediately file his note in manner and with the effect hereinbefore directed, unless the Court, upon overruling such demurrer, give time to the defendant to answer or demur ; and in such case, if the defendant shall file no answer or demurrer within the time so allowed by the Court, the plaintiffmay, on the expiration of such time, file such note. 1850. XXXII. Traversing note. Form. Copy to be served. Same efiect ai answer. In case of demurrer over« ruled. tm'mm 52 TRAVERSING NOTE. m \ The above Order is from 52nd, 55th, 56th, 57th, and 58th English Orders of 1845, mutatis mutandis. All reference to Pleas and Supplemental Bills is necessarily omitted, as also provisions pointing to the Plaintiff's right to compel ail answer. The Order would seem not to apply to Infant Defendants (Emery vs. Newson, 10 Simons, 5<54). It is irregular, if answer has been s'.rorn, {Right/ vs Righy, 6 Beaven, 265). There seems to be no good reason why it may not apply to cases of De- fendants out of the jurisdiction, (Moss vs. Buckley^ 2 Phillips 628 ; Laurie vs. Burn, 12 Jurist, 598 ; but see Anderson vs. Stather, 11 Jurist, 96). Service of the note should be proved at the hearing (Evans vs. Wil- liams, 6 Beaven, 118). As to the effect of the Note, with a view to the evidence, (see Martin vs. Norman, 2 Hare, 596.) At the hearing the Plaintiff must prove his case, and the Court will make such a decree as the evid- ence warrants. * Some of the above cases were decided prior to the ' /rders of 1845, but they went upon the Orders of 1844, under which there was a similar proceeding, and arc therefore applicable to the present practice. CHAPTER X. iStjfKewte. ?'(■*'« The cause being at issue, each party has two months' time to examine witnesses, and a material alteration, effected by the recent Orders, consists of the examination by each party of the opposite party, if it is desired. The time for takin£; evidence was formerly three months. The rule to produce witnesses, formerly in use, is abolish- ed. Written Interrogatories are now dispensed with. The following are the Orders : — 1850. Immediately after the replication shall have been filed, Examination of each defendant may give notice of his intention to proceed witnesses on to the examination of witnesses ; and the plaintiff may in fourteen days' like manner proceed to examine his witnesses, so soon as notice of the replication having been filed shall have been duly served on all the defendaats who have filed an answer, or against whom a traversing note has been filed. Such notice must be in writing, and, beside specifying the time and place when and where, and before whom, such ex- amination is to be proceeded with, must contain the name of each witness to be examined, his degree, and place of notice. 54. EVIDENCE. LIII. Interrogatories abolished. Liy. Witnesses in County of York must be exam- ined before the Court. Other witnesses may be so ex- examined. LV. Examination before examin- ers in the J country. abode. This notice must be served on the solicitors of all the other parties entitled to examine witnesses, and in case any such party has no solicitor, upon such party, at least fourteen clear days before the day therein named for proceeding to examine witnesses. No written interrogatories for the examination of either witnesses or parties, either before or after decree, shall henceforwa.-d bo filed, except by direction of the Court ; such examinations shall be viva voce, and may be conducted either by the parties, their solicitors or coun- sel. Witnesses (whether parties to the record or not), re- siding within the County of York, shall be examined be- fore the Court, as the Court shall appoint ; and witnesses (whether parties to the record or not) residing in any other county than the County of York, may be examined before the Court by consent of parties, or at the in- stance of any party willing to pay the extra expense, if any, thereby incurred. In other cases witnesses (whether parties to the record or not) shall be examined at the county town of the county in which such witnesses reside. Provided that nothing herein contained shall be construed to prevent an examination of witnesses from being had at any place that may be fixed by consent of parties. I.ie examination of witnesses, (whethc parties to the record or not) when not taken before '.le Court, is to be taken by some one of the examiners, unless otherwise ordered ; and, where any of the witnesses reside out of the jurisdiction, it may be taken by commission as hereto- fore. These Orders are peculiar to this country, and it is be- lieved that they effect a material improvement in the practice. Having been for so short a time in force, no decisions of importance have taken place under them. The mode of proceeding is as follows, when the examin- ation is in Toronto : — The subpoena for witnesses having been taken out, an application is made to the Chancellor to name a day for examination. This he does by signing an appointment for a day not less than fourteen days dis- tant, and notice of the names of the intended witnesses is then given to the opposite Solicitor, stating the time when they will be examined. The witnesses should each be serv- ed with a copy of the subpoena and a copy of the appoint- ment attached, and paid the same fees as witnesses are al- EVIDENCE. 55 lowed in the Queen's Bench. The witness having been ; sworn by the Registrar, one of the Judges takes down his evidence (the full Court being sitting), and at the conclu- sion of the examination in chief, cross-examination, and re-examination respectively, the evidence is read over to the witness and signed by him. After publication has passed, the Registrar furnishes to the Solicitors, who re- quest them, copies of the depositions, and they are read at ihe hearing in the same manner as formerly. A large portion of the evidence is often documentary, and may be put in on affidavit under the following Order : That in cases in which any exhibit may by the present practice of the Court be proved vivit voc^ at the hearing Jan. 1842. of a cause, the same may be proved by the affidavit of the ., , .... witness who would be competent to prove the same viva be proved by voci at the hearing. aflSdavit. For what exhibits may be so proved, see DanieVs Chancery Practice, vol. 2, p. 1025 and following pages, Perldns' Edition, 1846. Another mode of putting documents in evidence is under the following Orders, which establish a practice similar to that which has been found highly useful in the Common Law Courts. A.x\y person after replication filed may give notice to the other in the form set forth in schedule F. to these orders appended, or to the like effect, of his intention to adduce in evidence certain documents; and, unless the .?^V" adverse party shall consent by indorsement on such notice documeritsnmv within forty-eight hours, to make the admission specified, be demanded, the party requiring such admission may call on the party required to show cause why he should not consent to such admission, or in case of refusal be subject to pay the costs of proof ; and, unless the party required shall expressly consent to make such admission, the Court shall, if the application seem reasonable, make an order, that the costs of producing any document specified in the notice, which shall be proved at the hearing tn the satisfaction of the Court, shall be paid by the p^: ty so required, whatever may be the result of the cause: Provided, that, if the Court shall think the application unreasonable, the motion shall be endorsed accordingly : Provided also, that the Court may give such time for enquiry, or examination of m^mmm -'/' .*>.)<': 56 EVIDENCE. ¥ I ■ m'- l the documents intended to be offered in evidence, and give such directions for inspection and examination, and impose such terms upon the party requiring the admission, as they shall think right. If the party required shall consent to the admission, the Court shall order the same to be made. No costs of proving any document shall be allowed to ^ny party who shall have adduced the same in Costs. evidence, unless he shall have given such notice as afore- said, and the adverse party shall have neglected or re- fused to make such admission, or the Court shall have en- dorsed upon the motion that they do not think it reasona- ble to require it. The Court may make such order as they may think fit respecting the costs of the application, and the costs of production and inspection ; and in the absence of a special Order the same shall be costs in the cause. The following is Schedule E., in the above Order referred to : — In Chancery. ^ A. B. Between and Plaintiff, CD. Defendant. Take notice that the plaintiff (or defendant) in this cause proposes to adduce in evidence the several docu- ments hereunder specified, and that the same may be in- spected by the plaintiff (or defendant), his solicitor or agent, at on between the hours of and and that the plaintiff (or de- fendant) will be required to admit that such of the said documents as are specified to be originals were respec- tively written, signed or executed, as they purport respec- tively to have been ; that such as are specified as copies are true copies ; and that such documents as are stated to have been served, sent or delivered, were so served, sent, or delivered respectively, saving all just exceptions to the admissibility of all such documents as evidence in this cause. Dated this day of 18 . Yours, &c. C. R. Solicitor or Agent if or plaintiff or defendant.) To E. F. Solicitor or Agent for (.plaintiff or defendant). Then describe the documents ; the manner of doing vrbich may be as follows : eVIDENCE. 