No. XIV.

DECREE DIRECTING ACTION.

His Lordship doth order, that the parties do proceed to a trial at law, at the next summer assizes to be holden for the county of Somerset, upon the ejectment already brought, or on any new ejectment to be brought by the defendants, or either of them, for the premises in question. And it is further ordered, that all copies of Court rolls, deeds, and writings, which are in the custody or power of any of the parties, relating to the premises in question, be produced &c. [See No. I. ante.] And it is further ordered, that the injunction granted in this cause be continued, so far as to restrain the defendants from taking possession in the mean time. And his Lordship doth reserve the consideration of costs, and of all further directions, until after such trial shall be had, when any of the parties are to be at liberty to apply &c. [See Usual Directions, No. XIX. ante.] Sheppard v. Dyer, L. C. 8th December, 1746. Reg. Lib. B. 1746. fol. 141.

For order for ejectment. See Equity Draftsman, 631.

For order for action of trover. See Equity Draftsman, 631.

NOTE.

In an action brought under the direction of the Court, the like order will be made as to reading depositions as in the case of an issue. See Direction for reading Depositions, No. IV. ante.

No. XV.

DECREE RETAINING BILL, WITH LIBERTY TO BRING ACTION.

His Honour doth order, that the plaintiff's bill be retained for twelve months, with liberty for the plaintiff, in the mean time, to proceed at law touching the matter in question in this cause, as he shall be advised. But in case the plaintiff shall not proceed at law, and proceed to trial within the time aforesaid, the plaintiff's bill is from thenceforth to stand dis

missed out of this Court with costs, to be taxed by Mr. P. one &c. But in case the plaintiff shall proceed at law, and to trial as aforesaid, within the time aforesaid, his Honour doth reserve the consideration of the costs of this suit, and of all further directions, until after such trial shall be had. And in either case, any of the parties are to be at liberty to apply to the Court, as they shall be advised. Cator v. Dewar, M. R. 2d December, 1779. Reg. Lib. A. 1779. fol. 683. S. C. 2 Dick. 654. where, however, the decree is not correctly stated.

For like order. See Equity Draftsman, 632.

NOTE.

Formerly further directions were reserved, whether any action was prosecuted within the time limited or not. See Stevens v. Praed, 2 Cox, 376. Cole v. Dyer, Appendix (1).

But afterwards further directions were only reserved in the event of the trial taking place. Cator v. Dewar, supra. Stevens v. Praed, supra.

Upon default a further order must be obtained, unless the decree expressly directs that, upon default, the bill should be dismissed without further order. See Cator v. Dewar, supra.

Praed, 2 Cox, 374.

Stevens v.

Otherwise where a cause is ordered to stand over for want of parties. See Decrees for Cause to stand over, &c. No. I. post.

In Cator v. Dewar, supra, it was held, that a further order could not be obtained on motion, but that the cause must be set down for further directions. But in Stevens v. Praed, 2 Cox, 374. it was held, that it might be obtained on motion also.

In Duke of Leeds v. Corporation of New Radnor, 2 Bro. 519. it was said that the Court, by retaining the bill, admitted the plaintiff's right to relief. But in Curtis v. Curtis. 2 Bro. 629. the Master of the Rolls was inclined to think that the retaining a bill was not in itself a determination that relief in equity must ultimately be given. And in Harwood v. Oglander, 6 Ves. 225. the Master of the Rolls held, that it was not a necessary consequence that the Court would not ultimately determine against the plaintiffs, because the bill had been retained; and that it had been so determined by Lord Kenyon in Barber v. Geast. S. C. (Geash v. Barber,) 2 Bro. 61.

That in bankruptcy, after order for petition to stand over until after trial at law, petition for further directions is not necessary. See Ex parte Window, 2 G. & J. 280.

APPENDIX (1).

Decree retaining Bill.

