April, 1828. Order 16, (prior to amendment). "for proceeding in the cause as shall appear to the Court to be reasonable." Motion to dismiss, notwithstanding the six weeks after the last of the answers was to be deemed sufficient, and within which time the plaintiff was at liberty to obtain an order to amend, had not expired. The answer of two defendants was filed on the 10th November, 1829. Such answer was therefore to be deemed sufficient on the 5th January, 1830: but as this was in the interval between the last seal after Michaelmas term and the first seal before Hilary term, the plaintiff had to the first general seal before Hilary term for filing exceptions to the answer; and no exceptions having been filed, the defendants were at liberty under the 16th Order of April, 1828, to move at the first seal after Hilary term, upon notice, that the bill might be dismissed for want of prosecution. This course they adopted. Hilary term in 1830 began the 23d January and ended the 12th February; and the first seal after the term was the 20th February. [1 Russell & Mylne, 495.] Accordingly on the 17th February the above two defendants gave notice of motion to dismiss [for the 20th February], and on the 19th of the same month the plaintiff obtained an order to amend. The Court held that the defendants were nevertheless entitled to an order of dismissal. Swinfen v. Swinfen, 3 Simons, 384. It is remarkable that in this case there was another defendant who had not filed his answer until the 30th November. His answer did not therefore become sufficient until the 25th January, and the six weeks within which the plaintiff was at liberty under the 13th Order to obtain an order for leave to amend the bill had not expired on the 19th February. It does not appear whether the order to amend had been served prior to the seal, or indeed whether it had been served at all. If the order to amend was served before the seal, the motion to dismiss ought not to have been granted, but the defendants were entitled to the costs of it. See the case of Davenport v. Manners, stated below, which had been decided a year before. Notice of motion to dismiss met by an order to amend. [The time for deeming the answer sufficient having gone by, but not the time within which an order to amend might be had,] the defendant gave notice of motion to dismiss for want of prosecution; but before such motion was made [It is not said whether before the day mentioned in the notice for making the motion.] the plaintiff obtained an order as of course to amend the bill. [The re port is silent respecting the service of such order.] The Court said the defendant could take nothing by his motion, but the plaintiff must pay the costs of it. Davenport v. Manners, 2 Simons, 514. See Peacock v. Sievier, stated post, pages 414 and 415; also Attorney-General v. Kemp, post, page 415. Motion to dismiss by one defendant; order to amend ; alleged collusion between the plaintiff and the other defendants.—One of the defendants gave notice of motion to dismiss for the 13th May, 1831, being the first seal after the term following the period when his answer had become sufficient. But on that day, when the motion was about to be brought on, it appeared, there being two other defendants who had not answered, that the plaintiff had on the 5th May obtained, and that he had soon after served, an order of course to amend, and thereupon the motion was not made; but a motion was subsequently made to discharge the order of the 5th May, principally upon an affidavit suggesting that the two other defendants were nominal parties, friends of the plaintiff, from whom no answers were desired, and who were joined with a view to delay and the evasion of the New Orders. The Court declined to discharge the order. Whalley v. Youde, L. C. November, 1831. Bill amended, but no subpoena to answer the amendments: defendant may move to dismiss.-On the 24th July, 1828, the plaintiff obtained an order to amend the bill, which was afterwards amended accordingly, but no subpoena to answer the amendments was served, and the defendant, in December, 1828, moved to dismiss the bill for want of prosecution. Held that such motion was regular. Bramston v. Carter, 2 Simons, 458. April, 1828. Order 16, (prior to amendment). kett and Cooke In this case the Court is reported to have said that in Kendall Remarks upon v. Beckett, 1 Russell, 152, the Lord Chancellor was of opinion Kendall v. Becthat the defendants, by delivering to the plaintiff their office v. Davis. copy of the bill, for the purpose of its being amended, had waived their right to dismiss the bill; and that that circumstance was not to be found in the case before it. But had that circumstance been found in Bramston v. Carter, it may be doubted whether it would have made any difference in the conclusion to which the Court there came, unless accompanied by the other circumstances existing in Kendall v. Beckett. For the student should bear in mind that in Kendall v Beckett the office copy of the bill had been amended on the 3d of November only, and the order to dismiss was made on the 7th of November, being only four days afterwards, and it may perhaps April, 1828. Order 16, (prior to amendment). have been thought that the defendants ought to have waited eight days after the amendment of their office copy. The practice seems to be that a defendant should wait eight days after the record of the bill is amended before he moves to dismiss. The case where the order to amend does not put the plaintiff under terms to amend the defendant's office copy of the bill, appears irrelevant to the present point; but in the case where the plaintiff is to amend the defendant's office copy, and the defendant, after eight days have elapsed since the amendment of the record of the bill, omits to move to dismiss, and not having in the usual course, when called upon, left his office copy to be amended, he nevertheless then thinks fit, for the first time, to leave it for that purpose, it does not seem unreasonable that he should wait eight days after the amendment of the office copy before he proceeds to dismiss the bill. It is the more probable that this was the ground of the decision in Kendall v. Beckett, inasmuch as it is believed that under the practice as it existed prior to the 14th Order of December, 1833, (whether that order has effected any change in this respect, it is not necessary here to consider; but see post, page 448;) where the defendant's office copy of the bill had been left to be amended, the plaintiff could not file a replication until eight days after the