IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.8 1.25 II 1.4 1.6 4 6" ■ ► r/JM '' A ^>: m 7 ^\ Photographic Sciences 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 ,V ^•N V •s? \\ "\ ^.y^ •-■■• ^=".i, :^>ir-.' .v;r.V' m ■i^n ^M '^t' ■V-' -■ :A'i *i»J-vf '.>-«?■" ORDERS or m ■ , . ■ '■ . ■ •jrr'- ; ■ : • V. ■> *,,!%•/ * : ■-•^ v'* Si-" ■*"•;■' ' •'V ^ ■■« ■' "r "■ I COIJRT OF CHANCERY,.,., ,. >■..■ -J. .... . . .--v '0k. J FOR UPPER CAMl)A,^;,.,,.^|;;|^:jv||*; WITH NOTES* a ... , _ ....„_ „ .. .. . ,.,.^. ^,..> •.•5 BT-- .'■»r.-,.'^'.' T. WARDLAW TAYLOR, Esq., M.A., t..'?* "'^ t ■..::?«« •0:;'V'i5^ V*^*.^^ > BAUISTnt>AT*bAir. '«>•- V TORONTO HENRY BOWSELL, KING STREET. ; ■\s^X(^-[ ■ - ..i.^-■^iJ^■#W■'■^- ■ * ■ »-* ,.■,. ' • ■ ■ ■ ,'-•■ • '• ■ . .■'.■■■■»' . ■-'■;, ..'- -. -. '■ « Of*? s. ; I W ll;^*^^ 1 •<• ':im%i. ««•> 'S.V'''' \Ui ''„.'■' ..V ,wft;_ ;■-. ■ » --'*.♦,>:-> >- a^y^J^ PREFACE. -■■<• The practice of going upoa circait for the taking of eri- f dence, adopted hy the Judges of the Conrt of Chancery since ' the passing of the 20 Yic., c. 56, and the- appointment of deputy-masters and registrars in many county towns, Las V of late brought the court more under the notice of the profession generally. Chancery business is not now, as for--«: : merly, confined to a few offices in Toronto. Many country*,. 'v;^^I| practitioners, who a few years ago would have entered the regions of equity with great distrust, have now underta- /^yiitjA ken, to some extent at least, the conduct of Chancery suits, y^'-^^i } - ■■-■■' ••?'••■>.• "-I As the Orders of 1853 have been for some time out of print,- ^/^'^ 'a and those promulgated since are not easily accessible by all, Y?;*"^' ^ many practitioners have been placed somewhat at a disad- 'v^^^;-;- vantage, the more so, that some of them have not had any . ---T't previous training in, nor exp'^rlence of, the practice of the V;:j^l-^- court. ''■r^ V The present, therefore, seems a suitable time for giving to ^^-•' the profession, a comp.ete collection of all the Orders in , Chancery now in force. This edition if« sot published by authority, but it will be found to contain all the Orders v! by which the practice of the court is regulated. In the Notes will be found all the decisions on the Orders them- selves, or on points of practice arising under them, which C ' the author could discover, and also many of the English ••r ■- v decisions on those sections of the English Chancery Amend- " ■,, y' ment Acts which have been adopted into the Orders of .,;V ,^i If'- ■.•;"'** ■.'*a.,« ' 1853. ^V. '-'.^- The author is aware that this small volume has many defects, only too apparent, but he offers it to the profession, , 53264 ■•^->;v ^"¥." V. iv. PREVAOS. with the hope that they vrill .extend to it, that indulgence with which thej are said always to accept the result of efiforts, honestly made, in the sincere desire to aid them in their lahonrs. ^ ' ' If this publication shall prove of any service to those who are engaged in the arduous duties of that profession, to which it is the author's pride to belong, and the interests of which it is his earnest desire to advance, he will feel amply repaid for his labour. ■ ,i:..yU . :.0.'-4- '.<■■ : I ill-, .. . ., ■■■'M >^i. ' -V ■ . • .. ■ ■ \ ■ - ,.T. -- ■» :■*.,..'■■ ' I ;.» ■'^■. ■^•♦»',^-" ,'.''*- ' !!.^! ^ '.■ ■ f. : ■i-iMyf •*.,.v.5^;t...« i I i '••',#>.. . 1 , ^> , ORDEES m CHAJSCERT. • • , '^■'■MT'i'i:; ■■■■■•• -^ .. ; "\ ..':> '•. ; v. •;':.-:% 'Of.. •:>'^ ORDERS. , aii^5!^> -N.^^.!.'»r^" . .. 3rd Jonb, 1853. > .1 .■ •■v^'"S'.'> -• ?:•. ■:^ -. •it. The Judges of the. Court of Chancery do hereby, in pur- suance of an Act- of Parliament passed in the- 12th year of the reign of her present Majesty, intituled '*' An Act to provide for the more effectual administration of justice in the Court of Chancery, in the late province oC Upper Canada," and of an act passed in thf» 13th & 14th years of the reign of her present Majesty, intituled ^^An Act to amend the Registry Law of Upper Canada," and in pursu- ance and execution of all other powers enabling them in that behalf, order an'd direct that all and every the mles, orders, and directions hereinafter set forth, shall henceforth be, and for all purposes be deemed and taken to be, general orders and rules of the Court of Chancery, viz. : i-.i • * .. INTRODUCTORY. •-v-'j/. I. — These orders are not to affect suits already commenced, except as hereinafter provided ; and as to all suits hereafter to be commenced, they are to take effect on the 1st day of July, 1853.' :r -r- !. -r.:> /i:!^v-.:,:>^ -H'^ •■ . •■. .s/\ .■■'?.' T'*<4''.- . ■■■♦'"'^■'''^'iUt''^-'^ '{'•." V ■ ' ' "• II. — All the orders of this court which were in force on the IstdayofMay, 1850, numbered from I. to CXCH. ;'and all orders promulgated on, the 7th day of May, 1850,- num- bered from I. to LXXXrV. ; and all orders promulgated on the 7th day of January, 1851, numbered from I. to XXV., are hereby abrogated and discharged,. except~as to suits', already commenced/ ^xr B -, V- ' :.r^r.-\. I . «. :%"■■ >v- ■>. v-v. 6 ORDERS IN CHANOBRT. \i^? !' t» ' INTBBPBETATION. III. — la these orders. the following words have the several meanings hereby assigned to them, over and above their several ordinary meanings, unless there is something in the sabject or context repugnant to such construction, • — . — I — ... I VIZ. : 1. Words importing the singular number include the plural number ; and words importing the plural* number include the singular number. 2. Words importing the masculine gender include females. '•- •'-.••_ "^"« --^i^a v. • ;•' a • , i-i •. ... -y-x'jiif.j.^)' .■\.f:,i^f<'y^ V 't ■>' --r. i/} ■■'■^*' , ' 3. The word "person" or "party" includes a body .^•^i;V politic or corporate.' ' *.^' . * »> v •' r 4. The word " bill " includes information. ' 6. The word " plaintiff" includes informant. • ■ • « ^' 6. The word "affidavit" includes affirmation. V. , >:•,; ;s ,/ 7. The word "legacy" includes an annuity and a specific as well as a pecuniary legacy. ■ ( 8. The word " legatee" includes a person interested in a legacy. ,, t , , , .. i, 9. The expression "residuary legatee" includes a person interested in the residue. ■ ' -^ ■ * » ' * , » ., ' ! .' 10. The word "order" includes decree and decretal . -^ order. .^;w'' ;j ' }-\uj) ji^i^-^:'':'^^-:^^,^-:,-:' \': -,■■ 7 IV.— The long vacation is to commence on the 1st day of July, and to terminate on the 21st day of August in every . year. . ., ,;, . ■T1-' I OBDBBS IN CHANCBBT. ' -' : 1 .'. COMPUTATION OF TIME. t.'-^ . V. — ^When anj time limited from or after any date or erent is appointed or allowed for doing anj act or taking any proceeding, the computation of such limited time is not to ' include the daj of such date, or of the happening of such event, but is to commence at the beginning of the next following day ; and the act or proceeding is , to be done or taken at the latest on the last day of such limited time, according to such computation. * . ' ' ' • \ ' Sec. 2. — ^When the time for doing dnj act, or taking any proceeding is limited by months, not expressed to be calendar months, such time is to be computed by lunar months of twenty-eight days each. ^ ; . / • . ..i ,, ■ Sec. 3. — ^When the time for doing any act, or taking any ' proceeding expires on a Sunday, or other day on which the offices are closed, and by reason thereof such act or proceed- ing cannot be done or taken on that day — such act or proceeding b, so far as regards the time of doing or taking the same, to be held to be duly done or taken, if done or taken on the day on which the offices shall next open. [Where the day appointed by the master's report for the payment of money fell upon a Sunday, the court refused the final order of foreclosure, though the plaioiiflf attended at the same place, and between the same hours, on the Saturday and Monday. Holcomb v. Leach, 3 Grant 444.] . , v. , Sec. 4. — The time for vacation is not to be reckoned in the computation of the times appointed or allowed for the following purposes, vi«. :. » . 'ir^-s*. * im * xs: 1. Amending or obtaining orders fcr leave to amend *.' bills. ,!*»• 2. Setting ■ •' ''■' ''■'\'■''^■^^*^^V^^'^^^/^' do\fn demurrers. • ^ ' '^ ' -?4 ■ • Vit ^^ <^' ^^ ' ' f ' 3. Filing replications, or setting down causes under the dii actions of rule XVIII. ^ "'/i:. .*•••: %■'.. ' .V .♦'• -.■•■•V.-;:; ..•;;• 8 ORDERS Cf OHANOBRT. [This section does not apply to the Christinas vacation, hut only to the long vacation. Connolly v. Montgomury, Cham. R. 20. ^ ;.. , •',,..... And see order of the '30th June, 1858.1 .; * V^ . V:' ''■Sf ./ Sec.'5.-- The day on which an order that the plaintifif do g^ve seoarity for costs is served, and^the time thenceforward until and including the day on which such security is given, is not to be reckoned in the computation of time allowed a defendant to answer or demur. [If it appears on the face of the bill that the plaintiff resides out of the jurisdiction, the order may be obtained upon precipe, and must be applied for before the defendant takes any step in the cause. Where the bill is Hied with a deputy-registrar, he may issue the order. Ord. XLIV., sec. 4. By asking further time to answer, defendant waives his right x to security. Melioruchy r. Melioruchy, 2 Vefs. 34 ; Ghapin v: Clark, EsTBN, V. C, 28th June, I8?9 ; but not by asking for , time to answer affidavits, or JSling affidavits' in opposition to a motion for an injunction. Murrow v. Wilson, 13 Beav. 497. If the plaintiff gives a false address, or he cannot be found Avhen he ought to be forthcoming, even though his residence is not out of the jurisdiction, he will be ordered to give security. Sandys v. Long, 3 M. & K. 487 ; Bailey v. Grundry, 1 Keen 53; Oldale v. Whitcher, 5 Jur. N. S. 8i: but not if he is shewn to have property within the jurisdiction. White v. White, Cham. R. 18. Where one of several defendants who lived out of the jurisdiction, after decree applied for and obtained the conduct of the cause, he was ordered to give security. Mynn v. Hart, 9 Jur. 860. Where bill , filed to stay action at law, defendant cannot insist on security. Wat- teau V. Biilam, 14 Jur. 165: even though the bill may asl^for relief other than the injunction. Mauley v. Williams, Cham. . R. 48. If the plaintiff fails to give security within a reason- able time,, the defendant may obtain an order limiting the time within which it is to be given, and in default, that bill be dismised. Giddingsv. Giddings, lOBeav. 39; Wood v. Gray, ESTEN, V. C, 8th Oct., 1856, and this ^ime may be enlarged. i&., EsTEN, V. C, ;ird Dec.; 1856. Plaintiff may pay money into court instead of giving security. ,Cliff« v.. Wilkinson, 4 Sim. 123. •• ■ ' ',- ..,...; j.,i^.w. ORDBRS IN CHANCSRT. 9 The plaintifi*^8 solicitor cannot be security. - Beckett t. Wragg, Cham. R. 5. v Where a pre'cipe for an order for security was filed, and afterwards on the same day, an order pro confuto was obtained, a motion to set aside ihe order pro confetto was dismissed, • the order for security having no efiect till served. Chapin ▼. Clark, EsTKif, V. C, 30th June, 1859. If the plaintiff is ordered to pay costs, the proper course is to serve the surety with the order and demand payment, and on his refusing to pay, to move in chambers for leave to sue on the bond. Roaf r. Topping, Cham. R. 14 ; Stokes v , Orysler, Cham. R. 14.] . PARTELj to SUTTci. •«:i*f5? VI. — The practice of setting down a cause on an objection for want of parties merely, is abollihed. , .j,:. * X » . . t ' Sec. 2. — It shall nob be competent to any defendant in any suit to take any objection for want of parties to such suit, in any case to which the rules nexi, hereinafter set forth extend. Rule 1. — Any resicluury legatee, or next of kin, may have a decree for the administration, of the personal estate of a deceased pex'son, mthout serving the remaining residuary legatees or next of kin. - if '» '' s Rule 2. — Any legatee interested in a legacy charged upon real estate ; or any person interested in the proceeds of real estate directed to be sold, may have a decree for the administration of the estate of a deceased person, "vnthout serving any other legatee or person interested in the proceeds of the estate. Rule 3.— Any residuary devisee or heir, may have the like decree, without serving any co-residuary devisee or co-heir.'' , < > I. w; V: ^ I, I ■ '■,-'1.' - '.,-;• ■-•'^ .■';!■■•■■•:.'■.: '^ ."•<'.-,»<\'V '■■ • ■,.i' ■ ••>■:' -■;.-;••/• -^ .■..■■•.■>•»» Oi ' •—'•■ .■^5€;^f;:rrf>*^" Vv' .►^/ ■J* 0,v 10 ORDBRS IN* CHANOEBT. - Rule 4.-^Any one of several oestuis que trustj under any deed or instrument, may have a decree for the execution of the trusts of the deed or iDstrnment, irithont serving any other of such cestui? gue trus^ "' -..-/•;.' .> • • - .•' . .< ./ ■• : ' vv../ ■ •••'- • . .' ;. : ■ • / ■ I-*- , . ' ■ '^ • '" [So one cestui que trust m&y, without serving his co-eestni qv€. trusts, have a decree for the appointment of new trastees. Jones V. James, 9 Hare.App. 80. This seems also to apply to a bill to make a trustee responsible for a breach of trust. McLeod .V. Annesly, 17 Jur. 608; 22 L. J., Chan. 63;}-6:37; but vide Jesse'r. Barnett, 26 L. J. Chan. 33.] • Rule 5. — In all cases of suits for the protection of property pending litigation, and in all case's in the nature of wastey one person may move on behalf of himself, and of all persons having the same interest. - Rule 6. — ^Any executor, administrator, or trustee, may obtain a decree against any one legatee^ next of kin, or cestui que truaty for the administration of the estate, or the execution of the trusts. , . . . In all the above cases the court, if it shall see fit, may require any other persons to be made a party or parties to the suit, and may if it shall see fit, give the conduct of the suit to such person as it may deem proper ; and may make such order in any particular case as it may deem just for placing the defendant on record on the same footing in regard to costs as other parties" having a common interest with him in the matter in question. In all the above cases, the persons who, according to the practice of the court, would be necessary parties to the suit, are to be served with an office copy of the decree, (a) and after such service, they shall be bound by the proceedings in the same manner ^as if they had been originally made parties .to the suit; and upon service of notice upon the plaintiff, they may attend the proceedings under the decree, (6) any party so served may apply to the court to vary or I . ^^•"■v\:i" ORDERS IN CHANCERY. 1 11 add to the decree, 'mthin fourteen days from the date of such service. . ... .. [(a) The judge in chambers will direct who are the proper persons to be served. DeBallenhard v. Bullock, 9 Hare App. .13. Here the direction will be given by the master to whom the reference under the decree has been made. This rule as to serving parties applies to infants. Clarke v. Clarke, 20 L. T. 83; and to parties out of the jurisdiction. Chalmers v. Lawrie, 10 Hare App. 27. (b) By the endorsement to be made on the office copy of the decree served, (see Order XXXIV., s. 6,) the person served is notified that he must attend, or proceedings may be taken in his absence, and no order for leave to attend is necessary.] Rule 7. — In all suita concerning real or personal estate (c) which is vested ia trustees under a will, {d) settlement or otherwise, such trustees shall represent the persons benefi- cially interested under the trust ia the same manner and to the same extent as the executors or administrators in suits concerning personal estate represent the persona beneficially interested in such personal estate ; and in such case it shall not be necessary to make the persons beneficially interested under the trusts parties to the suit ; but, on the hearing, the court, if it shall think fit, may order such person or persons, or any of them, to be made parties. [(c) Tho operation of this rule is not confined to administra- tion si?its. Fowler v. Bayldon, 9 Hare App. 78. But in applying it generally, the court will exercise the discretion given by the concluding clause. Tudor v. Morris, 22 L. J. Chan. 1051. As to the distinction between infant and adult ceshti que tnisls, vide Goldsmid v. Stonehewer, 17 Jur. 199 ; 9 Hare App. liS. The rule does not apply where the trustees have disclaimed. Young v. Ward, 10 Hare App. 58. If the bill is "led to set aside a settlement, the trustees do not sufficiently represent their cestui que tnisis. Reed r. Prest^ 1 K. &J. IS*:. • • ; (d) Executors with power of sale are within this section. *' Shaw v.Hardingham, 3 W. R. 657.1 i" • ■• ' ■•';;■ » ■ . *-:J'i I . " . ' • V ■•*"'' t'r:-. Vj<. . ; Sec. 2. — A bill of complaint may be filed either with the registrar or with a deputy-registrar, at the option of th^ plaintiff; and the filing of a bill of complaint! shall have the • same effect as the filing of a bill and the issuing of a subpoena , to appear and answer now have ; dnd the service upon a > defendant of a bill of complaint, with such endorsement thereon as is hereinafter provided, shall have the same "Tect as the service upon him of a writ of subpoena to appear and answer now has. , . , [By Order XLIV., ss. 2 and A', all the pleadings are to be liled at the same office as the bill is; but by Order XL., s. ii, all affidavits in support of, or in opposition to auy special motion or petition, must be filed with the regisirar. This applies to affidavits on a motion for decree]. Sec. 3. — In lieu of serving a defendant with a subpoena to appear and answer, an oflBce copy of the bill of complaint . is to be served upon him, with an endorsement thereon in the form, or to the effect set forth in schedule B., hereunder written. " . . '* ■ • ' ■ •• ' ; . ..X 1 SCHEDULE B. Your anaiver is to be filed at the office of the registrar, at Os- goode Mall, in the city oj Toronto, {or, when the bill isjiled in an oxiter county, at the ojffice of the deputy-registrar at — — .\ :^- ■ K.n 'Jt J: - D'^^^vV !riV.-. '>♦»«■•• i 4) ■-i -y 14 :•'■ ■■-■■ :'^:4;?:*.?i.---. >:•:.;* ..^ •.-•^AA sir- ■*... V-a,' ORDERS IN CHASfCERY. .' You are to answer or demur within four weeks from the service hereof, (or, when the defendant is served onU of the jurisdiction, within the time limited by the order authorising the service.) If you fail to answer or demur within the time above limited, you are to be subject to have such decree or order made against you as the court may think just, upon the plaintiffs own shewing; and, if this notwe is served upon you personally, you will not be entitled to any Jurther Tiotice of the future proceedings in the cause. • ' Note. — This bill is fled by Messrs. A.B.and CD., of the city of Toronto, in the county of York, solicitors for the above named plaintiff' ; (and, where the party who files the bill is agents add, agents of Messrs. E. F. and G. H., of , solicitors for the above Tuaned plaintiff .) * , ; , Sec. 4. — Service of an office copy of a bill of complaint upon anjv defendant is to be effected in the same manner that service of la subpoena to appear and answer is now effected ; but it shall not be necessary to produce the original bill, (a) > Affidavits of the service of an . office copy of a bill of complaint are to be in the form or to the effect set forth in schedule' C.^ hereunder written ; they are to state where, when, and .how such service was effected; but no copy of the bill is to be annexed. ,v .. " . [For schedule C., see App. No. II.] [(a) The bill may be served on the defendant personally, or by leaving it with a grown-up person at his dwelling-house. But if served, in the latter way, a notice of motion to take the h'lii pro eonjeuo must be served personally, as directed in Order XIII., a. 3. Under the 20 Vic., c. 56, a. 14, (Con. Stats. U. C, ch. 13; s; 70,) in suits for foreclosure or sale to which a.judgment creditor of the mortgagor or judgment debtor is made a party, an office copy of the bill may be served on the atlomey-at-Iaw by whom the judgment in respect of which the defendant is made a party was recovered. This does not apply to judg- ments recovered in a division court, and only to suits for foreclosure or sale instituted by- an incumbrancer. Monro v. Keiley, Cham. K. 23. Where the attorney is served, the affidavit must shew that he appears as the attorney on the judgment roll."'^ Cameron v. Phipps, Cham. R. 4 ; but three *M^ MdliitaMlMH .*'» 'v-«. ORDERS IN CHANGERT. 15 weeks* notice of motion for order pro confesso must be served. Webster v. O'Closter, 6 Grant 278. A solicitor may accept service of an office copy of bill for a defendant, and give an undertaking to answer ; in which case a two days* notice of motion for an order pro confesso is suffi- cient, and may be served upon the solicitor. Ross v. Hayes, 6 Grant 277. As to service on corporations, see Order of 19tii March, 1857.] ' . • -' ' Sec. 5. — ^Where a defendant in any suit is out of the jurisdiction of the court, then, upon application supported by such evidence as may satisfy the court, in what place or country such defendant is or may probably be found, the court may order that an office copy of the bill may be served on such' defendant in such place or country, or within such limits aa the.court may think fit to direct. • ••■I'.t •../•; •.-■!, '■■:-■ ,' «;; Such order is to limit a time (depending on the place of service) within which such defendant is to answer or demur to the bill, or obtain from the court further time to make his defence to the bill. •. . , :^ ,^ -\ v,^ [The evidence on which the court is asked for an order under this section roust shew that the defendant is residing at the particular place at which it is desired to serve him, by some person who knows him to bo the defendant, and who has seen him residing there at a recent period, or who has received letters from him dated at, and bearing the post-mark of the place, and which shew that he is residing there. If his resi- dence is to be proved by letters, it must be shewn when the. last communication was received from him. Farry v. Davis, Cham. R. 7. If the affidavit merely states that letters have been received from the defendant, dated at a particular place, and does not shew that he resides there, the order will be refused. Kingston v. Monger, Cham. R. 18. By 20 Vic, c. 56, s. 15, (Con. Stats. U. C, ch. 12, s. 71,) a defendant may be * served out of the jurisdiction without an order being first ob-' tained, but practically this enactment is of no use, as the court will not, on default of answer, grant an order pro confesso, unless an order has been obtained limiting the time within which the defendant is to answer, and has been personally, %•« m .■-•-'vl- t»^.- ■ •■•■,■•!» ■•"..■•',. : ■ '•'•..V 16 '^ OBDBSS IN CHANGIBT. serred upon him* •" And this, eren thobgh the endorsement on the office copy of the bill provided for by s. 3 has been altered so as to give the defendant the same time for answering which the coart would hare given, on- an application under this section.] u ■; • ■■■•..■,■■•>. .-V- • -f"^-.' > ■ ...■•''.'. •t;;;..;.; ■"■>;;^•:••J''^.•;»^'^:^v•'f'^ ■■ ' ' • ''y--'-^' ■ ^:- '■■■■ ■! '».::. - ' i . ,.,/■' >,.■ f.' • ' • •.';>'' :;^Sbc. 6.'— Orders for substitational service of 'an i)ffice ' copy of a bill of 'complaint may be obtained in the same manner, and in such cases, as orders for substitutional service of a subpoena to appear and answer may be obtained under the present practice. ^ , ' ■' ;■ ...■..;- -.-vi^-i/ .•-•■,» ,.,-..■ ' ■ •< ■■■[ •»■ • ■ '-■■• • •■- • ' • ■ • - [The principle on whicluorders for. substitutional service arc granted is, that there is reasonable ground to believe that the service will come to the party's own kr >wledge. Thus, when a bill is filed to stay an action at law, i. ad the plaintiffat law- is out of the jurisdiction, service on the attorney is good ' service. Sergison v^ Beavan, 9 Hare App.. 29. It must be shewn that the person on whomi service is to be effected is the agent for the particular purposes of the suit; Bowes v. Angier, ]97ur.*'1050, or at any rate for a purpose closely connected with the suit. ' His admission that he is agent is not sufficient, the fact must be proved. An order obtained under this section does not authorise service on the agent of a notice of motion tb take the bill^o^ confesso, as he may in the meantime hare •ceased to be agent, and a further order must be got.] , • ftfiJ;-'fJ . ' > ■ ■■■■ • ' . - . ■', . j'S' ,;^.r,i Vh }it. Sec 7.— In case it appears to the court by sufficient evidence, that any defendant against yrhom a bill has been filed \has been within the jurisdiction of the court at some time^not more than two years before the filing of the bill, and; that such defendant after due diligence cannot be found to- b» served with an office copy of the. bill, and that there is goodvreason' to believe that he has absconded (a) — in such casei 'the' court may order the defendant to answer within a tiine'rto.be named in the order, and may direct a copy of sach order, with a notice to the eflfect* set forth in schedule D. hereunder written, to be published in such manner as the court may think. fit ; (6) and in case the defendant does not answer or demur within the time limited by such order, I. i^ ■^o■i:y■.;\■ mm £ m am 'a- OBDERS nr CHAirCEBT. the court, if it shall think fit, maj ord.er the hill to be taken pro eonfesao against such defendant, in the manner herein- after provided. (}^'yi'" ." - . JT-" ft' »-t,< V - -I* . * '■■ -'..- .^-^- .-•■•• -■•■ ■• ■;■ • ^'■^>;■..5^.-^-.r^--^v^;^'.^vv^1^,J [(c) This section applies to suits of» any nature. It'i^^ oot '^:':^'^i:Jr\ enough to state on affidavit that the defendaot cannot, after due •siu y|-;^^^ diligence, he found to be served, but the exertions made to find '^'^^yf<^ I' him must be detailed, that the court may judge whether due ;;v VVtIf diligence has been used, and whether he is absconding or not. "^f-u X' Mumey v. Knapp, Cham. R. 26. '^-T-'^^f- t^ ■^^^>': (6) The order usually directs that it shall be publisht'd once in each week for the Tour weeks preceding the day appointed for defendant to answer. In such an order the word week means any period of seven consecutive days, and not 'the particular seven commencing with Sunday. .Where the dast V^/;, this, was held not to be a sufficient compliance with the prder.^i-- ^' f =v ...\-." Yide Bazalgettevr. Lowe, 34 L. J. Chan. 368. .- , ..(c) In moving to take a billj»w cofi/e»«o against a defendant fe'^'M!?' who has been advertised, it is necessary to shew by affidavit that f|^' 'JM he .cannof be found to he served with notice- of the motion. »i''^irtv?i| Gilhiour v. Matthew, 3 Grant, 376. And to produce and shew ^ ' ;4 to the judge the papers in which the advertisement has been /.i if-t.Ii inserted^ Goodfellow V. Hambly,.Cham. R. 62.] 'Vf viM^ ^h;' f ' i Sec. 8. — In case it appears to the court by sufficiei^t evidence that any defendant against whom a bill of complaint has been filed for the foreclosure of a mortgage, or respecting r.'W .K;:. w- ', ■ » ih. '' w i]* ;4 'fl i-n •€:. i 1- 18 ORDERS IN GHANOERT. foand after dae diligence, to be served with an office copy of the bill of complaint, in such caae the court may order the defendant to answer or demur within a time to be named in the order, and may direct a copy of such order together with a notice to the effect set fodth ill schedule D. (5) hereunder written, to be published iu such mannenas the court may think fit ; and in case the defendant does not. answer or demur within the time limited by such order, the court, if it shall think fit, may order the bill to be taken pro eonfe98o in the manner hereinafter provided, (c) W-"".! [(a) This •section does not apply to any but foreclosure or specific performance suits. Bank of Montreal v. Hatch, CHiani. R. 57. (h) For this schedule, see end of last section. (c) See notes on preceding section.] ; - Sec. 9. — Orders of course to amend bill of complaint may be obtained at any time before answer, upon precipe. [There may be any number of such orders before answer. Wharton v. Swann, 3 M. & K. 263.] Sec. 10. — Service upon any. defendant of an order of course to amend before answer, may be dispensed with upon an application ex farte, when the court is satisfied that such an order may be made without prejudice to the defendant's rights ; and when service upon an order to amend has been dispensed with, the cause as to such defendant is to proceed as if the bill had been originally filed in the amended form. .. - .1 ■ ■ Sec. 11. — An order 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 precipe. ^^ , [Where an error is made in the number of a lot, mentioned in the bill, it cannot be corrected under this section.! Sec. 12. — One order of course to amend the bill, as the plaintiff may be advised, may be obtained by the plaintiff^ I . \ OBDERS IN CHAirCSRT. 