SECTION 10.

Rehearing.

By the 50th C. & L. it is ordered, "That in any 'petition of rehearing of any decree or order made 'by any Judge of the Court, it shall not be necessary 'to state the proceedings anterior to the decree or 'order appealed from, or sought to be reheard."

SECTION 11.

Further Directions.

A CASE was alleged on the pleadings to charge executors for what they might but for their wilful default &c. have received; at the hearing, the common accounts only were directed against them: the case coming on for further directions on the Master's report, it was held, that the executors could not be charged as for the wilful default &c., and that no inquiry could then be directed on the subject, although the Master's report laid a foundation for such an inquiry. (Garland v. Littlewood, 1 Beav. 527).

CHAPTER XLVII.

DECREE OF DISMISSION.

THE ordering part of the decree is as follows:

His Lordship doth order that the plaintiff's bill do stand

dismissed out of this Court, with costs to be taxed by Mr. A. one of the Masters of this Court.

A bill may be dismissed at the hearing, (whether heard on bill and answer, or otherwise), either with or without costs; or if heard on bill and answer with 40s. costs; or partly with and partly without costs; or with costs as to some parties and without costs as to others. (Bea. on Costs, 231; Bea. Ord. Cha. 450; 2 Fowl. 376). Where the bill is dismissed on interlocutory application, either by the plaintiff to dismiss his own bill, or by the defendant for want of prosecution, the plaintiff pays taxed costs. (4 Ann. c. 16, s. 23; Bea. on Costs, 229). When a bill is dismissed with costs, the decree may be prefaced with a direction for the payment of the costs of motions made in the cause; (Wild v. Hobson, 4 Madd. 49); as to what costs of motions are costs in the cause. see ante, p. 161.

CHAPTER XLVIII.

DECREE BY DEFAULT.

1. Former Practice, 366. 2. Present Practice, 369.

SECTION 1.

Former Practice.

PRIOR to the recent alteration of the practice, if the defendant made default by not appearing at

the hearing, upon producing an affidavit of the service of the subpoena to hear judgment, the plaintiff was entitled to a decree nisi, which he might draw up in such terms as he could abide by, so far as the same were consistent with the pleadings. (Geary v. Sheridan, 8 Ves. 194; Bea. Ord. Ch. 198). If there were several defendants, and one made default, the decree was absolute as to those appearing, and contained a clause nisi as to those not appearing. The form of the decree by default was as follows:

This cause coming on before this Court in the presence of counsel learned for the plaintiff, none appearing for the defendant, although he hath been duly served with a subpoena to hear judgment in this cause, as by affidavit now read appears, and the pleadings in the cause being opened, and upon hearing the defendant's answer and the proofs taken in the cause read, this Court doth think fit and so order and decree, that, &c. And this decree is to be binding upon the said defendant, unless he, on being served with a subpoena to be served on him for that purpose, shall, at the return thereof, shew unto this Court good cause to the contrary. But the said defendant, before he is to be admitted to shew such cause, is to pay unto the plaintiff his costs of this day's default in appearance, to be taxed by the said Master. (Seton on Decr. 366).

A decree by default was not a judgment pronounced by the Court, but the act of the party, (Knight v. Young, 2 Ves. & B. 186; Carew v. Johnson, 2 Sch. & Lef. 300), and it was usual to direct that the plaintiff shall take such decree as he can abide by; (Harr. 310). The defendant having failed to appear at the hearing, the plaintiff took such decree as he could abide by. It afterwards turned out that the affidavit of service of the subpoena to

hear judgment was defective; the Court refused to reinstate the cause, suggesting that the proper mode was to set it down again at the bottom of the list. (Evans v. Evans, 2 Kee. 604).

The answer should be entered as read, (Bea. Ord. Ch. 198), but not the evidence, (Stubbs v. 10 Ves. 30); except in the case of an heir-at-law, being a party and making a default at the hearing; in which case the Court will not declare the will well proved without hearing the evidence read. (Webb v. Libcot, 3 Atk. 25).

This subpoena is a judicial writ, and was formerly returnable in term. (Harr.310). By Lord Brougham's Orders its form is prescribed (App. xxxviii). (For the old form see App. to Reg. Brev. 47).

The defendant might either shew cause against making the decree absolute, or petition for a rehear ing. (Seton on Decr. 367). After the service of the subpoena, the defendant might, upon petition, have the cause set down again as of course, upon payment of costs of his default; and, notwithstanding the decision in Margravine of Anspach v. Noel, (19 Ves. 533; S. C. 1 Madd. 313), it was afterwards decided that the cause must be set down at the end of the causes already set down, according to the former practice.

The defendant was not to be admitted to shew cause, or to rehear the cause, until he had paid the full costs of the hearing, and, if the decree had been made absolute, the costs to the time of rehear ing; (Bea. Ord. Ch. 314); and before being admitted to shew cause, the defendant was required to produce

a certificate of the payment of the costs, or an affidavit of tender and refusal. (Bea. Ord. Ch. 198).

On an affidavit of the service of the subpoena to shew cause, and the registrar's certificate of no cause shewn, it was a motion of course to make the decree absolute.

The order was as follows:

Whereas, by an order of the 14th day of May last, made on the hearing of this cause, it was ordered and decreed, that, &c.; and the said decree was to be binding upon the defendant E. M., unless, &c. Now upon motion this day made unto this Court, by Mr. C., being of the plaintiff's counsel, it was alleged that the defendant E. M. hath been duly served with a subpoena to shew cause against the said decree, returnable the day of , as by affidavit appears, and no cause being shewn to the contrary thereof, as by the registrar's certificate appears, it was therefore prayed that the said decree may be made absolute: which is ordered accordingly. (Seton on Decr. 369).

6

SECTION 2.

Present Practice.

BUT now the decree is absolute in the first instance, it being ordered by the 44th Order, C. & L., "that where a defendant makes default at the hearing ' of a cause, the decree shall be absolute in the first instance, without giving the defendant a day to shew cause, and such decree shall have the same force and ' effect as if the same had been a decree nisi in the 'first instance, and afterwards made absolute in de'fault of cause shewn by the defendant." One of the defendants having made default at the hearing, and a