of the Rolls, who expressed himself as follows: "The order as originally made by the Vice-Chancellor Knight Bruce is perfectly correct, and it is quite unnecessary to specify a limited time for demurring alone, or to make any alteration in the form of the subpoena, under the authority given by Order 24.” The order and subpana were thereupon directed to be prepared in conformity with this opinion. 1845. MR. MOORE v. PLATEL. [R. TURNER moved, under the 32nd Order of May 1845 (a), for an order appointing one of the solicitors of the Court guardian ad litem of a Defendant of unsound mind, not so found by inquisition. It was stated, that the Defendant had, for some time, been resident with a Mr. Snow, and that application had been made to the solicitors of the other Defendants to undertake his defence, but that they had refused. The MASTER of the ROLLS. The object of the Court is to see how this Defendant may be best protected. You have only applied to the solicitor of the other Defendants, who has refused; but it is not stated whether any application has been made to the relatives, or whether they will undertake the protection of this Defendant's interests. If they will not, I shall appoint Mr. Johnson, the solicitor of the suitors' fund, to be guardian; but I do not wish to do so until I am satisfied that no natural protector will undertake his defence. The matter had better stand over for a further affidavit. (a) Ord. Can. 296. NOTE.-See Needham v. Smith, 6 Beavan, 130,, not:e a. and Mackeverakin v. Cort, 7 Beavan, 347. Nov. 13. On an application to appoint a solicitor guardian ad litem, to a Defendant of unsound mind, not so found by inquisition, the court required to be first satisfied that no relative would undertake the defence. 1845. Nov. 23. Exceptions were shewn as cause on the day they were filed. Held that they might be referred in THIS HUGHES v. THOMAS. HIS was an injunction case. The Plaintiff obtained the common injunction for want of answer, which, however, was afterwards filed. On the 20th of November, the Plaintiff excepted thereto for insufficiency, and on the same day, upon a motion before Vice-Chancellor Knight Bruce to dissolve of May 1845, the injunction, the exceptions were shewn as cause. stanter, notwithstanding the 16th Order Art. 25. It was then proposed to refer the exceptions instanter ; but a question arose whether this could be done, since the 16th General Order of May 1845, Art. 25. which prohibits the Plaintiff referring exceptions for insufficiency until the expiration of eight days from the filing of such exceptions. (a) The senior Registrar, by the direction of his Honour the Vice-Chancellor Knight Bruce, applied to the Master of the Rolls. (b) The MASTER of the ROLLS expressed the following opinion. "The Plaintiff having filed exceptions for insufficiency is not without special leave to procure an order to refer them within eight days. 25. (a) Order 16. Art. "But (a) 16th Order of May 1845, Art. 25., and see Articles 26, and 28. Ord. Can, 284, 285. (b) 2 Colly. 259. "But in an injunction cause, if the Defendant obtain an order nisi to dissolve the injunction, the Plaintiff may shew his exceptions as cause against making the order nisi absolute. "He does not ask for a reference, but insists on his exceptions as good cause; and, thereupon, the Court, under the general practice and to avoid giving unjust credit to the exceptions, makes the reference mero motu, or at the request of the Defendant, and, to avoid unnecessary delay, imposes upon the Plaintiff the condition of obtaining the report in four days. So much of this practice as relates to time is stated in art. 28: the rest is founded on the old practice (a), which is not altered even as to time, although in an attempt to collect together the dispersed regulations as to time, it was thought right to mention this particular regulation as to time here." (a) See Bishton v. Birch, 2 Ves. & B. p. 42. Newland's Pr. 351. Hinde's Pr. 598. Wyatt's Pr. Reg. 235. 1 Turn. Pr. 973. 2 Har. Pr. 547. 1 Smith, Pr. 1845. HUGHES V. THOMAS. HORRY v. CALDER. Dec. 4. tion on the 4th MR. ́R. ALLNUTT moved, under the 28th Order of Bill filed in May 1845 (b), for liberty to serve a copy of the bill on a Defendant, after the expiration of the twelve weeks. The amended bill had been filed in July, but no affidavit was produced in support of the application. July, applicaof December for leave to serve copy bill. Motion refused on account of the delay. The MASTER of the ROLLS. After this unexplained unexplained delay I must refuse the motion. (b) Ord. Can. 294., and see 23rd Order of August 1841. Ord.Can.171. 1845. November 3. The words "last of the answers in der of May THIS DALTON v. HAYTER. HIS was a motion to dismiss the bill for want of prosecution under the 114th of the General Orthe 114th Orders of May 1845. (a) The bill was filed in 1843 1845, means against several Defendants, and afterwards, by amendment, Mr. B. was made a party. Mr. B. filed his answer, which became sufficient on the 18th of April 1845, and some of the other Defendants filed their answer on the following day. The subsequent proceeding in the cause. the last answer of any one of several De fendants, so that the right of one Defend ant to move to dismiss for want of prose cution is not delayed by his Co-defendant's neglect Plaintiff took no of the Defendants, had not answered; it was stated that she had gone abroad since appearance, but it was not shewn that any attempt had been made to get in her answer. It was now moved on behalf of Mr. B. The expres that the bill might be dismissed for want of prosecution, under the 114th Order of May 1845. to answer. sions "the last answer," and "the last of several answers in the 66th the 16th Order, art. 33, means the last of the several answers filed Mr. Beavan, in support of the motion. By the 114th Order, and in General Order of May 1845 (a), any Defendant may move to dismiss, and the Court may order accordingly, if a Plaintiff does not file a replication within four weeks after the answer, or the last of the answers is found or deemed sufficient, and the question depends on the true construction of this Order. The words "last of the answers" have reference to the antecedent expression any Defendant," and mean the last answer of "any” such Defendant; as if a Defendant put in a further by several De fendants. 66 answer, (a) Qrd. Can. 330. answer, or an answer to an amended bill, then four weeks after such last answer he could move to dismiss. SECONDLY; if this be not the true construction, then the last words "last of the answers mean the last of the answers which have then been filed; otherwise the Plaintiff, by omitting due diligence to get in an answer, or by adding a friendly Defendant, might, for ever, prevent a dismissal for want of prosecution. Besides this, some of the Defendants may never answer at all, for the Plaintiff may file a "traversing note," or the bill may be taken pro confesso without an answer, in which case the General Order would never apply. According to this construction the last of the answers put in was filed on the 19th of April, and became sufficient on the 28th of May, and the four weeks expired on the 25th of June, after which this Defendant was at liberty to move to dismiss. THIRDLY; Mrs. Moody being out of the jurisdiction, is not a Defendant within this order. In the case of The King of Spain v. Hullett (a), a Defendant out of the jurisdiction was considered not to be a Defendant within the meaning of the 13th Order of 1830. (b) So in Cooke v. Betham (c) and Bradstock v. Whatley (d), a Defendant not served with a subpoena was held not to be a Defendant within the same 13th Order; requiring an order to amend to be obtained within six weeks after the last of the answers, if there be two or more Defendants, is to be deemed sufficient. Mr. Greene, contrà. This motion is premature. The 114th Order is, in its terms, permissive, and the Defendant 1845. DALTON V. HAYTER. ૨૧ 2 |