19 . upon precipe, at any time before filing the replication, and witliin four weeks after the answer, or the last of several answers has been 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 tbe case provided for bjr the 11th section of this order. \C"S} ^■■■t^l fAUhough but one of several defendants has answered the plaintifi can have but one order of course. Daris v. Proat, 5 Beav. 375. Adding a defendant is an amendment within this order, and any further order can be obtained only upon . special application. 'Atty. Gen. v. Nethercoat, 2 Myl. & C, - 604. . An enlargement of the time for taking out an order to amend may be given. But misconduct of solicitor no ground for allowing further time. Clarke v. Mayor of Derby, 10 Jur. 978.] ■ - - / , . ^, . .. - . ,.■,..-. Sec. 13. — A plaintiff having obtained an order to amend his bill is to amend, within fourteen days from the date of such order ;. otherwise the order to amend becomes void, and the case as to dismissal stands in the same situation as if such order had not been made. , £ [The amended bill must be served within the fourteen days, even on new defendants added under the order. The plaintiff having submitted to a demurrer, obtained an order to amend, bat did not do so within the time limited ; he then obtained a second order of course to amend, and no answer having been filed, a motion to discharge the second order was refused. Nicholson r. Perle.SBeav. 497.] •5/-.; ^^ ■=. t -iAt-i Sec. 14. — Supplemental bills are abolishetl. When a suit- is defective by means of some imperfection in the bill, and not in consequence of any event arising subsequent to its institution, the court may at any time permit an amendment of the bill in furtherance of justice, and on such terms as it may think proper, for the purpose of altering the allegations in the bUl, or of putting new matter in issue, as well as for the purpose of adding or striking out the names of parties, or. of varying the relief prayed, or praying farther relief. ; y :*% ■^ft '^t-- ■>.'» „ • ' - '•'-'■V. • V, • '., • ■ • '■I Ip '-■81' Jl ■ 1 • / 20 «. ORDERS IN CHANCERY. Such order is to be applied for by motion, the notice of which 19 to state the required amendment ; and must be served upon the parties, or their solicitors, unless dispensed with. . ' ' Upon the' motion the court must be satisfied, by affidavit or otherwise, of the truth of the proposed amendment, and of the propriety of permitting it to be,- made at the particular stage of the cause under all the circumstances. ' ■> . • • ■ ■ Upon pronouncing such order for amendment, the court is to give such order as to the future conduct of the suit, in relation to answering such amendments, as also with regard to the evidence taken, or to be taken, and in all other respects, as the circumstances of the case may require. [Any application for an order to amend made under this or the nex^ section, should be made with promptitude, and the afGdavits on which it is founded must shew dilisfence, not merely in the progress of the suit, but in the matter of the amendments. Edge v. Duke, 11 Jur. 213; and diligence co-extensive with the whole time from the filing of the answer. Winnal v. Featherstonehaugh, 9 Jur. 1054, and 10 Jur; 235. They must also show circumstances from which the judge himself may draw his own conclusion as to the materiality of the amendments and as to the diligence. Stuart v. Lloyd, 15 Jur. Ill ; CoUett v. Preston, 15 Jur. '.>75.] Sec. 15. — Bills of revivor, bills of revivor and supplement, oriainal bills in the nature of bills of revivor, and original bills in, the nature of supplemental bills, are abolished. When a suit becomes defective, or ;ibates by any event subsequent to its institution, and before final decree, the court may 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 an amendment is to be applied for by motion ; the,notice of motion is to specify the nature of the amendment, and the applicant's title to the same. Ji « iifc I i I 1 ■a ■'m4.T..k. ORDBRS VH CHANCEBT. . ■^^^■ ft '-'Vrt' 21^; ..«» > •>:.* i -' rK .% * . *-'.>",U •*■'*'.. Notice of motion is to be served on the p&rties to the snit^ or their solicitors, unless dupensed with; and it may bcL made by any person who could have heretofore obtained the«^ desired object by supplemental bill, or by any form of bill, by this order abolished., ,: ^.^: /-v :'-v* ." .'hJoa. . • ^. , Upon the motion the Oourt must be satisfied by affidavit or f;> ' ".V;*^^! otherwise,.; of the appl/oant's title to relief, .and of the^-t propriety of . permitting the amendment to be made at the ;^? particular staee of the cause, under all the circumstances. ..r^" '.v : Sec. 16. — When a suit becomes abated after decree, any •'^•' / ' party entitled to revive the same may do so by a petition in "J^'"'-;.. ,T>. the cause, which is to state the petitioner's , title to the relier^yv.":^ -^"^ sought. This petition must be verified by affidavit ; it is tb',*^^;^^ f -•-> be served upon the solicitors of all parties, or in case any r*"^: party has no solicitor, then upon such party.- * ' ■•^'' '*'■'&• Sec. 17.— Bills of review are abolished. When- tKe*r:^# reversal of . a decree is sought upon the ground of error r^'' ''fv apparent upon the face of the decree, that object may be ''^^^^^'^^^ attained'by rehearing the cause, whether the ^ decree has or '^r has hot been enrolled. One re-hearihg may be had upon i^:^ petition, signed by counsel ,re>hearing, as well before as petition for a second re-hearing of the. court first had upon special motionfor the purpose ;Ui|^^"^v/-Mrt ':^i^- m-- :^ll ■ir Sec. 18.— Bills in the nature of bills of review :l)ills^to~,^l.. ,. ^ impeach decrees on the ground of fraud, bills to suspend th^ ^i*!^ operation of decrees ; bills to carry decrceainto dperation,^>^r :^ ri: v.:1 " are abolished. , Any party heretofore entitled to file a biU'of|!i;^. ,:^^f review, praying, the variation or reversal of a decree, upon.-\'y;J'::!^^,' the ground pi matter arising subsequent .to the , decree, or ji'^C'^^iSiA subsequently discovered, or any description of biU by.this'^*tf~J..*;^^^^^ order abolished, is to proceed by petition in the cause :,, this :^'f ' ■>•■.■■:■.<•■ V, ■»,■ • 22 OBDBBS IN CBAireBRT. petition mast pray the relief which is sought, aiid must state the ground upon which it is claimed. . The petition is to be verified by affidavit, and must be served upon the solicitors of all parties interested ; and in case anj such party has no solicitor, then upoi\ such party ; and where the reversal or variation of a decree 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 the petitfon, the court, in itis discretion, may either make a final order, or direct the petition to stand over, with liberty to the parties interested in sustaining, the decree to file a special answer to the same ; and may m^ke such order as to the production of further proo^ and the manner thereof, and the further hear- ing of the petition, as the court may deem meet. Sec 19: — No bill is to be filed for discovery merely, except in aid of the prosecution or defence of an action at ;;}:':;.. »■'» . -■■• ••":--■ .7 \"' .! i pi ' 1 Li , . , I >' ., \ DEMURRER. XI. — A defendant may demur to a bill of complaint at any time within one month after service upon him of an office copy of the bill. Upon filing of a demurrer by a defendant, either party is at liberty to set the same down for argument immediately, (a) f. rC") Notwithstanding the wording: of this Order, the plaintiff . is- entitled to two clear days' notice of the demurrer being filed, before the .defendant can set it down for argument, unless the defendant is willing to waive his right to be paid taxed costs. Baldwin r. JBorst, Cham. R. 82. Where a party files and sets down a demurrer for argument at the same time, he will be considered to have' waived his right to taxed costs. Ibid. ORDERS IN CHANCERY. 23 The costs to which a defendaot is entitled, on the plaintifl submitting to a demurrer and amending his bill, are 20s.] .>!u'/t.tj/ li ANSWER. XII. — Answers may be in a form similar to the form set out in schedule E. to these orders, (a) The signature of counsel is unnecessary ; but the name of the party or solici- tor T?ho files the same is to be endorsed thereon, in confor- mity with the 2nd and 3rd sections of Order XLIII. ' The answer is to be verified by the oath of the defendant, (6) and the jurat is to be in the form set forth in schedule E. . . [(a) For this schedule, see App. No. III. (6) An answer sworn out of the jurisdiction, without a com- mission having been issued to take it, is irregular, and cannot be filed, unless the plaintifi consents to its being filed without oath. Crawford v. Polley, Cham. R. 8.] fi t* i.i^jii- The answer is to consist of a clear and concise statement of such defence or defences as the defendant may desire to make. ".•■•> '■''■ . ■ ■.•■•■ The silence of the answer as to any statement of the bill is not to be construed into an implied admission of its truth ; and any allegation introduced into an answer for the pur- pose of preventing such implied admission, is to be considered impertinent. .-.;-. ^ . ... - Sec. 2. — A defendant who has been served with an office copy of a bill of complaint within the jurisdiction of the court, is to answer or demur to any original bill, or bill amended before answer, within one month after the service of the office copy of the bill, or of the notice of the amend- ment of the bill, as the. case may be ; (a) and a defendant who has been served with an office copy of a bill of com- plaint without the jurisdiction, is to answer or demur within the time limited by the order which authorises such service. Whenever a plaintiff amends his bill after answer, a defend- ,;;• -f ■'^i *"^>4. ■^^-'^Vt . V.;, I 1- il:l 1" •' I i hit ■ 1 V M - ,, » 1 24 •K-. ORDERS IN CHAITCERT. . 5.*,J-i4!- ant desiring to answer the same is to put in his answer thereto Trithin seven days after notice of the amendment. [(a) Before an order will be made for a married woman to answer separate from her husband, an. office copy of the bill must be served upon her, and she must be in defauU for want of answenj Aaodl Cham. R. 9.] . .:■•..• *•? jKus ti , o ■'.••'. ■;■ -■■'■ -■■"i>- t ■,- ■ '..'.■ . . - Sec^ 3. — An answer may be filed without oath, or signa- ture, by consent, without order. ..;..;.;.,,.,;. ■ Sec. .-I. — ^When, in order to do complete justice, relief ought to be given tp the defendant as well as to the plaintiff, or to the defendant alone, or to one of the several defend- ants^, the court, if it see fit, may frame its decree so as to attain that object, when the right of the defendant to relief grows'*"ont of the same transactions which form the subject matter • of the bill ; the facts necessary to make out the defendant's right to relief are to be stated in the answer ns part^of 'tW defendant's case, and he is to pray such relief as he may^ think himself entitled to. This order is not to be considered as authorising a defendant to state in his answer any distinct or independent matters, not connected with, and growing out of the case made by the bill, as the foun- dation for relief; and the court, in all such cases, may either grant such relief upon the answer, or it may dirf^t or permit a separate suit to be instituted. , » Sec. 6.— The court may permit a supplemental answer to be filed at 'any period of the suit, for the purpose o^ putting new matter in issue, in furtherance of justice, and upon such terms as may. seem proper. ' "' ' ■■ -i'^t^^'' ' •■'■ ■ ■ ' [A defendant has been permitted to file a supplemental answer .to, correct a mistake in the' original answer us to a matter offact. Fulton v. Gilmorei'l Phil. 52*2. Vvhere-*at the time of swearing to his answer he was ignor- ant of a^ particular fact. Tidswell v. Bowyer, 7 Sim. 64; Franklandv'T.^Overend, 9 Sim 365..: i Or where the defendant, J ORDERS IN CHANCERT. 25 by the mistaken advice of his solicitor, did not state a particular fact which he wfshed to have stated., . Nail v. Punter, 4 Sim 474; Cherry v. Morton, Cham. B. 25. But the. court always grants leave with _great difficulty, where an addition is to be made to the record prejudicial to the plaintiff. Phelps v;. Prothero, 2 DeG. & Sm. 278 ; Swallow v. Day, 2 Coll.' 133.] "^ Leave to file a supplemental answer is to be applied for by motion. The notice of motiou is to set fortH 'the pro^ posed answer, and state the grounds upon which the indul- gence is asked. It is to be served upon the solicitors of all parties, unless dispensed with ; and it must be supported by such evidence as shall satisfy the court of the propriety of permitting such supplemental answer to be filed,, under all the circumstances, having reference to the subject matter of the answer, and to the stage of the cause in which the appli- cation is made. Mi .\ [The defendant should state specifically what he wishes to put upon record, in order that the court may judge how far his application is reasonable. Smith v. Hartley,. 5 Beav.' 432;; and leave will be refused, unless on new matter or a sufficient reason given for not inserting it in the original answer. Scott v. Carter, 1 Y..&J.452.] , ,.. . ,j .;>U ra PRO CONFESSO— PRELIMINARY PROCEEDDTGS. XIII. — ^^Vhere any defendant, not appearing to be an infant, or a person of weak or unsound mind, unable of himself to defend the suit, has been personally served within the' jurisdiction of the couH, with an office copy of a bill "of complaint, and has neglected to answer thereto within one month from the time of such service, the plaintiff", after the expiration of one month, and within two months from the date of such service, may apply to the regbtrar for an order to take the bill pro confesso against such defendant,, (a) and, no answer having been filed, the registrar is to draw up such order, upon precipe, on being satisQed by affidavit that an office copy of the bill of complaint was served personally tifithin the jurisdiction ;. (6) and after the expiration of such V. h <\ ^ni: i;-! 26 ORDERS IN OHANOfiRT. two months the plaintiff maj apply to the court ex parte for an order to talce the bill pro confessoy and the court being satisfied by affidavit that an office copy of the bill was served personally within the jurisdiction^ and that no answer has ' been filed^ may, .if it think fit, order the same accordingly, (c) £(a);Whjsre the attprney'general is a party defendant and does not answer, the proper course is to obtain an order that he ' do answer within a week, or in default that the bill be taken pro canfesso^ Agsiinsl him. Shea v. Fellowes, Cham. R. 30: Groom r., Atty. Gen., 9 Sim. 334. (b) If the defendant is a married woman, an order ihat she do answer separate from her husband must first be served, and the time- within which she is to answer must be expressed in the order. Miller v. Gordon, 5 Grant, 134. (c). IL six months have elapsed, a notice of motion to take the hill pro confesso must be served. Brown v. Baker. Cham. R. 7.] [^ . Sec.-- 2»4->'Where any defendant, not appearing to be an infant or a person of weak or unsound mind, unable of himself to> defend the suit, has been personally served tvith an office copy of a bill of complaint out of the juriadietiony and such defendant has neglected to answer or demur thereto within the time limited by the order authorising such service, the plaintiff may apply to the court ex parte for an order to take the bill pro confesso against such defendant ; and the court, being satisfied by affidavit that an office copy of the bill of complaint was served personally, and that no answer has been filed for such defendant, may, if it think fit, order the same accordingly. [On moving for the order it is necessary to prove the identity of the person served, with the defendant, and the court is very strict in the proof required : an admission by the person served that he is thedfefendant, is not sufficient.] -: ,i, • Sec. 3.— Where an office copy of a bill of complaint has been duly served, but such service has not been personaly and the defend^ntvhaa neglected to answer or demur thereto I '.'■"■'7^7,i' ' ORDERS IN CHANCSRT. 27 vithm the time limited in that behalf the plaintiff may cause such defendant to be served personally, or by -his solicitor, if he have one, with a notice of motion to be made on some day, not less than three weeks after the date of such serrice, that the bill may be taken pro confe$9o against such defendant ; (a) and thereupon, unless such defendant has in the meantime put in his answer to the same, the court, if it think fit, may order the bill to be taken pro eonfetsOf either immediately, or at such time and upon such terms, and subject to such conditions, as the court, under ^he circumstances of tho case, may think proper. [(ff) Where a solicitor has accepted senrice of an office copy bill for the defendant, a two days* notice of motion is sufficient, and the notice may be senred on the solicitor. Ross v. Hayes, 6 Grant, 277. If the office copy bill is senred on the actomey^at^law under 20 Yic, ch. 56, s. 14, the three weeks* notice of motion must be given, but it may be serred on the attorney. ^Webster v O'Closter, 6 Gra^it, 278.] - V • , Sbc. 4. — Where an office copy of a bill of complaint has been duly served, but such service has not been peraonal, and the defendant has neglected to answer or demur thereto within the time limited in that behalf, then in case the office copy of the bill has been served upon such defendant out of the jurisdiction, or the plaintiff has been unable with due diligence to serve him personally with such notice of motion as is provided by the next preceding section of this order, in either case the court, upon the ex parte application of the plaintiS', may direct a. notice of motion in the form or to the effect set forth in schedule G. to these orders appended, to be published in such manner as the court may thii]Jc fit ; and upon the hearing of such motion the court, being satisfied of the due publication of the notice, and that no answer has been filed, may order the bill to be taken pro confe$»o, either immediately, or at such time, and upon such conditions, as the court, under the circumstances of the case, may think proper. ,...; .1 > ft.- V' ' Vi\ m ^;-' •'i 1 V , 28 '■'■> .: ORDERS IW CHANCERT. 'j^cw 7/'rr n-tttiK-f •v:;i Uiivifj. .'i i)^< h ^{':[--p m; ■. : SCHEDULE G; :u.,.i I'l ^■L•^^ ^i' In Chancertf. A. B.^plavhtiff, and 6?. /?., defendant. '\ To the defendant, C. D., "*V .' '^ Take notice,' that a mottonieill he made to Hie court,- on the-—— ■ *' day/ of ' " - ,"^(the- tinie fixed hi/ the order authoris' ihg prd)licatidfn,') that the bill in this caiise may he taken as confessed, eu/aimt you y and such order Jiaving been made, t}^e court maij "grant to the plaintiff snch relief as he may be entitled to on his cnon shemng ; and you will not receive any further notice of the future proceedings in the cause. * [The papers in which thb advertisement was inseited must be produced to the judge, before the order will be granted. Goodfellow V. Hambly, Cham. R., 62. It is a fatal omission in the advertisement on whicHan appplication to take the bill jjro confesso is based, if the name of the particular defendant against whoiri the application is directed be omitted. Jones v. Brandon, 3 Jur. N. S. 1146.] Sec. 5. — An order to take a bill pro confesso against a defendant who at the time of the making of such order is an infant, or person of weak or unsound mind, unable of himself to defend the suit, is irregular and of no validity. In case it shall appear to the court that any defendant upon whom an office copy of a bill has been served is an infant,(a) or a person ^of weak or unsound mind, not so found by inquisition,(6) unable of himself to defend the suit, the court, upon the application of the plaintiff, at any time after bill filed; may order that one' of the solicitors of the court be assigned guardian of such defendant, by whom he may answer the bill- and defend the suit. '>.;.■:. ■•'' [(a) If the 'father is dead, it should be shewn 'on affidavit whether 'he' died intestate or not, and whether any guardian has been appointed. .'•"•: .;.).... ...,,,., ■"- (b) The affidavit must shew that he is not so found by inqui- sition. Crawford V. Birdsall, Cham. R., 70.] . .. ^ ; ^ t ■i If Ik i * I ( » • ORDERS IN CHANCERr. 29 1 Notice of the application must be served upon, or left at the dwelling-house of the person Avith whom, or under whose care such defendant may be residing at the time of the motion, at least one week before the hearing of the application ; and where such defendant is an infant, not residing with or under the care of his father or guardian, in that case notice of the application must also be served upon or left at the dwelling- house of the father or guardian, unless the court at the time of hearing such application think fit to dispense with such service. yi;*, . -f^'M *'■'' .f,vVi:, Sec. 6. — ^Where the plaintiff has proceeded under either section 7 or 8 of Order IX., and the defendant has neglected to answer or demur to the bill within the time limited in that behalf, in either case the plaintiff may apply to the court, ex partBf for an order to take the bill pro confeaso against such defendant ; and the court being satisfied of the due, _ publication of the order and notice in that behalf prescribed, may direct the bill to be taken pro confea»o against such defendant, if it think fit, either immediately or at such time, i and upon such terms, and subject to such conditions, as the court, under the circumstances of the case, may think proper. Sec. 7. — An order to take a bill pro confesao against a " defendant does not require to be served ; and all further proceedings in the case may be ex rtarte as to such defendant, unless the court order otherwise. [Where six years had elapsed after the order jpro confesso was obtained, and no proceedings had been taken since, leave was given to the plaintiff to set the cause down for hearing, giving the defendant notice forthwitli of thtj proceedings. Cryne v. Doyle, Cham. R., 1.] • ■.»,.>♦••.• 2| Sec. 8. — A plaintiff may move ex parte for leave to amend the bill, without prejudice to an order to take the bill jjro confesso ; and where the court is satisfied that the rights of the defendant will not be prejudiced by such an order, it may direct the same accordingly. ■* .'^"^ '■".:.' ""'" T «>'-'^'^'^; w V '30 ORDERS IN CHANCERY. -.' PRO CONFESSO— HEARING DECREE. XIV. — Where a bill has been ordered to be taken pro eonfesao against all parties defendant, the cause may be set do\m to be heard at any time after the expiration of three weeks &om the date of such order, unless the court thinks fit to appoint a special day for the hearing thereof. > , Sec. 2. — A defendant against whoin an order to take a bill pro confesao has been made, is at liberty to appear at the hearing of the cause ; and if he waives all objection to the order, but not otherwise, he may be heard to argue the case upon the merits as stated in the bill. t [A. defendant appearing under this section may shew that the bill is open to demurrer for want of equity. Greig v. Green, 6 Grant, 240.] Sec. 3. — Upon the hearing of a cause, in which a bill has been ordered to be taken jyro confeasoj such a decree is to be made as the court may think just ; and the decree so made is to be absolute in the following cases, viz. : ^i m "^ ih .;■ 1. When an office copy of the bill has been served personally. ■> 2. AVhen notice of a motion to take the bill pro confcaso has been served under the third section of the next preceding order. ^ 3. When the defendant has appeared at the hearing, and waived all objection to the ordev to take the bill pro confesao. • Sec. 4. — ^A decree founded on a bill taken pro vonfesao is to be passed and entered as other decrees. [It is^essentially requisite to the perfect completion of every decree, that it should be passed and entered. Drummond v. Anderson, 3 Grant, 150.] .....> ^ ORDERS IN CHANCERY. 81 Sec. 5. — After a decree founded on a bill taken pro confegso has been passed and entered, if the decree be not absolute under section 3 of this order, an oflSce copj thereof may be served on the defendant against whom the order to take the bill pro confesso has been made^ or his solicitor^ together with a notice to the effect that if such defendant desires permission to answer the plaintiff's bill and set aside the decree, application for that purpose must be made to the court within the time specified in such notice, or that such defendant will be absolutely excluded from making such application.. If such notice as aforesaid is to be served within the jurisdiction of the court, the time therein specified fqr such application to be made by the defendant, is to be three weeks after service of such notice ; but if such notice is to be served out of the jurisdiction, the time is to be specially appointed by the court upon the ex parte application of the plaintiff. .. , . , ., , • v^S, *-.«-«> Sec. 6. — ^When a decree is not absolute under sec. 3 of this order, the court may order the same to be made absolute, on the motion of the plaintiff — !' . ^V v . been served 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. After the expiration of the time limited by the notice provided by section 5 of this order. 3. After the expiration of three years from the date of the decree, where a defendant has not been served with a copy thereof; and such order may be made either * on the first hearing of such motion, or on the ezpira< tlon of any further time which the court may allow , to the defendant for presenting a petition tor leave to ansvfer the bill. \^ . ' ,'.'.a-- Sec. 7. — ^^Vhere the decree is not absolute under section 3 of 'this order, and has not been made absolute under section 6, " ■ * . 'A'V'S ^^^ ■■»JV ^1 m> >y m '^i' I ni 1 ;• ■ V. Hi ORDERS IN CHANCERT. ^' ■ ft and a defentlant has a case upon the merits not appearing in the bill, he may apply to the court by petition, stating such case, and submitting to such terms >Yith respect to costs and otherwise as the cou^t 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 think fit, and upon such terms as may seem just, vacate the enrolment (if any) of the decree, and permit such defendant to answer the bill ; and 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 mtnesses examined, and such proceedings had as if the decree had not been made, and no proceedings against such defendant had been had in the cause. Sec. 8.— a defendant waiving all objection to the order to take the bill pro confesso, and submitting to pay such costs as the court may direct, may have the case reheard upon the merits stated in the bill ; the petition for rehearing being signed by counsel as other petitions for rehearing. Sec. 9. — In pronouncing the decree the court, cither upon the case stated in the bill, or upon that case and a petition presented by the plaintiff for the purpose, as the case may reciuire, ni;iy order a receiver of the real -iiul personal estate of the dofoiulant against whom the bill lias been ordered to be taken pro coufcs-^o to be appointed, Avith the usual directions, or direct a sequestration of such real and personal estate to be 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 or any subsequent step iu the cause the plaintiff may seem to be -entitled to ; provided that, unless the decree be absolute, such payment is not to be directed without security being given by the plaintiff for restitution, if the court after- ward think fit to order restitution to be made. Sec. 10.