Motion, how made. English Order Compared with The motion must be supported by such evidence as shall satisfy the Court 1. Of the Applicant's Title to Relief. 2. Of the propriety of permitting the amendment at the particular stage of the Cause under all the circum stances. 3. That the Order will be a furtherance of Justice. The Court, upon pronouncing any Order for amendment under this rule, shall give such directions as to the future conduct of the Cause, in relation to answering such amendments, the evidence taken, or to be taken, and in all other respects, as the circumstances of the case may require. The first two clauses of the above Order XII are in the words of the English Orders LXIV, LXV, of 1845. The English Order LXVI of 1845 is in the words of the third Clause of the above 12th Order, except that, instead of the words "before filing a replication", it says, " before filing (or undertaking to file) a replication." The words "last of several answers" in the 66th English Order of 1845, which answers to the 3rd Clause of the above Order 12, have been held to mean, the last answer to be put in before replication, and not the last answer filed before the application to amend. That is, the Plaintiff may wait for all the answers, and then amend within four weeks, unless put upon terms by a motion to dismiss. (See post under head of "Speeding the Cause"). Arnold vs. Arnold, 1 Phillips, 805; Dalton vs. Hayter, 7 Beaven, 586; Forman vs. Gray, 9 Beaven, 200). The statement that the Plaintiff may wait for all the answers before amending, may be subject to this exception, that, if a Defendant is stated to be out of the jurisdiction, and all the others have answered, and more than a month has elapsed, an Order of course may be held irregular. (King of Spain vs. Hullett, 3 Sim. 338), It is advisable generally not to take the Order to amend until all the Defendants, who are likely to answer, have answered, for a subsequent answer may suggest a new amendment, and there cannot be a second Order of course to amend. The above 3rd clause of Order 12 says "one Order of course, &c." And see Davis vs. Prout, 5 Beaven, 375; and, even when the first Order has not been acted upon, a second taken as of course will be irregular, (Brooks vs. Purton, 4 Beaven, 494). ment. When a Bill is amended, if any of the amendments ex- Re-engrosstend to more than two folios, the Bill must be re-engrossed and filed, and the Plaintiff pays 20s. to the Defendant, if a further answer is required, but not otherwise. By an Order of 1843 it is directed: That where a Bill is amended, and a re-engrossment thereof filed, and a copy of such re-engrossment served on the opposite party under the foregoing Orders, it shall not hereafter be necessary for the Plaintiff to pay such opposite party the usual sum of twenty shillings, unless a further answer be required. It will be seen, that by the foregoing Orders many descriptions of Bills are abolished, the purposes being attained by simple amendments. All other kinds of Bills, except Original Bills, are abolished by the following Orders : When a suit becomes abated after decree, any party entitled to revive the same may do so by petition in the cause, which shall state the title of the petitioner to the relief sought. This petition must be verified by affidavit, and be served upon the solicitors of all parties interested, and, in case any such party has no solicitor, upon such party. XV. Suits how revised. Petition. XVI. ed. Bills of Review are hereby abolished. When the re- BILLS of REversal of a decree is sought upon the ground of error ap- VIEW abolishparent upon the face of the decree, that object may be attained by rehearing the cause, whether the decree have REHEARSING or have not been enrolled. One rehearing may be had on Petition. upon petition, signed by counsel, as in the case of an ordinary rehearing, as well before as after enrolment, but no petition for a second rehearing shall be filed without leave of the Court first had, upon special motion for that purpose. Provided that this order shall not be construed to authorise the rehearing a cause, in the ordinary acceptation of the term, after enrolment. XVII. Other Bills abolished. Bills in the nature of Bills of Review; Bills to impeach decrees on the ground of fraud; Bills to suspend the operation of decrees; Bills to carry decrees into execution; are hereby abolished. Any party heretofore enti- REVERSAL of tled to file a bill of review, praying the variation or rever- Petition. DECREE upon sal of a decree upon the ground of matter occurring subsequently to the decree, or subsequently discovered, or any description of bill by this Order abolished, may in future proceed by petition