ABATEMENT.

Upon the death of a plaintiff, or marriage of a female plaintiff, all proceedings become abated; upon the death of a defendant likewise all proceedings will abate as to that defendant; but upon the marriage of a female defendant the proceedings do not abate, though her husband ought to be named in the subsequent proceedings, and he must join in the answer of the wife for conformity; for no married woman can put in an answer separate from her husband, without special leave of the Court and an order for that purpose.

In cases where infants are entitled under a will, or settlement, to a distributive share of the funds in the cause on the death of their parent or parents, and a child shall happen to be born after the suit has been instituted, a supplemental bill should be filed, making such after-born child a party to the suit.

AMENDMENT.

If the plaintiff conceives from any matter offered by defendant's plea or answer, that his bill is not properly adapted to his case, he is allowed to amend his bill.

If any oversight in a bill is discovered which requires an amendment, before the defendants' answer has come in, the plaintiff may upon motion or petition of course, either amend or dismiss the bill; but if defendants have appeared and taken a copy of the bill, the bill cannot be dismissed without payment of costs to be taxed.-Harr.

By Order 13, November 23, 1831, after an answer has been filed, "the plaintiff shall be at liberty, before filing a replication, to obtain upon motion or petition without notice one Order for leave to amend

the bill; but no further leave to amend shall be granted after an answer, and before replication, unless the Court shall be satisfied by affidavit that the draft of the intended amendment has been settled, approved, and signed by counsel, and that such amendments are not intended to be made for the purpose of delay or vexation, but because the same are considered to be material to the case of the plaintiff, such affidavit to be made by the plaintiff, or one of the plaintiffs, where there is more than one, and his, her, or their solicitor; or by such solicitor alone, in case the plaintiff or plaintiffs, from being abroad or otherwise, shall be unable to join therein; but no Order to amend shall be made after answer and before replication, either without notice or upon affidavit in manner hereinbefore mentioned; unless such Order be obtained within six weeks after the answer, if there be only one defendant, or after the last of the answers if there be two or more defendants, is to be deemed sufficient. But the Order shall not extend to amendments which are made only for the purpose of rectifying some clerical error or errors in names, dates, or sums, in which cases the Order to amend may be obtained upon motion or petition, without notice."

A plaintiff may move to amend his bill before the six weeks mentioned in the Order have expired; but that does not prevent the defendant from moving to dismiss the bill. Swinfen v. Swinfen, 3 Simp. 384.

Where upon exceptions being allowed, the plaintiff moves to amend, and that the defendant may answer the amendments and exceptions at the same time, neither notice of the motion, nor an affidavit in support of it, is necessary.-Mendizabel v. The King of Spain, 3 Simk. 152.

By Order 14, December 21, 1833, "where the plaintiff obtains an Order to amend, without requiring any further answer, and shall amend the bill any otherwise than by an alteration of names, dates, or sums, or the correction of clerical errors only, the

defendant shall, as of course, have eight days' time to consider whether it is necessary for him or her to answer the same, at the end of which time the plaintiff shall be at liberty to file a replication, or set down the cause for hearing on bill and answer; unless the defendant shall have previously served an order for time to answer, or taken out and served a warrant for time to answer such amended bill; in which last case the Master may allow the defendant such time (if any) for that purpose as he shall think fit."

And by Order 20, "all special applications for leave to amend shall be heard and determined by the Master in rotation."

If the application be after defendant's appearance, and after an office copy of the bill has been taken by him, but before he has put in his answer, then a fresh subpoena must be served, but without payment of costs, on the terms of the plaintiff amending the defendant's office copy, and also not requiring an answer to the amendments. And in all cases where subpoena is to be served, it is by the 20th of the Orders of April, 1828, directed "that service on the Clerk in Court of any subpoena to answer an amended bill shall be deemed good service."

When the Order to amend has been obtained, and the draft amendments introduced into the original draft bill by counsel, the Order and draft is then to be taken to the plaintiff's Clerk in Court, who makes the record agreeable thereto; if the amendments are not so numerous as to require a new ingrossment, which they are not if not exceeding two Chancery folios of ninety words each in any one place; in such case, therefore, the bill need not be reingrossed, unless from frequency of amendment or otherwise, the record is too much defaced to be allowed to remain on the file, and if so, it must be reingrossed and annexed to the original bill, thus forming one record, and filed afresh.

Should the bill so amended require a further answer, and the defendant fails to put it in in due time,

he will be liable to the same process for contempt as is already stated.

Where a defendant admits by his answer that a sum of money is in his hands, which belongs to the plaintiff, or forms part of a fund in which he is interested, the Court will, on his application, order such sum to be paid into Court, upon the passage in the answer being read by which the admission is made. (See title Paying in Money.)

When the defendant's answer has been filed, an official copy thereof will be furnished by the Clerk in Court without delay; and it is usual to furnish counsel with a brief of the bill and answer to advise as to its sufficiency, and on further proceedings; and should he be of opinion that the answer is not full and complete, he will prepare the necessary exceptions. (See title Exceptions.)

Where a plaintiff finds it is useless or disadvantageous to continue the suit, he may move to dismiss his bill, which can only be done with costs, unless by consent.

DISMISSING BILL FOR WANT OF
PROSECUTION.

If the plaintiff does not proceed in his suit within the time limited by the Orders and Rules of the Court, the defendant may move to dismiss his bill with costs for want of prosecution; and each defendant, if there be more than one, may make this application independently of the others. The time in which the plaintiff must proceed is regulated by Order 16, November 23, 1831. When notice to dismiss is served, if the plaintiff does not instruct his counsel to undertake to speed or to hear the cause upon bill and answer against the defendant, or obtain special time, the Order will be made dismissing the bill with costs, upon the production of an affidavit of the service of the notice of the motion, and the Six

DISMISSING BILL FOR WANT OF PROSECUTION.

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Clerks' certificate of the answer being filed and no further proceedings having been taken. But if the plaintiff shall appear upon such motion, and give an undertaking to file a replication, and serve a subpoena to rejoin, and in case he requires a commission to examine witnesses, shall obtain and serve an Order for such commission within three weeks from the date of such undertaking; or without a replication shall appear upon such motion and give an undertaking to hear the cause as against the defendant, making the motion upon bill and answer; or if it shall appear that the plaintiff or plaintiffs is or are unable to proceed in the cause by reason of any other defendant or defendants not having sufficiently answered the bill, and that due diligence has been used to obtain a sufficient answer or answers from such other defendant or defendants, (in which case the Court shall allow to the plaintiff or plaintiffs such further time for proceeding in the cause as shall appear to the Court to be reasonable,) then all the rules and regulations with respect to the commission and the return thereof, and the setting down the cause for hearing, and the rights of the defendant with respect to the commission, in case of any default on the part of the plaintiff, which are particularly expressed in the next Order, shall apply to all cases under this Order.

And by Order 17, "where the plaintiff files a replication without having been served with a notice of motion to dismiss the bill for want of prosecution, he shall serve the subpoena to rejoin, and in case he requires a commission to examine witnesses, shall obtain and serve an Order for such commission within three weeks from the filing of the replication, and such commission shall, at the latest, be returnable on the first return of the second term then next following, and the plaintiff shall give his rules to produce witnesses and pass publication at the latest in the same term, and shall set down his cause for hearing, and duly serve the subpoena to hear judgment, returnable in the succeeding term; and if the