the suit, is interested in proceedings before the Master, liberty will be given to bring him before the Master, without making him a party. Lord Redesdale, 145.

(3) Costs of the Day.

In Mitchell v. Bailey, 3 Mad. 61. the Vice Chancellor refused the costs of the day, the objection for want of parties not being stated by the answer. But in Hill v. Kirwan, Jac. 163. the Master of the Rolls gave the costs notwithstanding the above circumstance.

By Lord Lyndhurst's orders, 34. 2 Russ. (Appendix), 14. it is ordered that when a cause which stands for hearing is called on to be heard, but cannot be decided by reason of a want of parties, or other defect on the part of the plaintiff, and is therefore struck out of the paper, if the same cause is again set down, the defendant or defendants shall be allowed the taxed costs, occasioned by the first setting down, although he or they do not obtain the costs of the suit.

By Lord Lyndhurst's orders, 35. 2 Russ. (Appendix), 14. it is ordered that where a cause being in the paper for hearing is ordered to be adjoured upon payment of the costs of the day, there the party to pay the same, whether before the Lord High Chancellor, the Master of the Rolls, or the Vice Chancellor, shall pay the sum of ten pounds, unless the Court shall make other order to the contrary.

By Lord Lyndhurst's orders, 14. 2 Russ. (Appendix), 9. it is ordered that every order for leave to amend the bill, shall contain an undertaking by the plaintiff to amend the bill within three weeks from the date of the order; and in default thereof, such order shall become void; and the cause shall, as far as relates to any motion to dismiss the bill for want of prosecution, stand in the same situation as if such order had not been made.

But it seems that this order is confined to amendments before the hearing.

Order on Default.

In Cox v. Allingham, 3 Mad. 393. the plaintiff neglecting to amend, was ordered to amend within a limited time. In Yarroway v. Hand, 2 Dick. 498. the plaintff was ordered to amend by a given time, or the bill to be dismissed. In Mitchell v. Lowndes, 2 Cox, 15. the plaintiff having amended, but neglecting to proceed further, an order was made for dismissing the bill, upon which the plaintiff

undertook to speed the cause. But in Lyonce v. Wye, 9 Price, 166. in the Exchequer, a motion that the plaintiff should amend within a given time, or that the bill should be dismissed was held irregular ; and that after hearing, the bill could not be dismissed on motion, but that the cause must be set down again, for which leave was given.

It seems that the original order sometimes directs that in default, the bill may stand dismissed; in which case upon default the cause will be out of Court without further order. See Stevens v. Praed, 2 Cox, 375. And see Decree for retaining bill with liberty to bring action. Decrees for Issue, &c. No. XV. ante.

His Lordship doth order that these causes do stand over; and that the plaintiff in the original cause do pay unto the defendants the costs of the day in the original cause; and that the said plaintiff be at liberty to make proper parties, either by amendment or supplemental bill, as he shall be advised. Canning v. Canning, L. C. 25th July, 1747. Reg. Lib. A. 1746. fol. 480.

No. II.

DECREE FOR CAUSE TO STAND OVER, WITH LIBERTY TO SUPPLY PROOFS.

His Lordship doth order that this cause do stand over; and that the plaintiff do pay unto the defendants the costs of this day's attendance (1). And that the plaintiff be at liberty to exhibit an interrogatory in the examiner's office, or to take out a commission to examine witnesses (2), for proof of the settlement of the 25th and 26th days of February 1738, in the pleadings of the cause mentioned; and that the defendants do join and strike commissioners' names, in a week after notice thereof to their clerk in court, or in default thereof, that the plaintiff be at liberty to take out such commission, directed to her own commissioners. And in case the defendants shall not examine any witness produced by themselves, then such commission is to be at the plaintiff's expense; but this is not to prevent the defendants from cross-examining any wit

ness.

And it is further ordered, that the defendants, the representatives of Thomas Johnson, the mortgagee of the estate in question, do produce the said settlement to the examiner, or at the execution of such commission, to the end it may be examined to, and also at the hearing of this cause. Johnson, M. R. 12th July, 1748. Reg. Lib. B. 4747. fol. 408.

Ore v.

NOTES.

(1) See Costs of the Day, No. I. Note (3), ante.

(2) Defective Evidence.

A cause is sometimes allowed to stand over, in order to supply a defect in the evidence produced; as where office copies have not been signed by the proper officer. Attorney-General v. Milward, 1 Cox, 437. And see orders, 25th November, 1691, and 19th January, 1795. Beames, 289. 300.

