1. Irregularity.—Jurisdiction.-Master of the Rolls.-Vice-Chancellor.-On a motion to discharge an order of course to amend in a cause attached to another branch of the court, the Master of the Rolls has not jurisdiction to take into his consideration the conduct of the parties, and will only determine whether the order has been regularly obtained.

not be inserted in the prayer of process. Smith v. Groves, 14 Sim. 603.

Case cited in the judgment: Gibson v. Haines, 1 Hare, 317.

2. Service of copy bill.-Where the time for serving a defendant with a copy of the bill has defendant with the order enlarging the same. been enlarged, it is not necessary to serve the Fenton v. Clayton, 15 Sim. 82.

CONTEMPT.

Illness of defendant.-Proceedings for contempt for want of answer stayed on proof of the defendant's inability by reason of illness to An order of course to amend obtained while put in his answer. Hicks v. Lord Alvanley, 9 an answer is outstanding is not "irregular," "Beav. 163. though under the circumstances it may have been improperly obtained. Arnold v. Arnold, 9 Beav. 206.

2. Order of May, 1845.-Title of answer. The 16th General Örder of May, 1845, Art. 38, has reference to amendments after answer. When the amendments are before answer, the case is governed by the 14th article of the same order.

Where a bill was amended before answer, an answer expressed to be "to the bill of complaint, &c.," is regular; but where the amend ments take place after answer, the subsequent answers should be headed to the amended bill of complaint." Rigby v. Rigby, 9 Beav.

311.

CREDITOR'S SUIT.

Master's report. - Acquiescence. — Irregularity.-Compromise.-The Master made a report not strictly following the order of reference, but no objection or exception having been taken thereto, it had been confirmed. A party to the suit afterwards petitioned, on the ground of the informality, to discharge the orders nisi and absolute, confirming the report, but it was dismissed.

A creditor's bill was filed by A. on behalf of himself and other creditors against B. and others. After decree the suit abated by the death of B. C., his executor, filed a bill of revivor on behalf, &c., and the suit was revived. A. afterwards filed other bills, and the proceedings before the Master were attended by A. on behalf of the creditors at large. Held, that C. was not by the fact of filing the bill of revivor on behalf, &c., incapacitated from compromising for his own benefit a claim on the estate. Armstrong v. Storer, 9 Beav. 277.

Case cited in the judgment: Earl of Bath v.
Earl of Bradford, 2 Ves. sen. 591.
See Re-hearing.

DECREE.

1. Omission.-Petition.-Conveyance.~A direction of the Master to settle a conveyance omitted in a decree, was supplied by petition.

A secret purchase by an agent from his principal was set aside. By the decree, possession be executed. Accounts were also directed to was directed to be given and a conveyance to be taken of the rents and purchase-money, and the balance was directed to be paid, but no lien once be made without waiting for the result of was given: Held, that the conveyance must at the accounts. Trevelyan v. Charter, 9 Beav.

Costs. Appearance.-On the hearing of an appeal presented by a defendant, the court, having intimated that a question included in it relating to costs could not be gone into in the absence of co-defendants who had not been served, counsel were in the course of the argument instructed to appear for them gratis. But the Lord Chancellor refused to sanction such 141. an appearance, and disposed of the case as if they had not appeared. Attorney-General v. Gibbs, 2 Phill. 327.

See Staying Proceedings, 1, 2.

BILL, SERVICE OF.

New orders.-The prayer that a defendant, on being served with a copy of the bill, may be bound by the proceedings in the cause, need

directing a sale, if certain persons" and the 2. Error.-An accidental slip in a decree heir-at-law" should be found parties, corrected on petition by substituting the words "other than the heir-at-law." Turner v. Hodgson, 9 Beav. 265.

DISMISSAL.

1. Filing replication.-On a motion to dis.

Analytical Digest of Cases: Courts of Equity.

miss for want of prosecution, the plaintiff undertook to file a replication. The case stood over to enable him to perform his undertaking, and having so done, was ordered to pay the costs of the motion. Young v. Quincey, 9 Beav. 160.

269

has expired. Biddulph v. Lord Camoys, 9 Beav. 155.

4. Instanter.-16th Order of May, 1845.A reference of exceptions made instanter in an injunction case and upon an exparte motion. It is not an order of course, but a special case of prejudice must be made out by affidavit. Muggeridge v. Sloman, 9 Beav. 314.

