December, 1833. " taken out and served a warrant for time to answer such amended Order 14.

66

bill, in which last case the Master may allow the defendant such "time (if any) for that purpose, as he shall think fit.”

Order to amend, omitting to state that no further answer required. Order to amend upon payment of 20s. costs omitted to specify that the plaintiff did not require a further answer, and the defendant, expecting to be served with a subpoena to answer the amendments, did not appear to and obtain an order for time to answer the amended bill. Eight days having elapsed since the amended bill was filed, the plaintiff filed a replication, but the Court notwithstanding gave the defendant six weeks to put in an answer to the amendments. Boddington v. Woodley, V. C. November, 1838. See notes to the 10th Order, ante, page, 443.

Question of surprise when by the order the plaintiff was to amend the defendant's office copy, and instead, a new ingrossment being requisite, he paid 20s. costs.-An order to amend was obtained, the plaintiff requiring no further answer, and amending the defendant's office copy of the bill. It turned out that the amendment rendered a new ingrossment requisite, and the new ingrossment was put upon the file, and 20s. costs were paid by the plaintiff to the defendant's clerk in court. More than eight days having elapsed, the plaintiff filed a replication. The defendant thereupon moved that he might be at liberty to file an answer, inasmuch as the office copy of the bill not having been called for, he had been taken by surprise. But the Court thought that the payment of the 20s. costs was a sufficient intimation that the plaintiff would not amend the defendant's office copy (see Cox v. Champneys, 6 Maddock, 314), and refused the application. Boswell v. Tucker, M. R. April, 1837; S. C. 2 Keen, 188.

Where the defendant has upon the plaintiff's requisition left his copy of the bill to be amended according to the record, the eight days allowed for considering whether he should put in an answer to the amendments, the order to amend requiring no further answer, would most likely be held to be computable from the day the office copy was returned amended, but exclusive of that day. Boddington v. Woodley, V. C. November, 1838.

It is not impossible that when a case occurs in which the order to amend requiring no further answer, the defendant, as soon as called upon, has left his office copy of the bill to be amended, and the office copy is not returned amended until one or more days after the record of the bill has been amended, it will be considered that the time for filing the replication ought to be reckoned from the day when the office copy was returned,

and not from the day of the amendment of the record. Boswell December, 1833. v. Tucker, M. R. April, 1837.

See the remarks upon the cases of Kendall v. Beckett and Cooke v. Davies, ante, page 409.

Order 14.

Those remarks, as well as the notes to the present order, were written before the author had obtained a copy of the unpublished General Order of the Court, dated the 12th May, 1838, which fixes the date at which the record of the bill shall be considered as amended:-the amended bill shall be deemed to be filed. That order does not, it is apprehended, detract from any utility that such remarks and notes may possess. The order removes the uncertainty which occasionally existed as to the date of the amendment of the record of the bill, and from which date, where no further answer is required, and the plaintiff has undertaken to amend the defendant's office copy, the eight days which the defendant has for considering whether it is necessary for him to answer the amendments are to be reckoned; but the order does not seem to affect a case, where the office copy is not returned amended until after the date when the record is to be considered as having been amended, and the amended bill deemed to be filed. The following is the order :"Order of Court.-Saturday, 12th May, 1838. It is ordered Unpublished "that from this day, whenever any bill upon the files of this "Court shall be amended, the record of such bill when amended "shall be marked with the date of the Order under which the same is so amended, and of the day on which such amendment "is made, in manner and form following, viz.-' Amended "day of

by Order dated

day of -;' and such "amended bill shall on the same day be turned over into the

study of the Six Clerk in whose division such bill is filed, in "like manner as all other pleadings are turned over for filing; "and the plaintiff's clerk in court shall on the same day give "notice thereof at the seat of the defendant's clerk in court, or "at the seats of all the clerks in court for the defendants, if more than one; and that the usual entry of such amend"ments, together with the aforesaid date of making such amend"ments, and the date of such entry shall be made in the Six "Clerk's book, and that such amended bill shall be deemed to "be filed at and from the date of such entry.

66

VOL. I.

COTTENHAM, C.

LANGDALE, M. R.

LANCELOT SHADWELL, V. C."

G G

General Order of 12th May, 1838.

December, 1833.
Orders 14, 15,

In Ireland a plaintiff must serve a copy of the amended bill. 16, 17 & 19. [See Howard's Practice of the Court of Chancery in Ireland, page 213,] or a notice of amendment requiring the defendant to produce his office copy to be amended; and a defendant's time for answering the amended bill is reckoned from the service of the copy of the amended bill, or from the return of the defendant's copy of the amended bill, or from the expiration of six days from notice to furnish defendant's copy for amendment, in case of default by defendant in furnishing the copy for amendment. Irish General Orders, November, 1834, Nos. LVI. and LIX.

There is a recent case in which it was held that it was irregular, instead of serving a copy of the amended bill, or notice of the amendment requiring the defendant to furnish his office copy of the bill to be amended, after the bill was amended, to serve a notice on the defendant stating that his answer was not required to the amended bill. The irregularity was however considered to have been waived, the defendant's solicitor having taken out an attested copy of the amended bill, and proceeded to file an answer to it. Hodder v. Wise, 1 Lloyd & Goold, tempore Plunket,

310.