67 ORIGINALS. Description of the Documents, Dates. Deed of Covenant between I A. B. and CD. of the? first part, and E. F. of C the second part. j Indenture of Lease from> A. B. to C. D. 5 Letter of Defendant to i Plaintiff. S Memorandum of Agree- j ment between C. D. and > E.F. ) Bill of Exchange for £100 at three months, drawn by A. B. on and ac- cepted by C. D. indors- ed E.F. 1st Jan., 1850 1st May, 1850 12th March, 1850. 1st December' 1849. COPIES. Description of Documents. Registrar of I Baptism oO A. B. in the I parish of | Letter, — Plaintiff Defendant iff to [ dant. J Dates. Notice to J produce > papers. J Letter i Patent of/ King Geo. I III. ] 1st January, 1850. 1st February, 1850. 1st March, 1850. 1st January, 1800. OriginnI or Duplicate served, sent or delivered, when, how, and by whom. Sent by General Post, 2nd February, 1850. Served 2nd March, 1800, on defendant's Solicitor, byE. F. of 58 EVIDENCB. m l!:: 1850. XXXI. Production of papers, by either party. On motion of course. May be en- forced by order, on motion after notice. ♦Vhat docu- ments to be produced. An important part of the evidence of either party is often takeA from documents in the possession of the op- posite party, and, to compel the production of such papers, there are the following rules : — Either the plaintiff or defendant may at any time after answer obtain an Order of course, requiring the adverse party to produce, within a time to be limited by the order, all deeds, papers, writings and documents in his custody or power, relating to the matters in question in the cause under oath, and deposit the same with the Pvegistrar of the Court for the usual purposes. Provided always, that neither the plaintiff' nor the defendant sliall be hound in pursuance of such order to j}roduce any deeds, papers, writings, or documents, which a defendant now admit- ting the same by his ansiver to be in Ids custody or poioer would not be bound to produce. Any party ob- jecting to the production of deeds, papers, writings, or documents, in his custody or power, shall, in the affidavit to be made upon such occasion, assign the reason for his declining or refusing to produce the same ; and, in case the party obtaining such order shall have reason to think that the exigency of the same has not been fully complied with, he may apply to the Court, upon notice, for an order to compel the production and deposit of such deeds, papers, writings, or documents as he may have reason to think should be produced, and may support such applications by the pleadings, or by affidavit, or both, as he may be advised ; and thereupon the Court may make such order as may seem just. Under this Order, it will often be important to consider what documents a party was, under the former practice, compellable to produce. The cases on the subject are very numerous. The Defendant can, it seems, under this Order compel the production of the documents stated in the bill as those on which the Plaintiff relies, and which are stated to be in his own possession, see Bate vs. Bate, 7 Beaven, 528 ; and Taylor vs. Henning, 4 Beaven, 235. These cases show, that without any such order as this, the Court would still, in some cases take means to give the de- fendant the inspection of documents clearly material. And it is apprehended, that now the Plaintiff would be compel- led to produce any such documents as the Defendant is compellable to produce. Among the cases tending to show EVIDENCE. 59 •what documents the Defendant is compellable to produce, are the following : — Attorney General vs. Berry, 2 Collyer, 33 ; 9 Jurist, 224 ; Brmvn vs. Perkins, 2 Hare 540 ; 8 Jurist, 186 ; Atkins vs. Wright, 14 Vesey, 211 ; Sweet vs. Hunter, 9 Jurist, 807 ; Combe vs. Corporation of London, 10 Jurist, 57 ; Harris vs. Harris, 4 Hare, 179 ; Bannatyne vs. Leader, 10 Simons, 230; Edwards vs.Jo9ies, 1 Phillips, 501 ; Smith vs. Duke of Beaufort, 1 Phillips, 209 ; Mar- quis of Bute vs. Glam,organsfiire Canal Company, 1 Phillips, 681 ; Smith vs. Doivling, 10 Jurist, 63; Flight vs. Robinson, 8 Beaven, 22 ; Steele vs. Stewart, 1 Phillips, 471 ; Woods vs. Woods, 4 Hare, 83 ; Holmes vs. Baddley, 1 Phillips, 476 ; Belsliaiv vs. Perceval, 10 Jurist, 772 ; Wroughton vs. Barclay, 11 Jurist, 274 ; Johnston vs. Tucker, 1 1 Jurist, 382 ; Price vs. Gordon, 7 Jurist, 1076 ; Grane vs. Cooper, 4 Mylne and Craig 263 ; Gerard vs. Pensivick, 1 Swan- ston, 533. In many of these cases, the right is shown to be restricted to the admissions in the answer ; but it is clear that such a limitation cannot now hold, because the answer is not now a discovery, and the Defendant may omit to name as many papers as he pleases, and the above Order permits the motion to be supported by affidavit, ■whereas before, the answer could not be added to by affidavit. It seems then, that now each party can be compelled to produce all papers of such character as a Defendant, admitting them to be in his possession, could formerly have been compelled to produce. In effect, all that are relevant to the issue, and as to which there is no protection on any special ground, such as that of confi- dential communication between Solicitor and Client. The Order of course may be obtained upon petition or motion without notice, and the petition should specify the number of days within which the papers are to be deposited. It may frequently happen that a Plaintiff or Defendant, when under examination, speaks of documents which were not previously known to the opposite party, and the produc- 60 SVIDENCE. named by party, when under ezamin' ation. tion of such documents can be compelled, uoder the fol- lovring Order : l^yj^ Any party to the record under examination, admitting Production or that he has in his custody or power any deeds, papers documents writings or documents relating to the matters in question in the cause, shall be liable, upon the order of the Court, or of an examiner or commissioner before whom he shall be examined, to produce the same for the inspection of the party examining him, for which purpose a reasonable time shall be allowed : provided always, that either party may appeal from the order of such examiner or commissioner, whereupon such examiner or commissioner shall certify under his hand the question raised, and the order there- upon, and the costs of such appeal shall be in the discre- tion of the Court. Provided also, that no party shall be obliged to produce any deeds, papers, writings or docu- ments which be wo^ld have been obliged to produce here- tofore. mi fol< ing ters :ioD urt, ball the Ime lay ler, [ify re- re- be ju- re- CHAPTER XI. isvuminmon of parties. The rules under which Plaintiffs and Defendants may be examined are as follow : — • Any party to a suit may be examined as a witness by the party adverse in point of interest, or by any one of several parties adverse in point of interest, without any special order for that purpose : and may be compelled to attend and testify in the same manner upon the same terms, and subject to the same rules of examination as any other witness, except as hereinafter provided. And any person, for whose immediate benefit a suit is prosecuted or defend- ed, though not a party to the record, may be regarded as a party for the purpose of this order. Provided always, that, where it shall appear upon the hearing that any par- ty examined under this order is united in interest with the examining party, the evidence so taken shall not be used on behalf of either the examining party, or of the examin- ant, but may be struck out on the hearing at the instance of any party aftected thereby. Any party defendant may be examined, as heretofore, upon order for that purpose, on behalf of either the plain- tiff or a co-defendant, upon points as to which the party so to be examined is not interested. And any party plaintiff may, under the same circumstances, be examined by a co-plaintiff or by ii defendant. Provided, that, where any person having an interest shall have been ex- amined under this order, such evidence shall not be used on behalf of either the examining party or of the party so examined, but may be struck out upon the hearing, at the instance of any party affected thereby ; but such exami- nation shall not preclude the Court from making a decree either for or against the party examined. 