in the cause, which shall specially pray the relief sought, and state the ground upon which it is claimed. This petition must be verified by affidavit and served upon the solicitors of all parties interested; and in case any such party has no solicitor, then upon 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 this petition the Court may, in its discretion, 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 make such order as to the production of further proof, and the manner thereof, and the future hearing of the petition, as to the Court may seem meet. The 1st Order of 1850 rescinds many of the former amendment. Orders specifically, and such rescinded Orders are of course omitted. Rescinded Orders as to Application to amend must Court on motion, not The 2nd Order of 1850 is as follows: All former Orders and parts of Orders not specified in Order 1, so far as the same are now in force and consistent with these Orders, are to remain in full force and effect. The Order 181 of 1846 is not specifically rescinded, now be to the and it provides, among other things, that applications "for leave to withdraw replication and amend Bills are withstanding to be to the Master, with an appeal, by motion, to the Order 181 of Court. But it will be seen, that this part of the Order of 1846 is not "consistent" with the foregoing Orders of 1850, and is therefore not in force, and all applications for leave to amend must now be to the Court, by motion, on notice. 1846. These Orders, abolishing Supplemental and other Bills, are not after any English Orders, and therefore there is no English practice analogous to that established by them. Such Bills are still in use in England. CHAPTER III. The Writ. The first process against a Defendant is the subpæna, SUBPŒNA. obtained on præcipe on filing the Bill, but it cannot be obtained until the Bill is filed. The 18th Order of 1850 provides that Subpoenas to appear and answer, and to answer respectively, shall be in the form specified in Schedule B, to these Orders appended, with such memoranda subjoined as therein mentioned. The form of a subpoena to appear and answer is as follows: IN CHANCERY. CANADA. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To (here insert the names of all the defendants in full, as in the Bill). GREETING. We command you, that you cause an appearance to be entered for you in our Court of Chancery of Upper Canada, within (fourteen days, if the Defendant is within the jurisdiction-in other cases such time as the Court may order) days after the service of this Writ upon you, exclusive of the day of such service, and that you answer a Bill of Complaint exhibited against you in 1850. XVIII. Subpoena to original Bill. our said Court by (here insert names of Plaintiff in day of reign. Memorandum at foot of Subpoena. Defendant has (Name of Solicitor.) Plaintiff's Solicitor. The following Memorandum to be placed at the foot. Appearances are to be entered at the Registrar's office at Osgoode Hall in the City of Toronto; and, if you do not cause your appearance to be entered within the time limited by the above writ, an appearance will be entered for you at your expense; and, if you do not answer or demur to the bill within you will be subject to such order or decree being made against you as the Court shall think just upon the plaintiff's own showing---(where the defendant is to be served out of the jurisdiction, add the following words)---without further notice. The form of this Memorandum would seem to give rise only fourteen to reasonable doubt, whether or not the Defendant has days to demur alone, notwith- the same time to demur alone as to answer, or answer and standing the demur. The 27th New Order, (1850), commences words of the memorandum. with these words." A Defendant is to answer or demur, not demurring alone, to any original bill, or bill amended before answer, within one month after appearance," &c. And the 26th New Order gives only fourteen days to demur alone. Whatever may be the apparent meaning of the above form of notice then, a defendant on receiving it is to understand, that, if he elects to demur alone to the Plaintiff's Bill, he must do so within fourteen days after his appearance. It has been suggested, that it would be as well to insert in the memorandum the words "not demurring alone," but this, it has been intimated by the Court, would be a departure from the Order, which prescribes the form, and therefore incorrect. Mode of service Service of the Subpoena is by delivering a copy to the of Subpoena. Defendant personally (with some exceptions) and producing and showing the original writ. The affidavit of service must state when and how the service was effected. |