of the property which constitutes the security of the vendor. (t) And affidavits have been allowed to be read, under those circumstances, to show that acts of this nature have been committed, even though the bill should contain no allegation to that effect.(u) Such affidavits may be read upon motion made after answer is put in. And slighter acts of ownership are sufficient to call for this interference of the court, where the acts were committed after the discovery by the purchaser of the objections to the vendor's title, than where the objections have arisen subsequently, and there is no evidence of acts committed since the discovery made.(v) But if the possession of the purchaser is not under the contract of purchase, but prior to, and independent of it, the purchaser will not be compelled to pay his purchase money into court, particularly if there has been laches in the vendor in making out his title.(w) 4. In other cases, and generally.] The general rule, as to the payment of money into court, is that the complainant must be solely entitled, or have such an interest jointly with others as to entitle him, on behalf of himself and of those others, to have the fund secured.(x) If it appears upon a master's report that the defendant is indebted, the balance thus ascertained will be directed to be paid into court, before the hearing (y) But if the report is excepted to, the court will not, pending the exceptions, order the money to be paid in. Yet where it is evident that the exception is taken merely for delay, the complainant may apply for the immediate hearing of the exception.(z) The application for the payment of money into court, upon a master's report of the amount due, should not be made until such report has been confirmed by the court, or the exceptions thereto have been disposed of. Money may be ordered to be paid into court after the usual decree for an account, and before the hearing on further directions.(a) It is competent for the court, on the hearing of exceptions, at the same time it allows an exception taken by the defendant and directs the master to review his report, generally, to order the defendant to pay a (t) Bradshaw v. Bradshaw, 2 Mer. 492. (u) Cutler v. Simons, 2 Meriv. 103. Wickham v. Evered, 4 Mad. 53. (e) Dixon v. Astley, 1 Mer. 133, 135. 19 Ves. 564, S. C. (w) Freebody v. Perry, Coop. 9. Fox v. Birch, 1 Mer. 105. (x) Freeman v. Fairlie, 3 Mer. 29. sum of money into court, if it is satisfied that ultimately that sum will be found due from the defendant.(b) Upon moving, on the answer of the defendant, for the payment of money into court, the complainant may show that upon the case stated in the answer he has an interest in the sum in question, or that a larger sum is due than is admitted, though the defendant, in his answer, expressly denies that the complainant has any such interest, or that such sum is due.(c) Where an executor admitted that he had received certain sums, but said he had paid money on account of the estate, without specifying the amount, he was allowed to verify the amount by affidavit, and was ordered to pay the actual balance only into court.(d) Although the court has no authority to make any compulsory order on any person not a party to the suit, yet it will order that a person who had received money on behalf of the complainant, previous to the suit, although not a party, may be at liberty to pay the amount into court.(e) The court will, in general, only order the principal sum due from the defendant to be paid in, and not the interest.(f) But where a defendant, by his answer, admits that he has received a principal sum, and interest to a greater amount, he will be ordered, on motion, to pay in the interest.(g) In what time money to be paid in.] If the court is satisfied that the order applied for ought to be made, the defendant is directed to pay the money into court on a certain day named in the order; the practice of ordering it to be paid "forthwith" being altered.(h) Effect of paying money into court.] It is provided by statute that the party bringing money into court, pursuant to an order thereof, shall in all cases be thereby discharged from all further liability, to the extent of the money so paid in.(i) Money, how deposited and invested.] All money brought into court and paid to the register or assistant register, for or by any suitor, is to be deposited in such banks as the court shall direct; and accounts thereof are to be kept in such manner and form as the court shall direct. When such money is paid to a clerk of the court it is to be deposited in (b) Brown v. De Tastet, 4 Russ. 126. (e) Francis v. Collier, 5 Mad. 75. See Johnson v. Chippindale, 2 Sim. 55. VOL. I. 31 (f) Wood v. Downes, 1 Ves. & B. 49. (g) Fairly v. Freeman, cited 1 Ves. & B. 50. (h) Higgins v. 8 Ves. 381. (i) 2 R. S. 171, § 24, (orig. § 21.), such bank, and the accounts are to be kept in such manner and form, as the vice chancellor shall direct.(k) The chancellor may cause any monies brought into court pursuant to his order, to be invested in any public stock, or to be placed at interest, on approved landed security, and from time to time to be transferred or disposed of as he shall think proper. And the same power may be exercised by a vice chancellor in respect to monies paid into court pursuant to any order of such vice chancellor.