5. Plea. After plea and answer filed and plea overruled, the plaintiff, notwithstanding the expiration of six weeks from the filing of the plea and answer, filed exceptions to the answer, and obtained an order at the Rolls to refer them to the Master.

2. Amendment. Last answer. General orders. Under the general orders, any defendant is entitled to move to dismiss for want of prosecution after the expiration of six weeks from the time when his answer is deemed sufficient. Upon such a motion all unavoidable and all just and reasonable causes of delay may be considered, and in the cautious exercise of its discretion, the court may grant or refuse to grant any further time the plaintiff may re-filed, and per the Master of the Rolls and quire.

Held, that the exceptions were regularly

Wigram, V.C. that the 16th Order of May, 1845, rule 22, applied to this case; the six weeks mentioned in the order running from the time of overruling of the plea.

An order of course, though obtained within the time limited by the general orders, discharged, on the ground of the inexcusable delay of the plaintiff in proceeding, and getting A motion to take exceptions off the file for in the answer of a defendant under her control, irregularity may be made before a Vice-Chan and because it had been obtained for the pur- cellor, notwithstanding the pendency of the pose of defeating a motion to dismiss for want common order at the Rolls for referring the of prosecution. The expressions" last answer," | exceptions to a Master. Esdaile v. Molyneux, and the "last of several answers" in the gene- 2 Coll. 641. ral orders, regulating the period within which a plaintiff may obtain an order of course to amend, mean the last answer required in the then state of the record. Forman v. Gray, 9 Beav. 200.

EXECUTION.

General Orders of May, 1839.-Writ of fi. fa.-Where a writ of fi. fa. issued under the General Orders of May, 1839, has failed to satisfy the demand, another writ may issue into another country. Spencer v. Allen, 2

Phill. 215.

HABEAS CORPUS.

Returns to writs of habeas corpus, when dis posed of, are to be sent to the Record Office, and not to be re-delivered to the officer who made them. Oldfield v. Cobbett, 2 Phill. 289.

INFANT.

3. Want of prosecution.-Replication.-On a motion by one of several defendants to dis-] miss for want of prosecution, it is not sufficient for the plaintiff to show that the answers of other defendants have not been filed, he must also show that due diligence has been used in getting them in. Plaintiff having failed in so doing, was ordered to pay the costs of the mo- fendant, on attaining 21, discharged the soliciAnswer after coming of age.-An infant detion and file a replication within a fortnight, tor who had acted for her in the suit. Afterand in default, the bill was ordered to be dis-wards that solicitor was served with a subpœna missed with costs. Earl of Mornington V. Smith, 9 Beav. 251.

See Orders, 1.

EXCEPTIONS.

1. Irregularity. General orders. In a transition case under the Orders of 1845, exceptions were filed one day too late, the court declined to order them to be taken off the file. Whitmore v. Sloan, 9 Beav. 1.

2. Reference.-Irregularity.-Exceptions for insufficiency were referred by the plaintiff to the Master in rotation, instead of to the Master to whom there had been a previous question. Pending the discussion on the irregularity in the Master's office, the time limited for obtaining the report expired. The court considering the error to have arisen from inadvertence, and not from wilfulness or perverseness, gave directions to the Master to hear the exceptions. Tuck v. Rayment, 9 Beav. 38.

3. Nune pro tunc.-General Orders. An order for leave to file exceptions in the form of mune pro tune will not now be made, even by consent, but a special order may be made for filing them, notwithstanding the time limited

for her to hear judgment. He returned the subpoena to the plaintiff's solicitor, and stated at the same time that the defendant had come of age, and that he was no longer employed for her. Some months afterwards the cause was heard, but without the defendant having been served with a subpoena to hear judgment, or any one appearing for her at the hearing, and a decree was made in which she was described as an infant. Held, that she was entitled to put in a new answer to the bill. Snow v. Hole, 15 Sim. 161.

INJUNCTION.

