April, 1828. ing.-The defendant having moved to dismiss, the plaintiff entered Order 16, (after into the usual undertaking to speed, under which he was to give

amendment).

his rules to produce witnesses, and pass publication at the latest in Trinity term, 1836, which ended on the 13th June. The 9th June having arrived, and no rules having been entered, and it being obvious, as such rules are eight-day rules, that the plaintiff could not perform his undertaking, the defendant served another notice of motion to dismiss, but the motion was refused: the Court stating that the defendant ought not to have given notice of motion to dismiss, until the whole of the time allowed for performing the undertaking had expired, as there might have been some inevitable accident, such as a fire, which would have induced the Court to assist the plaintiff. Whalley v. Pepper, 8 Simons, 203.

Motion to dismiss, where undertaking to speed incorrectly penned. The plaintiff had given an undertaking to speed, but the order was inaccurately drawn up, the period for giving rules to produce witnesses and pass publication, and for setting down the cause to be heard and serving subpoenas to hear judg ment, being respectively fixed a term too soon. Subsequently and after the time when, if the order had been correctly framed, the rules ought to have been given, a motion was made by the defendant that the bill might stand dismissed with costs: but the Court refused the application, on the ground of the irregularity of the order containing the undertaking to speed, and which order must be the foundation of the order to dismiss. Slatter v. Slatter, V. C. January, 1835.

A motion to dismiss for want of prosecution will be refused with costs, when it shall appear that the solicitor of the defendant moving was, before notice of motion given, acquainted with circumstances which left no doubt of the plaintiff having used due diligence to obtain sufficient answers from those defendants who had not previously answered. Barber v. Kavanagh, V. C. March, 1834.

Motion to dismiss by defendants whose solicitor was aware that the plaintiff had used due diligence.-Some defendants being entitled to move to dismiss, whilst on the other hand the time for answering of the other defendants had not expired, the solicitor for the former defendants gave notice to dismiss for want of prosecution; but the Court refused the motion with costs, such solicitor being the town agent of the solicitor for the latter defendants, and well knowing that there had been no want of

due diligence on the plaintiff's part. Partington v. Baillie, V. C. April, 1828. December, 1834; S. C. 5 Simons, 667.

In J. Hay v. Alfred Farr and wife and Grace Bowen, M. R. April, 1837, there was an order that Mrs. Farr should answer separate from her husband, but Grace Bowen had assisted in keeping her out of the way, so that no process could be served to enforce such answer. The motion of Alfred Farr and Grace Bowen to dismiss the bill for want of prosecution was refused with costs.

Diligence. That the plaintiff's solicitor had been much occupied with other business: that when informed that the time for publication was near expiring he was completely taken by surprise that he had not at once directed his town agents to sue the commission for examination of witnesses, because he was for some time unable to obtain the information necessary for settling the interrogatories: that when he did obtain it, and had got the interrogatories prepared, he found that as several of the witnesses lived at considerable distances, it would be impossible to have it executed and returned within the time limited by the order, and he had therefore not thought it advisable to incur a useless expense. These circumstances held to afford no excuse for a non-compliance with the undertaking to speed, so as to induce the Court, without the consent of the defendant, to relieve the plaintiff from the consequences upon terms. Walmsley v. Froude, 1 Russell & Mylne, 334.

The frequently calling upon the clerk in court for the defendants who have not answered, and threatening an attachment, but without issuing an attachment, not due diligence to obtain the answer within the meaning of the order. Gully v. Van Bodicoate, 5 Simons, 668.

See Vent v. Pacey, ante, page 413.

By the Irish General Orders, November, 1834, No. XCIII. the plaintiff must satisfy the Court, that due diligence has been used by him in proceeding to have the bill taken pro confesso, against the defendants who have not answered.

An attempt was unsuccessfully made in a recent case to withdraw it from the operation of the above ninety-third order, on the ground that there was an abatement as regarded a co-defendant. Sir Michael O'Loghlen made no order on the motion to dismiss, the plaintiff by his counsel undertaking to proceed effectually to revive the cause against the personal representative of the deceased defendant within one month, and also undertaking

Order 16, (after amendment).

April, 1828.

within ten days after the suit should be so revived, to file a reOrder 16, (after plication to the answers of the other defendants, and the plaintiff amendment), Order 17, (prior paying to the defendant moving the costs of the motion. Grace to amendment). v. Read, 1 Crawford & Dix, 498.

The Court directed a motion to dismiss on behalf of some defendants to be adjourned a short time until it should be seen whether the petition of another defendant to have the benefit of the Insolvent Debtors' Act, such defendant having executed the usual preliminary assignment of his estate required by that act, might not be dismissed. Lacey v. Lacey, V. C. March, 1835.

Special leave having been given to amend the bill by adding parties, the Court, where there has been no improper delay, will allow the plaintiff a reasonable time to perfect the record as against the new defendants: and it will not, at the instance of the former defendants, embarrass the plaintiff by compelling him prematurely to give an undertaking to speed. Hollings v. Kirkby, V. C. July, 1835.

