SECTION 2.

What shall be considered a Short Cause.

COUNSEL being about to open a case which had been set down as a short cause, Wigram, V. C., said, "that he had communicated with the Lord Chancellor, who expressed his approbation of the rule intended to be enforced by this Court with respect to short causes, viz., not to allow any causes to be heard as short causes, unless they were such as might be heard upon a short statement to the Court, or such as required the directions of the Court upon some short point. To do so would be an act of injustice to the other suitors. In this case, which counsel admitted was not one which would fall under the above rule, his Honor ordered a reference to the Master, to inquire into the number of the children of the testator in the cause, who were described in his will as a class. This, his Honor said, was a necessary preliminary inquiry; and he said that he should, until the practice might be altered, (and he thought that it might be altered with advantage), inflexibly adhere to the rule which Lord Cottenham always enforced, viz., to direct an inquiry into the number of children in every case, where they were described in that manner. (Raikes v. Ward, 5 Jur. 1008.— V. C. W.).

SECTION 3.

Foreclosure Suits.

PRIOR to the 4th Order of the 9th May, 1839, it was contrary to the practice to advance a fore

closure suit to be heard as a short cause, unless with the consent of the defendant, (Lewin v. Moline, 1 Beav. 99); but now by virtue of that Order, "fore'closure causes, when ready for hearing, may be ' ordered to be advanced for hearing, under the same 'circumstances, and subject to the same rules as ' other causes may be ordered to be so advanced." The motion should be, "that the cause be advanced for hearing" simply; not that it should be advanced to be heard as a short cause. The costs of the motion must be borne by the plaintiff. (Broome v. Lockhart, 10 Sim. 420). If some of the defendants in a foreclosure suit disclaim, the Court will decree them to be foreclosed, and not simply dismiss the bill against them. (Perkin v. Stafford, 10 Sim. 562). Where a mortgagor becomes insolvent, and the provisional assignee is made a defendant, the latter is not entitled to his costs, even if he disclaim; (Appleby v. Duke, 6 Jur. 189); and the same principle applies to an official assignee; (Cash v. Belcher, Id. 190).

CHAPTER XLV.

HEARING THE CAUSE.

It is the duty of a plaintiff to come fully prepared at the hearing to ask the Court for a decree, and if he is not so prepared, and the suit appears defective from his default, it is then a matter of discretion or indulgence to grant him leave to supply the defect. (Bier

dermann v. Seymour, 1 Beav. 597). Where the plaintiff fails in proving at the hearing a fact which is the very foundation of his title, this is not the proper subject for an inquiry before the Master; and the bill will be dismissed with costs, with liberty to file a new bill. (Holden v. Hearn, 1 Beav. 445). The plaintiffs sued as devisees of A., but omitted to prove his will, and the bill was dismissed; they afterwards presented a petition of rehearing, and moved for leave to exhibit interrogatories to prove the will, which was granted; the omission having arisen from the inadvertence of counsel, and the will not being the subject of dispute in the cause. (Hood v. Pimm, 4 Sim. 101). A cause came on and was ordered to stand over for want of parties; it was brought on a second time, when the allegations and statements in the bill were found so defective, as to prevent the Court making a decree, and the suit was again defective for want of parties: the Court gave the plaintiff leave to set the record right, but only on the terms of his paying the defendant the costs of the former and of the present hearing. (Bierdermann v. Seymour, 1 Beav. 594). Where a party who does not appear at the hearing is alleged, but is not proved to be out of the jurisdiction, it is not the practice to direct an inquiry before the Master as to that fact; but the proper course is to obtain leave to exhibit an interrogatory to prove it. (Dibbs v. Goren, 1 Beav. 457.) A defendant cannot object to a cause being heard on the ground that the plaintiff is in contempt. (Ricketts v. Mornington, 7 Sim. 200.

If in a suit to establish a will, the heir admits the will and dies before the hearing, the derivative heir is bound and the will need not be proved. (Robinson v. Cooper and Locke v. Foote, 4 Sim. 131, 132). A party cannot at the hearing give secondary evidence of the contents of a document in his adversary's possession, unless he has given him notice to produce it; the depositions are not sufficient notice. (Stule v. Stulz, 5 Sim. 460).

SPEAKING of decrees generally, without reference to the subject-matter of the suit, they may be considered under four classes:-1st. Decrees on the hearing of the cause in the presence of all parties, in which case, if the plaintiff have any equity, there

is a decree embracing the objects of the suit, which varies with the nature of the suit, and the relief prayed; 2nd. Decrees by default, as against parties who do not appear, in which case the plaintiff takes such decree as he can stand by; 3rd. Decrees by consent, in which case the form of the decree depends upon the mutual agreement of the parties; and 4th, Decrees taking the bill pro confesso, in which case the decree is according to the case made by the bill. Those who wish fully to comprehend the form and language of decrees, as adapted to the various classes of suits in which relief is commonly sought in equity, may consult Mr. Seton's treatise on the "Forms of Decrees in Equity." If the plaintiff have no equity, his suit is dismissed. If the defendant, having been duly served with a subpoena to hear judgment, fail to appear at the hearing, the plaintiff is entitled to a decree by default. If the plaintiff be unable to compel the appearance or answer of the defendant, then, in certain cases, he is entitled to a decree pro confesso. If the parties agree upon the terms of the decree, then a decree is taken by consent.

A decree of foreclosure against an infant must give the infant a day to shew cause against the decree after he attains twenty-one, notwithstanding the provisions of the act 11 Geo. 4 & 1 Will. 4, c. 41, ss. 10, 11; (Price v. Carver, 3 My. & Cr. 157); but in a decree for a sale against the infant heir of an estate subject to an equitable mortgage, the infant ought not to be allowed six months after coming of shew cause against the decree; (Scholefield v. Heafield, 7 Sim. 667; and see Powys v. Mansfield, 6 Sim.

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