ORDERS 15, 16, and 17.

Where the decree directs a reference to a Master in rotation, it is clear that Master is meant to whom the previous references in the cause have been made. Attorney-General v. Shore, 6 Simons, 460.

ORDER 19." That the Master to whom any exceptions to an "answer for insufficiency shall be referred, shall be at liberty in "making a report upon such exceptions, if he shall think fit, to "certify by whom and in what proportions (if any) the costs of "such exceptions and of the reference thereon ought to be borne; "and that upon the taxation of the general costs in the cause "under the 28th Order pronounced on the 3d April, 1828, regard "shall be had to such certificate, and the costs to be allowed to "either party shall be taxed and apportioned accordingly."

The Master in his reports upon three insufficient answers not having certified as to costs, and the party having agreed that a fourth answer should be put in instead of the defendant being examined upon interrogatories, &c., an application was made to the Court as to the costs occasioned by the insufficiency of such three answers. See Poole v. Gordon, stated ante, pages 390, 391 and 433.

Order 20.

ORDER 20.-" That all special applications for leave to with- December, 1833. "draw replication, as well as to amend bill, shall be heard by the "Master in rotation, and such applications, and all other special "applications under the said recited act (3 & 4 Will. 4, c. 94), "shall be made by taking out a warrant, at the foot whereof a "notice shall be written specifying the object of the application ; " and the same shall be served two clear days before the return "thereof."

Such part of the act 3 & 4 Will. 4, c. 94, as is referred to in the foregoing order.

"That the Masters in ordinary of the High Court of Chancery shall hear and determine all applications for time to plead, answer, or demur, and for leave to amend bills, and for enlarging publication, and all such other matters (a) relating to the con"duct of suits in the said Court, as the Lord Chancellor, with the "advice and assistance of the Master of the Rolls and Vice-Chan"cellor, or one of them, shall by any general order or orders "direct, in such manner and under such rules and regulations as "by any order or orders to be also issued by the Lord Chan"cellor, with the advice and assistance aforesaid, shall be directed; " and that it shall be lawful for either party to appeal by motion "from the order made on such application before the Lord Chan"cellor, Master of the Rolls, or Vice-Chancellor, and that the "order made on such appeal shall be final and conclusive."

"That no such application as above mentioned shall in future "be heard by any of the judges of the said Court of Chancery, "except on appeal as hereinbefore provided."

A motion of course, as for motion for leave to amend a bill before answer, is still made to the Court. Cullingworth v. Grundy, 2 Mylne & Keen, 359.

An application for leave to amend a bill without prejudice to an injunction to stay proceedings at law, must be made to the Court and not to the Master. Rees v. Edwardes, 1 Keen, 465. So Daniell v. Woodruffe, V. C. November, 1838.

(a) In the act for the amendment of the proceedings and practice of the Court of Chancery in Ireland, 4 & 5 Will. 4, c. 78, s. 12, the words "shall have authority to hear and determine " and make orders upon all such matters" are inserted in the place of the words" shall hear and determine all applications for time "to plead, answer, or demur, and for leave to amend bills, and "for enlarging publication, and all such other matters."

December, 1833.

Order 20.

Amendment without prejudice to common injunction.

Question whether an order that plaintiff should be at liberty to amend without prejudice to the common injunction to stay proceedings at law, was an order of course or a special order. Anon. V. C. June, 1835.

In Ferrand v. Hamer, L. C. December, 1838, this point of practice, respecting which the books contain numerous conflicting dicta and decisions, was very fully considered, when it was determined that such order might be obtained as of course.

Now by the Orders of the 9th May, 1839, No. 2, it is ordered that the plaintiff in any injunction cause having obtained the common injunction to stay proceedings at law, may either before or after the answer of the defendant shall be put in, and whether such injunction shall or shall not have been continued to the hearing of the cause, obtain an order, as of course, for leave to amend his bill without prejudice to the injunction, but that such order shall contain an undertaking by the plaintiff to amend the bill within one week after the order, and in default thereof the order shall become void; but it is provided, that in case the bill shall be amended pursuant to such order, the defendant shall thereupon, and although he may not have put in his answer to the bill or the amendments thereof, be at liberty to move the Court on notice, to dissolve the injunction, on the ground that the bill as amended does not, even if the amendments be true, entitle the plaintiff thereto.

See Hamilton v. Patten, stated ante, pages 397, 398.

The Court has jurisdiction to allow time to answer as part of an order overruling a demurrer. Waterton v. Croft, 6 Simons,

431.

Where a demurrer to the whole bill is overruled, the defendant shall without rule or order be entitled (unless the Court shall make an order to the contrary) to the same time to file his answer as if no demurrer had been filed, such time to be reckoned from the appearance first entered with the registrar. General Orders, Ireland, November, 1834, No. XXII.

If a defendant demur, and the demurrer be overruled, then if upon a rule given he shall not answer within eight days, the plaintiff may proceed as if the defendant had not appeared. Parliamentary Ordinances, 1654, c. 44, s. 13.