His Lordship doth order, that the plaintiff's bill be retained for twelve months; and the plaintiffs be at liberty to bring an ejectment and proceed to trial thereon in the mean time. And his Lordship doth reserve the consideration of costs, and of all further directions, until after such trial shall be had; and if no such trial shall be had, until after such time shall be expired. And any of the parties are to be at liberty to apply to the Court after such trial shall be had, or such time shall be expired. Cole v. Dyer, L. C. 27th Janaary, 1747. Reg. Lib. A. 1746. fol. 631.

DECREE FOR CAUSE TO STAND

OVER, &c.

No. I.

ORDER FOR CAUSE TO STAND OVER, WITH LIBERTY TO ADD PARTIES.

This cause coming this present day to be heard and debated before the Right Honourable the Master &c. in the presence of counsel learned on both sides; and the pleadings in the cause being opened (1), and it appearing that the plaintiff's had not all proper parties before this Court. Whereupon and upon debate of the matter, and hearing the answer, &c. and what was alleged &c. his Honour doth order that this cause do stand adjourned over. (2) And the plaintiffs are to be at liberty to amend their bill by adding proper parties, and bring on their cause again to a hearing, as they shall be advised; but the plaintiffs are to pay unto the defendants the costs of the day. (3) Ryal v. Billers, M. R. 11th December, 1747. Reg. Lib. B. 1747. fol. 180.

For like orders. See Hand's Pract. 117, 118.

NOTES.

(1) Mode of taking Objection.

In Darwent v. Walton, 2 Atk. 510. it is said, that the objection. for want of parties is in the nature of a plea of abatement at law, which cannot be resorted to after the merits have been gone into. And, regularly, the objection for want of parties ought to be taken on the opening of the proceedings, and before the merits are disclosed. Jones v. Jones, 3 Atk. 111.

But it frequently happens, that after a cause is gone into, and even thoroughly heard, yet the Court is compelled to let it stand over for want of parties. S. C.

In East India Company v. Boddam, 9 Ves. 467. it seems to have been thought that the objection could not be taken upon a rehearing. But in Holdsworth v. Holdsworth, 2 Dick. 799. upon a rehearing, the cause was ordered to stand over for want of parties. And see Magdalen College v, Sibthorp, 1 Russ. 154.

The objection cannot be taken by the plaintiff unless under special circumstances. James v. Jackson, 16 Ves. 361.

(2) Decree.

Formerly, upon a defect of parties, it was considered to be discretionary in the Court, either to dismiss the bill without prejudice to another bill, or to give leave to amend, on payment of the costs of the day. See Stafford v. City of London, 1 P. W. 429. But a decree of Sir Joseph Jekyl, dismissing a bill for want of parties, was reversed by Lord King on appeal. See Anon. 2 Atk. 15. Jones v. Jones, 3 Atk. 111. And a decree of the same nature in the Court of Exchequer was reversed likewise in the House of Lords. See Anon. 2 Atk. 15. Green v. Poole, 4 Bro. P. C. 122. And since only ordered to stand over, on paying the costs

that time causes are

of the day, that the plaintiff may have an opportunity of making proper parties. Jones v. Jones, supra. Hill v. Kirwan, Jac. 164. East India Company

And see Windsor v. Windsor, 2 Dick. 707. v. Neave, 5 Ves. 185. Lord Redesdale, p. 263. But this order is considered as made by consent, and therefore cannot be appealed from. See Beresford v. Adair, 2 Cox, 156. If the plaintiff is dissatisfied with the opinion of the Court as to the want of parties, he should let his bill be dismissed, and appeal from the order of dismissal. S. C. Sometimes the cause is ordered to stand over, with liberty to file a supplemental bill to add parties. Jones v. Jones, 3 Atk. 112. S. C. 1 Dick. 96. Holdsworth v. Holdsworth, 2 Dick. 799.

Sometimes leave is given to add parties, either by amendment or supplemental bill. Canning v. Canning, Appendix (1).

In Pitt v. Brewster, 1 Dick. 37. one of the executors of the testator, not being made a party, was ordered to be introduced into the decree as a party, and to account, without putting off the cause to add parties.

So where the personal representative of a person not a party to