1850. L. Any party to the record may be examined by a party in ad- verse interest. LI. Co-plaintiff and Co-defendant may be exam- ined on points on whiclr he is disinter- ested. M t:XAMir?ATION OF PARTIES. LVII. Cross-cxamin* ation of party to the record. LVIII. tarty to record not attending, b in contempt. Bill may be moved to be taken pro con- fesHO, or dis missed. Evidence can- not be read un- less the ex- amining party read it. Any party so examined may be cross-examined on his own behalf, confining the explanation to points on which he has been examined, under the following order : — Evidence taken under Order L. may be rebutted by adverse testimony. Any party examined as therein pro- vided may be further examined, on his own behalf, in de- lation to any matter respecting which he has been examined in chief. And, where one of several plaintiffs or defendants, who are joint contractors, or united in in- terest, has been so examined, any other plaintiff or de- fendant, so united in interest, may also be examined on his own behalf, or on behalf of those united with him in interest, to the same extent as the party actually examin- ed. Provided nevertheless, that such explanatory ex- amination must be proceeded with immediately after the examination in chief, and not at any future period, ex- cept by leave of the Court. The following Order provides some stringent remedies in the case of any party to the record neglecting to attend to be examined. Any party refusing or neglecting to attend at the time and place appointed for his examination under Order L. may be punished as for a contempt ; and it shall be lawful for the party desiring such examination, in addition to any other remedy to which he may be entitled, to apply to the Court, upon motion, either to have the bill taken pro con- fesso, or to have it dismissed, according to circumstances ; and it shall be competent to the Court, upon such applica- tion, to order either that the bill be taken pro confesso against the party making default, or that it be dismissed ; and, where from the circumstances of the case such order cannot be made, consistently with the rights of other par- ties to the suit, then it shall be competent to the Court to make such order, as to enlarging the time for passing pub- lication, or otherwise, as to the Court may seem just. Under the above Order 57, it might be supposed that thft party examining an adverse party on the record necessarily subjects himself to the testimony that such witness may give in his own favour, if on the points on which he has been e.- amined in chief. Under the follow- ing (59) Order, however, the examining party, whether a Plaintiff or a Defendant, may, if he is advised, omit to read any part of the testimony, and then the explanatory evidence cannot be read against him. This places the fiXAMINATION OF PARTI£8. 68 evidence merely on the same footing as any other evidence taken by a Plaintiff, when the Defendant can read the cross-examination if the examination in chief has been read. It differs from ordinary evidence taken by a Defendant, for that can be read by a Plaintiff if he thinks proper, whether the Defendant reads it or not. The following is the Order : — Where the examining party uses any portion of the evidence taken under Order L. (but not otherwise), then it shall be competent for those, against whom it is used, to put in the entire evidence so taken, as well that given in chief as that i'l <:xplanation. It frequently happens, that in the examination before a Master Extraordinary in the country, the evidence is but imperfectly taken down ; an'l, previous to the new rules, this led to much serious inconvenience, for it was only under the most special circumstances, and indeed very rarely, that a witness could be recalled. The following rule renders the pr dice more reasonable. Whenever tli ev' 'ence in a cause or any part thereof has been taken beiore an examiner or commissioner, and it can be made to appear that it would be conducive to the ends of justice that any of the witnesses so examined (whether parties to the record or not) should be examined before the Court upon the hearing, it shall be competent to any party concerned in interest, at any time after pub- lication passed, to apply to the Court, by motion, sup- ported by affidavit, for that purpose ; and thereupon it shall be competent for the Court to make such order as under all the circumstances may seem just. The time for taking the evidence is limited by the following Order : — The rules to produce witnesses and pass publication are henceforth to be discontinued. Publication is to pass without rule or order on the expiration of two months after the filing of the replication, unless such time expire in the long vacation, or is enlarged by order ; but in tiie computation of the two months hereby allowed, or any enlargement of such time, the long vacation is not to count. If the time be enlarged by order, publication is to pass without rule or order on the expiration of such enlarged time, unless the time is further enlarged by order. The Orders un'ier which the time for passing, publica- LIX. All evidence may be read, If any part read. LX. Witness may be recalled, if he haa been imperrectly ex- amined before Master Extra- ordinary. LXI. Publication passed in two months, unless enlarged by order. Application to enlarge publi- cation is to the Master. 1850. i LXH. i Deposition in the fir > person. i i Lxin. Examination of witnesses in the country. EXAMINATION OF PARTIES. tion, are the 181st Order of 1846, and the following Orders, ante page 42. The application is to the Master. The application must be made before the two months ex- pire, or it would seem that the Master has not jurisdic- tion, for then publication has passed, and, if evidence is required, a special application must be made to the Court on motion, founded on special circumstances. By LXII. New Order all depositions are to be taken down in the first person. This was already the rule. If the deposition were otherwise, they could be suppressed, or their reading objected to at the hearing. The rollowing Order lays down some rules for the guidance of the Examiners in the country. If the examination of witnesses cannot be completed in one day, and the circumstances of the case permit, the examiner is to proceed de die hi diem during six hours of each day, between the hours of eight in the morning and six in the afternoon, until the witnesses for all parties are fully examined. Nevertheless the examiner may, if in his opinion the circumstances of the case require an adjournment, adjourn the proceedings from time to time, and from place to place, in such manner as he thinks prop- er ; but he is in all cases to enter on uie depositions any adjournment, and, where such adjournment is from place to place or otherwise than de die in diem, the cause or reasra of such adjournment. CHAPTER XII. ^ettcns iBotin the QlHUBt. Publication having passed, the cause is set down to be argued, as follows : Whereas the present practice, that causes -:an only be entered for hearing during the sittings, is productive of delay and inconvenience : It is ordered tha* Ti om hence- forth causes may be set down for hearing, and demurrers for argument, and the subpoenas ad audiendum judicium, returnable on any day. The party setting down a cause to be heard must su2 out a subpoena to hear judgment, which writ shall be tested on the day on which such cause shall have been set down, and shall be made returnable in one month from the test ; it must be served on all neces- sary parties at least seven days before that on which it is returnable. ' So soon as any cause shall have been set down, it shall be entered by the Registrar on the list of causes for hearing, and shall be called on and heard on the day for which it shall have been so set down, or so soon thereafter as the causes standing before it shall have been disposed of. The cause must be set down by the plaintiff, unless he neglect to set it down within four weeks after publica- tion has passed, and in that case any defendant can, unless he desires to move to dismiss the Bill, set down the cause to be heard under the following Order : If after publication passed the plaintiff neglects to set down the cause to be heard, any defendant, after the ex- piration of four weeks, may set the same down at his own request, instead of proceeding to dismiss the Bill for want of prosecution, and may obtain a subpoena to hear judg- ment, and eervc the same on the parties to the cause. E ^1850. LXIX. SetJns down cause. Seven days' notice. 1850. LXVl. Defendant may set down cause ailer four weekii. mm m 66 SETTING DOWN THE CAUSE. Question of necessity for time which Arguing cause. On the day on which the subpcena to hear judgment is returnable, the party, who has set down the cause, calls it on, and can insist on its being argued in its turn, next after the other causes which stand for that day. If not called on, it is put down to the foot of the paper. Care should therefore be taken to have a cause called on, on the day for which it is set down, and, if the opposite party applies for and obtains a postponement under any special circum- stances, get some other day peremptorily fixed by the Court for the argument. The Court has recently deter- mined, that if, when a cause is called on in its turn, the parties are unprepared, it is to be struck out of the paper, and not again set down except on a' special appli- cation, and on good cause shown. It is submitted, that the month's time, during which, under the above Order, the defendaiit must wait before U^^^i' d ^^ ^^" ^^* down the cause, which it may often be desira- hearing. ble to do, inotetid of moving to dismiss, is too long ; and that the practice which has obtained, namely of any party to the cause setting it down as soon as he pleases, after publication passed, would be more speedy and convenient. And also, that there is no necessity for the month's time between the setting down the cause and the day of argu- ment. The subpoena, as has been seen, need be served only seven days before the hearing, althougii it must be taken out a month before. The plaintiff under this prac- tice can cause two months to elapse after publication before the hearing. The above Order 66 is like the 116th English Order of 1845, except that instead of the word jmrties the word plaintijf is used, and it has been held that under the English Order the co-defendants need not be served by the defendant who set the cause down. (6 Maddock 193). Our Order being differently worded, the defendant, who sets the cause down, must serve all the parties, defendants as well as plaintiff. Proceedings on When the answer objects to the frame of the bill for wMt'Sp'J^M. ^*°* °^ P^^P^'" P*''^^®* Plaintiff or Defendant, the case January, 1845 116. BETTING DOWN THE CAUSE. 