may at once be set down for the purpose of arguing that question under the following Order :— That, when the defendant shall by his answer suggest that the bill is defective for want of parties, the Plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only, and the purpose for which the same is so set down shall be notified by an entry to be made in the Registrar's Book in the form or to the effect following, that is to say, "Set down upon the defendant's objections for want of parties," and that, where the Plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties, but the Court, if it thinks fit, shall be at liberty to dismiss the bill. This Order is copied from the English Order 39 of 1841, under which the following cases have been decided. After the lapse of the fourteen days it is said that the Court has no jurisdiction to allow the cause to be set down on the question of parties (Calvert vs. Gandy, 1 Phillips, 518; Medhurst vs. Allison, 4 Hare, 497). It is not quite clear that the first of these cases would be followed here, because the Judges felt themselves bound by the words of the Act under which the rules were framed; and there can be no doubt, that, as a general principle, the Court may relax one of its own general rules under special circumstances. The second of the above cases also refers to the terms of an Act of Parliament. When the plaintiff states the objection in his answer, and claims the same benefit as if he had demurred, the case comes within the rule. (Grubb vs. Perry, 7 Jurist, 637; Young vs. Macdonell, 14 Simons, 34). The defendant cannot on the argument under this rule take an objection as to parties, which he has not taken by the answer. (Lovell vs. Andrew, 11 Jurist, 835). The answer is taken to be true for the purpose of the objection. (Richardson vs. Larpent, 2 Younge and Collyer, 507). Plaintiff may, within fourteen days set down the cause on question of parties only. As to who has the right to begin on the argument of the objection, the cases differ. See Bradstock vs. Whatley, 6 Beaven, 451; Attorney General vs. Gardner, 2 Collyer, 564; Lovelt vs. Andrew, 11 Jurist, 835. January, 1842. When the objection is not taken before the hearing, the Court has a discretionary power to make a decree without prejudice to the absent parties. 117. Decree saving That, if a defendant shall at the hearing of a cause obrights of absent ject that a suit is defective for want of parties not having parties. by plea or answer taken the objection and therein specified by name or description the parties to whom the objection applies, the Court (if it shall think fit) shall be at liberty to make a decree saving the rights of absent parties. Such decrees rare. It may be here observed that the Court seldom exercises this power, and more frequently adjourns cases to have parties added, although the objection has been taken neither by answer nor on the argument. It is always safe therefore to amend the record as soon as any defect for want of parties is apprehended. The Order is copied from the English Order 40 of 1841. The Court will be careful not to make the decree, if by it the absent party may be in any way prejudiced. (Kimber vs. Emsworth, 1 Hare, 293; May vs. Selby, 1 Younge and Collyer, 235; Faulkner vs. Daniel, 3 Hare, 199). CHAPTER XIII. Speeding the Cause. Before stating the practice after the hearing of the cause, it is as well to give the rules, under which, if the plaintiff is dilatory, the defendant can force the cause to a hearing, or get the Bill dismissed. The following Orders of 1850 settle the practice on this point. Any defendant may upon notice move the Court that the bill may be dismissed with costs, for want of prosecution, and the Court may order accordingly. 1. If the plaintiff, having obtained no order to enlarge the time, does not obtain and serve an order for leave to amend the bill, or does not file the replication, or set down the cause to be heard on bill and answer, within four weeks after the answer, or the last of the answers has been filed, or after the filing of a traversing note: or 2. If the plaintiff, having obtained no order to enlarge the time, does not amend the bill within fourteen days or amend four order to fourteen days amend. after the date of the order for leave to amend: or3. If the plaintiff, having obtained no order to enlarge Or if the Plainthe time, does not set down the cause to be heard, tiff does not set down the cause and obtain and serve a subpoena to hear judgment in four weeks. within four weeks after publication has passed. Where the plaintiff has, after answer, amended his bill, any defendant may upon notice move to dismiss the bill with costs for want of prosecution, if the plaintiff, having ob- When there has tained no order to enlarge the time, does not file the replication, or set down the cause to be heard on bill and answer within the times following, viz. : 1850. LXV. been amendment. Fourteen days after the service of subpo na to answer amended Bill. Or fourteen days after the Master's refusal to allow further time to answer. Or fourteen days after answer to amended Bill, except where reamended. Optional with Defendant, to move to dismiss, or set down the cause to be heard. 1850. LXVII. 1. Within fourteen days after service of a subpoena to 3. Within fourteen days after the filing of the answer If the Bill is re-amended, the practice after the reamendment will be the same as above laid down to be followed after amendment. The 66th Order of 1850, already given, allows the defendant the option of moving to dismiss the Bill, or setting it down to be heard. A cause may, under many circumstances, be of such a nature that it is more to the defendant's benefit to have it disposed of on argument, than put out of Court. Suits for account for instance, where the defendant expects a balance in his favour; or a bill by a vendee for specific performance, where the defendant may be desirous of having the purchase completed, which has been hitherto delayed for want of the production of the money by the Plaintiff; and numerous other cases which might be mentioned. It is provided, however, that the dismissal of the bill for want of prosecution is a bar to a subsequent suit for the same matter, unless the Court otherwise order. The following is the Order : If the plaintiff, after the cause is set down to be heard, Bill dismissed, causes the bill to be dismissed on his own application, or, bar to future if the cause is called on to be heard in Court, and the suit for same plaintiff makes default, and by reason thereof the bill is matter. dismissed, then and in such case such dismissal is, unless the Court otherwise orders, to be equivalent to a dismissal on the merits, and may be set up in bar to another suit for the same matter. It will be seen that the above Order does not apply Rule as to costs. when the plaintiff dismisses his own Bill, but only to a dis- If cause not set down, Plaintiff missal after the cause is set down. The old practice still may always obtains, when the plaintiff dismisses his own Bill before the dismiss without prejudice to ficause is set down. He may dismiss, before the defend- ling a new bill. ant has appeared, without costs. (Thompson vs. Thomp son, 7 Beaven 350). If after appearance, it must be on payment of costs, and, if a new Bill is filed for the same cause before such costs are paid, the Court will stay proceedings in the new suit, until they are paid. But on payment of such costs the plaintiff can (having dismissed his Bill before the cause is set down) file a new one for the same cause of suit without obtaining the leave of the Court. It is submitted, that it would have been better Question of the to carry the provision of the above 67th Order further, and to have prevented the plaintiff filing a new Bill, for the same cause, without leave of the Court, if he dismissed after appearance. Such a provision could work no hardship, because on a proper case made the Court could always order the dismissal without prejudice to a new suit. The benefit would be, that the defendant would be enabled to know, whether or not he was subject to be again made a defendant for the same cause of action. The above Orders 64, 65, 66 and 67, are precisely like the English Orders 114, 115, 116 and 117, of 1845, with the following exceptions. In the first article of the English Order 114, which answers to the above Order 64, the words are "after the answer, or the last of the answers is found or deemed to be sufficient." This is varied in the above Order, because now, under the Order 30, of 1850, any answer is sufficient, exceptions for insufficient being by that Order abolished. Again in the Order 114 there is an article as follows, "If the Plaintiff, having undertaken to reply to a plea to the whole Bill, does not file his replication within four weeks after the date of his undertaking", &c. This is omitted in the Orders of 1850, because, by Order 25 of 1850 pleas are abolished. In the commencement of the English Order 115, which answers to the above propriety of this indulgence to the Plaintiff. Orders 64, 65, compared with 66, and 67, English Orders 114, 115, 116, and 117, |