So where an instrument is of such a nature that it is not necessary to be stamped previous to the commencement of the suit, the cause will be allowed to stand over, in order to get it stamped. Huddlestone v. Briscoe, 11 Ves. 595.

In Chervet v. Jones, 6 Mad. 267. the Vice-Chancellor directed the cause to go on; but that before the decree was delivered out the instrument should be produced to the register stamped.

So, in the case of a defective administration, the cause will be allowed to stand over. See Davidson v. Foley, 3 Bro. 604.

But not for the purpose of enabling the plaintiff to get one of the securities for an annuity enrolled. Davidson v. Foley, supra.

Sometimes a cause is allowed to stand over in order to produce further evidence, and liberty is given by the decree to exhibit interrogatories for that purpose. Ore v. Johnson, supra.

As where the heir at law stated his belief only as to the execution of the will; which was held insufficient without proof of the will. Potter v. Potter, 1 Ves. 274. Belt's Suppl. 147.

So where the defendant in a creditor's suit stated her belief only that the debt of the plaintiff was due. Hill v. Binney, 6 Ves. 738. But whether the belief of the defendant was not sufficient. Q. See the

case.

So where facts are admitted by the answer of parties against

whom their admissions cannot be read. See Lord Redesdale, 266. Hodgson v. Merest, 9 Price, 563.

So where an infant heir was not held bound by the admission of his ancestor. Cartwright v. Cartwright, 2 Dick. 545.

So, where the plaintiff, having obtained an order to prove a deed vivá voce at the hearing, and all the witnesses being dead, was not permitted to prove the hand-writing of a deceased witness, the cause was allowed to stand over, with liberty to exhibit an interrogatory for that purpose. Bloxton v. Drewit, Prec. in Ch. 64.

So where the death of a party was not proved. Moons v. De Bernales, 1 Russ. 307.

So where a will was proved, except as to the absence of a witness. Wood v. Stane, 8 Price, 613. Or as to the sanity of the testator. Abrams v. Winshup, 1 Russ. 526. Wallis v. Hodgson, 1 Russ.

527. note.

Sometimes the order is made on a motion made at the hearing for that purpose. Attorney-Genetal v. Thurnall, 2 Cox. 2. Sometimes the cause is directed to stand over, with liberty to make an application: As where proof of the loss of a deed was held insufficient to let in secondary evidence. Cox v. Allingham, Jac. 337. And see Banks v. Farquharson, 1 Dick. 167. S. C. (Banks v. Farques) Ambl. 145.

Sometimes a decree is made in part, with liberty to supply proofs: As where the heir at law is an infant, and the will is not proved against him, a decree may be obtained for an account of the personal estate, with liberty to exhibit interrogatories to prove the will. See Lechmere v. Brasier, 2 J. & W. 289.

So where the heir at law of a trader is an infant, and the trading is omitted to be proved. Lechmere v. Brasier, supra. And see Decrees in Supplemental Suits, No. IV. post.

So where one of the parties to an account is not proved to be out of the jurisdiction, an account may be directed, with liberty to supply the proof by an interrogatory. Butler v. Borton, 5 Mad. 42.

A fact having been unnecessarily alleged, a decree was made subject to an inquiry as to that fact. Edney v. Jewel, 6 Mad. 165. On a bill for the administration of the assets of a trader, a reference has been directed as to the trading. Elgar v. Coleman, Appendix (1). Hagden v. Bousey, Ib.

But a reference ought not to be directed as to facts which are the

foundation of the relief, as the execution of a will, or the fact of trading. Lechmere v. Brasier, 2 J. & W. 288.

In some cases deficiency of proof against infants may be supplied by a reference. Quantock v. Bullen, 5 Mad. 82. And see Decrees in Supplemental Suits, No. IV. post.

Further Hearing.

When proofs are allowed to be supplied by interrogatories, the depositions cannot be published without an order. Rossiter v. Pitt, 2 Mad. 165. And see Attorney-General v. Thurnall, 2 Cox, 2. After publication the cause must be again set down. See Lechmere v. Brasier, 2 J. & W. 289.

APPENDIX (1).

Inquiry as to Trading.

It is ordered that the said Master do inquire whether the said testator was a trader within the intent and meaning of the statutes relating to bankrupts. And in case he shall find that he was such trader, it is ordered that he do inquire what real estate the said testator died seised or possessed of or entitled to, and what interest he had therein. Elgar v. Coleman, M. R. 15th November, 1814. Reg. Lib. A. 1814. fol. 119.

For like decree see Hagden v. Bousey, M. R. 29th November, 1814. Reg. Lib. A. 1814. fol. 610.