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15& 16Vict. or the usual or necessary decree or order to carry
on the proceedings; but an order to the effect of
Lord Chancellor in that behalf(i).
(i) See 43rd Order, 7th August, 1852. On the death supplement of a plaintiff his legal personal representative or heir, as
the case may be, files a fresh bill against all the parties to the original suit, who are all served and have all to
enter appearances ; each separate solicitor taking an office 158 16Vict. copy of the bill of revivor, for which he pays office fees. Similar proceedings take place on the marriage of a female plaintiff. Sometimes one of several plaintiffs dies, or is married, and the legal personal representative or husband is disinclined to go on as plaintiff. In this case the other plaintiffs file their bill of revivor against all the old defendants and the new parties. If a defendant dies a similar bill is filed against his personal representative or heir. In cases of simple revivor, after the lapse of a few days, and no objection being taken, an order of course is obtained for reviving the suit, as it is technically called ; the suit being, until revivor, considered abated or suspended. In the cases of revivor it nevertheless happens frequently, that an answer must be put in, and the cause formally heard, and a decree taken. The ordinary instance of this is, when the person dead was an accounting party, and it is necessary to obtain a decree charging his assets with the debt to be found due from him. The cases, moreover, in which a simple order of revivor will suffice are comparatively rare. If the transmission of interest be anything other than simple transmission by marriage, heirship, executorship, or grant of administration, the bill must be what is called a bill of supplement. If there be a devise, or a marriage settlement; or a bankruptcy or insolvency; or a change of office, as in the case of a bishop or incumbent or the like, or if a new person has come into existence interested in the subject of the suit, a bill is in that case filed, to which answers are required, and all the formalities of a hostile Chancery suit gone through, in order to obtain what is called the usual supplemental decree ; that is, a decree directing that the proceedings in the original suit may be carried on between the parties in the supplemental suit in the same way as between the original parties. We are of opinion that, without any inconvenience, bills of revivor, and, in such simple cases as we have described, supplemental bills, may be dispensed with ; and that an order of course should be obtained, based on a suggestion of the transmission of interest or liability, or the acquisition of interest or other change, and served on the parties, who, according to the existing practice of the court, would be made defendants to a bill of revivor or supplement, leaving it to any person to apply to the court if, from any irregularity, there should be occasion to discharge or otherwise deal with such Order. (Rep. of Ch. Comm. 1852, p. 20. See Mitf. Pl. 85–90, 5th ed.)
LIII. It shall not be necessary to exhibit any New facts, supplemental bill in the said court for the purpose only of stating or putting in issue facts or circum- ment of suit, stances which may have occurred after the institu. to be introtion of any suit; but such facts or circumstances amendments D 2
to bill, &c.
&c. after commence
158 16Vict. may
be introduced by way of amendment into the C. 86.
original bill of complaint in the suit if the cause is otherwise in such a state as to allow of an amendment being made in the bill, and if not, the plaintiff shall be at liberty to state such facts or circumstances on the record, in such manner and subject to such rules and regulations with respect to the proof thereof, and the affording the defendant leave and opportunity of answering and meeting the same as shall in that behalf be prescribed by any general
order of the Lord Chancellor (k). Supplement- (k) See 44th Order, 7th August, 1852. Before this al bill.
act it was a rule of the court, that anything which has occurred since the original institution of the suit cannot be introduced into the bill by way of amendment; and that there must be a new bill, with a new subpæna, a new appearance, and a new answer, in order to bring such supplemental matter before the court. The reasons for this are merely technical. The plaintiff and defendant being both before the court litigating the matter in question, there seems no reason why the plaintiff should not be at liberty to show anything which has occurred since the institution of the suit calculated to throw light on the matter in dispute, or which may affect the decree to be pronounced, without the formality, delay and expense of a new and distinct suit. We recommend, that if the suit be in such a position as to allow the original bill to be amended, such supplemental matter may be introduced by way of amendment; if otherwise, the plaintiff should be at liberty to state it on the record, and the rules of the court should give the defendant ample time and opportunity to shape his case, having regard to such new matter. (Rep. Ch. Com. 1852, p. 21. See Mitf. Pl. 90.)
