284. Order to take the Answer of defendants, out of the juris-
diction, without oath and signature. Harding v. Hard-
ing. (See Nos. 151. 154.)
285. Order to refer back to the Master an Examination, under
the direction in a Decree for examination of the parties,
to see whether it was sufficient. Exception to the Re-
port, and in general terms, that the Master had reported
the Examination sufficient, whereas he ought to have
reported it insufficient, is regular; but not to be en-
couraged; and therefore being over-ruled, costs beyond
the deposit were given. Purcell v. M'Namara.
286. Depositions referred for scandal upon motion of course,
without notice. Eastham v. Liddell.
287. A person having attended under a subpoena as a witness,
but refusing to be sworn, ordered to attend to be ex-
amined, or stand committed. Hennegal v. Evance.
288. The practice of personal service, as a foundation for pro-
cess of contempt, dispensed with, where the party must
have notice; as upon a short Order for execution of a
Decree. Rider v. Kidder.
289. The practice of personal service, as a foundation for pro-
cess of contempt, dispensed with under circumstances;
a party declaring, he would not execute an Order, and
absconding to avoid it. De Manneville v. De Manneville.
290. After an Order upon a party in the cause for payment of
money, the proper course is an Attachment: and upon
the return to that an Order for commitment. Bowes v.
Lord Strathmore.
291. The Master not ordered to certify, whether he was satis-
fied with the production of papers by a party. Cotton
v. Harvey.
292. Examination to the credit of witness can only be by Order
upon special application, with notice, whether before or
after publication. Therefore evidence taken to that
point upon the examination in chief, suppressed, as im-
pertinent. Mill v. Mill. -
293. Order on motion, with consent, to rectify a clear mistake
in a Decree. Newhouse v. Milford.
294. Order on motion, with consent, to rectify a clear mistake
in a Decree. It must be a separate, supplemental, Order.
Lane v. Hobbs.
295. Order to dismiss for want of prosecution regular, accord-
ing to the practice: though the Six Clerk's certificate
appeared on the face of the Order to be of a subsequent
date. M'Mahon v. Sisson.
296. Co-plaintiff, as next friend, struck out; his evidence being necessary; but, as a general rule, upon giving security for the costs incurred. Witts v. Campbell.
297. The effect of taking Exceptions, pending a demurrer to discovery, is to admit the demurrer. Plaintiff' permitted to withdraw the Exceptions, paying the costs, without prejudice. Boyd v. Mills.
298. Where amendment is permitted, if so considerable as to
deface the Record, it must be taken off the file, and a
new Record substituted.
299. Bill dismissed by one co-plaintiff as to himself with costs,
without the consent of the other. Langdale v. Langdale.
300. Witness, examined in the cause, re-examined before the
Master upon different interrogatories by Order. Green-
away v. Adams.
301. Distinction between motion and petition, as applied to carry into effect Decrees and Orders.
302. Money not paid out of Court on motion.
303. No addition to or alteration in a Decree by motion or
305. The only answer to the motion to dismiss for want of prosecution is the usual undertaking to speed the cause. A special ground must be the subject of a special application. Bligh v..
306. At law, after a peremptory undertaking to go to trial a special application is necessary.
307. Motion to suppress depositions upon groundless objec-
tions, and not only after publication, but even after the
cause had been called on, and struck out, refused.
Whitelocke v. Baker.
308. A Decree, taken pro confesso, in the ordinary course,
after appearance not under the Statute 5 Geo. 2. c. 25,
can be impeached, as any other Decree, only directly,
by a Bill of Review, or a Bill to set it aside for fraud;
not collaterally, by an original suit, seeking a Decree
inconsistent with it. Such a bill therefore dismissed,
with costs. Ogilvie v. Herne.
309. It is not necessary, that the affidavit for an Order, that
service of the subpoena upon an Injunction Bill on the
attorney at law shall be good service, should state a
previous application to the attorney, and refusal, to
accept service. French v. Roe.
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310. Defendant to a bill for an account cannot upon motion immediately after Answer have a reference to the Master, by analogy to the case of a mortgage, by Stat. 7 Geo.2. c. 20; and the case of specific performance, according to the practice, settled; though the reason of it is questionable. Eldridge v. Porter.
311. Objection to a motion, upon the right to costs of previous notices, abandoned, cannot be made until the fourth. Anderson v. Palmer (a).
312. General rule not to open biddings, after confirmation of the Report, upon negligence, surprise, the circumstances
(a) See the note, Vol. XIV. page 151.
of the estate, &c. without something unconscientious
on the part of the purchaser. White v. Wilson.
313. No rule, fixing the advance on opening biddings at £10
per cent. More, or less, will be required according to
circumstances. White v. Wilson.
314. Answer of a mere trustee, without interest, in a state of
incapacity, not to be taken without oath and signature.
The proper course is to have a guardian appointed.
Wilson v. Grace.
315. Motion for payment of money into Court, not admitted to
be due even upon examination of the defendant, but
appearing due by his schedule, according to the plain-
tiff's calculation, refused. For such a purpose the re-
sult of the schedule, ascertaining the sum due, must
clearly appear, verified by affidavit. Quarrell v. Beck-
ford.
316. Serjeant at Arms not granted under a four-day Order to
bring in books, &c. before the Master, until made ab-
solute by a subsequent Order upon the Master's certifi-
cate, of the same date. Carleton v. Smith.
317. Writ of execution only in the case of a party. A stranger
must be served, first, with an order to pay the money
by a given day, and in case of default with another
order to pay on another day or stand committed. Anon.