67 nay at once be set down for the purpose of arguing that question under the following Order : — That, when the defendant b:han by his answer suggest Plaintiff may, that the bill is defective for wait of parties, the Plaintiff V'''^'"'"f"!:'^^«" L II 1 ,1-1 -IP IP, /'I 1 'I'lys set down snail be at liberty, within fourteen days alter answer lileu, nig cause on tO atit dovVii the cai!3C fcr argumcrit upon that uujectiou question of • only, and the purpose for which the same is so set down partiea only, shall be notified by an entry to be made in the Registrar's Book in the form or to the effect following, that is to say, " Set down upon the defendant's objections for want of parties," and that, where the Plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken hy the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be en- titled as of course to an order for liberty to amend his bill by adding parties, but the Court, if it thinks fit, shall be at liberty to dismiss the bill. This Order is copied from the English Order 39 of 1841, under which the following cases have been decided. After the lapse of the fourteen days it is said that the Court has no jurisdiction to allow the cause to be set down on the question of parties {Calvert vs. Gandy, 1 Phillips, 518 ; Meclhurst vs. Allison, 4 Hare, 497). It is not quite clear that the first of these cases would be followed here, because the Judges felt themselves bound by the words of the Act under which the rules were framed ; and there can be no doubt, that, as a genera! principle, the Court may relax one of its own general rules under special circumstances. The second of the above cases also refers to the terms of an Act of Parlia- ment. When the plaintiff states the objection in his answer, and claims the same benefit as if he had demurred, the case comes within the rule. (Grubb vs. Perry, 7 Jurist, 637 ; Young vs. Macclonell, 14 Simons, 34). The defendant cannot on the argument under this rule take an objection as to parties, which he has not taken by the answer. {Lovell vs. Andreiv, 11 Jurist, 835). The answer is taken to be true for the purpose of the objection. {Richardson vs. Larpent, 2 Younge and Colly er, 507). V 6S SETTING DOWN THE CAUSE. parties. As to who has the right to begin on the argument of the objection, the cases differ. See Brad^ock vs. Whatley, 6 Beaven, 451 ; Attorney General vs. Gard- ner, 2 Collyer, 564 ; Lovelt vs. Andrew, 11 Jurist, 835 . January, 1842. When the objection is not taken before the hearing, the Court has a discretionary power to make a decree _ without prejudice to the absent parties, Decree saving That, if a defendant shall at the hearing of a cause ob- righu of absent ject that a suit is defective for want of parties not having by plea or answer taken the objection and therein speci- fied by name or description the parties to whom the ob- jection applies, the Court (if it shnll think fit) shall be at liberty to make a decree saving the rights of absent parties. It may be here observed that the Court seldom exer- cises this power, and more frequently adjourns cases to have parties added, although the objection has been taken neither by answer nor on the argument. It is always safe therefore to amend the record as soon as any defect for want of parties is apprehended. The Order is copied from the English Order 40 of 1841. The Court will be careful not to make the decree, if by it the absent party may be in any way prejudiced. {Kimber vs. Emsworth, 1 Hare, 293 ; May vs. Selby, 1 Younge and Collyer, 235 ; Faulkner vs. Daniel, 3 Hare, 199). Such decrees rare. CHAPTER XIII. ^peetnOta the Cause. Before staiirg the practice after the hearing of the cause, it is as well to give the rules, under which, if the plaintiff is dilatory, the defendant can force the cause to a hearing, or get the Bill dismissed. The following Orders of 1850 settle the practice on this point. Any defendant may upon notice move the Court that the bill may be dismissed with costs, for want of prosecu- tion, and the Court may order accordingly. 1 . If the plaintiff, having obtained no order to enlarge the time, does not obtain and serve an order for leave to amend the bill, or does not file the replica- tion, or set down the cause to be heard on bill and answer, within four weeks after the answer, or the last of the answers has been filed, or after the filing of a traversing note : or — 2. If the plaintiff, having obtained no order to enlarge the time, does not amend the bill within fourteen days after the date of the order for leave to amend : or — 3. If the plaintiff, having obtained no order to enlarge the time, does not set down the cause to be heard, and obtain and serve a subpoena to hear judgment within four weeks after publication has passed. Where the plaintiff has, after answer, amended his bill, any defendant may upon notice move to dismiss the bill with costs for want of prosecution, if the plaintiff, having ob- tained no order to enlarge the time, does not file the rep- lication, or set down the cause to be heard on bill and answer within the times following, viz. : 1850. LXIV. Bill may be dismissed. irPlaintiffdoes not move in four weeks after answer. Or amend fourteen days after order to amend. Or if tiie Plain- tiff does not set down the cause in four weeks. 1850. LXV. When, there has beer, amend- ment. wm 70 SPEEDING THE CAUSE. Fourteen days after the ser- vice of subpoe- na to answer amended Bill. Or fourteen days after the Master's refu- sal to allow further time to answer. Or fourteen days after an- swer to amend- ed BiJI, ex- cept where re- amended. Optional with Defendant, to move to dis- miss, or set down the cause to be heard. 1850. LXVII. Bill dismissed, bar to future suit for same matter. 1 . Within fourteen dnys after service of a subpoena to answer the amended bill, in cases where the defen- dant does not desire to answer the amendments. 2. Within fourteen days after the Master's rei'usal to allow further time in cases where the defendant, de- siring to answer, has not put in his answer within eight days after the service of the subpoena to an- swer the amended bill, and the Master has refused to allow further time. 3. Within fourteen days after the filing of the answer in cases where the defendant has put in an answer to the amendment, unless the plaintiff has within such fourteen days obtained from the Court a special order for leave to re-amend the bill. If the Bill is re-amended, the practice after the re- amendment will be the same as above laid down to be followed after amendment. The 66th Order of 1850, already given, allows the defendant the option of moving to dismiss the Bill, or setting it down ^o be heard. A cause may, under many circumstances, be of such a nature that it is more to the defendant's benefit to have it disposed of on argument, than put out of Court. Suits for account for instance, where the defendant expects a balance in his favour ; or a bill by a vendee for specific performance, where the defendant may be desirous of having the purchase com- pleted, which has been hitherto delayed for want of the production of the money by the Plaintiff ; and numerous other case? which might be mentioned. It is provided, however, that the dismissal of the bill for want of prosecution is a bar to a subsequent suit for the same matter, unless the Court otherwise order. The following is the Order : — If the plaintiff, after the cause is set down to be heard, causes the bill to be dismissed on his own application, or, if the "cause is called on to be heard in Court, and the plaintiff makes default, and by reason thereof the bill is dismissed, then and in such case such dismissal is, unless the Court otherwise orders, to be equivalent to a dismissal on the merits, and may be set up in bar to another suit for the same matter. It will be seen that the above Order does not apply SPEEDING THE CAUSE. 