appear and put in their answer, or signify their disclaimer of the suit and the matters in controversy therein, the complainants may notice their appearance to be entered, and in such case the answer of the deceased party shall be deemed the answer of the representatives or other person interested by the death of such person: And further, in case the complainant shall die pending any suit wherein the cause of action shall not survive, his lawful representatives, and other persons, interested by his death, may on affidavit thereof, and on motion in open court, be inserted as complainants in the suit, and be permitted to amend the bill as his interest may require, to which amendment the defendant shall be compellable to answer, and the action shall proceed to issue and trial as in ordinary cases; and in case any such person shall not in eighty days after such death of the complainant, cause himself to be entered as complainant as aforesaid, then the surviving complainant (if there be any,) may insert his name as a defendant in the suit, and may proceed as before directed, where the representatives of a deceased defendant are made parties. (See the proceedings, ante, for the amendment of the complainant's bill, page 212. Bills of revivor, 42.)

Motions for dismissing a bill for want of prosecutionaffidavit-notice of motion-certificate and order of the court.

After the elapse of three terms without any proceeding in a suit after the filing of a bill, the practice in England is, to obtain an order of court for its dismissal for want of prosecution. (a) But by the 12th

(a) De Graves v. Lane, 13 Ves, 201.

rule of court in this state, it is provided, that the complainant shall have three weeks time after notice of the defendant's answer being filed to except to the same, file a replication, or set down the cause for hearing on bill and answer, at the expiration of which time, if no proceedings have been had by the complainant, a decree for the dismissal of the bill may be entered at the next term, or any subsequent term, unless there be good cause shown to the contrary.(b)

Where upon a motion, if it is not granted, the plaintiff undertaking to speed the cause, it seems understood, that the plaintiff, according to the ancient practice, has the term and vacation to proceed.(c)

Where a bill is filed merely for a discovery, and prays no relief, a motion cannot be made to dismiss it for want of prosecution, but an order should be prayed for upon the plaintiff, to pay the defendant the costs of suit to be taxed by the master.(d)

If a replication to an answer be filed before a motion to dismiss, an order for that purpose cannot be obtained.(e)

An order obtained for the dismissal of a bill, may upon special circumstances and payment of costs be discharged on motion.(ƒ)

It has been held, that a defendant cannot move to dismiss a bill after publication is completely past.(g)

Affidavit.

and

A. B. Complainant.

E. F. of the city and county of New-York, being duly sworn, doth depose and say, that on the

day of

last, he served personally on

solicitor for the complainant in the above cause, the notice of motion and certificate whereof the annexed are true copies, and further this deponent saith not.

Sworn to before me, this

day of

E. F.

1818,

Notice.

Take notice, that upon the certificate, whereof a py is hereunto annexed, this honorable court will be moved on Thursday, the day of June next, or as soon thereafter as counsel can be heard, that the bill of the complainant in this cause be dismissed with costs

I certify, that the bill in the above cause was filed on the 25th day of February last past, that the answer of the defendant was filed on the 2d day of June last, and that no replication has been filed therein. Dated, 29th of September, 1816.

Ed. Elmendorf, clerk.

Certificate,

Upon reading and filing the certificate of Edmund Elmendorf, clerk in chancery, by which it appears that the bill of complaint in the above cause was filed on the 25th day of February last, that the answer of the defendant in the said cause was filed on the 2d day of June last, and that a replication had not been filed with the said clerk on the 29th of September last, and upon reading and filing an affidavit of the due service of notice of motion for 5th day of October, inst.-It is thereupon, on motion of Mr. E. F. of counsel for the defendant, ordered, adjudged and decreed, and his ho

Order.

९

nor the Chancellor, doth accordingly order, adjudge and decree, that the complainant's bill of complaint in the above cause be dismissed with costs, and that the complainant pay to the defendant his costs in the above cause to be taxed, and that the defendant have execution thereof.

Motion for an order of reference to a master.

Considering the great importance which this title assumes almost in every cause, whenever there may be a proper occasion to resort to it, it is a matter of some surprise, that there has not been more attention paid to it in books of practice. Under the direction and control of the Chancellor, the duties of a master in relation to this subject are extensive and in their nature important, comprising within themselves a subordinate system of practice.

In England, besides the master of the rolls, the chief, there are eleven other masters in chancery; these are from time to time appointed by the Lord Chancellor for the time being; in ancient times they were appointed by the king's letters patent-they are assistants or associates to the chancellor and master of the rolls, and sit with them in court by turns, usually two at a time; and references touching accounts and matters of practice are made to them; upon which they make their reports, but against which reports the party affected thereby is at liberty to except. They were formerly styled Clerici de Prima Forma, and were to be grave and ancient clerks; skilful and of long experience in the practice of the court, and by special appointment of Parliament, these twelve clerks or masters were made coadjutors with the chancellor, and had