LIV. It shall be lawful for the court, in any quired to be case where any account is required to be taken, to taken, court give such special directions, if any, as it may think ciay developing fit with respect to the mode in which the account
should be taken or vouched, and such special ditaking same. rections may be given, either by the decree or order
directing such account, or by any subsequent order or orders, upon its appearing to the court that the circumstances of the case are such as to require such special direction (1); and particularly it shall be lawful for the court, in cases where it shall think fit so to do, to direct that in taking the account the books of account in which the accounts required to be taken have been kept, or any of them, shall
Where account re
as to the mode of
order real estate to be
be taken as primâ facie evidence of the truth of the 158 16Vict. matters therein contaired, with liberty to the parties interested to take such objections thereto as they may be advised.
(1) As to the method in which accounts were taken before the master, see Dan. Ch. Pr. 1173—1190, 2nd ed. ; Rep. Ch. Comm., 1852, pp. 34, 35.
LV. If after a suit shall have been instituted in Court may the said court in relation to any real estate it shall appear to the court that it will be necessary or ex- sold, if repedient that the said real estate or any part thereof quired. should be sold for the purposes of such suit, it shall be lawful for the said court to direct the same to be sold at any time after the institution thereof, and such sale shall be as valid
all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause ; any party to the suit in possession of such estate, or in receipt of the rents and profits thereof, shall be compelled to deliver up such possession or receipt to the purchaser or such other person as the court shall direct.
LVI. Before any estate or interest shall be put Before sale of up for sale under a decree or order of the Court of Chancery, an abstract of the title thereto shall, to be laid bewith the approbation of the court, be laid before conveyancing some conveyancing counsel (m) to be approved by the court, for the opinion of such counsel thereon, to the intent that the said court may be the better enabled to give such directions as may be necessary respecting the conditions of sale of such estate or interest, and other matters connected with the sale thereof; and when an estate or interest shall be so Time for deput up for sale, a time for the delivery of the ab- livery of abstract of title thereto to the purchaser or his solici- specified in tor shall be specified in the said conditions of sale.
(m) See 15 & 16 Vict. c. 80, s. 41, post, 72. LVII. Where
real or personal property shall Where real form the subject of any proceedings in the Court of property is Chancery, and the court shall be satisfied that the the subject of same will be more than sufficient to answer all the court may
estate abstract of title
conditions of sale.
158 16 Vict. claims thereon which ought to be provided for in
such suit, it shall be lawful for the said court at
any time after the commencement of such proceedparties parte ings to allow to the parties interested therein, or of the annual any one or more of them, the whole or part of the
annual incoine of such real property, or a part of such personal property, or a part or the whole of the income thereof, up to such time as the said court shall direct, and for that purpose to make such orders as may appear to the said court ne
cessary or expedient. Practice as to LVÍII. The practice of the Court of Chancery in start pro with respect to injunctions for the stay of proceedceedings at ings at law shall, so far as the nature of the case similated to will admit, be assimilated to the practice of such practice as to court with respect to special injunctions generally, special injunctions. and such injunctions may be granted upon inter
locutory applications supported by affidavit, in like manner as other special injunctions are granted by the said court (n).
(n) Common injunctions are those which are granted upon the defendant's default, either in appearing or answering, and are only applicable to restrain proceedings in the courts of common law. (See Dan. Ch. Pr. 1470— 1487, 2nd ed.) Special injunctions are those which are granted, not as a matter of course, but upon the special circumstances of the case, whether such circumstances are disclosed by the answer of the defendant or upon affidavits. (Dan. Ch. Pr. 1487– 1550, 2nd ed.) No injunction for stay of proceedings at law is to be granted as of course for default of appearance or answer to the bill. (45th Order, 7th August, 1852.)
LIX. Upon application by motion or petition to defendant on the court in any suit depending therein for an ininjunction junction or a receiver, or to dissolve an injunction, or receiver, &c. to be re
or discharge an order appointing a receiver, the garded as an answer of the defendant shall, for the
of evidence on such motion or petition, be regarded merely as an affidavit of the defendant, and affidavits may be received and read in opposition
thereto. In case direc- LX. In case any of the directions herein con
tained with respect to the practice and course of not followed, proceeding in the said Court of Chancery shall by
mistake of parties fail to be followed in any suit or
tions as to