— The rights and liabilities of any plaintiff- or de- foudant under a decree made upon a bill taken />r9 confesao I ORDERS m CHANCERY. 33 extend to the representatives of any , deceased plainti£f or defendant at the time when the decree was pronounced ; and with reference to the altered state 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 representative of any party, to adopt such proceedings as the nature and circumstances of the case may require, for the purpose of having the decree (if absolute) duly executed, or for the purpose of having the matter of the decree and the rights of the parties duly ascertained and determined. • MOTION FOR A DECREE TO ADMINISTER THE ESTATE OF A DECEASED PERSON, AVITHOUT BILL FILED. . . . . .,.; .,. , ' XV. — (a) Any person claiming to be a creditor, ,or a specific, pecuniary, or residuary legatee, or the next of kin, or some one of the next of kin, or the heir, or a devisee interested under the will of any deceased person, (b) may apply to the court upon motion, Avithout bill filed or any other preliminary proceeding, for an order for the adminis- tration of the estate real or personal of such deceased person. [(a) Proceedings under this order are intended only for simple cases. Acaster v. Anderson, 19 Beav. 161. Where there are any special circumstances, proceeding by bill is preferrable, and the court -vvill not direct an enquiry as to wilful default unless a proper case for it is made by bill. Blakely v. Blakely, 1 Jur. N. S. ^68; Partington v. Reynolds, 4 Jur. N. 3. 300 ; Delavante v. Delavante, 5 Jiir. N. S. 1I&. (J)« The court has power under this section to make an order for the administration of the effects bequeathed by the will of a married woman, made in pursuance of a power. Setvell ▼. Ashley, 17 Jur. 269.] . , ... : r^.rtl.. The notice of motion in such case is to be in the form or to the eflfect set forth in schedule H, hereunder written, and must be served upon the executor or administrator, as the 34 ORD£RS IN CHANCERY. t ■ • r li iiif! case may be, of such deceased person at least fourteen days before the day fixed for hearing the application. >'^ •'^7' >• >^..s, In Chancery.— In the viatter of the estate of John Tltomas, late of the townsliip of — ; , in the county of , deceased. Joseph Wilson against William Cochrane. To William Cochrane, executor af John T7io7nas, deceased. — Take notice, that Joseph Wilsrrn, of the city oj Toronto, in the county of York,Es/pure, (or other jrroper description of the jmrty,) ivlio claims to be a creditor upon the estate of the above named John Thomas, vrill apply to one of the judges oj the Court of Chancery, at Osgoode Hall, in the city of Toronto, on the day cf at the hour of noon, for an order for t/ie adminis- tration of the estate, real and personal, oj the said John Tliomas In/ the court of Chancery. Note.—//" yoit, the above named William Cochrane, do not ' attend, either in person or by your solicitor, at the time and place above mentumed, 'such order .toill be made in your absence as the jtulge may think just and expedient. - A. v., Of the city of Toronto, solicitor for tJie above named Joseph Wilson. Upon proof by affidavit of the due service of such notice ■' of motion, or on the appearance in person, or by his solicitor or counsel, of such executor or administrator, and upon proof by affidavit of such other matter, if any, as the court may require ; the court, if it think fit so to do, may make . the usual order for the administration of the estate of the deceased, with such variations, if any, as the circimistances of the case may require, (a) and the order so made shall have the force and efiect of a decree to the like effect, made on the hearing of a cause between the same parties. [(a) In taking the accounts under the usual decretal order made on summons, the court will not direct an enquiry as to wilful default. Blakely v. Blakely, 1 Jur. N. S. 368; Re Frye, '26 L. J..Chari. 308; but the court may, on reasonable it I Ij u .■ii**.».'i ■-W^'-ttiJ.v ORDERS IN CHANCERY. 85 grounds, direct further accounts and enquiries, son, 2 Jur. I^. S. 34.] 'Mutterv. I^ud> The court is to give any special directions touching the carriage or execution of any such order as, in its discretion, it may deem expedient ; and in case of applications for any such order by two or more persons, or classes of persons, the court may grant the same to such one or more of th^ claimants, or of the classes of the claimants, as it may think fit; and the carriage of the order may be subsequently given to such party interested, and upon such terms as the court may direct. Sec. 2.— ^An order for the administration of the estate of a deceased person may be obtained by his executor or ad- ministrator, as the case may be, and all the provisions of the first section of this order are to extend to applications by an executor or administrator under the present section. [Where the executor or administrator applies unl«*r this order, the court will direct an enquiry' as to wilful default J _ ' Sec. 3. — ^The costs attending the administration of the estate of a deceased person under the preceding sections of this order, are to be borne by such estate, unless the court shall direct otherwise. . • • , ■'.-■:■■■■:■} ^ ■ ■■•■.'. MOTION FOR A DECREE AFTER TIME FOR ANSWERING HAS EXPIRED. XVI. — The plaintiff in any suit, at any time after the period allowed to the defendant for answering^ has expired, but before replication, {a) may move the court for sach de- cree or decretal order as he may think himself entitled to ; and the plaintiff and defendant respectively may file afSda- vits(6)in support of and in opposition to such motion, and may use the same at the hearing thereof; and when such motion is made after an answer filed in the cause, the answer, for the purpose of the motion, is to be treated as an affida- vit, (c) . * M .. -. -il t■^. ,, .V vil Mi .1' ,..»';i ■ 80 . ' ORDERS IN CHANCSRT. [(a) Replication need not be filed, before or after noti'ce. Duffield V. Sturgis, 9 Hare App. 87. (6) Witnesses may be examined orally if the names of the persons to be examined are appended to .the notice. Pellatt v. NichoUs, 29 L. T. 289. The mode in which the evidence is to be taken is regjulated by Order XL., ss. 7, 8 and 9. (c) Defendant may be cross«examined on his answer, and defendant cannot read it unless plaintiff has had an opportu- nity of cross-examining him. Wightman v. Whealton, 2i? Beav. 397.;^ . , ' ' \ • , Notice of the motion is to be served upon the defendant or defendants at least three fveeks before the day fixed for the application. . v * [Plaintiff having given notice of motion for decree,' cannot abandon such proceeding and bring the cause to a hearing in the usual way, but must apply to court for leave. McLaughlan V. Whiteside, Cham. R. 56. , The aff^^avits to be used by plaintiff on the motion must be filed before the notice is served. Order XL.,- s, 2, and must be filed with the registrar. Ibid. A defendant requiring copies should demand them. See Order XL., s. 4; and the copies must be delivered within forty- eight hours. Order XLIIL, s. 4.] ' M'.'r ?^,":,- Within ten days rroni the service of the D'^tice the defend- ant must file his aLadavits in answer. f Within six days after the expiration of such ten days the plaintiff is to file his affidavits in reply, and except so far as these affidavits are in reply, they are not to be regarded by the court, unless upon the hearing of the motion the court shall give the' defendant leave to answer them ; and in that case the costs of such affidavits, and of the further affidavits, consequent upon them, are to be paid by the plaintiff, unless the court order otherwise. ri; '(^Hiih No further evidence, on either side, is to be used upon the hearing of such motion, without the leave of the court. I I I ,v,i,.V. ' .1 ORDERS IN CnAXCERY. 87 Upon hearing the application, the court, in its discretion, may either grant or refuse the motion, or may give such directions for the examination of either parties or witnesses, or for the making of further enquiries, as the circumstances of the case may require, and upon such terms as to costs as- it may think right. j.. iir '•'•". [The court has power, on a motion for decree, to dismiss the bill. Robinson v.Lowater, 2 Eq. R. 1070.] * jniotion for a decree before the time for answering has expired. • XVII. — When it can be inade to appear to the court that it will be conducive to the ends of justice to. permit such notice of motion to be served before the time for answering „ the bill has expired, the plaintiff may apply to the court, ex partBf for that purpose, at any time after the- bill has been filed, and the court, if it thinks fit, may order the same accordingly ; and when such permission is granted, the court is to give such directions, as to the service of the notice of rao- ' tion and the filing of the affidavits, as it may deem expedient. Upon the hearing of the motion for a decree or decretal order, the court, in its discretion, may either grant or refuse the application, or may give such directions for the examina- tion of either parties or witnesses, or for the making of fur- ther enquiries, or with respect to the further prosecution of the suit, as the circumstances of the case may require, and upon such terms as to costs as it may think right. . '.'.>:• >" . JOINING ISSUE— REPLICATION. 6 > » . . . . ! XVIII. — ^No subpoena to rejoin is to be issued. One replication only is to be filed in the cause, unless the court shall order otherwise; it is to be in the form set forth in schedule I. hereunder written, or as near thereto as circum- stances admit and require ; find upon the filing of the repli- cation the cause is to be deemed to be completely at issue. F . - V*: »,. 4 "^ 'I I'c^ ; .n>' ■J! i^^ :J-" 88 ORDERS m CHANCERY. SCHEDULE I. ^ • *i:P:- In Chancery. — A. £., plaintiff and C. D., E. F., and G. H.t defendants. : The plaintiff' in this cause joins issue tcith the defendant JE. D.f {all the defendants who have anstvered,) and will hear the cause upon bill and answer against the defendant E. F., (all defendants against whom - the cause is to be heard upon bill and answer^ and on the .order to take the bill pro conjesso against the defendant G. H., (as the case may be.) Sec. 2. — ^When the plaintift' has not obtained an order to amend his bill, he is either to 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 "last answer" means the last answer of all the defen- dants ; (Jollett V. Preston, 3 Mac. & Gor. 433. Serving a notice of motion for decree is a sufficient com- pliance with this, and also with the next section.] Sec. 3. — "When the plaintiff has obtained an order to amend his bill after answer, he is either to file his replication, or set down the cause to be heard on bill and answer, within the times following, viz. : 1, When the plaintiff amends his bill, and no answer is put in thereto, and no notice of an application for» 't further time to answer is served within seven days ?■ ' after service of the notice of the amendment of the • bill, the plaintiff, after the expiration of such seven days, but within fourteen days from the time of such service, is either to tile his replication or ,s«t down the cause to be heard upon bill and answer ; other- wise any defendant may mc^ve to dismiss for want of prosecution. . , . 2. Where the plaintiff amends his bill after answer, an da defendant, within seven days after the service of the notice of the amendment of the bill, serves notice of - ' an application for further time to answer the amend- • . menta, but such application is refused, the plaintiff is, ' ^ .^; *,| 4 •i » ORDERS IN CHANCEKT. 39 I .¥ I i si ■^} .11 I •■'tf. withia fourteen clays after such refusal, either to file his replication, or to set down the cause to be heard on bill and answer ; otherwise any defendant may move to dismiss the bill for want of prosecution. * ■ 3. When a defendant puts in an answer to amendments, the plaintiff must either file his replication or set down the dause to be heard on bill and answer, within , , fourteen days after the filing of such answer, unless * ' he obtain, in the meantime, an order for leave to amend the bill ; otherwise any defendant may move to dismiss the bill for want of prosecution. [If, after a defendant has served a notice of motion to dismiss, the plaintifi* files replication, obtains an order to amend, sets down the cause on bill and answer, or serves notice of motion for decree under Order XVI., it will be an answer to the motion to dismiss, but the plaintiff must pay the defendant the costs of the notice, ai\d if he does not tender these, the defendant may proceed with his motion to obtain the costs. Lester v. Arch- dale, 9 Beav. 156; Findlay V.Lawrence, 11 Jur.703; Hughes v. Lewis, 8 W. R, 393.] ^ '. C ' m w ^^ i- •■i 'fl nda i the re of • T end- -'^ 1 ffis, 1 , FILING PLEADINGS— NOTICE. XIX. — When any party or solicitor causes an answer, demurrer or replication to be filed, he is to give notice thereof, on the same day, to the solicitor of the adverse party, or to the adverse party himself if he act in person. [This is important, as the defendant cannot move to dismiss, unless he is prepared to prove the service of notice of his an- swer being filed. Kay v. Sanson, Cham. R. 71 . In Jones v. Jones, I Jur. N. S., 863, this was held unneces- sary, but the court has refused to act upon it, as rendering this order inoperative.] i^j-.-yji „.;,■;" f? ^..^ vs< , f.-,*' EVIDENCE TO BE USED AT THE HEARING. XX.— Either plaintiff or defendant may at any time after answer, (a) or when the .application is on behalf of the plaintiff, after the time for answering has expired, obtain an :m 40 • » - ORDERS IN CHANCERY. order of oouise upon precipe, requiring the adverse party (b) to produce, within a time to be limited by the order,(c) all deeds, papers, writings, and documents in his custody or power, relating to the matters in question in the cause, under oath, and to deposit the same with the registrar of the court, for the usual purposes. But neither plaintiff nor defendant is to be held bound to produce, in pursuance of such order, any deeds, papers, Avritings or documents, which a defendant now admitting the same by his answer to be in his custody or power would not be bound to produce. [(«) All order obtained by a defendant before he has filed his answer unleas by special leave of ihe court, is irregular and will be discharsfed with costs. (b) This does not enable a defendant to obtain an order for production of documents in the possession of a co-defendant. Atiy.-Gen. v. Clapham, 10 Hare App. 68. (c) The usual time is four days, and the order is served on the solicitor of the party required to produce. If he does not comply with it, an order nisi may be obtained and served on the party personally, and if this is disobeyed, an attachment will be issued. The order nj'sj'must he endorsed according to Order XLVL, sec. C] Sec. 2. — The affidavit to be made by a party who has been served with an order for the production of documents under the preceding section may be in the form or the efi'ect set forth in schedule K., hereunder written. ' [For this schedule see App. No. IV.] ^ Sec. 3. — Any exhibit which according to the present practice of the court might have been proved viva voce at the hearing, may be proved by the affidavit of a witness who would have been competent to prove the same at the hearing ; an order having been taken out for that purpose. [This is an order of course obtRined on precipe.] Sec. 4. — Causes may be brought to a hearing upon evidence adduced upon affidavit, by consent of parties ; (a) and, when the evidence in a cause has been taken orallv, affidavits of * * !t if :^wx^m icmim^miimmmsm£Sm>Mm.i ■^ ♦ ''■i ,7;'; , ORDERS IN CHANCERY. , 41 particular witnesses, or aflBdavits as to particular facts or circumstances, may be used by consent, or by leave of the court ; and such cons^t to hear the cause upon affidavit evidence, or to admit the affidavits of particular \ritnesses, or affidavits as to particular facts and circumstances, may be given on behalf of married women,, or infants, or* other persons under disability, with- the approbation of the court. S|»t-'»^J, •[(a) This does not apply to causes brought to a hearing on motion for decree under Orders XVI. and XVII., but to causes in which a replicatior. has been filed.] v* , ■ , * ■ \. Sec. 5. — ^Any witness who has made an affidavit filed by any party to a cause, to he ^ised at the liearing thereof^ is to be subject to oral cross-examination before the court {a) or a deputy master, or an examiner specially appointed for that purpose, in the same manner as if the evidence given by him in his affidavit had been given by him orally; and such witness is to attend befdre the court, or deputy master, or examiner, as the case may be, upon being served with a writ of »ubpcena ad testificandum or ducea te* •• . ••,■■. i.'v .. * . . • INTERROGATORIES FOR THE EXAJVIINATION OF PARTIES AND WITNESSES. ' . "' ■ . . . ■ ■ . .?-j'' •■ - • • " XXI. — No written interrogatories for the examination of either parties or witnesses, either, before or after decree, are to be filed, except by leave of the court, (a) Examinatipus are to be viva vode, and may be conducted either by the parties or by their solicitors or counsel. ^ ^ [(a) Interrogatories are still permitted for the examination of witnesses, out of the jurisdiction, under commissions.] ^ • (r^rl ' JIXAMINATION OF PARTIES. XXII.— Any party to a suit may be examined as a witness by the pwrty 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 hereinaftv'r provided. And " any person for whose immediate benefit a suit is prosecuted, or defended, is to be regarded as a party for the purpose of this order. Provided always, that when it appears upon the hearing that any party examined uuder this order is united in interest wth the examining party, the evidence so taken is not to be used on behalf of either the examining party or the cxaminant, but may be struck out at the hearing at the instance of any party affected thereby., ; , .. ./ 'Kf^' Sec. 2.-r-Any party defendant may be examined as a ^vitness as heretofore, upon order for that purpose, on behalf either of the plaintiff, or, of a co-defendant, upon points as to which the party to be examined is h6t interested. And any party plaintiff may be extimined, under similar circum- stances, by a co-plaintiff or by a defendant. Provided, that where any,party having an interest has been examined under I 1 m ORDERS IN CHANCERY. 4a this order; such evidence is not to be used on behalf either of the examining party, or of the party examined, but may be struclc out At the hearing, at the instance of any party affected thereby ; but such examination is not to preclude the court from making a decree, either for or against the party examined. Sec. 3. — Evidence taken under the first section of this order may be rebutted by adverse testimony ; and any party examined as therein provided, may be further examined, on his own behalf, in relation 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 interest, have been so examined, any other plaintiff or defendant, 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 examined. Provided nevertheless, that such explanatory examination must be proceeded with immediately after the examination in chief, and not at any futui'e period, except by leave of the court. Sec. 4. — Any party to the record who admits, upon his examination, that he has in his custody or power any deeds, papers, writings, or documents relating to the matters in question in the cause, is to produce the same for the inspec- tion of the party examining him, upon the order of the court, or of the deputy master, or examiner, as the case may be, before whom he is examined, and for that purpose a reasonable time is to be allowed. Either party may appeal from the order of such deputy master, or examiner ; and thereupon such deputy master, or examiner, is to certify under his hand the question raised and the order made thereon ; and the costs of such appeal are to be in the dis- cretion of the court. But no party shall be obliged to produce any deed, paper, writing, or documents which would have been protected under the previous practice. Sec. 6. — Any person refusing or neglecting to attend at fe,. ■ 1 ■i\ -I! A Ml' ■f I. ■ W- ii V. 44 ORDERS IN CHANCERY. the time and place appointed for his examination under the first section of this order may be punished as for a contempt ; 'an'l the party vAxo desires the examination, in addition to any othor remedy to which he may be entitled, may apply to the court, upon motion, either to have the bill taken ^)ro co>>/...iso, or to have it dismissed, according to circumstances ; anJ ii:e court, upon such application, ruay, if it think fit, order either that the bill bo taken /'v-i? confessoy or that it be di?m;.<.se'i, as the case iiiiiy be ; and Avhen, from the circum- .' ^. .••.s i/f the «]ase, such order cannot be made consistentlv •vitli the rights of other parties to the suit, then the court ia:iy make such order as to the enlarging the time fur ^.:is\.\^^ l)uM'cation, or otherwise, as may seem just. Jr:::. •!. — When tUo oxumining party uscs any portion of :iif evidence taken under the first section of this order, (but i\ot u-.herNvise,) 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 in explanation. Sec. 7. — Any party plaintiff examined under the first section of this order may be so examined at any time after itnswer ; and any party defendant may be examined at any time after answer, or after the time for answering has expired, as the case may be ; and such examination may i>e had without reference to the examination terms Iierein- after established. ". \ XXIII.— Repealed by Order II. of 28rd December, 1857. DISMISSAL OF THE BILL FOR WANT OF . PROSECUTION. • XXIV. — ^Any defendant (a) may move the court, upon notice, that the bill may be dismissed with costs (i) for want of prosecution, and the court may order the same accordingly in the following cases, viz. : 1. If the plaintiff, not having obtained an order to ORDERS IN CHANCERY. 45 enlarge the time, does not obtain and serve an order for leave to amend the bill, (c) or does not file the replication, {d) or set down the cause to be heard on bill and answer, within one month after the answer, or the last of the answers has been filed ; or 2. If the plaintiif, not having obtained an 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, not having obtained an order to enlarge the time, does not set down the cause to be heard, and serve a notice of hearing within one month after publication has passed. [(a) But if a defendant is in contempt he cannpt move. Anon. 15 Ves. 174. A defendant who is in a position to move to dismiss, cannot do so if a co-defendant appearing by the same solicitor, has not filed his answer. Winthrop v. Murray, 7 Hare 157» (L) As to the costs included under an order dismissing the bill for want of prosecution. See Finden v. Stephen, 11 Jur. S9S; Stevens v. Keating, 14 Jur. 157; Rumbold v. Fortcath, 4 Jur. N. S., 668 ; as to when dismissal will be without costs ; st-e Blanshard v. Drew, 10 Sim. 210; Knox v. Brown, 2 Bro. C. C, 1S6; Kemball v. Wulduck, 18 Jur. 69; contm Lever V. Heritage, 5 Jur. N. S. 215; Hadon v. Pegler, 5 Jur. N. S. 112:}. (c) A motion to dismiss pending an order to amend is irregular. Emerson v. Emerson, 12 Jur. 973; but not where the order was that in default of amendment the bill should ipsojacto stand dismissed. Dobede v. Edwards, 11 Sim. 454. If the notice of motion to dismiss is served before service of the order to amend, the defendant is entitled to the costs of * the motion. Lester v. Archdale, 9 Beav. 150; Findlny v. Lawrence, 11 Jur. 705. {d) When after notice of motion to dismiss the bill, tlie plaintif!' files a replication the court will only order that he TT 46 Orders in chancer^. I, > r '• 1 ■ M i::i ■It 'A k ' pay the costs of the motion. Corry v. Curlewis, 8 Beav. 606. But the defendant may hring his motion on for the costs. Hughes V. Lewis, 8 W. R. 292. (e) "Last answer" in this order means the last answer of the particular defendant moving to dismiss. Dalion v. Hayter, 7 Beav. 586; Sprye v. Rennell, 10 Beav. 351; but see also Arnold v. Arnold, 'l Phil. 805. ■ . Serving a notice of motion for decree under Order XVIL is a sufficient compliance with the above rules to prevent amotion to dismiss. But if served after notice to dismiss the defendant is entitled to the costs of the motion. Towers v. Foolt, Cham. R. 33.] , ^ Sec. 2. — Where the plaintift" has amended his bill, after answer, any defendant may move the court upon notice, that the bill may be dismissed with costs, for want of prosecution ; if the plaintiff, not having obtained an order to enlarge the time, does not file the replication, or set down the cause to be heard on bill and answer, within the times following, viz.: — 1.. "Within fourteen days after service of the notice of the amendment of the bill, where no answer has been filed, and the defendant has not obtained or applied for time to answer. 2. W"lthin fourteen days after the refusal of an appli- cation fur further time, in cases where the defendant, desiring to answer, has not put in his answer within seven days after service of the notice of the amend- ment of the bill, and the application for further time has been refused. '• ' . ■ ' . t^- ■ ' . ' 3. Within fourteen days after the filing of the answer, ' in cases where the defendant has put in an answer to the amendments, unless the plaintiff, within such fourteen days, has obtained leavo to re-amend the bill. 1 m ORDERS IN CHANCERY. 47 Sec. 3. — In every other case, where the pluntiff is delay- ing the suit unreasonably, any defendant may move the court, upon notice, that the bill may be dismissed with costs for want of prosecution, after the expiration of one month from the time of filing his answer, {a) in case the plaintiff, not 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 replicationj or 'set down the cause to be heard, on bill and answer, within such month ; and upon the hearing of such motion, the court is to make such order for the dismissal of the bill, or for the expediting of the suit, or as to the costs, as under the circumstances of the case may seem just. [(«) If the motion is made by one of sevorul (Icfcndaiits, it is not enough for the phiintitl to shew that Ire has not got in the answers of the other defendants, he must also shew that he has used due dilligence to have them served and to get in the answers, or take the bill 2i'''o co7ijmo against them. Earl of Mornington v. Smith, 9 Beav. 251 ; Baldwin v. Darner, 11 Jur. 723 ; Stinton V. Taylor, 4 Hare 60S. An injunction does not prevent a defendant from moving to dismiss for want of prosecution. Day v. Snee, 3 V. &B. 170 ; James v. Biou, 3 Swanst. 234 ; Bliss v. Collins, 2 Jur. 62. The court may grant the plainiifl farther time, but it is usual to do so only ou terms as to the future conduct of the suit. On moving to dismiss the registrar's certificate, must not merely shew what proceedings have been taken, it must state that no further proceedings have been had. Tliompson v. Buchanan, 3 Grant, 562.] Sec. 4. — In all cases where a person or party obtains an order from a court, or from a master, upon condition, and fails to perform or comply with such condition, he is to be considered to have waived^ or abandoned such order, as far as the same is beneficial to himself, and any other party or person interested in the matter, on the breach or non- performance of the condition, may either take such proceed- ings as the order in such case may warrant, or such proceed- ings as might have been taken if no snch order had been made. V ^■: . ' !;• ' ' ■r "1 i 1 .. II'. I: '!' i-l ll i)i If •:^i :1.| 1 1' 1l ■ii J1 ' « 1-,!' t • ;l; ;, , \ t 5^ ! ■ '■ !l. I 48 ORDERS IN CHANCERT. XXV.