Motion standing over.—quia timet.—The circumstance that a party is commencing operations avowedly for a purpose which another conceives to he injurious to him and illegal, does not warrant the latter in applying for an injunction, unless the circumstances of the case at the time when the motion is made are such as to enable the court either to form its own opinion as to the legality of the meditated purpose, or to put that question into a course of immediate trial; and therefore, where that is not the case, the motion will not be allowed to

27.0

Analytical Digest of Cases: Courts of Equity.

stand over till the purpose has been so far executed as that its character may be judged of, but will be at once refused. Haines v. Taylor, 2 Phill. 209.

ISSUE ON INTERLOCUTORY MOTION.

LUNACY.

Committee's security.-Securities belonging to a lunatic's estate ordered to be deposited with the Master, for the purpose of reducing the amount of the committee's recognizances. Eagle, in re, 2 Phill. 201.

MARRIED WOMAN.

Heir. Affidavits. Where the plaintiff's right depends on his being heir, the court has jurisdiction to grant an issue to try that fact on an interlocutory motion. If the facts of the 1. Next friend.-Formá pauperis.-An apcase make it proper, it is not very important, leave to change her next friend is in the discre plication by a married woman, plaintiff, for whether they appear on a motion for an injunction of the court, and will not be granted if tion or receiver, or upon a direct motion for there be reason to believe that the defendant's

the issue.

Such an issue was refused in a case where there was nothing but the bare assertion of the plaintiff's heirship on the one side, and the assertion of the defendant's ignorance on the other. On such a motion, affidavits of facts, of which the defendant by his answer professes to be ignorant, are inadmissible. Lancashire v. Lancashire, 9 Beav. 259.

Cases cited in the judgment: Goulden v. Lydiat 4 Y. & Coll. 374, n.; Fullagar v. Clark, 18 Ves. 483; Middleton v. Sherburne, 4 Y. &

Coll. (Ex.) 358; Gompertz v. Ansdell, 4 Myl.

& Cr. 449.

INTERPLEADER.

Title. It is irregular in an interpleading suit to direct any inquiries as to the conflicting claims of the defendants until the answers of all of them have been put in.

Where an injunction has been granted in an interpleading suit, all the defendants are interested in it, and all ought therefore to be served with a notice of a motion to dissolve it.

security for costs will be thereby prejudiced. suit by a married woman on the ground that Whether the court will stay proceedings in a her next friend is not of ability to answer costs. Quare. Jones v. Fawcett, 2 Phillips, 278. When payment out of court is asked of money 2. Payment out of court.-No settlement.belonging to a married woman, an affidavit that the fund is not settled is insufficient. It must be shown either that there is no settleBritten v. ment, or what the settlement was.

Britten, 9 Beav. 143.

ORDERS.

1. Irregularity. Right of plaintiff to dis miss bill as of course after demurrer overruled. -If a petition for an exparte order suppresses any fact which, whether really material or not, would, if communicated to the officer whose duty it is to draw up the order, prevent him from doing so without mentioning the matter to the court, the order will be discharged for irregularity.

Semble. After a general demurrer to a bill has been overruled on argument, the plaintiff is not entitled as of course to an order dismiss ing his bill with costs. Phill. 178. Cooper v. Lewis, 2

On a motion to dissolve an injunction in an interpleading suit, an order was made directing an inquiry as to the title of the defendant who moved, but with respect to the co-defendant who had not answered and did not appear upon the motion, only directing an inquiry whether he had made a claim. After the Master had ral orders.-Jurisdiction.—Än order of course 2. Amendment.--Master of the Rolls.-Genemade his report, and the court had pronounced for referring exceptions for insufficiency ob its final order, the order of reference was dis-tained within the proper limit as to time, but charged and the consequential proceedings get amended after its expiration, discharged for aside at the instance of the plaintiff, on the irregularity. ground-1st, That the order was irregular in not reciting an affidavit of service on the absent defendant. 2ndly, That it was contrary to the practice to direct any inquiry as to the title of the defendants, until the answers of all of them had come in; and 3rdly, That the inquiry actually directed was defective in not extending to the title of the absent defendant as well as to that of the other. Masterman v. Lewin, 2 Phill. 182.

IRREGULARITY.

An order of course may be amended before service, but semble, that after service it cannot be amended in the absence of the party to be affected thereby.

In discharging an order of course attached to another court, the Master of the Rolls has not authority to direct the costs to be costs in the cause. Wool v. Townley, 9 Beav. 41.