(1) CHAP. VIII. PROCEEDINGS ON THE PART OF THE DEFENDANT PREVIOUS TO REPLICATION. Sect. 1. MOTION TO DISMISS BILL. 2. CROSS BILL. 3. PUTTING COMPLAINANT TO HIS ELECTION. SECTION I. MOTION TO DISMISS BILL. The 65th rule of the court provides that if the complainant does not reply to the defendant's answer within ten days after it is deemed to be sufficient, (see Rule 50 as to the time when it is to be deemed sufficient,) he shall be precluded from replying, and the cause shall stand for hearing on bill and answer, and either party may notice it for hearing as soon as it is in readiness for hearing against the other defendants, if any there are. Where the complainant amends his bill, after answer, however, he cannot file a replication to the original answer, until the time for answering the amended bill expires; although he waives a further answer to the amendments. (a) (k) 2 R. S. 171, §§ 20, 21, (orig. 60 17, 18.) (2) Id. § 24. (a) Richardson v. Richardson, 5 Paige, 58. By the 66th rule it is provided, that where the cause stands for hearing on bill and answer against part of the defendants, if the complainant does not use due diligence in proceeding against the other defendants, any of those who have perfected their answer may apply to dismiss the bill for want of prosecution; and on such application further time shall not be allowed to the complainant, of course, without any excuse shown for the delay. This rule applies only to a case where there is more than one defendant. In case of a sole defendant, the motion is unnecessary; as, under the 65th rule, he can speed the cause by noticing it for hearing himself on bill and answer, after the expiration of ten days from the time when his answer is deemed sufficient; unless a replication is filed within that time. Accordingly, in the case of Whitney v. The Mayor, &c. of NewYork,(b) the court decided that a motion by a defendant to dismiss the bill for want of prosecution, can only be made where there are other defendants against whom the cause is not in readiness for hearing, by the neglect of the complainant to expedite the proceedings against them. And that where the defendant himself is in a situation to notice the cause for hearing, a motion to dismiss for want of prosecution will not be granted.(c) Where the defendant's answer is accompanied by a plea or demurrer, he cannot obtain an order to dismiss the bill for want of prosecution, until the demurrer or plea have been disposed of.(d) Neither can the defendant, by the English practice, move to dismiss the bill after the complainant has obtained and served an order to amend.(e) But merely obtaining an order to amend, if it is not drawn up and served before the defendant moves to dismiss, will not prevent the dismissal of the bill.(f) The order to amend will, however, be in time, if it be drawn up and served before the motion to dismiss is actually made; although it be after notice of the motion has been served.(g) But by our practice, as we have already seen, amendments may be made without a special order of the court, except in cases of injunction bills. And indeed amendments of course may be made without entering any rule or order for that purpose. But no amendment is to be (b) 1 Paige, 548. (e) Gally v. Van Bodicoate, 5 Sim. (c) See also Vermilyea v. Odell, 4 668. Paige, 121. (d) 2 Dan. Pr. 356, 85, 221. (f) Anon. 7 Ves. 222. Morris v. Owen, 1 Ves. & B. 523. (g) Peacock v. Sievier, 5 Sim. 553. considered as made until it is served upon the defendant, if he has appeared.(h) If, upon the hearing of a cause, it is ordered to stand over, with liberty to the complainant to amend his bill by adding parties, in pursuance of which the complainant amends, but does not proceed any further, the defendant may move specially to dismiss the bill for want of prosecution, and is not bound to set the cause down again.(i) And it seems that if the order allowing the cause to stand over directs that it shall stand over for a limited time, within which the complainant is to add the necessary parties, in default of which, the bill is to be dismissed with costs, and the complainant does not add the parties within the limited time, no further application need be made to dismiss the bill; as it is already out of court.(k) If notice of motion to dismiss for want of prosecution be given for too early a day, the defect is not cured by the motion being accidentally postponed to a day when it might have been regularly made.(1) The defendant cannot move to dismiss the bill for want of prosecu tion pending an abatement of the suit by the death, marriage, or bank ruptcy of a complainant.(m) It has been decided in this state, however, that upon the abatement of a suit by the death of one of several complainants, it is at the election of the surviving complainants whether they will revive the suit. And the court will limit a time within which they shall make that election; and if they do not revive within the time limited, the court will order that they be precluded from any further prosecution of the suit.(n) In order to prevent a dismissal of the bill upon the application of the defendant, the complainant must show that he is unable to go on, because some of the defendants have not answered, and that he has used due diligence to obtain their answers. As to what is due diligence, that is a question necessarily depending upon the circumstances of each case. It is necessary, however, for the complainant to show, that where it has been in his power to do so, he has resorted to the usual process of the court to compel an answer. Thus where the complainant's solicitor made an affidavit that he had (h) Ante, p. 222. Rule 43. (1) Mitchell v. Lowndes, 2 Cox, 15. 374. (1) De Geneve v. Hannam, 1 Russ. & My. 494. (m) 2 Dan. 356. Canham v. Vincent, 8 Sim. 277. Sellers v. Dawson, 2 Dick. |