— Repealed by Order II. of 23rd December, 1857. LEGAL RIGHTS— HOW DECIDED. '" , XXVI. — In cases where according to the present practice the court is in the habit of refusing equitable relief until the party seeking such relief has established his legal title. or right in a proceeding at law, the court will itself determine such title or right without requiring the party seeking such relief to proceed at law to establish the same ; but the court may require the right or title to be established at law, whenever, in its discretion, it considers that course expedient. [The court may now also try an issue without the intorven- :ioti of a court of huv, aud may issue a precept to the sheriff of any county, requiring him to strike and summon a jury for that purpose, and at the trial one judge or more of the Court of Chttncery shall preside. 20 Vic, ch. 50, sec. 13. Con. Stats, of C. C, ch. 12, sec. 69.] INJUNCTION TO STAY PROCEEDINGS AT LAW. XXVII. — No injunction to stay proceedings at law is to be granted, for default of an answer to the bill ; but such injunction may be granted upon interlocutory application, in like manner as other special injunctions arc granted. Sec. 2. — On any motion to obtain or dissolve a special injunction, affidavits may be used eitlier to support or con- tradict the answer. DECREES MERELY DECLARATORY. XXVIII. — ^No suit is to be open to objection on the ground that a merely declaratory decree or order is sought thereby ; I'ut the court may make a binding declaration of right with- out granting consequential relief. [Til'.; tendency of the later decisions in England on the Imp. Act ir»vt 16 Vic, ch. 86, sec. 50, which is the same as this order, ■f ■ORDERS IN CHANCERY. 4j has been considerably to restrict its operation. It has been held by Lord Justice Turner that the court has no power to declare future rights ; LadyLangdale ▼. Briggs, 2 Jur. N. S.,962; and the ccuTt refused to make binding declarations as to the interests of parties entitled in reversion ; Gariick v. Lawsoo, 10 Hare App. 15. Fletcher V. Rogers, 10 Hare, App. 13, cannot now be relied on as an authority. A party cannot have a prospec- tive declaration guarding against a claim which rnay never be made ; Jackson v. Townley, 1 Drew 617. The order docs not apply unless the plaintiff would be entitled to conseiieiitlal t'r|uitable relief if he chose to ask for it ; Rooke v. Lord Ken- sington, 3 K. & J. 753; nor can the court make a decree decliiratory of a merely legal right. Trustees of Birkenhead Docks V. Laixd, 18 Jur. SS:).] PARTIAL DECREES. XXIX. — When questions arise between parties (who arc ijome only of those) intercstecl. in the property respecting which the question arises ; or where the property in ques- tion is comprised ^vith other property in the same settlement, will, or other instrument, tlie court may adjudicate on the questions arising between such parties, without making the other parties interested in the property rivspecting which the question arises, or Interested under the settlement, will, or other instrument, parties to the suit, and without requir- ing the whole trusts and purposes of the settlement, will, or instrument, to be executed under the dirert'on of the court, and Avithout taking the accounts of the u .uteea, or other accounting parties, or ascertaining the particulars or amount of the property touching which the question or questions have arisen; but when the court is of opinion that the application is fraudulent, or collusive, or that for some other reason the application ought not to be entertained, it may- refuse to make the order prayed. v [This ord*!r applies only when some of the persons interested in the question at issue, in every point of view, are before the court. Swallow v. Binns, Hare App. 47. A decree of the court made under this order does not bind the absent p&rties as \h * J' •V I i' ■I i4 .■ 4 1 !i •?! :.ii «5 ,;!|:i J1 •I ' 1.' ■ l)'^ .JO ORDERS IN CUANC£RY. Hnler VI., s. 2, dot*s when notice of tbe decree has been served iiputi them. Doody r. Higgins, 9 Hare App. 32. ^ The court may direct the administration of one or nr pe- ritic trusts created by an instrument, without direc ^ the •nifonnaoce of all. Parnell v. Hingston, 3 Sm. & G. 337; rrcnticc v. Prentice, 10 Hare, App. 23.] DECUEE MAY BE MADE IN THE ABSENCE OF A PERSONAL REPKESENTATIVE. ^ XXX. — Where, in any suit or other proceeding before :!ie court, it is made to appear that a deceased person who ■(v;!^ Interested in the matters in question has no legal per- < i(jli CitJite for all the purposes of the sitit or other ^ .eed- '.•j-i!!, on such notice to such person or persons, if any, as :l!i' court may think fit, either specially, or by public adver- :i;ement ; and the order so made, and any orders consec|uent rlioreon, shall bind the estate of such deceased person in the intne manner in every respect as if there had been a duly constituted legal personal representative of such person, and j-ich legal personal representative had been a party to the ;::lt or proceeding, and had duly appeared and submitted his ."ij^hts ai\d interests to the protection of the court. [(ft) To induce the court to act under this order, it is neces- sary that the interest of the deceased defendant in the matter .:i tjucsiion in the suit should be of little consequence, and that '.i.'-re should be difficulty in obtaining representation to his .--.ate. Daniels Chan. Pr. 1158, (Headlam's Ed.) This rJcr does not apply where parties have a beneficial and .'^"^st^ntial interest, but applies only to cases of mere formal i-ariies. Sherwood v. Freeland, 6 Grant 305. Thus ere- (aiors under a trust deed for their benefit, may proceed !i-.unst the trustees without a personal representative of th«' 'iocoased debtor, the author of the trust, where no such i . presentative exists and the estate is insolvent. Chaffers v. lifadlam, 9 Hare App. 46; and where one of the executors of ORDERS IN CI1A2TCERY. M the testatrix in the cause had died intestate and insolvent, and ineffectual attempts had been made to obtain representation to him, the court allowed an administration suit to proceed in the absence of such representation. Band v. Handle, 2 Eq. Rep.. 439; and as a general rule the court will incline to act under this order, <\rhen the next of kin expressly refuses to admin- ister. Haw V. V'VVers, 1 W. R. 242 ; Tarrett v, Lloyd, 2 Jur. N. S. 371 ; or yjy no attention to a notice calling on him to administer. Whiteaves v. Melville, 5 W. R. 676; or where the interests of the deceased are identical with those of the plaintiff. Cox v. Taylor, 22 L. J. Chan. 910; Long v. Stone, Kay. App. 12; but ihis order does not apply when the per- sonal representative would have active duties to perform. Fowler v. Bayldon, 9 Hare App. 78 ; nor when he would represent interests adverse to the plaintiffs. Headden v. Emmott, 22 L. T. IGG ; but see Dean of Ely v. Gayford, iJi Beav. 561; Gibson v. Wills, 21 BoiU". 020. Nor w'hrre the object of the suit is to adniiuister the estate of the intestate. Silver v. Stein, 1 Drew. 2i>5; Groves v. Lane, 10 Jur. 1001 ; James v. Aston, 2 Jur. N. S. 2'i4. As to cases where a will has been proved abroad ; see Hcwetson v. Todhunter, 22 L. J. Chan. 70 ; Sutherland v. DeVirenne, 2 Jur. N. S. 301. (6) Where the entire adverse interest is unrepresented, the court will not appoint a person to represent that interest. Gibson v. Wills, 21 Beav. 620; and it will not under this Order appoint a person to receive a sum of money in court, payable to a deceased person, though the amount be. small. Rawlins v. McMahon, 1 Drew. 225. The proper person to be appointed is the person who would be appointe) such bill upon paying into court the amount then due for principal and interest, with costs. [(ft) Upon default in payment by a mortgagor of any instiilincnt of, or interest on inoiti,'afre money, the inort;j:afroe lias a riglit to cull in the wliolc amount secured by tlic niortya^'e. Sparks v. Redhead, 3 Grant, 31 1 ; Cameron v. McRae, ibid. (h) That is before decree ; ofter decree proceedings will, Milder Ihe next section, only be stayed until default in a future payment ; when a defendant moves under this section, the interest is to be computed only up to tlie last gale day, and not up to the time of making the application. Strachan v. Murney, Grant, 378.] Sec. 6. — When a suit has been instituted for the purpose and under the circumstances specified in the last section, any defendant may move to stay the proceedings in the suit, after d*'oree, (a) but before salo or final foreclosure, upon paying into court the amount then due for principal and interest, with costs. When an application io made to stay the proceedings under this section, the decree may afterwards be enforced, by order of the court, upon any subsequent default (b) in the payment of any further instalment of the principal, or of the interest. j * », - [(ii) See note b. to sec. 5. (/>) After payment of what is due under this section it is irre- gular to take any further proceeding in the cause until another instalment falls due. Carroll v. Hopkins, 4 Grant, 431 ; where ORDERS IN CHANCERY. sn a stay of proceedings has been ordered and default is made in payment of another instalment of interest, an order will be granted directing payment of the whole sum secured, with liberty to the defendant to pay the sum now actually payablet and directing a stay of proceedings on such payment being mrtde. Strachan v. Devlin, Cham. R., 8.] Sec. 7. — ^Wben the cause is heard upon an order to take the bill p'o confesaOf in a suit for the foreclosure of th« equity of redemption in any mortgage property, the plaintiff is to produce at the hearing (a). " ' ; 1. The mortgage deed, and the assignments thereof, if any. •2. An affidavit ■which i^ to state the amount advanced upon the security, — the amount paid, whether by receipt of rents or otherwise, — and the amount re- maining due for principal and interest, distinguishing how much for principal and how much for interest. The affidavit is to state whether the mortgaged pre- mises, or any part of them, has been in the occupa- tion of the mortgagee or of any one under whom he claims ; and, when there has been any such occupa- tion, the affidavit is to state its natiu-e, — the time it continued, — and the fair rentable value of the property. • ♦ Upon production of such proofs and documents, the court may at once determine the amount duo ; and when a fore- closure is ordered, the time and place for the payment of the mortgage money may be fixed by the decree, without a reference (6) to the master, or any further enquiry. [(a) This affidavit and the mortgage deed are produced, only if the account is to be taken at once and the amount due found by the decree. Where a reference to the master is asked, it is not necessary to produce these documents. {h) Where the plaintiff asks for u reference to the master lo enquire us to incumbrancers, he takes it at the peril of costs, I: f .. S 't :; ■i ■ I 11 56 ORDERS IN CHANCER?. if there are really no other incmbrancers. Hamilton v. How- ard, 4 Grant, 581.] I Where a sale is ordered, the judge at chambers, or the master acting in the matter, as the case may be, is to give such directions as he may think right for bringing in other incumbrancers; and the matter is to proceed in other respects, as in ordinary cases when a sale has been ordered. S£c. 8. — AVhere a suit for foreclosure of the equity of redemption of any mortgaged property has been brought to a hearing in the ordinary way, neither the amount of the luortgage debt, nor the time and place of payment, are to be determined at the hearing, but the case is to be adjourned to chambers, or a reference to the master directed, as may be thought most convenient. / ,;. ^ .' - i. ■ > REFERENCES TO THE MASTER. XXXIII. — In all cases where, according to the present practice, a reference to the master (a) would be directed, the court may dispose of such matters itself, if it think fit, and may direct the proceedings^ to be taken in full court, or at chambers, as it may find expedient. ...■.- - - >r [(a) The plaintiff h&s, prima faciei a right to have the refer- ence directed to the master resident in the county where the bill is filed. Macara v. Gwynne, 3 Grant, 310.] Sec. 2. — The court may obtain the assistance of account- ants, merchants, engineers, actuaries, or other scientific persons, in such way as it may think fit, the bettor to enable it to determine any matter in evidence in any cause or proceeding, and may act on the certificate of such persons. JUDGES' CHAMBERS — BUSINESS TO BE DES- PATCHED THERE, AND MODE OP PROCEDURE. XXXIV. — In future, one of the judges of the court will sit daily at chambers for the despatch of the following ORDERS IN CHANCERT. 5T business, (a) and of such other matters as the court from time to time shall think may be more conveniently dbposed of in chambers than in fdl court, viz. : 1. For the sale of the estates of infants, under statute 12 Victoria, chapter 72. ^ 2. As to the guardianship, maintenance, and advance- ment of infants. 3. For the administration of estates under Order XV. 4. For time to answer or demur. 5. For leave to amend bills. 6. For changing the venue. 7. To postpone the examination of witnesses, or to - allow the production of further evidence. 8. For the production of documents. 9. Relating to the conduct of suits or matters. 10. As to matters connected with the management of property. [A commission de lunatico inquirtndo will be granted in chambers ; Re Stuart, 4 Grant, 443 ; and writ of haheat a>rpus may be granted by a judge in chambers ; Re Paton, 4 Grant, 147. All applications to sanction the conveyances of church property under 18 Vic, oh. 119, are made to a judge in chambers. Whatever applications can under these orders be made in chambers, must be so made. MofTatt v. Ruddle, 4 Giant, 44. The court refused ta hear otherwise than in chambers, a motion to extend the time for payment of mortgage money. Anon., 4 Grant, 61. Appeals from the master's report are now heard in chambers.] ft ;,i ,^.., ill' • ,( •fj i!iv *i .^ .62 ORDBRS IN CHANCEBT. purchase money is to be paid down by way of deposit, and at what time or times, and whether with or without interest the residue of such purchase money is to be paid. 7th. Any particular or particulars in which the proposed conditions of sale differ from the standing conditions. o. At the time named in such appointment or warrant, the judge or master is, in the presence of all parties - served, or of such of them as attend to settle such advertisement, to fix the time and place of sale; to name an auctioneer, where one is to be employed ; and to make every other necessary arrangement preparatory to the sale, so that nothing may remain to be (lone but to insert tlie advertisement ; and all the before-mentioned niattcis must be done at one meeting, namely, upon the return of the appointment or warrant, where it is practicable, and no adjourn- ment of such meeting is to take place, and no new meeting is to be appointed for the aforesaid purposes, unless it be unavoidable. 6. The advertisement is to be inserted by the party conducting the sale, at such times and in such manner as the judge or master has appointed at t.c meeting before mentioned. 7. The judge or master may fix an upset price or reserved bidding, where it is thought expedient, without further order ; but this must be done at the meeting before mentioned, and it must be notified in the conditions of sale ; the master or his clerk is to conduct the sale where no auctioneer is employed ; the deposit is to be paid to the vendor, if present, or if not, to his solicitor, at the time of sale, and is to be forthwith paid by him into court : biddings need not be in writing, and all parties, except the one having the conduct of tha sale, may bid thereat, provided it be notified in the conditions of the sale ; a written (a) M n 1 m %{ Hi m It ORDERS 12r CHANCERT. 63 Agreement is to be signed by the purchaser at the ' time of sale ; after the sale is ooncluded the auctioneer, \rhere one is employed, is to maVe the usual affidavit according to the present practice, and 'where no auctioneer is employed, the master or his clerk is to certify to the court to the same effect, but the master is to make no report, allowing the purchaser in any case. [(a) This conflicts with the next rule, which ilirecis the contract to be printed, as in practice it usually is.] 8. Under the printed conditions of sale is to be printed a blank form of contract in these words, or to this effect: "I agree to purchase the property or Lo'; No. — , mentioned in the annexed particulars, for the sum of £ , and upon the terms mentioned in the above conditions of sale, {Purchaser's signature,) Witness.'* The purchaser is to sign one of these contracts and the affidavit of the auctioneer or certificate of the master or his clerk, and a printed copy of the particulars of sale are to be annexed to the contract so signed. 9. The signed contract, with the printed copy of par- ticulars and affidavit or certificate annexed as afore- said, is to be filed {a) by the vendor's solicitor, and if such sale is not objected to within fourteen days from the time of such filing, it is henceforth to stand absolutely confirmed with the same effect as now fol- lows from the absolute confirmation of the master's report allowing the purchaser. rc [(a) These papers must be filed with the registrar, whether the sale has been conducted before a judge in chauibera or the master. Patterson v. Stanton, 4 Grant lOO.J 10. Such sale must be objected to by motion to the jt'T^ "> ■ >. . t' i ;1 ' V 'I t 64 ORDERS IN CHANCERT. ii hill' •i1 i 1 ■■f ■ (• ^i;i' ■'! 1! 1 , 1 ' ; 1 ii ■ :> . ! r:. ^ i if. ]"'i court to set aside the sc.me, and notice of such motion must be served upon the purchaser and the other parties to the cause. 11. At any time after the confirmation of the sale the purchaisr may pay his purchase money and interest, or the balance thereof, into court without further order, but with the privity of the registrar and upon notice to the party havin«; the conduct of the sale ; and shall thereupon be entitled to be let into posses- sion of the estate, and may either proceed, accord- ing to the present practice, to obtain possession thereof, or, if such possession be wrongfully withheld from him, may at his own expense obtain an order against the party in possession for the delivery thereof to him. 12. When an enquiry into title has been directed by the court, the vendor is to deliver an abstract of the tide to the purchaser, and if the purchaser does not object to the title and obtain and serve an appointment or warrant from the judge or master, to consider the same, within fourteen days after the delivery of such abstract, he is to be deemed to have accepted such title ; at the time of serving the appointment or war- rant the purchaser must deliver to the vendor a written notice of the objections to the title ; at the time appointed a duplicate of such notice is to be brought into the judge's chambers or master's office by the objecting party, and such objections are to be argued before the judge or master, who is to allow or disallow such objections ; and such allowance or dis- allowance is to be subject to appeal by way of motion to the court ; the judge or master is to mak^ no re- port upon the title ; but the judge or master is merely to mark the objections allowed or disallowed, as the case may be ; such objections so marked are to be filed, and such allowance or disallowance is to stand absolutely confirmed, unless appealed from within fourteen days after such filing. i; 1/ .'fi I I , ORDERS IN CHANCERY. Gu 13. The standing conditions of sale are to be those set forth in schedule 0, attached to these orders. ■ * * [For this schedule, see App. No. v.] '■■■-. ^ , . .- APPLICATION FOR THE SALE OF INFANTS- ESTATE UNDER 12 VICTORIA, CH. 72. XXXVII. — A petition for the sale or other disposition of the real estate of an infant. Is to be intituled both in the matter of the infant and in the matter of the 12 Victoria, chapter 72. Sec. 2.— The petition is to be presented by the guardian of the infant, or by a person applying by the same petition to be appointed guardian, as hereinafter provided. Sec. 3. — The petition is to state the nature and amount of the personal property to which the infant is entitled — the necessity of resorting to the real estate — its nature, value, and the annual profits thereof. It must also state circum- stances sufficient to justify the sale and disposition of the estate, and the application of the proceeds in the manner proposed. The prayer must state specifically the relief that is desired ; it must designate the lands to be disposed of, and must propose a scheme for that purpose, and for the appropriation of the proceeds. If an allowance for the maintenance is desired, it must be so prayed, and a case must be stated to justify such an order, and to regulate the amount. Sec. 4. — The petition may pray for the appointment of a guardian, as >Yell as for the disposal of the infant's estate. In that case a proper case must be made by the petition, and established by the evidence, for the appointment of the person proposed. Sec. 5. — Upon all petitions for tho sale of an infant's estate, the infant is to be produced before one of the, judges at chambers, or before a master. 66 ORDERS IN CHANCERY. ■ill" m '•••■■ I 1"^ s ■ '. ; -'Ui:i Sec. G. — When the infant is above the age of seven years he is to be examined, apart, upon the matter gf the petition, and his consent thereto, by the judge or master, as the case may be ; and his examination is to be stated to have been taken under tlit'se orders, and is to be annexed to, and filed with the petition. Where the infant is under the age of seven years, the fact is to be certified by the Judge or master before whom he has been produced. Sue. 7. — The \Yitnesse3 to verify the petition are to be produced before the judge, or master, as the case may be; and are to be examined viva voce to the matter of the pt.titiou, and the depositions so taken are to be stated to have been taken I'liiiler thi;^ order. Sfx. 8. — Tiie masters of the court are authorised to examine infants and witnesses under this order, without special order or reference. Sec. 0. — Upon a petition so verified, the court may either grant the relief prayed at once, or make such order as to further evidence, or otherwise, as the circumstances of the case may require. RECEIVERS. XXXYIII. — Receivers are to be appointed in the follow- ing manner: tlio party prosecuting the order for a receiver is to obtain an appointment or a warrant from the judge or mas^ter, and to serve the same on all the necessary parties, naming in the copy thereof served the proposed receiver and his sureties ; at the time appointed the party prosecuting the order is to bring into the judge's chambers, or the mas- ter's office, the recognizance or bond proposed as security : the bond or recognizance is to be to ti master ; any other party desirous of proposing another person as receiver, is to serve notice -f Uis intention so to do upon the other parties, naming in such notice the person proposed by hira as receiver, and his sureties, and is then in like manner to bring into the judge's chambera or master's office the recognizance or bond ORDERS IN CHANCERY. 6T proposed by him as security : at the time named in the appointment or trarrant the judge or master ia, in the pre- sence of the parties, or those ivho attend, to consider of the appointment of the receiver, and to determine respecting the same ; and to settle and approve the proposed security ; the master is to make no report approving of or appointing the receiver ; but the judge or master is to appoint such receiver by signing a written appointment to the following effect, viz., " In Chancery, [sti/le of cause] — I hereby ap- point [receiver s name] receiver in this cause, [signature of judge or master] ;" which iippointraent is to be signed without any warrant or attendance for that purpose : when signed it is to be filed by the party who has procured the person named by him as receiver to be appointed, and is then to have the same cifect us the filing of the master's report appointing the receiver now has ; but the same is not to be filed until after the execution and filing of the securi- ties settled and approved by judge or master. Sec. 2. — Committees of the persons and estates of luna- tics, idiots and persons of unsound mind, and guardians, excepting guardians ad litem, arc to be appointed in the same manner as nearly as circumstances will permit. NOTICE OF MOTION. XXXIX. — A notice of uiotion by any party to the suit may be served at any time after bill is filed, without the leave of the court, except when the contrary has been expressly provided. Sec. 2. — There mrri>t l^? at least two clear days between tho service of a notice of motion, and the day named in the notice for hearing the motion, unless tho court give special leave to the contrary :{a) and there must be two clear days between the service of the petition and the day appointed for hearing the same ; uml iu the computation of such two clear days, Sundays, or dtiys on which the offices are closed, are not to be reckoned. r «..-" ...« *• if-. w 63 ORDERS IN CHANCERY. ;> J' <'\\ V ,■ r ^3 [(a) A notice of motion given for a day which is not a regu* lar court day, unless the leave of the court has been obtained, is a void proceeding, and the party served need not attend therr on ; Stevenson v. Huffman, 4 Grant 318; and if leave is given to serve notice for such a day, or to give less than two clear diivs' notice;, it must be so stated in the notice of motion.] EVIDENCE UPON MOTIONS, PETITIONS, AND IXTEI^LOCUTORY PROCEEDINGS. XL. — Admissions of the service of a notice of motion or other piipor, upon the opposite aolicitov. need not be verified bv affiilnvit. ♦ .Sec. -. — Vll tho affidavits upon ^vhicli any notice of motion i^ founued must be filed at tho time of the service of such notice of motion ; and the affidavits either in support of. ov in opposition to, any special motion or petition, are to be filed, as heretofore with the registrar. [This section applies to suits in which the bill is filed with a deputy recristrar, as well as to those in which it is file the opposite party or parties forty-eight hours' notice, at least, of his intention to examiae such wit- ness, and of the time and place of such examination, unless the court think fit in any ca3«j to dispense with such noticec The cross-examination, in such case, is to follow immedi- ately upon cue examination, and is not to be deferred to any future time. Sec. 9. — ^AVhere it is desired to cross-examine any witness, ■whether a party to the cause or matter, or not, who has made an afiidavit to be used, or which hu2 been used upon any motion, petition, or other proceeding before the court, not beiruj the hearing of the catise, the party who desires to cross-examine such witness is to give forty-eight hours' notice to the party on whose behalf such aOidavjt was filed or to the party intending to use the same, of the time and place of such intended cross-examination, in order that such party, if he thinks fit, may be present at such intended cross-examination. ORDERS IN CHANOERT. 71 1 ^ [A party having filed or given notice to read an affidavit, is not at liberty to withdraw it. Clarke v. Law, 2 K. & J. 28. A creditor's affidavit filed in support of a claim for a debt, under a decree in an administration suit, is one upon which he can be cross-examined. Cast v. Poyser, 26 L. J. Chan. 353.] EXAMINATION PRO INTERESSE SUO ABOLISHED. XLI. The practice of applying to the court for an order to be examined jpro interesse suo is hereby abolished. Sec. 2. — In lieu thereof, any party who might have moved to be examined pro interesse suo may apply to the court, upon motion, for such relief as he may think himself entitled to. Sec. 3. — Motions nnder this order are to be governed by the practice prescribed by the sixteenth order, in relation to motions for a decree. Sec. 4. — On hearing the motion, the court, in its discretion, may either grant or refuse the motion, or it may give such directions for the examination of parties or witnesses, — or for the making further enquiries, — or for the institution of any suit or action, as the circumstances of the case may require. Sec. 5. — When it can be made to appear to the court that it would be conducive to the ends of justice tojpermit a notice to be served for some day earlier than that prescribed by the 16th order, leave may be obtained for that purpose, upon an ex parte application to a judge at chambers in the manner prescribed by the 17th order. THE MASTER'S OFFICE. XLII. — Every decree or order referring any matter to the master is to be brought into his office within fourteen days after the decree or order shall haye been prononnced, **^ ■■ I V2 OROBRS IN CBANCERT. f .; hi. lit- • 3, ? I III m : I \ 1 !