71 wben the plaintiff dismisses his own Bill, but only to a dis- missal after the cause is set down. The old practice still obtains, when the plaintiff dismisses his own Bill before the cause is set down. He may dismiss, before the defend- ant has appeared, withoi't costs. ( Thompson vs. Tliamp- son, 7 Beaven 350). If after appearance, it must be on payment of costs, and, if a new Bill is filed for the same cause before such costs are paid, the Court will stay pro- ceedings in the new suit, until they are paid. But on payment of such costs the plaintiff can (having dismissed his Bill before the cause is set down) file a new one for the same cause of suit without obtaining the leave of the Court. It is submitted, that it would have been better to carry the provision of the above 67th Order further, and to have prevented the plaintiff filing a new Bill, for the same cause, without leave of the Court, if he dismissed after appearance. Such a provision could work no hard- ship, because on a proper case made the Court could always order the dismissal without prejudice to a new suit. The benefit would be, that the defendant would be enabled to know, whether or not he was subject to be again made a defendant for the same cause of action. The above Orders 64", 65, 66 and 67, are precisely like the English Orders 114, 115, 116 and 117, of 1845, with the following exceptions. In the first article of the English Order 114, which answers to the above Order 64, the words are " after the answer, or the last of the answers is found or deemed to be sufficient.''^ This is varied in the above Order, because now, under the Or- der 30, of 1850, any answer is sufficient, excep- tions for insufficient being by that Order abolished. Again in the Order 114 there is an article as follows, " If the Plaintiff, having undertaken to reply to t plea to the whole Bill, does not file his replication within four weeks after the date of his undertaking", &c. This is omitted in the Orders of 1850, because, by Order 25 of 1850 pleas are abolished. In the commencement of the English Order 115, which answers to the above If cause not set down, Plaintiff may always dismiss witiiout prejudice to fi- ling a new bill. Rule as to costs. Question of the propriety of this indulgence to the Plaintiff. Orders 64, 65, 66, and 67, compared with English Orders 114, 115,116, and 111, 72 SPEEDING THE CAUSE. Order 65, are the words, " Without requiring an answer to the amendments'^ which are omitted in the above Order, because it is here optional with the defend- ant to answer or not, the process of contempt to compel an answer being under the 30th Order, of 1850, abolished, and the plaintift' has his remedy by the travers- ing note under the 23rd Order of 1850, or by proceeding to get the cause set down to be heard pro confesso, under the 33rd and following Orders of 1850. In the English Order 116, which answers to the above Order 66 of 1850, the subpoena is directed to be served on the " Plaintif". The above 66th Order requires its service on all parties to the cause, and such is the general practice in England, for it would be un- reasonable to expect another defendant to be prepared for the argument of the cause without any notice. Meaning of The above Orders then substantially assimilate the ^''d'^64"^' practice to th6 English practice under the Orders of 1845, upon which there have been some decisions. The words *' last of the answers^'' in the first article of the English Order 114 (above Order 64), mean, the last of the answers of that defendant who is moving to dismiss. They might be supposed to mean the last answer filed by any defendant. {Dalton vs. Haijter, 7 Beaven, 586 ; Sprye vs. Reynell, 10 Beaven, 351.) So it would appear, that after one month after the answer Any Defendant of any defendant (for, there being now no exceptions to the may move to answer, each defendant will only file one, except a supple- dismiss, one ' ^ ' r ri month after his mental answer on lea^'e of the Court), that defendant may answer m. jj^Qyg ^q dismiss, whether the other defendants have an- swered or not ; or, if they have answered, no matter how re- cently. The Court can, however, give such time to reply, or to amend, as on the argument of the motion the Plaintiff may seem justly entitled to. It is not meant, that, as soon as the time arrives for the motion to dismiss, the defendant may insist on the Order, under any circum- stances. And see Order 68 of 1850. The object of allow- ing the motion, is to enable the defendant to get the cause mm SPEEDING THE CAUSE. 73 tion to dismiss. speeded, or to get the bill dismissed, as the circumstances may seem to justify. The Plaintiff can, in most cases, only obtain time on payment of costs. It is only the reasonable construction of the Orders to Reasonable hold, that the defendant may move to dismiss one month i\^ Order, after his own answer ; and the reason for such construc- tion is stronger here than in England ; for, it being no longer in the plaintiff's power to compel an answer, but other means of proceeding being open to him to proceed •with the cause, it would be unfair, were it in his power to reply conclusively to the motion of one defendant to dis- miss, that another defendant has not yet answered, or has not answered a month ago. An Order to amend, obtained after notice to dismiss is Question of given, has been in England held to be, without any ^^^^JJ" *° J^^»<^ special circumstances against it, a sufficient answer to the swer to a mo- motion. But after such notice no Order to amend can be obtained in England, as of course, under an Order of April IS'IT, which has not been adopted here. Under the 12th Order of 1850, an Order of course to amend 'can be obtained, if no Order of course to amend has already been taken, at any time within a month after the " last of 'several ansxoer^'' has been filed, here mean- ing, the last of any answer of any defendant,(see Ar- nold vs. Arnold, 1 Phillips 805 ; decided before the Order of April 1847 was published). _ Then suppos- ing a defendant A. to answer, and a month elapse, it seems he might give a notice of motion to dismiss, although B. has not answered. After the notice B. might answer, and the plaintiff might immediately take an Order to amend ; but that would not necessarily form a conclu- f've answer to the motion, but the Court would probably grant time. The same might be the case, when B. • had answered, but a month had not elapsed before the motion of A., and the plaintiff took his Order to amend. AVe have said such an Order would not form a conclusive answer to the motion ; but it would no doubt have an effect upon the Order which the Court would make. The defendant would seem to have been 74 SPEEDING THE CAUSE. Lngiisn decisions. Discretion of the Court when there Is delay. 1850. LXVIII. Motion to dis« miss, when de- lay takes place. Discretionary Order. reg\ilar in givirlg his notice, and yet it might appear that the plaintifl' was taking a' step to get on with the the suit, and that he was entitled to the Order to amend, which he had taken. The Court would not, therefore, dismiss the Bill, but would put the plaintiff on such terms as the case might warrant. In England the Order to amend in such a case being only obtainable on motion, under the Order of IS^T, it being once obtained on such motion, after notice, it is much more reasonable to hold it to be an answer to the motion to dismiss ; for the de- fendant must have become aware that the Court thought it a proper case for permitting the plaintiff to proceed by amendment. If the Order to amend is out, before the notice to dismiss is given, the case comes of course under the above 65th Order. The English decisions as to <' ? Order to amend, being an answer to the motion to disnu.. ., are, Lester vs. Archdale, 9 Beaven, l.")6 ; FincUay vs. Lawrence, 11 Jurist, 705; Raistrick vs. Elsivorth, 12 Jurist, 281. It will be readily seen, that, if the Court were bound by any positive rules to refuse the motion to dismiss, on ' the ground of any proceedings taken on the part of the plaintiff, notwithstanding any delay he may have already been guilty of, injustice would be done. After long delay the plaintiff might take a proceeding merely to stop the motion, and again follow the same course when another motion was likely to be made. The Court will therefore put him on terms to speed the cause ; and all doubt is re- moved on this head by the 68th New Order, which is as follows i-^ In every other case, where the plaintiff is unreasonably delaying the suit, any defendant may move to dismiss the bill for want of prosecution, after the expiration of four weeks from the time of his filing his answer, if the plain- tiff, having obtained an order to enlarge the time, does not obtain and serve an order for leave to amend the bill, or does not file the replication, or set down the case to be heard on bill and answer, within that period ; and upon the hearing of such motion, the Court may make such order for the dismissal of the bill, or for expediting the suit, and as SPEEDING THE CAUSE. 