c. 86. 15& 16 Vict. or the usual or necessary decree or order to carry on the proceedings; but an order to the effect of the usual order to revive, or of the usual supplemental decree, may be obtained as of course upon an allegation of the abatement of such suit, or of the same having become defective, and of the change or transmission of interest or liability; and an order so obtained, when served upon the party or parties, who, according to the present practice of the said court, would be defendant or defendants to the bill of revivor or supplemental bill, shall from the time of such service be binding on such party or parties, in the same manner in every respect as if such order had been regularly obtained according to the existing practice of the said court; and such party or parties shall thenceforth become a party or parties to the suit, and shall be bound to enter an appearance thereto in the office of the clerks of the records and writs, within such time and in like manner as if he or they had been duly served with process to appear to a bill of revivor or supplemental bill filed against him; provided that it shall be open to the party or parties so served, within such time after service as shall be in that behalf prescribed by any general order of the Lord Chancellor, to apply to the court by motion or petition to discharge such order on any ground which would have been open to him on a bill of revivor or supplemental bill, stating the previous proceedings in the suit, and the alleged change or transmission of interest or liability, and praying the usual relief consequent thereon: provided also, that if any party so served shall be under any disability other than coverture, such order shall be of no force or effect as against such party, until a guardian or guardians ad litem shall have been duly appointed for such party, and such time shall have elapsed thereafter as shall be prescribed by any general order of the Lord Chancellor in that behalf (i). Revivor and (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 c. 86. enter appearances; each separate solicitor taking an office 15& 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.) &c. after commence 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 to bill, &c. duced as c. 86. 15&16Vict. may be introduced by way of amendment into the 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). Supplemental bill. Where account re cial direction as to the mode of taking same. (k) See 44th Order, 7th August, 1852. Before this 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 may give se fit with respect to the mode in which the account should be taken or vouched, and such special directions 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 (?); 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 c. 86. be taken as primâ facie evidence of the truth of the 15& 16Vict. matters therein contained, 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. order real LV. If after a suit shall have been instituted in Court may the said court in relation to any real estate it shall estate to be 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 to all intents and purposes as if directed to be made by a decree or decretal order on the hearing of such cause; and 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. estate ab fore some LVI. Before any estate or interest shall be put Before sale of up for sale under a decree or order of the Court of stract of title 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 counsel. 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 solicitor shall be specified in the said conditions of sale. (m) See 15 & 16 Vict. c. 80, s. 41, post, 72. LVII. Where any real or personal property shall Where real form the subject of any proceedings in the Court of Chancery, and the court shall be satisfied that the the subject of same will be more than sufficient to answer all the court may stract to be specified in conditions of sale. or personal property is proceedings, c. 86. allow to parties part or the whole income. 15&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 proceedings to allow to the parties interested therein, or of the annual any one or more of them, the whole or part of the annual income 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 necessary or expedient. Practice as to LVIII. The practice of the Court of Chancery with respect to injunctions for the stay of proceedings at law shall, so far as the nature of the case will admit, be assimilated to the practice of such practice as to court with respect to special injunctions generally, and such injunctions may be granted upon interlocutory applications supported by affidavit, in like manner as other special injunctions are granted by the said court (n). special injunctions. Answer of motion for &c. to be re (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. 14871550, 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, or discharge an order appointing a receiver, the garded as an answer of the defendant shall, for the purpose 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. affidavit. In case directions as to practice, &c. LX. In case any of the directions herein contained 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 court may |