■• Jji I •I' til' by the party having the carriage of the same; otherwise any other party to the cause, or any party having an interest in ihd reftM'ence, may apply to the court as he shall be advised, that th^ prosecution of such decree or order may be com- mitted to him, or otherwise, for the purpose of expediting the prosecution thereof. * Sec. 2. — Upon the bringing in of every decree or order, the solicitor bringing in the ^ame is to take out a warrant fixnios-; die master shall dispf-nse therewith) appointing a time, which is to be settled by the master, for the purpose of t-iking into consiileration the matters referred by such dtcree '.•!• order, and is to servo the same upon the parties, or tiioii' .-jolioiror.s, unless tlie mnstcr shall dispense therewith ; ani \\y>\\ tlie rtturn of sucli warrant to consider, or upon the I'rin.qng in of the reference wiien no such ^yar^ant shall have been issued, the master is to proceed to regulate in all respects the manner of proceeding with such reference, and the raannov in which each of the accounts and enquiries is to be prosecuted. As to the evidence to be adduced in support thereof, and therein to give such special directions (if any) as he may think fi: with respect to the mode in which any accounts referred to liim are to be taken or vouched ; and, if he think fit so to do, to direct that in taking such accounts the books of account, in which the accounts required to be taken have been kept, or any of them, be taken as prima facie evidence of the truth of the matters therein contained, with liberty to the parties interested to take such objection thereto as they may be advised. As to the parties who are to attend on the several accounts and enr^uiries*. Aa to the time at which, or within which, each proceeding is to be taken. And he is to fix a time at which to proceed to the hearing 1* ■^1 ORDERS IN CHANCERT. T8 aDd determining of such reference, appointing a day in the meantime, if he shall think fit, for the purpose of entering into the accounts and enquiries, with a view to ascertaining what is admitted and what is contested between the parties ; and such directions may be afterwards varied or added to, as may be found necessary ; and in giving such directions and in regulating the manner of proceeding before him, the master is to devise and adopt the simplest, most speedy, and least expensive method of prosecuting the reference, and every part thereof, and with that view to dispense with any proceedings ordinarily taken in the master's office, which he may conceive to be unnecessary ; to shorten the periods for taking any proceedings, or to substitute a different course of proceeding for that ordinarily taken. Any party directed by the master to bring in any account, or do any other act, is to be held bound to do the same in pursuance of the direction of the master in that behalf, without any warrant or written direction being served on him for that purpose. Sec. 3. — When the master shall appoint a day, as providad for in section 2 of this order, for the purpose of entering into the accounts or enquiries referred to him, with a view of ascertaining what is admitted and what is contested between the parties ; and when it becomes necessary to adduce evi- dence, or to incur expenses otherwise, in establishing or proving items of accoun: or other raatters Avhich in the judg- ment of the master ought, under all the circumstances, to have been admitted by the party sought to be charged there- with, and which such party shall refuse to admit, the master, before making his report, is to proceed to tax such costs, occasioned by such refusal, as shall appear to him reasonable and just, and shall state in his report the amount of such costs and how the same Avere occasioned ; and the party to whom such costs are to be paid is to be entitled, upon the master's report becoming absolute, to such process of the court to compel payment thereof as in other cases, provided always, that when the party entitled to receive the general costs of the cause is the party ordered to pay such costs, he is to be at liberty to deduct such costa from such general Vfi'l ft m I!!- .•'i^ 74 0ROEB9 IN CHANCE&T. Cf)it3, provided sucli general costs, and such interlocutory co.sts, are between the same parties. When the master shall omli to appoint a dnj for the purposes aforesaid, it shall be competent to him to grant to any party bringing in accounts a warrant to proceed on the same, for the piu*poses aforesaid ; such '.varraut to be underwritten, as follows, '• On leaving the accounts of, kc; and take notice that you are required to adro-i: the same, or such parts thereof as you can properly a(te':." And when the party so notified shall refuse to acitc:: the same, the like consequences shall follow, under the like circumstances, as are hereinbefore provided for. Sec. 4. — The master and each of the deputy-masters is to keep in his ullicc a book, to be called the "master's book,'' ia ^vl.:ca. iip'^u the bringing in of any docrf-o or order cf reference, is to be entered, the style of the cau^e, the name of the solicitor prosecuting the reference, the date of the decree or order being brought in, and an entry of the pro- ceedings then taken ; and the master shall enter therein, from time to time, the proceedings taken before him, and the directions which he may give in relation to the prosecu- tion of the reference, or otherwise. ??:<". i>. — No states of facts, chavgcs, or discharges, are to be brou;;hc into the master's office. But, when directed, copies, abstracts of, or extracts from accounts, deeds, or other d.MjMnients and pedigrees, and concise statements, are to be «•; rolled : and where so directed, copies are to be delivered as the master shall direct. No copies of deeds or documents are to be made where the originals can be brought in, without special direction. -4 *. ■w • ' -1 'rjiv* Sec. 6. — Where any account is to be taken, the accounting party is, unless the master shall othenrise direct, to bring in th"» same in the form of debtor and creditor, verified by affidavit. The items on each side of the account are to be numbered consecutively, and the account is to be referred to by the affidavit as an exhibit, and not to be annexed thereto. ORDERS IN CHANCEKT. T6 Sec. 7. — ^Any party seeking to charge any accounting party beyond yrhat he has in his account admitted to have received, is to give notice thereof to the accounting party, stating, so far as he is able, the amount so sought to be charged, and the particulars thereof in a short and succinct manner. Sec. 8. — ^Every reference appointed to be heard, as by section 2 of this order provided, is to be called on and pro- ceeded with at the day and time so fixed, unless the master shall in his discretion think fit to postpone the same ; and in granting any application to postpone the hearing of such reference, the master may make such order, as to the costs consequent upon such postponement, as he may think just. And as soon as the master shall havo entered upon the hear- ing of such reference, he is to proceed therewith to the conclusion without interruption, where that is practicable ; and when any reference cannot be concluded in a single day, the master is to proceed de die in diem, without any fresh warrant, unless he shall be of opinion that an adjournment other than de die in diem would be proper, and conducive to the ends of justice ; and when any such adjournment shall be ordered, the master is to note in his book the time and reason thereof ; and in no case is any matter to be dis- continued or adjourned for the more purpose of proceeding with any other matter, (with the exception of the examination of witnesses during examination terms,) unless such course shall have become necessary. Sec. 9. — Upon any application made by any person to the court, the master is, at the instance of the person making the application, to certify to the court, as shortly as he con- veniently can, the several proceedings had in his office in the same cause or matter, and the dates thereof. "J;,- • ^ *■ Sec. 10. — Where a party actually prosecuting a decree or order does not proceed before the master with due diligence, the master is at liberty, upon the application of any other party interested, either as a party to the suit, or as one who m. ■It. fciif' , i^ I': :■ •)«: iSl-j ,.- ■i* 1 '"' ■2m. ' ■ i ir: li 11 ' i ' 7G ORDERS IN CHANOBRT. has come in and established his claim before the master uoder the decree or order to commit to him the prosecution of such decree or order, and from henceforth neither the party making default nor his solicitor is to be at liberty to attend the master as the prosecutor of such decree or order. Sbc. 11. — Advertisements for creditors are to appoint a day und hour, and to name the place at which creditors are to foine in and present and prove their claims before the in;ii«ter ; for this purpose no state of facts shall be necessary, lu: the cUiims are to be duly verified by affidavit. At the time and place named in such advertisement, the master is to proceed on the claims bronght in before him without fur- tl'.vr notice, and may examine any parties as vntnesses in relation thereto at such time, or thereafter, as he may see fit : and he id to allow or disallow, or adjourn the same, as to him may seem just. The costs of proving such claims ar*', in the discretion of the master, to be allowed to the crr^litors proving the same, and added to their debts respec- tivc'y ; or to be disallowed. And in case of their being allowed, they may be allowed in gross in place of taxed costs. Sec. 12. — In master's reports no part of any account, charge, affidavit, deposition, examination or answer, brought in or used in the master's office, is to be stated or recited, but instead thereof the same may be referred to by date or otherwise, so as to inform the court as to the paper or docu- ment so brought in or used. Sec. 13. — In the taking of accounts in the master's office, it shall be within the cognizance of the master to take the same with rests or otherwise ; to take account of rents and profits received, or which, but for wilful neglect or default, might have been received ; to set occupation rent ; to take into account necessary repairs, and lasting improvements, and costs and other expenses properly incurred otherwise or claimed to be so. And generally, in the taking of accounts, to enquire and adjudge as to all matters relating thereto, as i^ ORDERS IN CHANCERY. 77 fully as if the same had been specifically referred ; sabjeot, nevertheless, to the revision of the court upon appeal from the master's report; and it shall not be necessary to the taking of such accounts that any of the matters aforesaid should have been stated in the pleadings ; or that evidence thereof should have been given before the decree or order of reference ; or that such decree or order should contain any specific direction in respect thereof. Sec. 14. — Under any order of reference to the roaster, witnesses may be examined before any examiner of the court ; and U' on the certificate of the master foreign commissions may issue for the examination of witnesses without the juris- diction of the court ; the master is to be at liberty to cause parties to be examined, and to produce books, papers and writings as he shall think fit, and to determine what hooka, papers and writings are to be produced, and when and how long they are to be left in his office ; or in case he shall not deem it necessary that such books and papers or writings should be left or deposited in his office, then he may give directions for the inspection thereof, by the parties requiring the same, at such time and in such manner as he shall deem expedient. The master is also to be at liberty to cause advertisements for creditors, and if he shall think it neces- sary, but not otherwise, for heirs or next of kin, or other unascertained persons, and the representatives of such as may be dead, to be published, as the circumstances of the case may require ; and in such advertisements to appoint a time within which such persons are to come in and prove their claims, and within which time, unless they so come in, they are to be excluded from the benefit of the decree ; and in taking any account of a deceased's personal estate under any order of reference, the master is to require and state to the court what, if any, of the deceased's personal estate is outstanding or undisposed of ; and is also to compnte interest on the deceased's debts from the date of the decree, and on legacies from the end of one year after the deceased's death, unless any other time of payment is directed by the will ; and under any order whereby any property is ordered to be sold L 4Z ^*'l ^1 I'.! r / I "j'. -IIJ! ij c S '.I • ir.i' 78 ORDERS IN CHANCBRT, ■! ■ t \ I 1; 'i. u it :I1 'J !•■' I I): I •If 'r'.' ' K with the approbation of the master, the same is to be sold to the best purchaser that can be got for the same — to be allowed by the master, and either in one lot or in parcels, as . the master shall direct; and all proper parties are to join therein as the master shall direct ; and under every order whereby the delivery of deeds is ordered, or the execution of conveyances is directed, the master is to give directions as to the Jeliv-^ry of such deeds, and to settle conveyances irhere thf> p.'irtus differ, and to give dii-ectioiis as to the parties thereto, and the execution thereof; and for the several purposes herein enumerated no special order oC the court ahull be necessary. Sec. 15. — "Where in proceedings before the master it appears to hira that some persons not already parties ought to be nude parties, and ought to attend, or be enabled to attend the proceedings before him, he may direct an office copy of the same to be served upon such parties ; and upon due service thereof such piirdes are to be treated and named as parties to the suit, and to be bound by the decree in the game manner as It" they had been originally made parties to the Hiiit. Every office copy of a decree directed to be served under this section, is to be endorsed ^vith a notice to the effect set forth in schedule N. to theae orders, ith such variations as circumstances may require. SCHEDU:.E N. To Mr. , (the person zipon whom service has been directed.) {Set out the Order.) If you unsh to apply to discharge the foregoing order, or to add to or vary the decree, you rmi;it do so within fourtee7i days from Oit service hereof . {IVhcn the order fixes a time for thejurther proceedings, add) And if you fail to attend at thz time and place appointed, either in per sen or by your solicitor, utrlt order uill be made avd proceedings token in your absence as the judge may think just and expedient; and you xoill be bound In/ the '.? ORDERS IN CHANCERY. 79 same, and thejurt.her proceedings in the cause in the game man' ner as if you liad been originally made a party to the suit^ with' out any further notice. Sec. 16. — So soon as tlie bearing of any matter, pending before the master shall have been completed, he shall so inform the parties to the reference then in attendance, and shall make a note to that effect in the master's book; and after suoh entry no further evidence shall be received, or proceedings had, Avithout the special permission of the master ; but the master may proceed to prepare his report or certificate without further warrant, except the warrant to •settle, which shall be served on the parties as the master shall direct. So soon as the master's report or certificate shrill have been prepared, it shall be delivered out to the party prosecuting the reference, or in case he shall decline to take the same, then, in the discretion of the master, to any other party applying therefor ; and a common attend- ance shall be allowed to the party taking the same. Sec. IV. — Reports become absolute, without order con- firming the same, in fourteen days after the signing thereof, unless previously appealed from. An appeal shall lie to the court upon motion, within fourteen days from the signing of the report, in respect of the finding of the master upon any matter presented in his office for his decision, without objec- tions or exceptions being previously taken. The appeal motion may be made by any party affected by the report ; and upon notice thereof being served, all the proceedings before the master in the matter, and all papers and evidence relating thereto, arc at the instance of any party interested therein, to be transmitted by the master to the registrar, to be produced by him in court, upon the hearing of such motion. '•a [It is not necessary that the appeal motion shall be heard within the fourteen days, it is sufficient if the notice of motion is served within that time.] 80 ORDERS IN CHANCERY. w n- •i I." I; 'I, !; '• I I' r ■ • •; , ' RECtISTR ARS OFFICE— SOLICITOR AND AGENT'S BOOK— OFFICE COPIES. XLIII. — The registrar is to keep in his oflSce a book to be callc'l '* The Solicitor and Agent's Book," in -which each solicitor residing elsewhere than in the city of Toronto, is -to specifv the name of an agent being a solicitor of this court, and hiiving an ofFice in the city of Toronto, upon whom pleadings, writs, notices, orders, appointments, warrants, and other documents and written communications may be served. Where the pleadings in any cause have been filed in the Ouice ':•:' the registrar, tlicu all pleadings, writs, notices, orders, appointments, warrants and other documents and written communications in relation to such suit, which do not require personal service upon the party to be affected thereby, are to be served upon the solicitor, when residing in the city of Toronto, or, where the solicitor resides elsewhere than in the city of Toronto, then upon his agent named in " Tlie Solicitor and Agent's Book," as provided above ; and where the pleadings have been filed elsewhere than in the office of the registrar, then all notices, appointments, warrants and other documents and written communications in relation to matters transacted in court, or chambers, or in the ofHce of the master or registrar, are to be served in like manner ; and if any solicitor neglect to cause such entry to be made in " The Solicitor and Agent's Book," the leaving a copy of any such pleading, writ, notice, order, appointment, Avarraat, or other document or written communication, for the solicitor 30 neglecting as aforesaid, in the office of the registrar, is to be deemed sufficient service, unless the court direct other- wise. Sec. -. — Upon every writ sued out, and upon every information, bill, demurrer, answer or other pleading or proceeding, there shall be endorsed the name or firrrj and place of business of the solicitor and solicitors by whom such ■■}1f tf. ;■? |:i^ ORDERS IN CHANCERY. 81 f 1 H % ^ro .♦ ^^En' '•f' ■^«» ^^■'.^B /- Br ^ Bl ^B-v.' H ^ •f'- ■L-"^ ^K'^ 1 J Vint has been sued out, or such pleading or o^her proceeding has been filed ; and when such solicitors are agents only, then there shall he further endorsed thereon the name or firm, and place of business of the principal solicitor or agent. Sec. 3. — Every party suing or defending in person is to cause to be endorsed or Avrittcn upon every writ >vhich he sues out, and upon every information, bill, demurrer, answer, or other pleading or proceeding', his name and place of residence, and also (when his place of residence is more than three miles from the office v.herc such pleading or other proceeding if^ filel) another proper place, to be called iiis address for service, not mere than three miles from the said office, where v.-rits, norier:^, orders, warrants, and other documents, proceedings and written communicatioi\s may be left for him. ,', Sec. 4. — In future office copies of pleadings and afiidavits are to be made by the soli.icor, and examined and certified by the registrar. Any party requiring an ollico copy of any pleading or affidavit is to make a written application for the same to the solicitor ol the party by wjioni it has been filed or on Avhoae behalf it i.s to bo used ; atid wlion such party has no S(>lici- tor, then to the party liimself. When an application is made for an office copy of any pleading or affidavit, it is to be delivered within forty-eight hours from the time of such demand ; and any further time which may elapse before the delivery tliereof is not to be computed against the party demanding the same. Office copies of pleadings and affidavits are to be written on paper of convenient size, in a neat and legible manner, and unless so written th(> solicitors furnishing them are not to be paid for the same. [See Older XL., sec. 4, an.l Oicior IV., of mh April, 1839.] Sec. 5. — All documents of whatever nature required to 'T. ■X:: yt lit.' \r\ 82 ORDERS IN CHANCERY. I* ;■ . ••■ M. ■ ii: ■: : ' -"hi r-,,, •►.•<' > I I V,.,. 'Mi ^' Jii- ;M' I .1 ;:i;i !Pl- be transmitted to the registrar of the court, or any of the deputy registrars, may be so transmitted through the post office, under cover, directed to the registrar or deputy reTiitrar, as the case may be, sealed -with the seal of the parry re. For leave to amend before replication. 4. To postpone the examination of witnesses, or to allow further time for the production of evidence. , it' J 1 ORDERS IN dHANCERY. ♦ 5. For security for costs. 85 •^\ Sec. 5. — All orders in the progress of a cause which are drawn up hj the registrar without the special direction of the court may be drawn up by the deputy registrar with whom the bill is filed. Sec. 6. — Each deputy registrar is to keep in his office a book to be called " The Solicitor and Agent's Book," in which each solicitor residing elsewhere than in the comity ia which such deputy registrar's office may be, is to specify the name of an agent, being a solicitor of this court, and having an office in the city or town where the office of such deputy registrar is situated, upon whom all writs, pleadings, notices, orders, warrants, and other documents, and Avritten communications in relation to proceedings contluctcil in the office of the deputy master or deputy registrar of such county, may be served. All writs, pleadings, notices, orders, warrants, and other documents and written communications in this section speci- fied, which do not require personal service upon the party to bo affected thereby, may be served upon his solicitor residing in the county where such proceedings are conducted, or, where such solicitor does not reside in the county where such proceedings are conducted, then upon the agent named in " The Solicitor and Agent's Book," as herein provided. And if any such solicitor neglect to cause such entry to be made in " The Solicitor and Agent's Book," the leaving a copy of any such writ, pleading, notice, order, warrant, or other document or written communication for the solicitor so neglecting as aforesaid in the office of such deputy regis- trar, is to be deemed sufficient service. COSTS. XLV. — Upon interlocutory applications, where the court deems it proper to award costs to either party, it may by the order direct payment of a sum in gross in lieu of taxed M ■!^;r^ 8f ORDERS IN CHANCERT. 4,;; It.;;- lit Mr'— jij-; 5 m } ni If II- costs, and direct bj and to whom such sum in gross is to be paid. And the same maj like^rise be done upon such pro- ceedings before the court or in chambers as have heretofore been matters of reference to the master. [If no direction is given by the court as to the costs of a motion, they are costs in the cause. Hind v. Whitemore, 3 Kay. & J. 458.] And it shall also be conipetout for the deputy master, upon disposing of applications made to him under Order XLIV., in like manner to direct payment of a sum in gross in lieu of taxed costs, and to direct by and to -whom such sum in gross is to be paid. If upon the taxation of costs it should appear to the mas- ter that any proceedings have been taken unnecessarily, and which were not calculated to advance the interests of the party on whose behalf the same wore taken, it shall be the duty of the master to disallow the costs of such proceedings, as well on the taxation of costs between solicitor and client, and as between solicitor and client, as on a taxation between party and party, unless the master shall be of opinion that such proceedings were taken by the solicitor because they were in his judgment conducive to the interests of his client. It shall not be the duty of the master, on a taxation of costs between a solicitor and his client, to disallow to the solicitor his costs of such proceedings where it is made to appear that such proceedings were taken by the desire of the client, after being informed by his solicitor that the same were unneces- sary and not calculated to advance the interests of the client ; but the costs of such proceedings are not to be allowed in any case where, according to the present practice and rules of ta.\ation, the same would not be allowed. Sec 3. — Where costs are to be taxed as between party and party, the master may allow to the party entitled to receive such costs the like costs as are taxable where costs are dii'ected to be taxed as between solicitor and client in — n ■^, ORDERS IN CHANCERT. 87 Advising vnih counsel on the pleadings, evidence, and other proceedings in the cause. Procuring counsel to settle and sign such pleadings and petitions as may appear to have been proper to be settled by counsel. Procuring and attending consultations of counsel. The amendment of bills. On proceedings in the master's office. Supplying counsel with copies or extracts from neces- sary documents. But in allowing such costs, the master is not to allow such party any costs which do not appear to hrve been necessary or proper for the attainment of justice, or for the defending his rights ; or which appear to have been incurred through the over-caution, negligence or mistake, or merely ut the desire of the party. The following feci and disbursements may be charged and allowed in respect of the services hereinafter enumer- ated : SOLICITOR. Instructions for suit £0 10 Instructions to defend 10 Instructions for petition where no bill filed 10 Letter of notice before instituting suit 2 6 Drafting bill not exceeding 20 folios, including copy to keep 10 For every additional folio above 20, (to be allowed in the discretion of the master) including copy to keep, per folio 10 '■'.KZ 88 ORDERS IN CHANCERY. \i ;• j < ^.:> .'»'"' C I n: n F h'- [No greater sum than 30s. to be ta:(ed by the master for drawing any bill, without the special direction of one of the judges of the court upon the application of the solicitor requiring the same, for which application no charge is to be made.] Drafting answer or other pleading, petition or special affidavit, per folio 10 [Xo jrioHtivr s;!m than 30s. to be taxed for drawing any answ^T, j)etition, or affidavit, witliout the special direction of one of ilie jiuli^'-j.s of the court, as provided for in tht case of bills; and no irreater sum is to be allowed for drawin^anv answer, petition or affidavit, than would have been taxed irrespective of tlii? order.] Engros-dl copies to file, copies to scvvo (other than copies ou •which a fee is paid to the master or registrar, for reading over or au- thenticating the same) each per folio Copies of orders or other papers or documents, not office copies, required to be served, per folio 6 Office copies to be authenticated by the registrar, and engrossment of affidavit read over by the master to the deponent, per folio 5 Affidavits of service, including attendance to swear. 2 Precipe for any process including attendance ... 