75 to costs, as under the circumstances of the case shall seem just. This Order establishes a practice not in force in Eng- Semble motion land. For here, it would seem, under the terms of the 1""^ be made ' ' at any stage of above Order, there may bo a motion to dismiss, at any the cause. stage of the cause, if four weeks have elapsed after an- swer, if the plaintflf " is unreasonably delaying the suit." The words are " in every other case"— ^that is, in every case not provided for by the forinr Orders. It had been held in England, that a defendant could not move to dismiss during the pendency of a demurrer. Of course he cannot here, if it be his own demurrer, for he might set it down himself, but he is not prevented if the demurrer of another defendant is " unreasonably" delayed. It has been also held in England, that, pending a reference as to title, in a specific performance case, or after a decree or decretal order, there could be no motion to dismiss. {Collins vs. Greaves, 5 Hare, 596 ; Bluch vs. Colnaghi, 9 Simons, 411). But the above G8th Order seems to admit of a motion here, whether after or before any reference or de- cree, if the Plaintiff's delay is " unreasonable," and that the Court has power to decide on the question of the de- lay being reasonable or " unreasonable." And the Court would also consider, whether the cause is proper to be dismissed, or whether an Order to speed would not be more in furtherance of the ends of justice. CHAPTER XIV. procntifngs to htnv Catute " J&vo (tonUuuo:* fesso. Pro con/etso. Another mode of proceeding, when the defendant elects not to answer, is to procure the cause to be set down to be heard as if the defendant had confessed the truth of the matter in I'iC Bill stated. This is done under the provi- sions of the following Orders : — 1850. -^^ tlie expiration of the time alloiced to any defen- XXXIII. dant within the jurisdiction of the Court for ansioering After time for ^/^g jj^fi or at any time within three weeks afterwards, the PrainUff maV P'^i^tiff may cause such defendant to be served, person- give notice of ally* or by his solicitor (if he have one), with a notice of motion to take motion, to be made on some day not less than three weeks; billyjro co?i- after the day of such service, that the bill may be taken pro cmifcsso against such defendant ; and thereupon, un- less such defendant shall in the mean time have put in his answer to the bill, or obtained further time to answer the same, the Court, if it shall think fit, may order the bill to be taken pro confesso against such defendant, either im- mediately, or at such time and upon such terms and sub- ject to such conditions as under the circumstances of the case the Court shall think proper. Where a defendant shall not put in his answer in due time, after appearance entered by or for him, and he shall dant cannot be have no solicitor, and such defendant has either been served, may by sgrygd ^jth subpoena out of the jurisdiction, or the plain- lislied in the ^'^ ^^^ ^®^" unable with due diligence to serve him per- sonally with such notice of motion as is provided by Order XXXIII., by reason of his being concealed, or for any other cause, the plaintiff may cause to be inserted in the Canada Gazette a notice, that on a day to be named XXXIV. When Defen- Gazette. PROCEEDINGS TO HEAR CAUSE <* PRO C0NFEH80. »> 77 XXXV. Cause not heard on same therein, not less than four weeks aftc:r the first insertion of such notice in the Gazette, the Court will be moved that the bill may be taken pro confesso against such de- fendant, which notice must be inserted at least once in every week from the time of the first insertion thereof up to the time for which the same shall have been given ; and the plaintiff must, upon the hearing of such motion, satisfy the Court, either that such defendant has been served with subpoena out of the jurisdiction, or that the plaintiff has been unable with due diligence to serve such defendant personally with such notice of motion as afore- said, by reason of his being concealed, or for some other cause, and in either case that he has no solicitor, and that such notice of motion as aforesaid has been inserted in the Gazette as herein provided. And the Court, being satisfied thereof, and no answer having been filef*., may order the bill to be taken ^>ro confesso against siic^h defen- dant, either immediately or at such time and upon such further notice as under the circumstances of the case may be deemed proper. No cause in which an order is made, that a bill be taken ^?ro confesso against a defendant, is to be heard on the same day on which the order is made ; but the cause "da'y'as'order' is to be set down to be heard ; and the Court, if it so made, think fit, may appoint a special day for the hearing thereof. A defendant, against whom an order to take a bill ^wo confesso is made, is at liberty to appear at the hearing of XXXVI. the cause, and, if he waives all objection to the order, defendant may but not otherwise, he may be heard to argue the case upon ''^^"ng. the merits as stated in the bill. Upon the hearing of a case, in which a bill has been XXXVII. ordered to be taken pro confesso, such decree is to be *f Defendant made as to the Court seems just ; and in the case of any .^f VPP®"®*^' defendant, who has appeared at the hearing and waived all solute objection to such order to take the bill 2»'o confesso, or against whom the order has been made after appearance, by himself or his own solicitor, or upon notice served up- on him or his solicitor, thedecree is to be absolute. In pronouncing the decree the Court may, either upon XXXVIIl. the case stated in the bill, or upon that case and a petition Court may presented by the plaintiff for the purpose, as the case may orders Xsuch require, order a receiver of the real and personal estate decree, of the defendant, against whom the bill has been ordered to be taken pro confesso, to be appointed with the usual directions, or direct a sequestration of such real and per- sonal estate to ber issued, and may (if it appears to be just) direct payment to be made out of such real and personal estate of such sum or sums of money as, at the hearing W^^PIW 78 PROCEEDINGS TO HEAR CAUSE " PRO CONFESSO." Security. of any subsequent stage of the cause, the plaintiff seems to be entitled to ; provided that, unless the decree be absolute, such payment is not to be directed without secu- rity being given by the plaintiff for restitution, if the XXXIX. *-^ourt afterward think fit to order restitution to be made. Decree entered A decree, founded on a bill taken j^ro confesso, is to be as other passed and entered ^s other decrees, decrees. After a decree, founded on a bill taken pro confesso, If decree not ^^^ been passed and entered, if the decree be not absolute, absoluu- under under Order XXXVIL, an office copy thereof way be 37th Order. sev\ed on the defendant, against whom the ordei to take ihe bill pro confesso was made, or his solicitor, together Notice of de- with a notice to the effect that, if such defendant desires cree may be permission to answer the plaintiff's bill and sot aside the plaintiff oppor- ^^cree, application for that ^)urpose must be made to the tunity to Court within the time specified in such notice, or that such answer, or (hat defendant will be absolutely excluded from making any he be excluded, g^^jj application. If such notice as aforesaid is to be served within the jurisdiction of the Conrt, the time therein specified for such application to be made by the defendant is to be three weeks after service of such no- tice ; but, if suc^i notice is to be served v ut of the juris- diction of the Court, such time is to be speciall) appointed y . , by the Court on the e.c parte application of the plaintiff. Defendant sub- ^"7 defendant, waiving all objection to tlie order to mittin^ to costs take the bill ]}ro confesso, and submitting to pay such costs moyhave^ as the Court may direct, may have tl>e cause reheard up- reheiiring. ^^ ^j^^ nierits stated in the bill, the petition for rehearing being signed by counsel as other petitions for rehearing. „. .,, . In cases ^^'llere a decree is not absolute under order which defend- XXXVII , the Court may order the same to made abso- ant ins./ pre- lute on the motion of the plaintiff: vent decree being absolute. Two years. In English Orderj three years. XLlII. 1. After the expiration of three weeks from the service of a copy of the decree on a defendant, where the decree has been served within the jurisdiction. 2. i^ftP'* the ,iiration of the time limited by the no- tice provided ibr by order XL., where decree has been served without the jurisdiction. 3. After the expiration of tivo years from the date of the decree, ivhere a defendant has not been served with a copy thereof. And such order may be made either on the first hear- ing of such motion, or on the expiration of any further time which the Court may on the hearing of such niolion allow to tho defendant for presenting a petition for leave to answer tho bill. Where a decree is pronounced upmt an order to take the bill jjro confesso, and the party, in respect to whtm PROCEEDINGS TO HEAR CAUSE " PRO CONFESSO. » 79 such decree has been made, does not come in VMder some of the provisions in tliese orders contained, all future proceedings as to such deferulant may be ex parte, nnless ichere notice is by these orders specially prodded or sliall be directed by 'the Court. But, where the decree is not absohite under Order XXXVIII., and has not been made absolute under Order XLII., and a defendant has 9, case upon the merits not appearing in the bill, he may apply to the Court by petition, stating' such case and sub- mitting to such terms with respect to costs and otherwise as the Court may think reasonable, for leave to answer the bill ; and the Court, being satisfied that such case is proper to be submitted to the judgment of the Court, may, if it thinks fit, and upon such terms as seem just, vacate the enrolment (if any) of the decree, and permit such defen- dant to answer the bill ; atid, if permission be given to such defendant to answer the bill, leave may be given to file a separate replication to such answer, and issue may be joined and witnesses examined, and such proceedings had as if the decree had not been made, and no proceeding against such defendant had been had in the cause. The rights and liabilities of any