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where the decree has been served within the
jurisdiction.

1845.

2. Where served out of the jurisdiction.

2. After the expiration of the time limited by the notice provided for by Order LXXXVI., where the decree has been served without the jurisdiction. 3. After the expiration of three years from the date of 5. Where no the decree, where a Defendant has not been served with a copy thereof.

And such order may be made either on the first hearing of such motion, or on the expiration of any further time which the Court may, on the hearing of such motion, allow to the Defendant for presenting a petition for leave to answer the bill.

XCI. Where the decree is not absolute under Order LXXXIII. and has not been made absolute under Order XC., and a Defendant has a case upon merits not appearing in the bill, he may apply to the Court by petition stating such case, and submitting to such terms with respect to costs and otherwise as the Court may think reasonable, for leave to answer the bill; and the Court, being satisfied that such case is proper to be submitted to the judginent of the Court, may, if it thinks fit, and upon such terms as seem just, vacate the inrolment (if any) of the decree, and permit such Defendant to answer the bill; and if permission be given to such Defendant to answer the bill, leave may be given to file a separate replication to such answer, and issue may be joined, and witnesses examined, and such proceedings had as if the decree had not been made, and no proceedings against such Defendant had been had in the

cause.

XCII. The rights and liabilities of any Plaintiff or Defendant under a decree made upon a bill taken pro

confesso

service.

Order absolute may be either immediate or de

ferred.

The decree not being ab

solute, Court

may, on terms,

open enrol

ment, and permit De

fendant to

answer and

rehear.

Rights and

under decree

liabilities

1845.

pro confesso

to extend to representatives.

Court may permit ulterior proceedings.

Joining issue.

Subpæna to
rejoin abo-
lished.

Only one re-
plication to
be filed, and
thereupon the

cause to be
deemed at
issue.

confesso extend to the representatives of any deceased Plaintiff or Defendant, and to any persons or person claiming under any person who was Plaintiff or Defendant at the time when the decree was pronounced ; and with reference to the altered state of parties and any new interests acquired, the Court may, upon motion or petition served in such manner, and supported by such evidence as under the circumstances of the case the Court deems sufficient, permit any party, or the representative of any party, to file such bill or bills, or adopt such proceedings as the nature and circumstances of the case require, for the purpose of having the decree (if absolute) duly executed, or for the purpose of having the matter of the decree (if not absolute) duly considered, and the rights of the parties duly ascertained and determined.

Joining Issue.

XCIII. No subpoena to rejoin is hereafter to be issued; and only one replication is to be filed in each cause, unless the Court otherwise orders; and the replication is to be in the form set forth at the foot of this Order, or as near thereto as circumstances admit and require; and upon the filing of such replication, the cause is to be deemed to be completely at issue; and each Defendant may, without any rule or order, proceed to examine his witnesses, and the Plaintiff may, in like manner, proceed to examine his witnesses so soon as notice of the replication being filed has been duly served on all the Defendants who have filed an answer or plea, or against whom a traversing note has been filed.

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"The Plaintiff in this cause hereby joins issue with the Defendant C. D." [all the Defendants who have answered or pleaded, or against whom a traversing note has been filed]," and will hear the cause on bill and answer against the Defendant E. F." [all the Defendants against whom the cause is to be heard on bill and answer]," and on the order to take the bill as confessed against the Defendant G. H." [as the case may be].

Commission to examine witnesses.

1845.

XCIV. Commissions to examine witnesses within the Commission

to examine

witnesses to be directed to two barristers

or solicitors;

jurisdiction of the Court are to be directed to two commissioners only, and, unless the Court otherwise orders, are to be made returnable without delay; and the commissioners are to be either barristers or solicitors not concerned in the cause, and each one of such two commissioners is to have all such power and authority to examine witnesses, as have heretofore been vested in the acting commissioners named in the commissions to examine witnesses which have heretofore been issued; but the commissioner first named in the commissions to but one alone to act. be hereafter issued is alone to act in the execution of any commission, unless he is, by illness or other sufficient cause, incapacitated from acting therein, in which case the commissioner secondly named is alone to act in the execution of such commission.

commission.

XCV. Immediately after the replication is filed, the After replicaPlaintiff, if he thinks fit, may give notice to all other tion, Plaintiff may give parties entitled to examine witnesses in the cause, of his notice of intention to sue out a commission for that purpose; and the Plaintiff, if he gives such notice within two days Carriage of, after the filing of the replication, or before any De- by Plaintiff. fendant has given notice of his intention to sue out a commission, is to have the carriage of the commission. XCVI. After

1845.

XCVI. After the expiration of two days from the filing of the replication, if the Plaintiff has not previously by Defendant. given notice to all other parties entitled to examine wit

Carriage of,

Parties may agree on commissioners.

Parties not agreeing, the Master to

select or

nominate commissioners.

nesses in the cause of his intention to sue out a commission for that purpose, any Defendant may give notice to all the other parties entitled to examine witnesses in the same cause, of such Defendant's intention to sue out a commission for that purpose; and any Defendant so giving such notice is to have the carriage of the commission, unless such notice be given by more than one Defendant, in which case the Defendant who first gave such notice is to have the carriage of the commission.

XCVII. Where the parties entitled to examine witnesses in the cause agree to the nomination of persons to be commissioners, and to the order in which such commissioners are to be named, the record and writ clerk, upon being applied to for the purpose, is to cause a commission directed to such persons to be sealed and delivered to the person entitled to have the carriage thereof.

XCVIII. If all the parties entitled to examine witnesses in the cause have not, within four days after the filing of the replication, agreed to the nomination of persons to be commissioners, any party entitled to examine witnesses in the cause may apply to the Master to whom any former reference in the cause has been made, or to the Master in rotation in case no former reference has been made, for a warrant, returnable in two days, requiring the other parties to attend for the purpose of having commissioners named; and such Master is to grant such warrant, and the same being duly served, all parties, on the return thereof, are to propose commissioners; and if, among the persons so proposed,

there

there are two or more to whom no just objection is made, the Master is to select or nominate and certify to be commissioners such two of the proposed persons as appear to him most proper to perform the duty; but if it appears that no one or only one of such proposed persons is free from just objection, the Master, as the case may be, is to nominate and certify two proper persons, or to nominate one proper person and certify him and the person free from objection, to be the commissioners.

1845.

determine questions as

XCIX. If any question arises as to the commissioner Master to who is to be first named, or as to the party who is to have the carriage of the commission, the Master is determine such question, and to name the party who to have the carriage of the commission.

to

to the first

commis

is

sioner, and

the carriage.

allow additional com

C. If any party entitled to examine witnesses in a Master may cause shall desire to have any additional commission or commissions, application is to be made to the Master mission, for leave to sue out such additional commission or commissions; and upon the Master's certificate that such additional commission or commissions is or are proper to be issued, the same may be sued out in the same manner as a first or only commission; and in case the parties do not agree, any question respecting the commissioners to be named or the order in which they are to be named in the commission, or any question respecting the carriage of any such additional commission, is to be settled by the Master as in the case of a first or only commission.

and questions determined by

thereon to be

him.

Master to deliver cer

tificate of no

CI. The Master is to deliver his certificate of the nomination of the commissioners to the solicitor of the party who is to have the carriage of the commission; and such solicitor is, on the same day, or at the latest sioners to the

VOL. VII.

d

on

mination of commis

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