1 3 Special attendance on the master's warrant or appointment, or on examination of witnesses, or on hearing of cause or demurrer or special motion 3 When the hearing shall exceed one hour, then for every additional hour which shall be occupied by such hearing, and at which the solicitor shall be present in court, provided the same bo noted in the registrai a book, or be proved by affidavit (such affidavit to be without charge,) the same not to exceed 20s o For every additional hour beyond one hour in the master's office 5 fsr «■;?'' C'"*, 'I I > ■ ■ ( '.a- m ORDERS IN CHANCERY. 89 For every additional hour ia the examination of witnesses where no counsel employed 5 Attending consultations of counsel, per hour 5 [No special attendance to be allowed to a solicitor on pro. ceedings upon which he appears also as counsel.J Appointment to settle minutes, or to pass decree or order, copy and service 3 For every hour's attendance before the registrar by his appointment, on settling minutes, the same being noted by the registrar 5 For every hour's attendance before the registrar by his appointment, on passing decree or special order, the same being noted by the registrar.... 5 "Where minutes settled, or decree or special order approved of or passed between the solicitors after appointment issued by the registrar 5 [In such case no fee to be allowed to cither parly as for attendance before the registrar in respect of the same settling or passing.] Fee on all writs and orders of court to the party obtaining the same 5 Instructions for brief 5 Brief, per folio, including briefing and fair copy, subject to be reduced by the master, if the same contain superfluous matter, or be of un- necessary length 6 Observations, or other original matter in brief, per folio 10 [No fee or brief for second counsel to be allowed unless by order of a judge ; and a brief of depositions or special affidavits to be allowed only where fee and brief for second counsel is taxed, and then only by the direction of a judge upon special application.] r :c:\ ::=>- ..<. r^;: IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ^^ i^ 1112.2 ^ iis, IIIIIM 1.8 1.25 u iijiA < 6" ► vQ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. M580 (716) 872-4503 'i^ m^. M 7.x ;♦ Mi ■ I' P m r I , 'i' M 90 ORDERS IN CHANCERY. Advertisement for sale of real or personal estate, t under the direotion of the court, including all copies, except for printing 5 Copies for printing — per folio 6 Fee on conducting sale — including arrangements with auctioneer, correcting proof-sheet, (if a a J,) and attending sale 15 For every liour beyond three occupied at such sale 5 DrawUirr bill of costs and attending taxation 5 Drawing juatje's appointment, and attending for his fcif.naturo, and to serve 5 Every necessary attendance ., 1. 3 Postage- - -the amount actually disbursed. [The .■ix- pence p Every special attendance out of ofRce, within two miles 5 Every additional milo ahovc two 10 Reading affidavit — per folio 1 Matter added — per foiio 10 REGISTRAR. * • Entering parties' names and filing hill, answer or demurrer £0 2 6 Entering and filing all other pleadings, interroga- tories and depositions, or other evidence 10 Filing and registering affidavits, exhibits, or other papers 4 Subpoena, including filing precipe 2 6 Special writ, writ of commission F) Office copy of papers required to be given out — per folio 6 Examining and authenticating same, when office copy prepared by solicitor — per folio 1 Attendance on appointment of gufirdian 2 6 Amendment of record when re-engrossment not necessary— per folio 10 Drawing fiat on petition 10 m; ■r. li 92 ORDERS IN CHANCE&t. t.l V I hii' I';': *■ L /[■■ Attending a judge for his signature to any 'docu- ment or paper ^ 13 Making up, and forwarding interrogatories 13 Setting down cause ." 2 6 Certificate of pleadings being filed i. 2 Certificate of state of cause 2 6 Dt-awingminutesof decree or special order, per folio 10 Drawing decree or order, per folio 10 Etiieving same, per folio 6 Fc,' on payment of money into court 1 3 Fet' on payment of money out of court 13 Fct on admission of solicitor 5 Certificate on each office copy of the time of filing bill 1 3 St.;. oiling files in office 10 Coiuiuiasion appointing deputy master or registrar or master extraordinary 10 [Tlie fees payable to the registrar and deputy registrars have be«ii increased since these orders were issued, by the various acts establishing a fee fund. For the amounts now payable, sftj 22 Vic, c. 31 ; and a fee of 6d. is also payable on tLe filing of every bill and answer to the suitor's fund, established by 20 Vic, c, 56, s. 20.] «v- !-■ i \l\ PROCESS. XLVI. — No writ of execution shall be issued for the purpose of requiring or compelling obedience to any order or . decree of the court; but the party required by such order or decree to do any act, shall, upon being duly served with such order or decree, be held bound to do such act in obedience to such order or decree. Sec. 2, — If any party who is by any order or decree ordered to pay money, (a) or to do any other act in a limited time, shall, after due service of such order or decree, refuse or neglect to obey the same according to the exigency thereof, the party prosecuting such order or decree shall, at the expiration of the time limited for the performance thereof, upon filing with the registrar an affidavit of the service of I i iii ■■* I ■ if ORDKRS IN CHANCERY. 9S such order or decree, and of the non^performance thereof, be entitled ^thout further order to a mrit or irrits of attach- ment against the dbobedient party; and in case such party shall be taken or detained in custody under any such writ of attachment without obeying the same order or de- cree, then upon the sheriff's return that the party has been so taken or detained, the party prosecuting such order or .decree shall be entitled without further order to a commis- sion of sequestration against the estate and effects of the disobedient party. [(a) By 2'Z Vic, ch. 33, s. 4, arrest for non-payment of money, in obedience to decrees of the Court of Chancery, is abolished, and ill place of the attachment, a writ of/, fa. is substituted.] Sec. 3. — If an attachment cannot be executed against such party so refusing or neglecting to obey such order or decree, by reason of his being out of the jurisdiction of the court, or of his liaving absconded, or that with due dili- gence he cannot be found, and the court be satisfied by affidavit that such is the case, the p rty prosecuting such order or decree shall be entitled to an order for a commission of sequestration against the estate and effects of the diso- bedient party ; and it shall not be necessary for this purpose to sue out an attachment in the first instance. Sec. 4. — Commissions cf sequestration are to be directed to the sheriff, unless some good reason exists for the cwitrary. Sec. 5. — Attachments with proclamations and commis- sions of rebellion are hereby abolished ; and it shall not be necessary, in order to enforce any order or decree, to obtain any order for, or sue out a warrant to, the sergeant-at-arms. Sec. 6. — Every order or decree requiring any party to do any act thereby ordered shall state the time after serrice of the decree or order within which the act is to be done ; and upon the copy of the order or decree which shall be served upon the par^ required to obey the same, there shall ■ ■ ■* f 94 OBOERS IN CHANCSRT. m \'''->\. ! i c; m If •i-ii w :l: be endorsed a memonndom in the words, or to the effect following, namely, " If you, the within named, (here insert the name of the party ^ neglect to obey this order or decree by the time therein limited, you will bo liable to be arrested by the sheriff; and you will also be liable to have your estate sequestered for the purpose of compelling you to obey the same order or decree without further notice." Sec. 7. — Subpoenas for costs are hereby abolished: a decree or order directing the payment of costs is in future to fix a time for such payment ; and such decree or order shall be enforced in the same manner as any other decree or order directing the payment of money; for this pmpose it shall be necessary to serve only a copy of so much of the decree or order as directs the payment of such costs, and the time to be fixed is to be a certain time after such service. [Under the practice which has been introduced since the 22nd Vic. ch. 33, came into force, it is not necessary to serve the order. On filing the master's certificate of taxation a writ o{ fi.fa. is obtained at once.] Sec. 8. — It shall not be necessary to issue any writ of attachment or injunction upon any decree or order for delivery of possession, but the party prosecuting such decree or order, upon filing with the registrar an affidavit of service of the same, and of non-complianco therewith, shall be entitled without further order to a writ of assistance. Sec. 10. — No order for the production of deeds, papers, writings or documents, made under the 20th Order of this court, shall require personal service ; if the party required to obey the same shall have a solicitor, it shall be sufficient to serve the same upon such solicitor : but any writ or writs of attachment to be issued for disobedience to any such order, must be obtained according to the present practice by orders nt«t and absolute, and such orders nui must be personally serrad. Sec. 10. — ^Every person, not being a party in any cause, \jm OBOBRS IN CHANCEKT. 95 irho has obtained any order, or la whose favour an order has been made, 3hall be entitled to enforce obedience to snch order by the same process as if he were a party to the cause; and every person not being a party in any cause, against whom obedience to any order of the court may be enforced, shall be liable to the same process for enforcing bbedien.ce to such order as if he were a party to the cause. XLVII. — The power of the court and of the judge sitting in chambers to enlarge or abridge the time for doing any act, or taking any proceeding in any cause or matter upon such (if any) terms as the facts of the case may require, or to give any special directions as to the course of proceeding in any cause or matter, is unaffected by these orders. ORDERF. 6th June, 1853. r;» I. — The following Orders and parts of Orders, comprised in the General Orders of the 3rd instant — ^namely, VI., section 9 of EX., section 3 of XII., section 8 of XIII., XV., XVI., XVII., XX., XXV., XXVI., XXVII., XXVIII., XXIX., XXX., XXXI., XXXII., xxxin., xxxrv., XXXV., XXXVL, XXXVIII., XXXIX., XL., XLI., XLII., XLIIL, XLIV., XLV., XLVI.— are to take effect from the date hereof, as to all suits, as well those now pending, as those subsequently instituted. II. — A party desirous of appointing a guardian for him to defend a suit, may go before a judge or master with the proposed guardian, and the judge or master may appoint such guardian if he shall think fit so to do. But he must be satisfied by affidavit that such proposed guardian is a fit person and has no interest adverse to that of the person of whom he is to be the guardian in the matter in question ; and if the affidavit is not sufficient for this purpose, he may examine the proposed guardian, or the person making the affidavit viva voce, or require further evidence to be adduced until he is satisfied of the propriety of the appointment. \r w.. |;;|;c 1^^ Ivl .1 M I'l I 96 ORDER. ORDEBS IN CHA5CERT. 6th Febbuaby, 1854. It 13 ordered that whenever hereafter any solicitor of this oonrt shall be struck off the roll of solicitors, or be prohibited from practising as a solicitor, by order of this court, for malpractice or misconduct as a solicitor, or other sufficient cause, the registrar of this court shall forthwith certify such dismissal or prohibition, and the grounds thereof expressed in general terras under the seal of this court, and shall transmit such certificate to each of the superior courts of Upper Canada. Anu that this court on receipt of any similar certificate from the court of Queen's Bench, or court of Common Pleas, of any attorney of either of the said courts respectively, having been struck off the roll of such court, or prohibited from practising therein, shall thereupon take proceedings for striking such person, being a solicitor of this court, from the roll of solicitors ; or for prohibiting his practising therein according to the course and practice, and in like manner and under like circumstances observed in similar cases in the superior courts in England. ■ i C ORDER. 30th April, 1855. It is ordered, that in future all motions for decrees, and moti .»as by way of appeal from the master's report, are to b« set down in a paper of motions and will be 'called on in their order, after other motions are heard. pAppeals from master's reports are now heard in chambers.] ORDER. 17tu September, 1856. Witnesses anil parties may be examined before any examiner of this court in those counties in which there may •■•> 1 •? • 9 i •t ■? OBOEBS IN CHANC&RT. 97 be no depnty-masteri until the appointment of a depntjr- master in anj such conntj. [It is doubtful if this order is now in force. At all events it now applies only to the evidence in support of interlocutory proceedings. The chief object in making circuits was that at. the evidence might be taken before one ofthe judges, and since the passing of the orders of February, 18S7, the court will not direct the examination of witnesses to be taken under this order, although consented to by the parties. Phelan v. Phelan, 6 Gr. 384.] ORDER. 8th November, 1856. When infants or persons of unsound mind, not so found by inquisition, are made parties to suits after decree, or are served with a notice of motion under Order XV. of the general orders of June, 1853, guardians ad litem are to be appointed for them in like manner as they are now appointed at any time after bill filed ; and this order is to take effect from the date hereof as to all suits as well those now pending as those hereafter to be instituted. [For the mode of proceeding to appoint a guardian ad litem see Orders of 185:3, XIII., sec. 5.] ORDER. 17th March, 1857. When service of a bill of complaint has been made within the jurisdiction of the court, upon a corporation aggregate, by personal service thereof on the mayor, warden, reeve, president, or other head officer, or on the township, town, city or county clerk, cashier, manager, treasurer, or secretary of such corporation, or of any branch or agency thereof in Upper Canada, or other person discharging the like duties, and when no answer has been filed to such bill withjn twenty-eight days from the service thereof, the r; ■^.j It;; il: m 5.1 ! - '• .1 .} ^1 ': i ■H 1 i: f ] c hi^ 98 ORDERS IN CHANCERT. plaintiff may, after the expiration of twenty-eight days from the service of such bill, apply to the court ex partej for an order to take the bill pro confesfOy and the court upon being satisfied of the due and proper service of such bill of complaint, and that no answer has been filed thereto by such corporation, may, if it think fit, order that the bill be taken ^0 co7^(;«90, against such corporation. Sec. 2. — In cases where a foreign corporation aggregate, defendant to a bill of complaint, has no branch or agency in Upper Canada, then upon application to the court, supported by such evidence as may satisfy the court, in what place or country such corporation is situated, the court may order that an office copy of the bill may be served on such corporation in such place or country, or within such limits, and by personal or other service on such officer of such corporation as the court may think fit to direct. Such order is to limit a time (depending on the place of service) within which such defendant is to answer or demur to the bill, or obtain from the court further time to make defence to the bill, and where such corporation has neglected to answer or demur to such bill within the time limited by the order authorising such service, the plaintiff may apply to the court ex parte for an order to take the bill pro confesso agamst such corporation, and the court being satisfied of the due service of the said bill according to the exigency of such order, and that no answer has been filed for such corpora- tion, may, if it think fit, order the same accordingly. Sec. 3. — Such order to take the bill pro confesso does not require to be served, and all further proceedings may be ex parte against such defendant unless the court order other- wise. Sec. 4. — This order is to apply as well to all suits and matters now depending in this court, as to those hereafter to be commenced. • [This order permitting service on the agent of a corporation '- 1 -I ■4 ORDEHS IN CHAKCERT. 99 aggregate, does not authorise service on the agents of corpora- tions within Upper Canada — i. e., the head office of which is in Upper Canada. Campbell v. Taylor. Cham. R. 2. If the corporation is a foreign one, the bill may be served on any agent within the jurisdiction, but the affidavit of service must show that it is a foreign corporation, and'that the person served is the agent.] . ' ORDER. 6th April, 185T. Whereas it is absolutely necessary for the proper despatch of business in the court, that the change hereinafter provided be made in the practice as regards the examination of witnesses and parties ; it is therefore ordered that all examina- tions, out of examination term, of parties or witnesses whether in a suit or in any matter or otherwise, be taken until further order before a deputy-master, or before a special examiner appointed for that purpose, unless the court or a judge thereof in chambers shall otherwise order upon application to be made for that purpose, which may be ex partej but must be supported by affidavits setting forth the special grounds on which it is made. ORDERS. 23rd December, 1857. I. — The judges of the Court of Chancery, in pursuance and in execution of all the powers enabling them in that behalf, do hereby order and direct that the rules, orders, and directions hereinafter set forth, shall henceforth be, and for all purposes be deemed and taken to be general orders and rules of the Court of Chancery, viz. : II. — The orders numbered XXIIL and XXV. of the orders promulgated on the 3rd day of June, 18d3, are hereby abrogated and discharged. ;■*»•' :^- 100 ORDSBS IN CHANOERT. EXAMINATION OP WITNE?SES. f - m ■ Ifd I) * n M •t ' 1 1, • 1 '. i i'' i: ' The plaintiff is to select the place at \rhich the witnesses in the cause are to be examined, which may be any one of the places at which examinations are held, as hereinafter provided. The place selected is to be designated in the margin of the bill of complaint ; and the witnesses of all parties are to be examined at the place so designated before one of the judges of this court, unless otherwise ordered. Sec. 2. — Any party to the suit may apply to the court, upon notice to all parties, to change the venue, and there- upon the court is to make such order as to the taking of'tlie evidence in the cause as the circumstances of the case may ri'juivc; and such order is to be irpon such terms and conditions, as to costs or otherwise, as the court may think right to impose. Sec. 3. — ^Witnesses resident out of the jurisdiction may be examined, as heretofore, upon commission. Sec. 4. — The following terms are fixed for the examination of witnesses at the undermentioned places, viz. : [For the places at which witnesses may be examined, and •hf terms, see order of 26th December, 1850.] Sec. 5. — No rules to produce witnesses or pass publication are to be taken out. When issue has been joined in a cause thriee weeks before the commencement of the next ensuing examination term, at the place where the venue has been laid, publication is to pass at the close of such term ; and when issue has been joined less than three weeks before the commencement of the next ensuing examination term, at the place where the venue has been laid, publication is to pass at the close of the following term. [If witnesses have actually been examined, publication will be held to have passed at the close of the term, even though * P 1 ■i •*. « i il '■k ^. ORDERS IN C«IANdERt. 101 the replication has not been filed three weeks before its com- mencement. Even after witnesses Iiave been examined and publication has passed, an application may be made to open publication and permit furllicr evidence to be given, but the court grants such an application with great difficulty, and only under special circumstances. See Waters v. Shade, 2 Grant, 2IS. In that case V. C. Eslen said, "it is a sound rule to lay down that such applications should never be granted unless it appears that notwithstanding due and reasonable diligence has been used, \hn evidence pvoposetl to be taken could not have been obtained in the ordinary course." But, whtre publicuiion luid passed shortly before u motion to open was made by the j.laintifF, and it was proved that ilie lofendaiU had •■xamlned v.iUK'Sses, but tlie plaimifThad not, lu. J where it n^a sworn by liie plrtinlitl and others that tlio evidence as material, ami :lmt the delay had arisen from the ^v^vi-rty of the pluiiiiiii, publication was opened on payment of coots. Taylor v. Siioff, ii Grant, 153. Tlie principle laid down in Waters v. Shade applies to suits for alimony as well as to other cases. McKay v. McKay, 6 Grant, 270,] Sec. 6. — At any time after the issue joined, the case may be set doivn for the examination of witnesses by any party to the cause who has witnesses to examine. g£C. 7. — The party who desires to have a cause sot down for the examination of Avitnesses is to enter it for that purpose with the registrar, or deputy-registrar, at the place where the venue has been laid at least fourteen days before the commencement of the next ensuing examination term. IT [The fee payable to the registrar on setting down the case is lOs., Order I. of 13th April, 1851); and to deputy-registrars aOs., Order of 6th February, 1858.] Sec. 8. — ^The registrar or deputy-registrar is to prepare a list of all causes entered for examination, and each cause is to be set down in ^uch list in the order in which it has been , ii ■ II y r: i lir U': 102 ORDBBS IS CBANCERT. entered with the registrar, and causes are to be called on accordng to the registrar's list. Sec 9d — ^Notice tha"; the cause has been set down for the examiniiion of witnesses is to be served by the party setting the same down upon all parties at least 14 days before the commeneement of the examination term during which such evidence is to be taken, which notice may be in the form set forth in Kliedule A. to these orders annexed, but no appoint- ment is to be taken out and no list of witnesses furnished. Sec. 10. — The witnesses of all parties are to be examined during the term for which the cause has been set down, unless the court shall have seen fit, upon a previous applica- tion, to postpone such examination ; or unless the judge before whom the evidence is to be taken, shall see fit to postpone such examination, or to allow time for the produc- tion of farther evidence ; and when such examination is postponed in the manner aforesaid, or when time is allowed for the production of further evidence, the order is to be upon such terms, as to the costs or otherwise, as the court, or the judge, may think it right to impose. Sec. 11. — ^Where differences arise as to the conduct of the examination, the judge before whom the evidence is being taken, is to prescribe the order in which the several parties are to adduce their witnesses, or to give such directions as to the general conduct of the examination, as the circumstances of the case may require ; and the evidence of any person who declines to produce his witnesses when called upon is to be altogether excluded, unless the judge shall order otherwise. Sec. 12.— Any witness maybe recalled for further exami- nation, as in trials at niti prius, without any order of the court having been obtained for that purpose. "^' Sec. 13. — Articles are not to be filed in future for the pnrpose of discrediting a witness: but witnesses may be called for that purpose, without the leave of the court ; and ■i ■ v. -tf :Jjfc^ ORDERS IN CHANCERT. 108 they are to be examined at the time and place fixed for the examination of the other intnesseB in the cause, unless the judge before -whom the evidence is being taken shall other- ' ■wise order. Sec. 14. — ^Depositions arc to be taken and expressed in the first person of the deponent. ( , Sec. 15. — Any person is to be at liberty to make use of the depositions of any witness adduced by any other party to the suit, subject, however, to such terms, if any, as to the costs of taking such evidence, as the court may think it right to impose. Sec. 16. — The court, if it see fit, may require the produc- tion and oral examination before itself of any witne^^s or party in any cause, matter or proceeding, and is to direct the costs of and attending the production and examination of such witness or party to be paid by such of the parties to the suit, or in such manner as it may think fit. SETTING DOWN THE CAUSE. —HEARING, &c. III. — In future causes are to be heard during term only,. e.\cept where the bill hus been ordered to bo taken j}ro confesso against all parties defendant. [This applies only to causes in which replication lias been filed and which are brought to a hearing in the regular way. Besides causes heard jn-o confrsifo, as here provided for, causes heard by way of motion for a decree under Orders XVI. or XVII., may be set down for any court day. Also causes to be heard on further directions. Sec. 12 of this order.] I Sec. 2. — ^Tho following terms are fixed for the hearing of causes : — ' * [For Hearing Terms, see Order of 26th December, 1859.] Sec. 3.— The party who desires to have a cause set down h m ;,;Cli :;, \(k: •; ■|1 C III n!;c ill J i '- ■■ h-l ~ ... m ^ . iei^ ■ \' * \H c : M fi'T. 104 OBDERS IN CHANCERY. to be heard, is to enter it with the registrar for that purpose at least ten days before the commencement of the next ensuing term. [Tl'e fee payable to the registrar on setting down a cause for hearing Js 10s. Order I. of 13th April, 1859.] Sec. 4. — The registrar is to prepare a list of all causes entered for hearing, and each cause is to be set down in such list in the order in which it has been entered with the registrar, and causes are to be called on and heard accord- ing to the registrar's list, unless the court order otherwise. Src. o. — Notice of hearing must be served by the party setting d'^wn tlie cause, upon all proper parties, at least seven days before the commencement of the term in which the cause is to be heard, and may be in the form set forth in schedule B. to these orders. Sec. 6. — If the plaintiff neglects to set down the cause to be heard within one month after publication has passed, any defendant may cause the same to be set down, and may serve notice of hearing on the parties to the cause. [Where the defendant set a cause down for hearing before the time limited by this section had expired and the plainiiff moved to strilcy the cause out of the list for irregularity, it wus struck out with costs, although by the plaintiff's delay in giving notice of the irregularity, the defendant wus unable again to set the cause down for the ensuing hearing term. City of Toronto v. McGill, Cham. R. 16.] Seo. 7. — Where a defendant makes default at the hearing of a cause, the court is to make such decree as it may think fit ; this decree is to be absolute in the first instance, without giving the defendant a day to shew cause, and such decree is t'> have the same force and effect as if the same had been a decree nisi in the first instance, and had been afterwards made absolute in default of cause shewn by the defendant. :'^ ORDERS IN CHANOERT. 