plaintiff or defendant under a decree made upon a bill taken ^j;o confcsso ex- tend to the representatives of any deceased plaintiff or defendant, and to any person or persons claiming under ar^y person who was plaintiff or defendant at the time when the decree was pronounced ; and with reference to the altered slate of parties and any new interests acquired, the Court may, upon motion served in such manner, and supported by such evidence as under the circumstances of the case the Court deems sufficient, permit any party, or the representatives of any party, to adopt such proceedings as the nature and circumstances of the ",ase require, for the purpose of having the decree (if absolute) duly exe- cuted, or for the purpose of having the matter of the de- cree and the right of the parties duly ascertained and de- termined. The above Orders from 35 to 44 inclusive are copied mutatis mutandis from the English Orders of 1845, from 81 to 92 inclusive, excepting the 88th English Order which is not adopted, and excepting that the part above italicised in the 42nd Order is not in the English Orders. And instead of the time, two years, provided in the 3rd Article of the 41st Order, the English Order gives three years. The English 88th Order of 1845, which is not When decree not yet made absolute, how defendant may obtain a hear- XLIV. How decree pro confesso, affects repre- sentatives. wgilj- ,ii!w™^p"^p^iw^ ^•^■HP" 80 PROCEEDINGS TO HEAR CAUSE '' PRO CONFESSO." 1845. 88. English Orders here adopted, is as follows : "No proceeding is to be " taken, and no receiver appointed, under the decree, nor any sequestrator, under aViy sequestration issued in pursu- ance thereof, is to take possession of, or in any manner intermeddle with, any part of the real or personal estate of a defendant, and no other process is to issue to compel performance of the decree without leave of the Court, which is to be obtained on motion with notice served on such defendant or his solicitor, unless the Court dispenses with such service." The catse of its omission probably is, that the other Or- ders seem to effect the same object sufficiently ; for there seem to be ao means of getting, on with such proceed- ings without motion, and leave of the Court, unless the Court so decree under the above Order 38. Tiic- English Orders to which the above 33rd and 34th Orders answer, but without closely following them, are as follows. It will be at once seen that the parts not adopttd, are such as would be inconsistent with the other Orders of this Court. " Upon the execution of an attachment for want of English Orders. 1845. 76. 77. answer against any defendant, or at any time within three weeks afterwards, the Plaintiff may cause such de- fendant to be served with f. notice of motion to be made on some day not less than three weeks after the day of such service, that the Bill may be taken pro cnnfesso against such defendant ; and thereupon unless such de- fendant has, in the meantime, put in his answer to the bill, or obtained further time to answer the same, the Court, if it so thinks fit, may order the bill to be taken pro confesiso against such defendant, either immediately, or at such time and upon such terms and subject to such conditions, as under the circumstances of the case the Court thinks proper." " in cases where any defendant, either being or not be- ing within the jurisdiction of the Court, does'not put in his answer in due time after appearance entered by or for him, and the plaintiff is unable, Avith due diligence, to pro- cure a writ of attachment or any subsequent process for PROCEEDINGS TO HEAR CAUSE " PRO CON^ESSO." 81 78. want of answer to be executed against such defendant by 1845. reason of his being out of the jurisdiction of the Court, or 77, being concealed, or for any other cause, then suci; defen- dant is, for the purpose of enabling the plaintiff to obtain an Order 10 take the bill pro confesso, to be deemed to have absconded to avoid, or to have refused to obey, the process of the Court. In cases where any defendant, who under Order 77 {supra) may be deemed to have absconded to avoid, or to have refused to obey, the process of the Court, has ap- peared in person or by his own solicitor, the plaintiff may serve upon such defendant or his solicitor a notice that on a day in such notice named (being not less than fourteen days after the service of such notice) the Court will be moved that the bill may be taken ^Jro confesso against such defendant ; and the plaintiff is, upon the haanng of such motion, to sKrtisfy the Court that such defendant ought under the provisions of Order 77 to be deemed to have absconded to avoid, or to have refused to obey, the pro- cess of the Court ; and the Court beiag so satisfied, and the answer not being filed, may, if it so think? fit, order the bill to be taken pro confesso against such defendant, either immediately or at such time or upon such further notice as, under the circumstances of the case, the Court may think proper. In cases where any defendant, who under Order 77 (supra) may be deemed to have absconded to a/oid,or to have refused to obey, the process of the Court, has had an appearance entered for him under Orders 29, 31, or 33, and has not afterwards appeared in person or by his own solicitor, the plaintiff may cause to be inserted in the London Gazette a notice, that on a day in such notice named (being not less than four weeks after the first in- sertion of such notice in the London Gazette), the Court will be moved that the bill may be taken pro confesso against such defendant ; and the plaintiff is, upon the hear- ing of such motion, to satisfy the Court that such defend- ant ought, under the provisions of Order 77 (supra) to be 79. 82 PROCEEDIN'GS TO HEAR CAUSE " PRO CONFESSO. » English authorities on the subject. deemed to have absconded to avoid, or to have refused to obey, the process of the Court, and that such notice of motion has been inserted in the London Gazette at least once in every week from the time of the first insertion thereof up to the time for which the said notice is given ; and the Court being so satisfied, and the mswer uot hav- ing been filed, may, if it so thinks fit, order the bill to be taken pro confesso against such defendant either imme- diately, or at such time or upon such further notice as under the circumstances of the case the Court may think proper." The practice is plain!} enough laid down by the above Orders, and few doubtful cases can arise under them so as to call for decisions. Several cases have occurred in En- gland in reference to the state of the cause with regard to the attachment ; but, that being abolished, those cases are of no importance to us. There are 'some points, however, on which precedents may be useful. Under the 78th and 79th English Orders of 1845, which answer in many respects to the above 34th Order, the Court, when the evidence of the defendant's absconding was not qui.e satisfactory, refused to make an order to set down the cause pro ronfesso, but gave a day to show cause. (^Courage vs. Wardell, 9 Junst, 1055). An Order to amend is an abandonment of the Order to take the bill pro confcsso. {Weightman vs. Powell, 12 Jurist, 958). A cause being set down pro confeaso against an ab- sconding defendant was struck out of the paper on ac- count of Counsel's absence, and, on application of the Plaintiff alone, it was placed in the paper again. {Har- vey vs. Re?w7t, 12 Jurist, 445). But it is apprehended that such ex-parte application would not be treated in the same manner, if the defendants had appeared by Counsel under the above 36th Order. Under the English Order 84, of ] 845, answering to the above Order 38, the bond of the plaintiff himself may be held sufficient security, under the authority of Lett vs. PROCEEDINGS TO HEAR CAUSE " PRO CONFESSO. rt 83^ Randall, 7 Jurist, 1075 ; where the plaintiff's own bond was held sufficient, under a provision of 1 W. 4.. ch. 36, similar to the provision of the above mentioned Orders. Still tht Court has power, no doubt, to require further security, and, although this may seem hard on a plaiittiff without means, a similar rule is enforced in the Queen's Bt..ch under the absconding debtor's Act ; and it often happens there that a plaintiff is stopped for want of the security. In that case, however, the security is ex- pressly named in the statute. The point vn\\ remain uncertain until a case arises, on which it can be seen whether the authority of Lett vs. Kandall will be fol- lowed. Under the 76th English Order of 1845, answering to the above Order 33, there are the following decisions. There being husband and wife defendants, and no Order for the wife lO answer separately, the Order iiro co7ifesso should be against both (^Alexander vs. Osbor7ie, 16 Law Journal, new series, 368 ; 11 Jurist 444). A notice of motion having been given, and defendant having answered, pending the notice, the plaintiff may have the costs of the motion. iSpootier vs. Fayne. 