amendment of the office copy. If there had been delay in leaving the office copy it might have been otherwise; but even then it would have been prudent for the plaintiff, had it been necessary for him to reply before the expiration of the eight days, to have amended the defendant's office copy of the bill under a written notice that that was done without prejudice to the right to file a replication forthwith. It appears difficult except as above to reconcile Kendall v. Beckett with the prior case of Cooke v. Davies, to be found in the note to Kendall v. Beckett, and also in Turner & Russell, page 309. Both cases are decisions of Lord Eldon, and in both the plaintiff had amended the defendant's office copy of the bill. But in Cooke v. Davies many weeks had elapsed between the amendment of the office copy of the bill and the order to dismiss. Some practitioners are indeed said to have argued that the delivery by the defendant's solicitor of the office copy of the bill to be amended, which took place in Kendall v. Beckett, was as it were an undertaking, or at least intimation, that the defendant meant to answer the amendments; but this delivery, it should be observed, took place in consequence of the plaintiff's clerk in court having, as is customary and indeed necessary, called for such office copy; and as in Cooke v. Davies the defendant's office copy of the bill had been amended, there must have been there a similar delivery. Besides, those who thus argue forget that in Kendall v. Beckett the order to amend required no further answer, so that the defendants, according to the general practice, were at liberty to dismiss eight days after the amendment effected, if not of the record, of the office copy. Further, it has always been considered to be the duty of the defendant's solicitor, when called upon, or when otherwise apprised of the amendment of the record, to send the office copy of the bill to be amended conformably with the record; and it is not easy to see why the doing so should prejudice the right to dismiss, at least after the expiration of eight days from the office copy being returned amended. It may be added, that no ground occurs to the writer's mind for thinking that the neglect of the defendant's solicitor in such a case to send the office copy of the bill to be amended would influence the right to move to dismiss the bill. The result in Kendall v. Beckett might have been different had the order to dismiss been made between the time of the amendment of the record of the bill and that of the delivery of the defendant's office copy for the purpose of being amended. The report says that the record of the bill was amended the 1st of October or the 1st of November. Assume the day to have been the 1st of October, there seems no reason why an order to dismiss obtained after the 9th of October, and prior to the delivery of the office copy to be amended, should not have been considered regular. Much inconvenience may be experienced in the course of a cause by a defendant, who being called upon, nevertheless omits to leave his office copy of the bill to be amended correspondent with the record; but if he chooses to subject himself to the inconvenience that his negligence may occasion, there does not appear any thing to prevent it; and, on the other hand, his negligence in this respect will not, it is submitted, incapacitate him from moving to dismiss. Mr. Daniell (Chancery Practice, vol. i. page 542,) has supposed that the order to amend in Kendall v. Beckett had been irregularly obtained, and that it was there decided that such irregularity was waived, in consequence of the defendants having applied to have their office copy altered pursuant to the amendment. But the report shows no irregularity in obtaining the order to amend; and the waiver spoken of, by delivering the office copy of the bill to be amended, is satisfied by an ina April, 1828. Order 16, (prior to amendment). April, 1828. bility to move to dismiss for eight days after the amendment Order 16, (prior of the office copy of the bill. to amendment). Order to amend, to call for such office copy. The following note of a dictum is inserted as not irrelevant to the remarks in the pages immediately preceding. By the New Orders (the 14th), every order to amend must conplaintiff amend- tain an undertaking by the plaintiff to amend his bill within ing the defendant's office copy, three weeks from the date of the order: and there are not plaintiff ought therefore perhaps such strong reasons for the plaintiff's calling upon the defendant to bring his office copy to be amended, as there were under the old practice. Under the old practice a very long interval sometimes elapsed between the making of the order and the amendment of the bill, and the defendant did not know when to carry his office copy to be amended. Now the defendant is aware that the amendment must be effected in three weeks at the furthest from the date of the order to amend. It might have been very inconvenient to carry it to be amended immediately upon being served with the order to amend; as twelvemonths might have gone by before the amendment was made, and during all that time the defendant would have been without his office copy. Still the reasons for the plaintiff calling for the defendant's office copy preponderate, when considered in regard to a different practice. With reference to the expediency of a defendant answering amendments where no further answer is required by the order to amend, and his right to dismiss, and the plaintiff's right to reply, it is obviously desirable that the office copy should be amended as soon as the record is amended. This is best assured by the plaintiff calling upon the defendant to leave his office copy. If the office copy be called for and forthwith left, the amendment of the record and the office copy would be probably for all practical purposes simultaneous, and some questions that might arise would be thus avoided. Persons much conversant with the practice, and whose opinion is worthy of deference, seem to think that the plaintiff's calling upon the defendant for his office copy is the mere curtesy of the Six Clerks' Office, but it is not easy to reconcile that assertion with some of the authorities. Boswell v. Tucker, M. R. April, 1837. Plaintiff, who undertook to speed the cause with effect in the usual form, should have filed the replication at the latest on the day on which the motion to dismiss was made.-The answer having become sufficient, the defendant at the first seal after the following term moved, upon notice, to dismiss the bill for |