318. Order to amend upon petition at the Rolls, after notice
of motion to dismiss for want of prosecution for the Seal, the day, on which the Order was obtained, and the motion could not be made, regular. White v. Hall. 319. Motion for production of deeds and papers, referred to as in defendant's possession, but not described by the answer or schedule, and without an offer to produce them, as the Court shall direct, refused. Atkyns v. Wright.
320. Qualified submission to produce a deed, if the Court
shall require it, does not fix the defendant; and deprive
him of the discretion of the Court as to the propriety
of the production.
321. Order to dismiss the bill for want of prosecution cannot
be had, if a proceeding has been taken before the
motion but if the Order has been obtained irregularly
by misrepresentation of the plaintiff, he shall pay the
costs of discharging it. Anon.
322. Upon farther directions, under the usual decree for an
account against an administratrix, an inquiry as to ba-
lances in her hands from time to time, with a computa-
tion of interest thereon, prayed by petition, upon affi-
davits of her conduct before the Master, by attempting
to support her discharge by forgery, &c. was granted.
Parnell v. Price.
323. A purchaser may be committed for disobeying an Order to pay in his money. Lansdown v. Elderton.
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324. Order to stay proceedings, until security given for costs,
upon affidavit, that the plaintiff since the Answer had
abandoned this country, and resides in the Isle of Man.
Weeks v. Cole.
325. General rule, that an appeal does not stay proceedings
without a special ground. The decree, being for the
specific performance of a contract for purchase, accord-
ing to the Aanswer, the execution only was suspended:
the Master to proceed to settle the conveyance, &c.
Gwynn v. Lethbridge.
326. Order of a preceding Lord Chancellor not to be re-heard
upon minutes; but must first be drawn up. Taylor v.
Popham.
327. Motion to take off the file for irregularity a plea to a
bill, amended under the usual Order, after Exceptions
allowed, refused; as a case for a plea may arise either
from the amendments themselves, or from their effect
upon the original part of the bill. Ritchie v. Aylwin.
328. Though generally a party cannot be heard, until he has
cleared his contempt, a step, taken by the other party,
waves the contempt for all purposes, except the right
to costs; as costs in the cause; not to be obtained
by process of contempt. Acceptance of the Answer
therefore a waver of the contempt for the purpose of
enabling the defendant to dismiss the bill for want of
prosecution. Anon.
329. Order on motion of defendant for examination of plaintiff, saving just exceptions: the plaintiff consenting to be examined. Walker v. Wingfield.
330. Defendant, in Newgate under a criminal sentence, having been brought up by Habeas corpus for not putting in his Answer, and remanded to Newgate, as to the farther proceeding, quære. Lloyd v. Passingham.
331. Injunction, on motion of course to deliver possession of
land decreed; as a ground for the Writ of Assistance,
the only mode of obtaining immediate possession: a
Court of Equity properly acting only in personam. Hu-
guenin v. Baseley.
332. Order, dismissing a bill for want of prosecution after
three Terms expired without any step taken, obtained
upon motion of course; not requiring notice.
graves v. Lane.
333. After Answer to a bill of discovery motion to amend the bill by adding a prayer for relief refused with costs. Butterworth v. Bailey.
334. Plaintiff in a bill for discovery pays the costs.
335. Distinction as to Exceptions in the Courts of Chancery
336. Bill by a widow, devisee in fee, impeaching a mortgage
by her, while covert, for want of a Fine. Answer ad-
mitting possession of the Will and the title under it;
alleging the loss of the settlement; stating it differently from the bill by the addition of a power of revocation and appointment of new uses, by the exercise of which a Fine was not necessary. Production of the Will, not being offered by the Answer, ordered on motion. Bird v. Harrison. 337. Order for the appointment of a person to act as guardian (the father being living) and for a reference as to maintenance, but not for a Receiver, upon a petition, without any suit instituted (a). Ex parte Mountfort. 338. After answer not of course to enlarge publication until answer to a cross bill. Dalton v. Carr.
339. Order, obtained by plaintiff, under the usual undertaking to speed his cause, for liberty to withdraw his replication, and amend the bill, discharged with costs. Pitts v. Watts.
340. Order to dismiss the bill for want of prosecution, after three Terms, without replication, of course, without notice; and pending an Injunction, staying execution. Naylor v. Taylor.
341. Motion to enlarge publication in the original cause until
answer to a cross bill, the original cause being set down
for hearing, and the cross bill filed after rules for passing
publication, refused with costs. Cook v. Broomhead.
342. Biddings opened upon a second application by the same
person: the purchaser not appearing upon notice.
Preston v. Barker.
343. Order, dismissing the bill for want of prosecution, after
three Terms, without replication, of course, without
notice; and not discharged upon special circumstances,
except on payment of costs. Jackson v. Pownall.
344. Order by one defendant to examine another not of course
after, as before, a decree. In a special case, to ascer-
tain which trustee actually received money, all having
signed the receipt, the Court refused to discharge the
order, made two years before; but required the exa-
mination without delay. Franklyn v. Colquhoun.
345. Different practice of the Courts of King's Bench and
Common Pleas as to putting off a trial in the absence
of a witness the former being satisfied with an affi-
davit, that the party cannot safely go to trial without
the evidence the latter requiring the reason.
346. After process to a Serjeant at Arms issued, but not executed, Answer, and Exceptions submitted to by a note between the Clerks in Court; but, no farther Answer being put in, the Serjeant at Arms ordered to go. Waters v. Taylor.
347. Defendant, taken upon the process for want of an Answer, is on putting in an Answer, entitled to be dis
(a) See the note, Vol. XV. page 449.
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