105 Sec. 8. — ^If the plaintiff causes the hill to he dismissed, on his own application, after it has heen set down to he heard ; or if the cause is called on to he heard, and the plaintifr maizes default, and hy reason thereof the hill is dismissed ', in either case such dismbsal is to he equivalent to a dismissal on the merits, unless the court order otherwise, and may he set up in har to another suit for the same matter. [The plaintiff cannot dismiss his bill on precipe, hut only on special motion, after the cause has been heard, and is stand- ing for judgment. Smith v. Port Hope Harbour Co., 6 U. C. Law Jour. 189. The dismissal of a bill for want of prosecu- tion cannot be set up in bar to another suit.] Sec. 9. — The practice of excepting to hills, answers or other proceedings for scandal or impertinence is abolished. But if upon the hearing of any cause or matter the court is of opinion that any pleading, petition, or affidavit, or any part of such pleading, petition, or affidavit is scandalous, the court may order such pl.cttding, petition or affidavit to he taken off the file, or may direct the scandalous matter to he expunged, and is to give such direction as to costs as it may think right. Sec. 10. — A motion to htive any pleading, petition, or affidavit taken off the file for scandal, or to have the scandalous matter expunged, may be made at any time before the hearing of the cause or matter. Sec. 11. — If, upon the hearing of any cause or matter, the court is of opinion that any pleading, petition, or affidavit, is of unnecessary length, the court may either direct payment of a sum in gross or in lieu of taxed costs therefor, or it may direct the taxing-officer to look into such pleading, petition, or affidaWt, and to distinguish what part or parts thereof is or are of unnecessary length, and to ascertain the costs occasioned to any party by any unnecessary matter ; and the court is to make such order as it thinks just, for the payment, set off, or other allowance of such costs, by the party, his solicitor, or counsel. m.i "J>^ :y-: 106 ORDERS IN CflANCERT. I ■ ']£" .5,1 •" '' ,- ■ ■* - m r :: i I III c : Sec. ] 2. — Causes may be set down to be heard on further directions for any court day, but nolice thereof must be served at least seven days before the day for trhich the cause has been set down. SCHEDULE A. PORM OP NOTICE OF EXAMINATION. In Chancerij, — A. Ji., plaintiff, and C. />., defendant. To the above Take notice that this cause has been set down /or the examination of witnesses, at •• • , on the da^ of , at which time and place the ivitnessesfor all parties must be f.xamined. K F., iSolic iter for the plaintiff. (Or as the case mat/ be.) SCHEDULE B. FORM OP NOTICE OF HEARING. In Chancery, — A. B., plaintiff, and C. D., defendant. To the above Take notim that this cause has been set doion to be heard on the " day of , o.nd, unless you, attend at the lime and place appointed^ a decree may be j>ronoiinced in your ab'kence. F. G., Solicitor for the plaintiff. ( Or as the case may be.) \i ■^ I'J in [1.1 ORDERS. 6th February, 1858 PROCEEDINGS IN SUITS FOR FORECLOSURE OR SALE. In suits instituted by mortgagees or judgment creditors for sale or foreclosure, when all incumbrancers havo not been made parties, or further enquiries are sought, the complainant ia to bring into the master's office, together mth w at I 1 4! OBDEBS DI CBANOEBT. lOT .1 the decree, a certificate from the registrar of the county wherein the lands lie, setting forth all the registered incTiin> brances which affect the property in the pleadings mentioned, and such other evidence as he may be advised ; and upon his ex parte application for that purpose, the master is to direct all such persons as appear to him to have any lien, charge, or incumbrance upon the estate in question, to be made parties to the cause. [As all the subsequent incumbrancers can under this order be made parties in the master's offiice, they should not be made j)arties to the bill. If they are made parties, the court will not allow any costs in respect of so making them parties. But the owners of the equity of redemption , cannot be ad.led as parties in the master's office, they must be made parties before decree. Where a plaintiff in a suit for foreclosure or sale asks a reference to the master to enquire as to incumbrancers, he takes such a reference at the peril of costs, if there are in reality no incumbrancers. Hamilton v. Howard, 4 Grant, 581.] When the bill is filed by a subsequent incumbrancer seeking relief against a prior mortgagee, such mortgagee fnnst be made a party previous to the hearing of the cause. But wlum the plaintiff in any such case prays a sale or fore- closure, subject to the prior mortgage, such mortgagee is not to be made a party either originally or in the master's otfice. Upon the office copy of the decree to be served upon persons made parties in the master's office, under the provisions of this order, there must be endorsed a notice to the effect set set forth in schedule A. to these orders annexed. [The parties added in the master's office must be served with office copies of the decree duly stamped. Unstamped copies are insufficieut. Elliott v. Helliwell, Cham. R. 6; Feehan v. Hayes, lb. Under the 20th Vic. c. 30, sec. 14., the plaintifi may serve the attorney-at-law of a judgment creditor made a party under this order. If the attorney-at-law is served or accepts service r, .,ji .:: «•! I< I 108 ORDBBS IN CHANCEBT. nil ■ : ■n Jli !•" I I : 1 ? ? I;: c I ! ' *• ( i I ^il as the attorney, an affidavit must be produced proving that he is the attorney on the roll of the judgment, in respect of which the judgment creditor is made a party. ^ The copies of the decree may be made ofEce copies by the deputy registrar in the county to which the reference directed. Ord. 5th Oct., 1859.] IS 4 When a reference has been directed as to incumbrances, or to settle priorities, in any case provided for by this order, the master, before he proceeds to hear and determine, is to require an appointment to the effect set forth in schedule B. to this order annexed, to be served upon all persons made parties before the hearing, whether the bill has been taken 2)ro confesso against such persons or not. When any person who has been duly served with an r fice copy of the decree, or with an appointment under the provi- sions of this order, neglects to attend at the time appointed, the master is to treat such non-attendance as a disclaimer by the party so making default ; and the claim of such party is to be thereby foreclosed, unless the court order otherwise, upon application duly made for that purpose. The master's report in the cases specified in this order must state the names of all persons who have been made parties in his oflfice, and of those who have been served with the appointment hereinbefore provided. The names of such as have made default, having been duly served, must then be stated ; and then the report must go on to settle the priorities, &o., of such as have attended, and these latter are to be certified as the only incumbrancers upon the estate. Where a mortgagee has proceeded at law upon his security, he shall not be entitled to his coats in equi^, unless the court, under the circumstances, shall see fit to crder other- wise. SCHEDULE A. Wfiereat a suit hat been imtituted by the vxiihin named com- \\% OBOERS IN CHANCSRT. 109 j>lainant for the Joredonire (or as the ease may he) of certain landey hexng the west haXfoflot No. 10, in the second cotteession of the township of Toronto, (or some other sufficient description of the property,) (a) and I have been directed to enquire wJicther any person other t?ian the plaintiff, has any charge, lien, or incun^ance upon the said estate, and whereasilhas been made to appear before me that you have some lien, charQe, or incumbrance upon the said estate, and I have therefore caused you to he made a party to thin suit,and appointed the ■ day of , for you to appf^ar before me, either in person or by yaivr soiicitor, to prove your claims. Now you are hereby required to take notice : 1st. That if you tcish to apply to discharge my order maJiing you a party, or to add to or vary the tcithin decree, you must do 1^0 icithin fourteen days from the service hereof; and if you f nil (o do so you Kill be bound l/y the decree and the further proceidiiigs in this caicse as if you xcere orijinally made a party to the suit. 2nd. That if you fail to attend at my Chandtears at Osg/oode Hull, in the city of Toronto, {or as the case may he,) at the time apptjinted, you will be treated as disclaiming all interest in tht property in question, and it iciU be disposed of in the same way as if you had no claim thereon, and your claitmcill he in fact fore- closed by such non-attendance. A. B., Master. ■ SCHEDULE B. In Chancery.— A. B„ plaintiff, and C. D., dcjendant. Having been directed hj the de^:rce in this cause to enquire iche- ther any person other than the plaintiff has any lien, charge, or incumbrance vpon the lands in the pleadings mentioned, being the west half of lot 10, in the 2nd conceesion of the toicnship of York, (or some other plain description,) I do hereby appoint the — day of > at my Chambers at Osgoode Han, in the city of Toronto, (or as the case may be,) to proceed with the said enquiries. And you are hereby required to take notice that if you fail to attend at the time and place appointed, you wQl he treated as disclaiming all interest in the land in question, and it will be dealt with as if you had no claim thereon, and your claim will be in fact foreclosed. E. £., Master, ..jl T.1 NoTB (a).— Whea the decree is for the sale of the debtor's lands gene* rally ftt*ihe suit of » judgment creditor, say for the sale of all the laada of {the debtw.) within the county of York (or as the ease may be.) h 'I 110 OfiDEBS IN CHANCEB7. 1,S If, MASTERS MiD DEBUTY-BEGISTRAKS. • Tbe BiasitcrS aad deputy-registrars appointed by thia court, sbtill, in addition to the fees already payable to them, be entitlc'l to receive upon the setting down of causes for the CxaTuiiiution of witnesses, the suoj of one pound ten shillings for each case to be set down. mil m iB' 11 . : I ;■ c - f J i M I' OBDER. 30Tn June, 1858. It is oi'clcro'I that the time of the long vacation is not to be rfiokoriC'l In tlio computation of the time appointed or allowc'l fuf the purpose of ansAvcring either an Oi-iginal or amended bill. [The. lime of the long vacation is not reckoned in the compu- tation of tho time allowed for amending, or obtaining orders for leavtj to umend bills, setting down demurrers, or filing replications, or setting down causes under Order 18. Order V. of 1853, s. 4.] ORDERS. 13th April, 1859. S! The Judges of the Court of Chancery, under and in pursuance of the powers vested in them under the statute in that behalf, do hereby order and declare : I. — ^That from and after the first day of July next, the fee payable to, and to be received by the registrar of this court, on the setting down of each cause, other than those ordered to bo taken p'o confesiOy shall be the sum of ten ehillinga. n. — The judges of this covurt, taking notice of the incon- venience and expense occasioned to the suitors in the court, by reason of the non-attendance of the solicitors of the i ORDERS IN CHANCERT. Ill \u parties or some of them at the times when such causes are called on to be heard, or during the hearing thereof, by reason of which non-attendance such causes are struck out of the paper, and cannot be restored without an expense which ought not to be sustained by the parties; or the hearing thereof is unnecessarily postponed, not only to the inconvenience of the parties to such causes, but also to the inconvenience of parties to other causes ; do think proper hereby to order, in conformity with what the rules and practice of the court already reciuire, that the solicitors for the several parties in all causes do attend m court when such causes are appointed to be heard, and during the hearing thereof. And that whenever, upon the hearing of any cause, it shall appear that the same cannot conveniently proceed by reason of the solicitor for any party having neglected to attend personally or by somo person in his behalf> or having omitted to deliver any paper necessary for the use of the court, and which, according to its practice, ought to have been delivered, such solicitor shall personally pay to all or any of the parties such costs as the court shall think fit to award. III. — In future the evidence read by each side must be stated distinctly by counsel, in order that the same may be entered by the registrar before the case is closed, in accord- ance with the order to that effect. Tj II ;e 10 is se en )n- xt, ;he 1 'I I 4 When judgment is reserved, the exhibits used upon the hearing must be deposited with the registrar for the use of the court. All exhibits deposited under Uiis order must be described in a schedule, to be prepared by the party deposit- ing the same. The schedule shall be in duplicate, one copy of which, signed by the registrar, shall be handed to Uie party depositing the exhibits, and the other retained for the use of the court. When this order has not been complied irith, the case will not be considered as standing for judgment. IV. — From and after the first day of July next, every b it 112 ORDERS IN CHANCERY/ >. ■'1 £ I — i ^■';Ci I h Iv h- ■ and answer filed, and eyery aflSdayit to be used in any cause or matter, shall be written in a plain legible hand, and shall be divided into paragraphs, and every paragraph shall be numbered consecutively, and as nearly as may be shall be confined to a distinct portion of the subject. No costs shall be allowed for any bill, answer or affidavit, or part of any bill, answer or affidavit substantially violating this order ; nor shall any affidavit violating this order be used in support of, or opposition to, any motion, without the express per- mission of the court. ORDER. 30th April, 1^59. The judges, in pursuance of the authority vested in them under and by virtue of the statute in that behalf, do hereby order and direct that the sheriff's and coroners, in their several counties, shall be entitled to receive and take for the several services hereinafter mentioned, the fees specified for the same, and no other, or greater fees or allowance. Receiving, filing, entering and endorsing every paper £0 1 3 Return of all process and writs except sub- poenas 2 G Warrant to bailiff on writ not executed by sheriff or deputy 2 6 Serving each office copy bill, including affidavit of service 5 Serving each warrant, notice, certificate, sub- poena, or other paper 2 6 Ne Exeat — arrest on, when amount end^^rsed under £50 5 £50, and under £100 ...0 10 XlOO, and over 1 Attachment — not defined, arrest on 10 Arrest upon attachment in the nature of an execution, vrhen the sum endorsed is under ifiSO 6 -1 OKDERS IK CHANCERT. ]^ y - Over £50, and. under JCIOO 10 XlOOorover 10 Besides poundage for sums endorsed when ' sum endorsed is under £100, at 5 per cent. Exceeds £100, but is less than £1000, 5 per cent, for the first £100, and 2} per cent, for the residue. £1000 and over, 1} ■ per cent, on whaiover exceeds £1000, in addition to the po-a: dage allowed up to £1000. Sequestration — upon seizure of estate and effects under "writ of sec^uestration 10 Schedule of goods taten in execution, including copy for defendant, if not exceed- ing 5 folios 5 Each folio above 5 C Removing or retaining property, reasonable and necessary disbursements, and allow- ances to be made by the master, or by order of the court or judge. || Poundage upon sequestration, followed by sale. Where amount made under £100, at 5 per cent. £100, but under £1000, 5 per cent, for the first £100, 2i per cent, for the residue. £1000, and over, 1 J per cent, on whatever exceeds £1000, in addition to the poundage allowed up to £1000, in lieu of all fees and charges for services and disbursements, except mileage in going to seize, and dis- bursements for advertising, and except disbursements necessarily incurred in the care and removal of property, to be allowed by the master in his discretion. For Services not specified — Thelike charges as are allowed at common law for analogous services. ■ ■i\ If. c - U 'f- *• >. |i ^ i!:^ if 1 114 ORDER. ORDEBS IN CHANCEBT. dZfl OCTOBEB, 1859. Ordered, that all office copies of decrees to be served on parties, added in the master's office, maj be certified by the deputy-registrar where the reference is made to. Onlered, that the deputy-registrars do transmit to the registrar of this court, at Toronto, on the first day of January, April, July, and October, in each year, a list of all bilk filed with them respectively during the preceding quarter of the year, i ORDER. 26Tn December, 1859. The following terms are fixed for the examination of witnesses, at the undermentioned places, viz. : Toronto. — The firsg Tuesday of February; and the first Tuesday of September. Sandwich. — The third Tuesday of February; and the third Tuesday of September. CnATHAM. — The fourth Tuesday of February; and the fourth Tuesday of September. LoNDOjJ. — The first Tuesday of March ; and the first Tuesday of October. Brantford. — The third Tuesday of March ; and the second Tuesday in October. Hamilton. — The fourth Tuesday of March ; and the third Tuesday of October. Barbie. — The first Tuesday of April ; and the fourth Tuesday of October. Hi' OSDEBS IN CHANCE£T. 115 GoDERlcn.— The second Tuesday of April; and the first Tuesday of November. ■ WuiTBY. — The third Tuesdoy of February ; and the tliird Tuesday of September. GOBOURO. — The fourth Tuesday of February ; and the fourth Tuesday of September. Belleville. — The first Tuesday of March ; and the first Tuesday of October. Kingston. — The third Tuesday of March ; and the second Tuesday of October. Brockville. — The fourth Tuesday of March ; and the third Tuesday of October. Ottawa. — The first Tuesday of April ; and the fourth Tuesday of October. Cornwall. — The second Tuesday of April ; and the first Tuesday of November. The following terms are fi.xed for the hearing of causes : From the fourth Monday of April, to the Saturday of the following week. From the third Monday of November, to the Saturday of the following week. 'M \u If. h!v I' I C ,'i (I :i Irii'. APPENDIX No. I I.- SCHEDULE A. Referred to in Order IX., sec. I. FORM OF BILLS. -By a legal or equitable mortgagee, nr person entitled to a lien as a security for a debt, scelcing foreclosure or sale, or otherwise to enforce his security. In Chancery. — A. B. and C. D., (enuvieralc all the parties inlaintiffs,) Plaintiffs; and E. F. and G. H., (all jmrtics defcnd- ants,) Defendants. CiTT OF TOUOSTO, "\ To THE HoNOURABLK, &C. (or the county town 36' [ Humblv complaining, shows, &c. leeted for tk« examma- r 'i . i . , ■ r tion of the tritntaaea.) ) A. B., of &,c.. that under and by virtue of an indenture (or other docjimcnt) dated, &c., and made, &c.,* (and a trana/er thereof^ made by indenture, dated, ttc, and made, d;c.) the said A. B. is a mortgagee (or, an equitable morttjagee) of (or, is entitled to hold a lien vjjon) certain freehold property (or leasehold, or other projierty, as the case may be) therein com- prised, being (insert a general description of the property) for securing the sum of £ and interest ; that the time for payment thereof has elapsed ; that £ has been paid on account of principal, and £• on account of interest (or. that no sum has been paid on account of either principal or interest;) that your orators have not been in the occupation of the premises, or any part thereof, (ort that your orators have been in «7iC occupation of the premises, or of some part tliereof, from the day of in the year to the — day of in the year ',) and that there is now * The nnmes only of the parties art to be set out, not the sabstance or effect of the dooument. Q ' ' r. ■H-T. IP I?- i 1 ■I- f^'-. II- ' I,- •« r t *■ ■(;i: :: * c - IfrtV hv If r 1!:'. hi,: 118 APPENDIX. justly due upon the said security, for principal, JB— — — and for interest £ * That E. F. and G. H., the defendants hereto, are entitled to the equity of redemption of the said mortgaged premises (or the j^i'cmises subject to such lien.) Your orators therefore pray that they may be paid the said sum of £ and interest, and the costs of this suit ; and in default thereof, that tlie equity of redemption of the said mortgaged premises may he foreclosed, (or, ,theplainkprthe^exa.> Humbly complaining, &c., your mination of the vitnema.) ) orator, &c., that under and by virtue of an indenture (or other document) dated the day of and made between (pnrtt'e.^) (an'l the assurances hereinafter mentlonr.d — that u to .say, an- indr-ntKrr. datnl the (Zcj/ o/ — the will of dated the • dojj of- -) your orator is entitled to the equity of re- demption of certain freehold property {or leaseJioId, or other propertt/, as the case may he) therein comprised, being (Jtcre de- scribe the property shortly) which was originally mortgaged (or phd'jed) for securing the sum of £ and interest ; and that C. D., the defendant hereinafter named, is now, by virtue of the ac^.ld indenture, dated the day of (and of siihsequent assurances'), the mortgagee of the said property (or holder of the said lien), and entitled to the principal money and interest remaining dufe upon the mortgage (or lien); and your orator believes that the amount of the principal money and interest now due upon the said mortgage (or lien) is the sum of £- , or thereabouts ; and he has made, or caused to be made, an application to the said C. D. to receive the said sum of £ , and any costs justly payable to him, and to reconvey to your orator the said mortgaged property (or property subject to tJie said lien) upon payment thereof, and of any costs due to him in respect of this security, but that the said C. D. has not so done. Your orator therefore prays that he may be let in to redeem the said mortgaged property, (or property attbject to the said lien,) and that the same may be reconveyed (or deliuered vp) to him, upon payment of the principal money and interest, and costs due and owing upon the said mortgage, (or lien,) and for that purpose that nil proper, directions may be given and accounts taken. I'll I)'': hA I:! IK i' ■ I) •» • ' • 1.3, •♦. it 1 in c: 1 ' i *• >► 1 m 120 APPENPIX. 4. — By a person entitled to an account of the dealings and transactions of a partnership dissolved or expired, seeking such account. In Chancery. — A. B., plaintiff, and C. D., defendant. City or Tobosto, ^ To the Honourable, &c. iZetrTLTatL: } ^^^^^Y complaining, &c., your of tht mUnesiea.) J orator, &c., that from the day of down to the day of he and C. D., the defendant hereinafter named, carried on the business of in co-partnership, under certain articles of co. partnership, dated the day of and made between (^parties,") (or under a verbal agreement made heticecn your orator and C. D,, or throufjh their respective af/vnts JX F. and G. IL), on the day of ; and he says tha: the said co-partnersliip was dissolved (or expired, as the cas''. viay he) on the day of . Your orator therefore prays that an account of the partnership dealings and transactions between your orator and the said C. D. may be taken, and the affairs and business of the said partnership wound up and settled under the direction of this court, and for that purpose that all proper directions may be given, and accounts taken. 5. — For dissolution of a co-partnership. I.N Chancerv. — A. B., plaintiff, ^nd C. D., defendant. C.TT OF Tobosto, •\ To THE HoNOURABtE, &c. Cor the cottntu t'Mcn «- I tt i.i i • • e hrtJ/or tht Hxai'nna- T Humbly complaining. Sec, your orator, ti'jti of the tuitn'iifs.) ) &c., that your orator and C. D., the defen- dant hereinafter named, are and have been, since the tlav of co-partners in the trade or business of under certain articles of co-partnership, dated, &c. (or utuhr a verhul agreanent made hrtween them, oh the day of -,) which partnership was to continue for years, {or fnr an indefinite time,) that the said business was carried on under the said agreement until with- out any difficulty, (here state the facts relied on as vmtraniing Jisnolution, as.) that from the last-mentioned day, until the present lime, the said C. D. has greatly misconducted himself in the said business, by removing the books of the co- partnership from the shop or counting-house of the said firm, . > H ■ .-vi'- rv I .# H '^i' ^H '7 H ■ ."^^^ B ^> i K ^^v* : 'i^ ^^■■.1 V ^H APPENDIX. 121 and denying your orator, or debarring him from, access thereto ; by discharjing the clerks and servants of the said firm, and engaging others in his own interest in their room ; by making false entries in the said books, or improperly keeping the same ; all which was done with the view and has had the effect of excluding your orator from his due share in the management of the said business ; by using the name of the firm for his own private purposes, and applying the moneys of the partnership to his own individual use : that there is nothing in the said articles, or in the said agreement, to justify such conduct ; and your orator has made frequent applications to tlie said C. D. to desist therefrom, and to act in accordance with the said agreement, and with his duty as a partner, but without eflect; on v/hich account your orator, on the ■ (lay of gave notice to the said defendant that the said partnership should be dissolved from the day of . Your orator therefore prays thiit the siiid partner- ship may be dissolved, and that the accounts of the said business may be taken from the commencement thereof, and the affairs thereof wound up and adjusted, tind that your orator may have (shc/j, further relief, itc.) 6. — Bill by a person entitled to the specific performance ot an agreement for the sale or purchase of any property, seeking such specific performance. City or ToaoNTo, "j To the Hon'c {or the county ioimsc- { Humblv cc UdedfoT the examinn- C """i^'y " tion of tlie icitnesscs.) J &.C,, that by In Chancery.— a. B., plaintilf, and C. D., defendani. To THE HoN'Ot'RABLE, iV:C. complain inj;, &;c., your orator, )v an aGrreement, dated llio day of and signed by C. D., the defen- dant hereinafter named, the said C. D. contracted to buy of your orator (or to sell to him) certain freehold property (or leasehold, or other property, as the case mai/ he) therein described or referred to, for the sum of £ ; and that he has made or caused to be made to the said CD. application specifically 10 perform the said agreement on his part, but that he has not done so. Your orator therefore prays that the said agreement may be specifically performed, and for that purpose that all proper directions may be given, he the said A. B. hereby oflering to perform the said agreement specifically on his part. 122 APPENDIX. T.'^-Bill for the specific performance of a parol agreement / partly performed. , ^i ■4! I'} : m ■iiCK: ' . :& til h : In CiuycERv. — A. B., plaintiff, and C. D., defendant. CtTT dt Ti>aoNTO, 'k To thjb Honoprable, &c. W for <^' cxamina. \ Hwinbly complaining, &c ., your orator, tion «/ Hie uUntsses.) ) &C-, that on tliti ■ ■ " day of— year orator being seised in fee simple in pOsseii:jion {or C. D. the i.lc/tiHi^-'inf hei'cinaffi'r mentioned, h':in'/ or lyrUt'niJiff to hr ?/??>•'? 1)1 /•■ snnj-lt. in j^'is.iesaioii, <'>• inf-f fail, or /or i/ears, or in rrtnuiiukr cypectant njy^H the cMehninatioii of a certain csfotcfnr the Vfcy. Jt,, nsi the cas". may he)* of lot niunber ■—'—, your oraf^r pm>\ ili-.' said G. D. entered into a verbal agrecmf^nt for the talo ftjul p.iivchase of the suid premisrs;, at or fur the price or .sum ofjC i puyhble by .j'-|!ia,l annual instalments, with intcrcsM upciTi the puyi:;r7nt where ut a proper conveyance was to bt; C'vccuied of the said premise:-, free from incumbrances ; (here .