By the Parliamentary Ordinances, 1654, c. 44, s. 10, unless the plaintiff within eight days after the answer came in, put in exceptions thereto, he was obliged to reply within eight days, if the answer came in in term time, but if it came in in vacation, within four days after the beginning of the next term: otherwise the bill was to be dismissed without motion, with costs to be taxed.

By the Collection of Orders of the Commonwealth Lords Commissioners, 1649, title "Answers," if the plaintiff set the cause down on bill and answer, and the Court did not find grounds to make a decree, the plaintiff was permitted to reply, if he desired. it, first paying five pounds costs to the defendant. See also Archbishop Boyle's Rules and Orders, November, 1685, No. 15.

ORDER 17 (prior to amendment)." That where the plaintiff "files a replication without having been served with a notice of "motion to dismiss the bill for want of prosecution, the plaintiff "shall serve the subpoena to rejoin, and obtain his order for a "commission within one week from the filing of the replication; "and if such order be obtained in term time, then such commis"sion shall be at the latest returnable on the first return of the following term; and if such order be obtained in the vacation, "then such commission shall be returnable at the latest on the last

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return of the following term; and where such commission is re"turnable on or before the first return of the following term, then "the plaintiff shall give his rules to produce witnesses and pass "publication in that term, and shall set down his cause to be "heard in the following term; and where such commission is "returnable on or before the last day of the following term, there "the plaintiff shall give his rules to produce witnesses and pass publication in the next term, and shall set down his cause to "be heard in the third term; and if the plaintiff shall make any "default herein, then upon application by the defendant upon "motion or petition, without notice, the plaintiff's bill shall stand "dismissed out of Court with costs."

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prac

The plaintiff must not only have set down the cause to be heard in the term mentioned, but he must have set it down in such a manner that it can be heard consistently with the tice of the Court.-Rules to produce witnesses and to pass publication were entered in Trinity term, 1830, and the cause was set down for hearing in Michaelmas term, 1830, but the subpoena to hear judgment had not been served fourteen days (the cause being a country one) before the day appointed in such subpoena to hear judgment, and the defendant had thereupon obtained an order of course that the bill might stand dismissed out of Court with costs. Upon a motion to discharge this order of course, the Court held that the simple entry of the cause in the register's book for hearing was not a setting down of the cause for hearing within the meaning of the 17th Order; and that the subpoena to hear judgment not having been served in proper time, the case must be regarded as if the cause had not been set down at all; that the cause was not to be set down only, but it was to be set down to be heard, and in a way conformable with the practice; and that this was impracticable by the default of the plaintiff. The motion was refused with costs. Fowle v. Stanford, L. C. January, 1831.

Defendant having neglected to take advantage of the plaintiff's default in not giving rules to produce witnesses and pass publication, and the plaintiff having afterwards filed interrogatories in the Examiner's Office, and proceeded to examine witnesses after the usual notice to the defendant's clerk in court, an order of course to dismiss the bill was discharged. Fernes v. Hutchinson, 1 Russell & Mylne, 22.

This case of Fernes v. Hutchinson is remarkable, inasmuch as it will be seen on referring to it that Lord Lyndhurst thought

April, 1828.

Order 17, (prior to amendment.)

April, 1828.

Order 17, (prior to amendment), Order 17, (after amendment).

the 17th Order applicable in a case where the plaintiff wanted no commission, but examined his witnesses in the Examiner's Office. The subpoena to rejoin had been served on the 6th of May, and it was contended that according to the 17th Order the plaintiff ought to have given rules to produce witnesses, and ought to have passed publication in Trinity term following; and that upon his default in so doing, the defendant was at liberty to apply as of course to dismiss the bill. Lord Lyndhurst said, "Under the 17th Order, the plaintiff was bound to give rules to produce witnesses and pass publication in Trinity term. The term ended on the 8th July; witnesses had not then been produced, nor had publication passed, and the defendant was therefore entitled to have dismissed the bill with costs by an order of course."

An irregular subpoena to rejoin did not preclude the defendant from applying without notice upon motion or petition for a dismissal of the bill.-A subpœna to rejoin was obtained before replication filed, the replication having been filed the 28th November, 1829, and the subpoena to rejoin sealed the 27th November. The subpoena to rejoin was served on the 29th, and the usual notice to the defendant's clerk in court of the filing of the replication [see what was said by the Vice-Chancellor in Smith v. Oliver, 3 Mylne & Craig, 165] was not given until a few hours after such service. The subpoena to rejoin too, although returnable immediately, had been taken out without an order for the purpose. [See now the form of subpoena to rejoin appended to the orders of 21st December, 1833.] These proceedings were held to be null, and the Court refused to discharge an order obtained as of course a week afterwards, dismissing the bill for want of prosecution. Brown v. Moore, 2 Simons, 464.

ORDER 17 (after amendment)." 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 "subpoena to rejoin, and in case he requires a commission to "examine witnesses, shall obtain and serve an order for such com"mission 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 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 return