only object is to place the representative before the Court in precisely the same situation as the party deceased, the only new fact to be stated in the bill for that purpose is the death of the party, and the transmission of the same interest the party had to his representative; and as these are not facts which can at all affect the merits of the cause, no answer is necessary to the bill; which, in that case, is simply a bill of revivor. Again, where the suit has not abated, but new matter has arisen which must be brought before the Court: for instance, where an infant has been born who is entitled to the same interest in the subject-matter of the suit as some of those who are already parties to it, here is not only a new interest sprung up, but the interests already existing are affected; and though in this case the suit does not abate, these new circumstances must be brought before the Court, before it is in a situation to decide on the questions in the cause. And this is done by a supplemental bill, which always calls for an answer, as the new facts must either be admitted or proved.

These instances may serve to give a general idea of the nature of a bill of revivor and a supplemental bill; but it frequently happens, that on the abatement of a suit, it is not only necessary to revive it, but, where the entire interest does not go to a mere real or personal representative, to bring new matter before the Court, to explain the manner or means by which the interest of the party who has been the cause of the abatement has vested in others. Such a bill has the effect both of a bill of revivor and of a supplemental bill, and is called a bill of revivor and supplement, and the proceedings upon it are similar to those on these kind of bills when separate. An order to revive must be obtained, unless cause be shown by plea or demurrer within the usual time and in the usual manner; and an answer must be put in to the supplemental matter, within the same time and under the rules and regulations which govern ordinary cases.

CHAPTER V.

MOTIONS, PETITIONS, AND AFFIDAVITS.

Objects of Interlocutory Applications to the Court-Common Motions-Special Motions-Notice of Motion-How the necessary Facts come before the Court-Motion for Production and Inspection of Deeds, Books, &c.-How to proceedThe Grounds of this Motion-How Production and Inspection given-Motion for Payment or Transfer of Money or Stock -In what Cases granted-Motions made upon AffidavitsPetitions of course-Special Petitions-Proceedings on them -Before whom heard-Affidavits-Entitling them-Commencement of them-Erasures, &c.-Jurat-ExhibitsScandal-Impertinence-Proceedings to have the same expunged-Penalty for matter expunged-Costs of such Proceedings-Caution as to preparing Affidavits.

Ir is in general at the hearing of a cause, either in the first instance or on further directions, that the main questions between the parties are decided but during the progress of a suit, both before and after the hearing, the interference of the Court is frequently required in order to the regular and effectual prosecution or defence of the suit, and in order to the immediate attainment of many objects connected with it, which the parties have a right to, and which, in general, when before decree, being only, as it were, steps towards the main object expected to be attained by the decree, and no part of that object itself, are not properly to be attained at the hearing, and, indeed, in most cases cannot abide the hearing, but by so doing would be altogether lost; and where such occasions arise after a decree, the object is in general one, the necessity for which was not foreseen when the decree was made, and consequently could not be

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provided for by it. Where the interference of the Court is required on such occasions as have been just alluded to, an order of Court, embodying the particular object, is applied for, and the application is made either by motion or petition.

Motions are applications, ore tenus, by counsel to the Court for some specific order, and they may be divided into common and special. Common motions are such as are granted as a matter of course; the order of Court, which is their object, being in general some ordinary step in the suit which the opponent cannot oppose, and therefore no notice of such motions is given to him: of these it is unnecessary to say more here. Special motions are such as are not of course, but which the opponent has a right to oppose, and, consequently, of which he must be served with notice (a); and the rule on this subject is, that two clear days' notice must be given. The object of such special motions are of course as various as the occasions which give rise to them; but there are some of frequent occurrence which it will be proper to notice shortly; and it will be convenient to observe, in the first place, that on every motion the Court necessarily acts and decides on facts, and that such facts may be before the Court in three ways: 1st, merely on the pleadings themselves; 2ndly, by affidavits; 3rdly, from the recollection the Court itself has of the facts which were before it on a previous discussion, as on a motion to vary the minutes of a decree, or the like.

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The most usual motions of any importance which are made merely on the pleadings themselves, are made upon the defendant putting in his answer, and are for the production of deeds, books, papers, &c., or to compel the payment by the defendant of money into Court, or the transfer of stock into the name of the Accountant-General. When the defendant by his

(a), See form of Affidavit of Service of such a Notice, in Appendix, sec. 17. ma bin La

answer admits that he has in his possession, custody, or power, any deeds, books, papers, writings, &c., which he sets forth either in his answer or a schedule to it, or refers to in his answer for greater certainty on any particular subject, or, if deeds, they be connected with or sustain the plaintiff's title, the plaintiff may move (his agent having first given the necessary notice of motion) that the defendant may produce and leave the same with the clerks of records and writs; also, that the plaintiff may have liberty to inspect and take copies of them, and that the clerks of records and writs may be ordered to attend with them before the examiner or commissioners, and at the hearing of the cause. On, this motion counsel are instructed by both parties being furnished with copies of the bill and answer, and the motion comes on, and is argued before the Court on the statements contained in the bill and answer; and the Court decides either by refusing the order or granting it, according as it appears that the plaintiff has or has not the right to the production and inspection he asks for: or, if it see proper grounds, will grant the order in a form different from that moved for. Where a defendant, however, is advised that the motion cannot be resisted, he will not, in general, incur the expense of appearing upon it, but suffer the plaintiff to obtain the order he seeks without opposition.

The principle on which a plaintiff, when entitled to the production and inspection, is so entitled, is, that the deeds, papers, &c., are, by the reference made to them in the answer, to be considered as incorporated in and made part of the answer; so that it is only a more complete discovery of what is asked for by the bill, than the answer within its four corners furnishes; so that it will be seen that it is not merely because a defendant by his answer admits a particular document to be in his possession, that the plaintiff is entitled to the production of it; for this constantly happens where none of the other incidents above

mentioned as necessary to accompany the admission, occur; and in such cases it is by no means a matter of course that the defendant will be ordered to produce the documents.

When an order for the production is made, the defendant's solicitor or agent leaves the documents, together with a schedule of them, with the clerks of records and writs, who are responsible for their safe custody. The solicitor for the party depositing has access to them at all convenient times, without paying any fees; but the solicitor for the other party must pay the usual fees on inspecting the documents. When the cause is at an end, or perhaps sooner, an order is obtained that the clerks of records and writs deliver back the documents; but they will not do so, even by consent, without an order; when the occasion of delivering back the documents is the close of a suit, this order is usually contained in the final decree or order in the cause.

When a defendant by his answer admits that there is a certain amount of money due from him, or that a certain amount of money subject to be administered in the cause is in his hands, or that stock, subject in like manner, is standing in his name, the plaintiff may move the Court (a proper notice of motion being given) that the defendant may pay the money into Court, or transfer the stock into the name of the Accountant-General in trust in the cause, and that the money may be invested in the funds. On such a motion, the Court will usually make the order required; but as the ground of this order is the defendant's own admission that he has so much, or that so much is due; and as it is only to be deposited in Court as being there in greater security than in the 'defendant's hands, the Court will not order the defendant to pay in more money than upon his answer is clearly admitted to be due, and clearly appears applicable to the purposes of or proper to be administered in the suit; and if the fund be a clear fund, and not subject to the payment of debts, &c.,