3. Enforcing payment.-The 12th General Order of August, 1841, has reference only to orders in a cause, and is inapplicable to the See Creditor's Suit; Exceptions, 1, 2; Or- four day order. Semble. In re Blake and der, 1. Young, 9 Beav. 209.

JURISDICTION.

PAUPERIS, FORMA.
See Married Woman, 1; Receiver, 2.

PETITION.

Master of the Rolls.-Vice-Chancellor.-In the vacation, the Vice-Chancellor heard a motion for the Master of the Rolls, which he refused: Held, that no application for the same purpose Order of hearing.—Where a petition to con could afterwards be made to the Master of the firm a report and a counter petition for a re Rolls, even if supported on different grounds ference back come on to be heard, the latter is from those before the Vice-Chancellor. Man to be heard first. Sturgis v. Paley, 14 Sim. v. Ricketts, 9 Beav. 4.

See Amendment, 1; Orders, 2.

599.

See Exceptions, 5.

Analytical Digest of Cases.Chancery Sittings.

PLEA.

PRODUCTION OF DOCUMENTS.

It is not the practice to order the production of documents admitted in the answer for a limited period. Attorney-General v. Bingham, 9 Beav. 159.

1. Accounts.

RECEIVER.

REPLICATION.

See Dismissal, 1, 3.

REHEARING.

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Creditor's suit. Review. Generally the court leaves the question of rehearing to the certificate of counsel, reserving, nevertheless, its power and jurisdiction, and if the order to rehear be obtained under such circumstances, or in such a manner, that any party has a right to complain, the proper proceeding is to apply to take the petition off the file.

Master's certificate. · Fourday order. Upon the Master's certificate, that a receiver is in default, the four-day order upon Where a person not a party to the suit is dehim is of course, and therefore a motion to dis-sirous of obtaining a rehearing, he must apply charge such order on the ground of error or for leave to present a petition to rehear. irregularity in the certificate, but not directly A bill by a creditor to obtain relief inconimpeaching the certificate itself, will be refused.

Scott v. Platel, 2 Phill. 229.

2. Forma pauperis.-The notice required by the 88th Order of May, 1845, does not apply to proceedings for appointing a receiver, but only to his taking possession of the estate when appointed.

The meaning of the common affidavit required on applications for leave to sue or defend in forma pauperis is, that the party has not 57. in the world besides, &c., available for the prosecution or defence of the suit, and if he can make the affidavit with truth in that sense, the omission to set forth the details of his means and the circumstances which render them unavailable, is not such an omission of material facts as will induce the court on that ground alone to discharge the order. Dresser v. Morton, 2 Phill. 286.

3. Heir.-Admission of title.-A receiver will not be appointed where the rights as between! the plaintiff and defendant are doubtful, if the defendant has obtained the legal estate without fraud, and no case of danger as to his security is alleged.

The plaintiff sued as heir, and the answer neither admitted nor denied that he held that

sistent with an order in a previous suit was filed nearly 20 years subsequent to the date of the order, and prayed that the order might be reviewed. An application to rehear the former suit was refused on the ground of laches, acquiescence, and length of time, but with liberty to renew the application at the hearing of the second suit.

A party who comes in in a creditor's suit intrusting the management of the suit to the plaintiff, must, upon an application to review the proceedings, stand in the place of the plaintiff, and in the absence of fraud, be bound by his knowledge. Gwynne v. Edwards, Gwynne v. Hicks, Ramsbottom v. Edwards, 9 Beav. 22.

See Bill.

SERVICE OF BILL.

STAYING PROCEEDINGS.

1. Pending appeal.-Motion by a party to a suit to stay proceedings to sell an estate pending an appeal, refused with costs, the applicant himself not having appealed. Rowley v. Adams,

9 Beav. 349.

2. Appeal.-Motion to stay proceedings to character: Held, that that alone was not suffi- enforce an answer until an appeal to the House cient ground for refusing a receiver. Lanca- of Lords from an order overruling a plea should be disposed of, refused. Garcias v. Ricardo, shire v. Lancashire, 9 Beav. 120. 14 Sim. 528.

4. Repairs.-The direction in an order appointing a receiver that he shall manage as well as set and let the estate authorises him to propose to the Master from time to time to make ordinary repairs to the buildings on the estate. Thornhill v. Thornhill, 14 Sim. 600.