-ta(p uc'.s oj'^xirt jjcr/onnance, as;) that your orator, or the said C. D., was accordingly admitted, and entered into posses- sion of the said lot, and has continued in possession thereof over since, and is still in possession thereof, and has made divers and cousiderable improvements thereon, and has paid llie sum of X , part of the said purchase money ; and your orator 5ubmits that under the circumstances aforesaid the 9?.id a^reeiiirnt has been partly performed, so as to entitle your crivtor to a specific execution thereof; for which purpose your ov■ - I! i: ■■».' |j 1 fc —.11 ¥:■ i& m the present time, the owner in fee simple (or teUed in tail, or for life, or possessed for. the remainder of a term of years, under and by virtue of an indenture, tlated, 4cc., and made, own use, divers valuable timber and other trees which were growing, standing and being on the said lot, (by i^uarryiny and removing from the said lot and ujyply- ing to his own use large quantities of stone which were on and part of lli^f said lot,) a.nd ho continues and threatens and intends to continue to trespass on the said lot, in like manner, although frequently requested by your orator to desist therefrom. Your orator tliereforo prays that the said defendant may be restrained by tho order and injunction of this honourable court from committing the acts aforesaid, and other acts of a like nature, and may account for the value of the timber and other trees cut down, (or stone quarried,) removed and applied to his own uso as aforesaid, and that your orator may have such further and other relief as may seem meet. 10. — Bill by a person entitled to an equitable estate or interest and claiming to use the name of his trustee in prosecuting an action for his sole benefit. I.v Chancery.— CtrT Of ToRoxio, {iir thu county ioicn at- itottii for the examina- tion of the wilnems.) - day of A. B., plaintiff, and C. D., defendant. To THE Honourable, &c. Humbly complaining, &c., your orator, &c., that under the indenture dated the and made between, (parties,) he is } entitled to an equitable estate or interest in certain property therein described or referred to ; and that C. D., the defendant hereinafter named, is a trustee for him of such property ; and that being desirous to prosecute an action at law against '. ' in respect of such property, ho has made, or caused to be made, an application to the said defendant to allow him to bring such action in his name, and has offered to indemnify him against the costs of such action, but that the said defendant has refused or neglected to allow his name to be used for that purpose. Your orator therefore prays that the said A. B. may be allowed to prosecute tho said action in the name of the said IPPBNDIX. 125 \ defendant, he hereby offering to indemnify him against the cost of such action. 11. — Bill by a person entitled to have a new trustee appointed in a case where there is no power in the instrument creating the trust to apppoint new trustees, or when the power cannot he exercised, and seeking to appoint a new trustee. In Chancbrt.— a. B., plaintiff, and C. D., defendant. CiTT 0? ToaojcTO, "J To the Honourable, &c. £;^"yr«riSi'; L "°T"^ "mpUining. &c., ,.^r ora.or. tion ofwibutaea.) J &c., that under an indenture dated the day of , and made between, (parties,) (or will of- -, or other document, as the case may he,) your orator is interested in certain trust property therein mentioned or referred to ; and that C D., the defendant hereinafter mentioned, is the present trustee of such property, (or, i» the real or personal rqyresentative of the last surviving trustee of such property, as the ease may le,") and that there is no power in the said indenture (or will, or other document) to appoint new tmsteea, (or that th^ power in said indenture, or other doaimentf to appoint new trustees cannot he exercised.) Your orator there- fore prays that new trustees may be appointed of the said trust property, in the place of, &c., (or to act in conjunction unth,) the said CD. APPENDIX No. II. SCHEDULE C. Referred to in Order IX., sec. 4. s FORM OP AFFIDAVIT OF THE SERVICE OF AN OFHCE COPT OF A BILL. In Chancery. — Between A. B., plaintiff, and C. D., and E. F., defendants. I, G. H. of , in tlie county of . — , yeoman, make oath and say (when the affidavit is made hy teveral depo- nent* it is to commence, We) J1 -I. It) I* ' It If i: il'i '^ !.! I " t-. jf = ■'^ L, Iff nit 126 G. H.,of J. K., of — APPENDIX. —, in the county of - -, in thiB county of <•» yeoman, and — t gentleman, make oath and say; and first, I O. H., for myself, make oath and say, that I did on the ■ day of — — — , person- ally serve the above named defendant C. D. %. ith a paper which purported to be an office copy of the bill filed in this cause, by delivering to and leaving with the said defendant C. D., (if served oiherwi»e than j)er$oncJfy, lay, with a grown up person, (or as the ca$e may be,) at the dwelling house ' of the said defendant C. D.,) at , in the county of , the said office copy. I further say that upon the said office copy there was a certificate tc the effect that the original bill in this cause had been filed at Osgoode Hall in the City of Toronto, on the day of , which c-irJificate purported to be signed by A. G. registrar of the CQ.',irt, {\r1iere the bill has been filed in an outer county state th«Jact arcordiufjlj,) and that each page of the said office copy was sealed with a seal similar to one which I now look upon in the margin of this affidavit. I further say that upon the said office copy, at the time of the service thereof, there was endorsed the following memorandum — to wit, {liere insert the endorsement set out i)i the preceding schedule.") APPENDIX No. III. SCHEDULE E. * Referred to in Order XII., sec. 1. FORM OP AN ANSWER. . In Chancery. — A. B., plaintiff, and C. D. & £. F., defen. dants. ■ .1 The aqswer of C. D„ one of the above named defendants, to the bill of complaint of A. B., the above named plaintiff. In answer to the said bill I, C. D., sayju follows: — I believe that the defendant £. F. does claim ^ to have a charge upon the farm and premises comprised in the indenture i ^^ i| APPENDIX. day of • 137 in the pUintiff *8 of mortgage of .the — — bill mentioned. Such charge was created hy an indenture, dated, dbc, made between myself of the one part, &c. To the best of my knowledge, remembrance and belief, there is not any other mortgage, charge or incumbrance affecting the afforesaid premises. Such statementa aa are considered nefiessary or material are to be introduced intii as mach breritj as may oonsiat witb deameai ; and wbere a def)todant seeks relief under seoUon 4 of Order XII., Ute answer is to aak the special relief to wbicb be thinlcs bimself entitled. ENDORSE&IENT. This answer is filed by Messrs. A. B. and C. D., of the city of Toronto, in the county of York, solicitors for the above named defendants (and ichere the parti/ who filed the amicer u agentt am?, agents of Messrs. E. F. and G. II., of solicitors for the above named defendants.) Where the party defends in person, the answer must be endorsed in conformity with the 3rd section of Order XLIIl. FORM OF JURAT TO ANSWER. The defendant C. D., on the day of peared before me at my chambers in ap- ' and signed the foregoing answer in my presence, and thereupon was sworn before me that he had read the said answer and knew the contents thereof, and that the same was true of his own knowledge, except as to matters which are therein stated to be on his information and belief, and as to those matters he believed it to be true. IN 1?HE CASE OP AN ILLITERATE PERSON. The defendant C. D., not being able to read or write, £. F., solicitor (or clerk to the solicitor) for the said defendant, was sworn before me at my chambers in on the ■ ' day of — ~— that he had truly and faithfully read the contents of this answer to the said C. D., and that he appeared perfectly to understand the same; and the said 0. D. was thereupon sworn that he heard the said answer subscribed by him with his mark read over to him by the said £. F., and that he knew the contents thereof, and that the same was true 128 APPENDDC. of his own knowledge, except as to matters which are therein stated to be on his information, and as to those matters he believed it to be true. APPENDIX No. IV. f cc I', I'll- ^r- 1/ ; -^ 'Is li 5^ i SCHEDULE K. Referred to in Order XX., sec. 2. FORM OF AFFIDAVIT AS TO PRODUCTION OF DOCUMENTS. In Chaxcery. — Between, &c. I • of make oath and say as follows : (1.) I say I have in ray possession or power the documents relating to the matters in question in this suit, set forth in th« Hrst and second parts of the first schedule hereto annexed. (2.) I further say that I object to produce the said documents set forth in the second part of the said first schedule hereto. (3.) I further say (jstale upon what ground the objection is made, and verify the facts as far as may heJ) (4.) I further say that I have had, but have not now, in my possession or power the documents relating to the matters in question in this suit, set forth in the second schedule hereto anne.xed. (5.) I further say that the last' mentioned documents were last in my possession or power on (state when.") (6.) I further say (state uihathas become of the last-mentioned documents, and in whose possession they now are.) (7.) I further say, according to the best of my knowledge, remembrance, information and belief, that 1 have not now, and never have had in my own possession, custody or power, or in the possession, custody, or power of my solicitors or agents, or solicitor or agent, or in the posses- sion, custody or power of any other person on my behalf, any deed, account, hook of account, voucher, receipt, letter, memorandum, paper or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit • i- ^' APPENDED. 129 I or any of them, or wherein bny entry has been made relative to such matters, or any of them, other than and except the documents set forth in the first and second schedules hereto. NoTK 1. {1/ tlie party denies having any, he it to maXe an affidavit in form of the $eventh paragraph, omitting the exertion.) Note 2. (This form of affidavit, though not obligatory, will he $atit factory.") APPENDIX No. V. SCHEDULE 0. Referred to in Order XXXVI. , sec. Vro eon 27 For Creditors, to appoint time and place to come in 76 For heirs or next of kin » 77 Of sales under decree 61 AFFJDAVITS- To be expressed in first perion » • i ......«.• >.......■ 69 IV I) if m :''ti:' «C Iji ^ II] i^ 1QO INDEX. H'J PACK. To be read over to deponent 69 Ta be Jirided into paragraphs , m 112 Scandalous, maybe taken off files « 103 Upon wbich motion founded, when to be filed 68 For or against motion or petition to be filed Xfith registrar 68 On motion for decree, when to be filed 36 la answer or reply 80 Original maybe used 68 Office copies of, see " Office copies" Of serrice of bill, form of 125 To verify accounts 60, 74 On production of documents, form of ^ 128 In foreclosure suits 65 Exhibits may be proved by 40 Of particul.ir facts, fvLen allowed 40 To be Tuide by bearer of documents 82 On appointment of guardian 93 Cross examination on , 41 Form of jurat < 9^ AGREEMENT— On sale, to be signed by purchaser 63 Form of 63 AMENDMENT— Order of course for, before answer 18 «' " «' after answer 18 To correct clerical errors 18 When suit defective from matters ari^iiug before its institution... 19 •« «« •' «« «• «« "subsequent 20 Evidence upon application for order 20 Service of order maybe dispensed with.... 18 Time within which to be made 19 '.After order pro eonfesso 29 Deputy master may grant order for 84 Vacation not to count for obtaining order for 7 ANSWER— Form of .. 126 To bedivlded into paragraphs Ill Time for *. 23 Time for, to bill amended after answer 23 Long vacation not to count in time for 110 Nor time after order for security served 8 What to consist of. 23 Silence of, no admission 23 To be verified by oath 2'i Oath may be dispensed with, by consent 24 May pray relief 24 Supplemental, when allowed 24 How leave applied for 25 Application for time to be made in Chambers £7 Kodce of filing to be served 39 Form of Jurat 127 APPE.\L— From order of deputy master or examiner as to production 48 *' allowance of objections to title , 64 " Majter's reports 79 APPEARANCE— Abolished ., 12 .\RnCLE3 TO DISCREDIT— Abolished 102 r. l^'M 'y^i Til INDEX. 183 ) . I ASSISTANCE— page. Writ of, how obtained G4 ATTACHMENT— AVitli proclamations abolislicd 93 Writ of, how obtained 93 Order iihi for, to he personally served 94 On order for delivery of possession, not necessary 9-1 AUCTIONEER— AflSdavit of, on sales 63 UAR OF SUIT— Dismissal of bill by plainlill' alter set down for hearing, or by his default at hearing, to be 105 BIDDINGS— ?NPcd not be in writing C2 Judge or master to tix rcsorvoil Ijiddings »;2 BILL OF COMFLAtNT— What to contain V2 IV.rniK of bills 117 To be divided iuto pnr;if;r;l fuis 1112 To bf filed '.Tith registrar or doi)!;ty registrar, ell'ect of V-j iSi'iviue (if 1.". '• '• out of jufi'^dietion 1-") " " on c(irpiir.ui'>:ii^' '••7 J^ubstitutiiititil service of 10 Certain kinds of, abolished 19, 'JO, 21 For discovery, in what cases 22 Dismissal of, for want of iivosocution 41 DILL AND ANSWER— Time fur setting down caii-;o on SS BOND— Dy receiver, to bo to master 66 " " to bo settled by judge or master C7 For security for costs, to be to ro^'istrur 82 LOOKS- I'roduction of, under order HD " " in n.i^^^ter's ollice 77 Of atcoftnt, wliat to be evidence of CO, 72 CAUsrs— For exMuination, when to be set down ". 101 For heiiriug W) On further directions lOG To be called on in order of registrar's list 102, 104 Vacation not to ci.unt in time for setting down 7 CERTIFICATE— Of proceedings befoi'C master 75 CIIAilBERS— Judge to sit dully in 56 To have game power ns court or master 68 Business in 57 Matters mny bo adjourned to 58 Notice of motion in, when to be served 58 May bo dis^pnsed with 50 Form of judge's appointment 58 Abstracts of documents to bo supplied 59 Parties may bo added in 59 COMillSSIONS— To esamiae vritacss outof jurisdiction 100 S V.4- INDEX. 1^; in n: : :£ ;•!' •C V I a. 5»- r: w V'' IL. COM^JilTTEES OF LU.VATICS— ^ paoe. Hair appointed 67 COirjTTAlION OF TIME— Order respecting 7 COP':i:->— N7t to be made. If originals producible 59, 74 COa;^''aATION»S— Berrice of bill on 97 COS'."'*.-— When security or'Iered, time till given not to be reckoned 8 Of proving claim before master 76 MijT.be jrlven in gross ...» 7tJ, 8G '•.*■ aiimiui-tiation t'j be borne by estate 35 .ifrorred by refu-.'il to admit 78 Of unn»*oo-'?ary 7. roceedings 86 L'pDn postf.onemf.iit of exarainatiou 102 Of affidiiviti, T7h';rs not nlluwed fj9, 112 C/^JCaaioued by n>,'_;'.»ot of solicitor... Ill .\i b>twfc' :: i':u-:y ;.:. 1 jiuvty Tariff ..f ii,r;d fur .-rcaiit,; ' j '.'•'' .'./■iT-.'^xy r?-w'^triir :.•■ y < ~ubp«VU;l r'..ir, uh" :'''d CRi'-U'-TOi:— May apply for .I'l-'iliiLstration order H-i BC • - :" - K5 A MI-SAT 10 N — pifT^'.n nuikin^ aS livlt, liable to il, >rot!'.'e of to btj given 4J, DEr.-.i?.ATORV DECKEL— Mny be made , 48 DtC^'-CZ— >Vlien absolute on hearing pio con 'jO, 31 On bill taken pr/) «on. to be passed and entered 30 >' kftial oue may hi made , 4!) Jn !t'"»i.'nco of por^'/cal repressentative 50 J "ine and {luce for payment of nn>iiey may be fixed by o^> • V' [itn biu'ilng on [■'?r-i.i:M nL>t parties •"/•, 78' to regi.-trnr rder souuritv for .Moti'jn to vary K >JEdor.sem<:nt on Accbunt.'J and civ V»fa«?n it ni.tv bo pfjrsonH served with CO ,:h^:i copies of 60 i':ri'.'< iu to be numbered b-'j .'.rolled " Oa defen'lant's difiul: at hearing 1U4 \\hen to be carried into master's oftico 71 >'vt to contain CTiJ«;;:t;e used at hearing 82 pro-^eoution of, u. jy be jjiven to defendant 72, 7''» i>«?puty registrar f.'iuy make O.C. of 114 i>«jliTery of, may be ordered 78 UEf.r'JlIiV OF POSSK-Si'^ION— la mortgage suit? ;'2 tlow enforced 1)4 Ui;\ir;kP.ER— \'aC'ation not to be reckoned in time for setting down 7 When to be filed, oxid bet down to be argued 22 jS'otioe of filing to b-» served ."id DEPf/^iT— )Sule may be ordered on defendant making 63 Ou ru-heoring ...» , 82 ■^^ i '86 «7 ) 82 8-3 > 94 i \ «■-> > f 70 J 70 • :m INDEX. 135 ^. DEPDTir REGISTRARS AND JIASTERS^ ^aoe. Bills may be filed with ;. 13, 84 Powers of 84 Orders of course may be drawn up by 85 To keep solicitor and agent's book S-*) Fees to no May make office copies of decree ..,. 114 To make returns of bills filed IM DEVISEE— May move for aJministratiou order 35 DISCOVERY— When bill may be filed for 22 DISMISSAL OF BILL— By defendant for want of prosecution 38, 3D, M 17 Through plaintiff's defuuU at hctuing, effect of 105 DOCUMENTS— Production of. See production. May be sent by post or messenger 82 ENDORSEMENT— On office copy of bill 1:^ On office copy of decree ('.ii, 7s Of solicitor's u»uie on ■vvrltLS iS:o ,S0 ^Vhon partj- acts in person 81 On order directinj; any act OS Under orders respecting foreclosure lOS On answer 127 enroll:ment— Of decrees, when 83 Not of interlocutory decrees or orders 83 EVIDENCE— Upon petition substituted for certain bills 21, 22 AVhen defendant allowed to answer after decree nUi 32 Upon motion for decree 35 By aflidavitd, and when as to particular facts 40 To be taken fiva voce 42 At hearing, in foreclosure suits 55 Of scientific persons Srt Books to be evidence of contents 60, 72 On interlocutory proceeding's 68 Read at hearing to be stated 82, 111 Further time to produce may be granted 102 " '• deputy masters may grant 84 When it may be excluded « 102 Any party may use 103 Judge to regulate mode of taking ., 102 On appointment of guanlian &i> EXAMINATION— Of parties 42 * At what period of suit 44 Croos-esamination on afGdavits 41 Ue-examination to follow at once 41 Before masters extra 96 Before special examiner 99 Before judge on special application 99 Setting down for 101 Notice of 102 Out of jurisdictioa 100 Of nil witnesses at the same time 102 136 INDEX. ./•cr. ;cc: Ij:!'; ... .;> I!? ri ^ u i< : *• a. EXAMINATION— Maj be postponed Postponement to be applied for in Cliambers. DepntT masters mnj postpone , Court may order, before itself Of iufiiKt on, applications tinder J2 Vic On appointment of guardian Terms for ...: EXCEPTIONS— In mnster'soflice to report uot necessary For scandal, abolished EXECUTORS AND ADMINISTUATORS— May have decree for ndministratioii iiav 11 under Order XV •EXECU'^^'' \\r ' died EXHIBITS— >!r.- be proved by nftldavit ririNO— S';'.ufi*ion iiut rei.' (■tu'l in imo l\-v rcplioatiou. Wv.i. i:i what otiico.-i l'.;iV:t "f tiling bill AliiJivits oil motion for ducrec Notice of filing pleadings to be given Coiiiraets and affidavits on sales Exa'piiiation of infants AtS'.iavits on nuttions, when >AOG. 102 67 84 103 66 95 114 79 105 10 o5 02 '40 \f \ to be with rej^istna- FOKECLOSURE SUITS— P:irties to DjUve:-y of possession maybe ordered liL>fen'v.int may nsk sale Bill luay pr.iy sale Or. what tern ~ granted ^Vitllout time to redeem M'.rr_*a{;or to pay deficiency Siifirv may be male u party Ou i-ivment of in'^talmeuts in avoar, bill dismissed. Ati'T decree proceedings stayed On lubse.iuent default may bo enforced Evi'l'.'nco on hearing, pro con l>fcree may determine amount due M ly fix time and place of payment Account may be tuken in Chambers Proceedinn;^ in master's office Adding parties Notices to be endor.^ed on 0. C. decree Etffct of neglecting to attend AVbat report to contain rCRTnER DIRECTIONS— Causes may be heard on, any court day GCARDIAN— May be appointed in Chambers In what manner appointed , In proceedings under 12 Vic, cii. 72 Infant miiy apply for Appointment of Proc«eding iu such case Aft lihm, hoir appointed l:J I i 30 30 CO GC 68 102 02 53 5^; 53 53 53 5:5 54 54 54 55 55 55 5() 101} 107 108 108 108 106 57 67 67 95 95 28 ^ -^r' INBEX. 137 ■"^ii GUARDIAN— PACE. Ad litem, Bttev cl«cree 97 Notice of motion for. Low served 29 Deputj master may appoint 84 HEARING— Setting down for 103 Notice of - 104 AVbeu defendant uiaj set down for 104 Form of notice 106 tffe.it of pUiiiitia's default :it .,... 105 Of dofernhnt's default 104 Solicitors to attend at 110 E.shililts used at, to be left T\ith rejjistrar Ill Origiiid iitSdavitH mav be used CS IMrERllNEXCK— £!(ceptioQS fur, abolished 105 Pleadings may lie taken off files for 105 When motion to ta!;e off files to be made , 105 INCUMCUANCEKS— rHovity of, need nut be dvtfrinined befosx- sale I'rioi", \vl:;u to bu mad? piuties Siib*e<.(U..ii, ti> be added by mastfr , JCvidetn;c hu wliii'li luj.do parties To be i^erved with 0. C. decree Failing to appear, effect of 108 Forms of notices to ht endorsed lOs; 109 INFA.NTS— !Mo Sale of estates of, ia Chambers GT Advancement of, &c., to be determined in Chambers 57 Proceedings under 12 Vic, cli. 72 ,,.. G5 Guardian, mode of appointing G7 May apply for appointment of guardian Oo IXJU.XCTIONS- Uu deiuult of answer abolished « 48 To stay piu. •ceding? at law 48 Evidence upon luutiou lor 48 IXTlirwi'ilET.VTION— Dt' 'wuivU in orileii C INTElUiOGATUUlLS— In bills, abuUsIicd > lO For examination of vatnesics aboli-ilied •J2 JUDGE IN CilAMi'.Ei;S— Tohitilaily 56 Powers of 58, 95. JUUAT- To affidavit » 60 To answer 127 LEGAL RIGHTS— May be determined by court 48 LEGATEE— AVhen decree for administration may be obtained by..... 9 May have administration under Ord. XV ',]:} LONG VACATION— Vt'iien commences, ami cuds 6 In what cases time of, not to reckon..*....., 7, 110 LUNATICS- .Committee of, how appointed 67 53 1(»7 107 107 107 138 INDEX. >- iCc: m. > l> '■■■ •* I' i '* a. ff M I* 1''^ 3IASTER— PACE. Refureuce to. may be dUpecseil with 58 Reference to, nrtt neceasarj ia forclosure suit 55 Bnml by receiver to be to 6t> To examine \»itne33es under 12 Vic, c. 72, without order fitt Proccc,»« rf/«/« 75 What procei^dings by, without special direction 76 fitlcct of serving 0. C. decree on parties added 78 t'ortign commission to issue on cortificiite of 77 MAST [• lis orfici:— Dcetee to b.- brought in, within lourteeii diiys 71 .St-\t -s of f.iL'js, iNcc, abolished 74 I-'ornf of uccoi lilts 74 Notice of siirobarge to be given 75 Evl'i^-iice in ly be taken before examiner 77 Inetinibrancers to b-} ndJed in 107 Forinsof n.tioe to lOS, 100 Efffict of neglecting to attend 108 ilASTLU'.S llEPUHT— >\lia( to contain 76 To ivhoiii to be delivered out 70 Ab-ro eon ° 27 For administration order 83 Of motion for decree 38 Of filing pleftilings 89 Of cross-examination on affidavit 41 Of motion to dismiss 47 Of motion in chambers 58 May be dispensed with 69 Of surcharge 60, 75 . Of objection to sale 63 Of motion, wlien it may be served 67 Admissions of service of 68 Of appeal from master's report 79 Of eiamination 102 Of hearing 104 Form of 106 OFFICE COPIES— Of decree, when to be served 10, 31, "i.', 73, 107 Kadorsement on of. 7'^, 108 Of pleaJicgs r.n J atBdavits to be dcto:iaded < ?■, SI To be furnisbed by soiii-itor 81 To be delivered within forty-eiglit boura 03, 81 OPINlOSfS— Of scientific men may be obtained 56 ORDRRS— Of 1833, •nrhcn to take effect 5, '.i5 For service out of jurisdiction 1 j, 9B For substitutional service 16 To answer, in case of absconding defendant 16 Of course, to amend 18 To rectify clerical errors 18 To umenJ when suit abnted 20 To take bill pro confesso ?5, 20, 27, 28 Upon m^ition under Order XV 34 For prvluction 39 Obtained upon condition 47 When binding on estate of deceased persons ^0 Made in Chambers, force of , 08 Of course, to be drawn up by registrar 82 Or by deputy-registrars 85 Interlocutory, not to be enrolled 83 PARTIES— Setting down an objection for want of, abolished 9 No objections for want of, iu certain cases 9 Rules respecting • 9 iMay be examined by party adverse in interest 42 May be ordered to produce 4?t When they may be examined 44 May be added in Chambers 59 Or in master's office 78 In foreclosure suits 107 PERSONAL REPRESENTATIVE- Decree in absence of 50 petition- To revive 21 140 INDEX. In, >- . MfaK iCc: |"U.Ct r > I ; H i! 5:: a. c I." PETITION— PACE. L«ave to file, for sccoud re-liearing necessary 21 In place of certaia kinds of bills 21 For sjile of infant's estftte C5 Two (l:iys between service and hefirlng G7 Bridcncc upon OK AttidaviU upon, to be filed witli registrar CS To ho divided into paragraphs Ill PLKADINCS— Notico of iiling 'iQ Suiiriiliilou.i 105 To bo divided into pair.grapbs and numbered Ill PLKAS- AholJMicd „ '2-2 I'HOlESS— Order respecting Ii2, Po Xauie of solicitor to be endorsed on 80 PRO CO X !•!■.-■ SO— Oi ',:!• f.. t;il-u« bill 1''. V,ii,';i cl, lVi:i!:int oiit of jurisdiiition . '2u Ag-ii:!-; i;'.t',.!it, void , US A1v-lmiv'I'u;u dit'cnduut -'•' Nlhn! tilt ho fciTved '2'J Anifiuliaout after 2'i V.in'ti c.;i!sc to l>e Lciird ?10 T)olViid:nit may appear at heuring "0 Duvroe founded on ">0 Ati?\ver !iftt.'r ..... '■'■'2 Uf-bcnriii}^ itftcr ;'.2 Kecuiver or sequestration and payment of moneys after 02 Kepn-iontativcd of parties G2 PROI>rCTlO-\— Wlif.-n ordti* for obtained "0 ^Vliiit must be produced 4'> By piirty to record, on cxaraia;\tioa 4'\ III tilnsti'r's office 77 ('>rdor for need not be personally sorvc.l 04 Order 7i(vj fi'f attacbiucnt 04 Form of iitlid:ivit on 128 PRO I.\Ti:UESi?E SUO— }2xiiniiii,'ition, abolislipd 71 PIBLICATION— Roles to p^ss, aboliiilied 100 Wh.-n it parses 100 pj;cEivt:us— Ordered on hearing pro con. 82 !lo\V appointed 6!3 Security by, to be to master 60 REfEUENCE— To mui^tcr, may Ih^ di'^pcnsed 'with 56 BECISTRAU— To keep solicitor and agent's book 80 T<» eKfiminc and certify office copies SI To >Tgn cbdiiies 82 To noto cvidcticc read B'^ Atli laviu to be filed with 08 To prepare list of causes 101, 101 RE-HEAUING— Petition for 21 ' I INDEX. 141 RE-HEARESO— paob. By defendant when hiH pro eon 82 Deposit on , 88 REPEAL— Of former orders ; 5 ■ Of certain orders of 1853 99 REPLICATION— Vacatin not reckoned in time for filing «. 7 Only oc io be filed „ 87 Effect of filing „ 87 When to be filed 88 Notice of filing to be served 89 REPORT— See "master's vepovt." REVIEW— Bill of, abolished 21 REVIVOR— Bill of. abolish«fl 20 Aftpr decree 21 RUI^S- To f.roduce and pasi, abolished 100 SALE— l^i^iAt hiKA^ ^ ^i Of infants' estates 65 SCANDAL— Exceptions for, abolished , 105 Pleadings, &c., may be taken of files for. 105 SCIENTIFIC PERSONS— Court may obtain assistance of 86 SEQUESTRATION— May be ordered on decree jro eon 82 When to issue »• 93 To whom to bb directed 93 SETTING DOWN— On motion for decree 96 For examination » ••.... 101 For bearing term 103 If plaintiff neglects, defendant may ». 104 Etfect of plaintiff's dismissing after 105 On further directions .„ 106 Fees on m.. 110 SHERIFF— Fees to 112 142 INDEX. >- I! : 2> «; .5i: car I 1^ ;^ SOLICITORS AND AGENTS— »ao«. Book to be kept for ^ 80 SOLICITOR— StrikLog off roll 96 To endorije oame on writs, &c 80 To attend at hesrins of oauaa 110 Persooallj to pay costd, in certoia casea 110 STATED OP FACTS— Not to be brought into Chambers 69 Nor into master's office 74 SUBPIEXA— To appear and answer, abolished 12 To' rejoin, abolished 37 For coiU, abolished 94 SUr.SriTUTIONAL SERVICE— Order for, ho\r obtaine*! 2G SUPPLEMENTAL— Bill, abolished 19 ' Answer, in certain ciises 24 Leave to file, how obtained 2i SURCnAROE— Notice of to be given CI, 7r> .SL'RETY— One or more of, may be proceeded against 12 May be made party to foreclosure suit 63 TARIFF— Fees to solicitor 87 Fees to counsel 90 Fees to masters and deputy-masters 91 Fees to registrar 91 TAXATION— Of coats 86 TERMS— For examination 114 For hearing causes 115 TIME— Computation of 7 Slonth means lunar month 7 Of vacation not to be reckoned, when 7 For amendment 19 For filing demurrer 22 For filinz answer 23 For obtaining order j;ro eon 25 V For hearing fro con 80 For motion for decree 85 Fet filing ttffidaTits on motion for decree 30 For filing replication or setting down on bill and answer 36 For examining parties ,. 44 For moriag to dismiss 44 To answer or demar, applied for in Chambers 57 ■ Between aerrice of notice and hearing of motion 67 Within which decree to be carried into master's office 71 When report becomes abaolate 79 For dHlivering office copies 81 For enrolling decree 88 For setting down for examination .»... 101 For hearing 108 TITLE— Reference as to, and proceeding thereon 64 • INDEX. 143 TRUSTEES— To represent ee$tm que trusts VACATION— »AOK. .. 11 .„ 6 100 100 100 Long vacation - ..« Time of not to b« reckoned '» VENUE- . 100 To be stated in margin ofbill Maj be changed upon notice WITNESSES— Examination of Out of jurisdiction Kules to produce, aboli'rj.i. Of all i arties to be i' iminea rt same time ^ May be postponed ^^ Articles to discredit, abolished *"* May be re-called as atnui^m* *"* Maybe examined before court • *"" May be examined for interlocutory proceefhngs ^J Cross-examination of, who have made affidavits -^^ May be examined before masters extra -^^ Or before special examiner ROWSEtL ANOmiS, PRISTEIW, KINO STKEKT, TOROSTn.