12 Jurist, 642). ■WPP ^mm CHAPTER XV. Knfutt(tfons. Common In- ^^^ frequent object of bills in Equity is to stay pro- junctions to ceedings ?,t law against the plaintiff in Equity, where the ceecfings. rule of law prevents a defence in that Court, but relief may be obtainable in Equity. The " Commowlnjunction" stays execution at law, but, generally, does not stay the pro- ceedings down to judgment. As to the difference be- tween common and special injunctions, see DanieVs Cltancery Practice, vol. 3. The following are the new rules on the subject of common injunctions : — 1850. ^''*^ plaintiff in a bill praying an injunction to stay pro- LXXI. ceedings at law is entitled, as of course, on motion or peti- Injunction asof tion, and without an attachment, to the common injunction course for want fQj. y^^nt of appearance, if a defendant has not appeared appearance , .^^ pgpgo,j^ or by his own solicitor, on or after the expira- tion Qii fourteen days from the service of the subpoena ; ■ and for want of answer, if a defendant is in default for want of answer, on or after the expiration oi fourteen days from the day on which an appearance was entered by or for him. The plaintiff in an injunction cause, having obtained the common injunctiou to stay proceedings at law, may (either before or after the answer of a defendant is put in, and whether such injunction be or be not continued to the hearing of the cause) obtain one order as of course to amend his bill without prejudice to the injunction • and, if such bill be amended pursuant to such ordev, such defen- dant may thereupon (and although he may not. have put in Effect of. ^is answer to such bill or the amendments therertf) niovo the Court on notice to dissolve the injunction, on the or answer. LXXII. Amendment. INJUNCTIONS. 85 of ground that such bill as amended does not, even if the amendment be true, entitle the plaintiff thereto. On all motions to obtain or dissolve a special iniunction, 'LXXTII. as well as to dissolve or extend the common injunction, ■'*'"""v'' "> ^ affidavits may be used either to support or contradict the tradict the an- answer. swer. In case an injunction to stay proceedings at law be lxxIV. prayed by the bill, and shall either not be allowed, or, Amendment having been obtained, shall have been dissolved upon the yhen Injunc- merits stated in the answer, and the plaintiff shall after- *'°" "°d.^'*"^" wards amend his bill, and -the defendant shall not answer, or demur to the amended bill, within eight days after ser- vice of the subpcena to answer, the plaintiff shall be en- titled to move for an injunction upon aflSdavit of the truth of the amendments. The above Orders 71 and 72 are copies verbatim from the 59th and 60th English Orders, of 1845, with the ex- ception, that eight days are named in the English Order instead of fourteen as in the above 31st Order. The above 74th Order is copied from the 36th Article of the 16th English Order of 1845. If within fourteen days from appearance the defendant demurs, or answers and demurs, the plaintiff, it seems, is not entitled to the Common Injunction under the 71st Order. See Cousins vs. Smith, 13 Vesey 164. The 73rd Order is not from any English Order. The necessity for it arises from the new practice of permitting answers to be short, and not compelling a full discovery as formerly. CHAPTER XVI. Jsummars decrees nnti Wnvttul 0v^tvB, 1890. LXXVI. Short Bill, in suits for ac- count, and partly for other purposes. In suits for ac- count, and foreclosure and redemption suits, a decree for reference, on motion. The Orders of 1845 have effected an entire change m the practice in suits merely for account, and in suits for the foreclosure and redemption of mortgages. In suits for an account it shall not be neces:.%ry or prop- er to state in the pleadings any mere matter of charge or discharge ; neglect or misconduct in the accounting party may be insisted on in the Mastea's office, though not stated in the pleadings. Provided always, that noth- ing herein shall be construed to exempt the plaintiff from the necessity of showing upon his bill that the defendant is an accounting party, or from stating all such facts as may be necessary to enable the Court to determine the rights of all parties, and to adjudicate upon the whole case. Provided, also, that this order shall apply, whether the suit is for an account merely, or for an account and other pur- poses ; but, in the latter case, it shall apply only so far as the suit is one for an account, and this order shall not in- terfere with the rules of pleading further or otherwise than is expressly provided. In suits for an account, or where an account is neces- sary before the Court can proceed to the ultimate deci- sion of the case, and v/here the state of such account only, and not the accountability of the defendant, is the matter in question ; and in suits for the redemption and foreclo-r sure of mortgages, where the state of the account, or the state of the account and the priority of the incumbrances form the only subject for enquiry, the plaintiff may apply to the Court, at any time after bill filed, but not earlier than fourteen days after service of the subpoena to appear upon the defendant, or upon the last of several defendants, by motion (of which notice may be served, together with \ SUMMARY DECREES AND DECRETAL ORDERS. 87 the subpoena to appear, when that is practicable) that the matter may be forthwith referred, and the account pro- ceeded with in the Master's office. And thereupon the Court may in its discretion, if satisfied that the case comes within the provisions of this order, pronounce such a de- cree as would have been made, had the cause proceeded to a hearing in the ordinary way ; and the decree so pro- nounced may be either with or without a reservation of further directions and costs according to the nature and circumstances of the case. And the decree so pronounced shall be as eJOfcctual to all intents and purposes as it would have been, had the cause been brought to a hearing in the usual way ; and the reference thereby ordered shall be proceeded with in the same manner provided with respect to ordinary references by orders (79, 80, 81, 82) ; and in proceeding with such reference the Master shall have all the powc;r and authority which he would have had and exercised .u^ ' the matter been referred to him by a decree pronounced according to the ordinary practice of the Court ; and upon the signing of any report, made upon such reference, the case may be set down to be heard upon further directions, or otherwise ; and all proper de- crees and orders may be made in the same manner, and to the same extent, as fully and effectually to all intents and purposes as if the suit had proceeded according to the established practice. The pendency of any such motion, as aforesaid, shall not stay the progress of the cause, unless ordered by the Court. In suits for the redemption or foreclosure of mortsfaeres, the time allowed for the payment of the mortgage money rf" f . shall in future be six months from the date of the Mas- n,ent of mort" ter's report ; and, where there are several incumbrances, gage money, three months only shall in future be allowed to each suc- cessive incumbrancer after the first. The time so fixed shall not be further enlarged. CHAPTER XVII. i^tBto^ttn- Practice in Bills for dis- covery, the same as formerly. There is one description of Bill in Equity, with respect to which the practice remains as It was before the new Orders ; namely the Bill for discovery in aid of an action at law. Bills generally were for discovery and relief, and the discovery was enforced under the interroga- tories which formed part of the Bill. The same ob- ject, where relief is sought in Equity, is now obtained by examining the defendant. But, where no relief is sought in the Court, but only a discovery of facts is required in order to aid the plaintiff in prosecuting an action at law, the practice must be as formerly. The Bill will be framed with interrogatories, and, unless the defendant demurs successfully to the Bill, it is apprehended, that, notwith- standing the foregoing rules, an answer would be enforced by attachment, and exceptions might be entertained for insufficiency. In a suit for discovery, the answer being in, the suit proceeds no further, and the general practice is that the plaintiff pays the costs. The above remarks as to Attachment and Exceptions would seem to be contradictory to the express words of the rules ; but it has been ascertained that the Bill for Discovery is to be in the old form, and, if so, then to hold that a sufficient answer cannot be enforced, would be to permit any defendant to such a Bill to set it at defiance and render it useless. DISCOVERY. 89 This branch of the jurisdiction will require some further Orders to render the practice clear and certain. The new rule on the subject is the following : — No Bill for discovery merely shall henceforward be filed, except in aid of the prosecution, or defence, of an action at law. " The Bill is commonly used in aid of the jurisdiction of some Court of Law, to enable the party who prose- cutes, or defends an action at law, to obtain a discovery of the facts, which are material to tlie prosecution or defence thereof." Stori/s Equity Pleadings, sec. 311. " In general it seems necessary, in order to maintain a Bill of Discovery, that an action should be already com- menced in another Court, to which it should be auxiliary. There are exceptions to this rule, as where the object of discovery is to ascertain who is the proper party, against whom the suit should be brought. But these are of rare occurrence." Stori/s Equity Juris^irudence, v, 2, sec. 1483. 1850. XLIX. Bill or Dh- covery. m