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to be paid on any occasion, shall not apply to any costs which shall have been incurred, or to the costs of any proceeding which shall have been had or taken previously to the first day of Easter term next ensuing.
LXXX. That such of the foregoing orders as relate to the course of proceeding in the offices of the Masters of the Court, or to the authority of the Masters, shall have effect from and after the first day of Easter term next ensuing, and shall be acted upon by the Masters in all cases, except where from the then advanced stage of any proceeding they are not practically applicable.
LXXXI. That subject to the regulations hereinbefore specified, the foregoing orders shall take effect as to all suits whether now depending or hereafter commenced, on the first day of Easter Term next.
THE COURT OF CHANCERY,
230 NOVEMBER, 1831.
The Right Honourable Henry Lord Brougham and Vaux, Lord High Chancellor of Great Britain, by and with the advice and assistance of the Right Honourable Sir John Leach, Master of the Rolls, and the Right Honourable Sir Lancelot Shadwell, Vice Chancellor of England, doth hereby order and direct, that the Orders of the 3d April, 1828, be amended as to numbers VI., XIII., XVI., XVII., XVIII., XIX., XXIV., and LXXVI., in manner following; that is to say,
VI. That if the plaintiff do not, within three weeks after a defendant's second or third answer is filed, refer the same for insufficiency on the old exceptions, such answer shall thenceforth be deemed sufficient.
XIII. That 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 amendments 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 this order shall not extend to amendments which are made only for the purpose of rectifying some clerical error, or error in names, dates, or sums; in which cases the order to amend may be obtained upon motion or petition, without notice.
XVI. That where the answer of a defendant is to be deemed sufficient, whether it be in term time or in vacation, if the plaintiff or plaintiffs shall not proceed in the cause, the defendant shall be at liberty, after the expiration of two months, to move, upon notice, that the bill be dismissed with costs, for want of prosecution ; and the bill shall accordingly be dismissed with costs, unless the plaintiff or plaintiffs shall appear upon such motion, and give an undertaking to file a replication, and serve a subpæna 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 unless the plaintiff or plaintiffs, without filing a replication, shall appear upon such motion, and give an undertaking io hear the cause as against the defendant making the motion upon bill and answer: or unless 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. And in case the plaintiff or plaintiffs do appear upon the motion to dismiss, and give the undertaking to file a replication, and take the other proceedings consequent thereon, hereinbefore required, 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.
XVII. That 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 subpæna 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 plaintiff shall make default herein, then upon application by the defendant, upon notice of motion, the plaintiff's bill shall stand dismissed out of Court with costs, unless the Court shall make special order to the contrary. And in case the plaintiff serves a subpoena to rejoin, within three weeks after filing the replication, but does not attend and serve an order for a commission to examine witnesses within that time, then the defendant shall be at liberty, without notice, to obtain an order for a commission to examine witnesses, returnable at the like period as the plaintiff is entitled to, pursuant to this order, and shall have the carriage of such commission. And if the plaintiff obtains an order for and sues out a commission, and neglects to execute and return the same, at or within the time stated in this order, the defendant shall be entitled to an order as before stated, for a commission returnable on the last return of the term following that which is allowed to the plaintiff by this order for the return of his commission. And when any commission issues pursuant to this order, or the last foregoing order, the parties shall have liberty to execute the same in term time, and publication shall stand enlarged until the commission shall be returnable; and the plaintiff shall be at liberty to set down the cause, in the mean time, without the necessity of inserting such directions in the order for the commission.
XVIII. That publication shall not be enlarged, except upon special application to the Court, made upon notice supported by affidavit, and at the cost of the party applying, unless otherwise ordered by the Court.
XIX. That the time which occurs between the last seal after Trinity Term and the first seal before Michaelmas Term, and between the last seal after Michaelmas Term and the first seal before Hilary Term, shall not be reckoned in the computation of time which is allowed to a party for amending any bill, for filing, delivering, or referring exceptions to any answer, or for obtaining a Master's report upon any exceptions.
XXIV. That when a defendant, in contempt for want of answer, obtains, upon filing his answer, the common order to be discharged as to his contempt, on payment or tender of the costs thereof, or the plaintiff accepts the costs, without order, he shall not by such acceptance be compelled, in the event of the answer being insufficient, to recommence the process of contempt against the defendant, but shall be at liberty to take up the process at the point to which he had before proceeded.
LXXVI. That where a Master is directed to settle a conveyance, or to tax costs in case the parties differ about the same, then the party claiming the costs, or entitled to prepare the conveyance, shall bring the bill of costs, or the draft of the conveyance, into the Master's office, and give notice of his having so done to the other party; and at any time within eight days