April, 1850.

Under the Orders of April, 1850, any person seeking Equitable relief may, without special leave of the Court, and instead of proceeding by bill in the usual form, file a Claim in the Record and Writ Clerks' Office, in (among other specified cases,) any case where the plaintiff is, or claims to be, a person entitled to the specific performance of an agreement for the sale or purchase of any property, seeking such specific performance: such claim to be in the form, and to the effect, of the form No. 8 set forth in the Schedule A. to the said Orders; and the filing of such claim is to have the force and effect of filing a bill (l): and in any case in which the above form is not applicable, the Court may, upon the ex parte application of the plaintiff, and upon reading the claim proposed to be filed, give leave to file it (m).

Upon filing the claim the plaintiff may sue out a writ of summons to the defendant, requiring him to cause an appearance to be entered, and also requiring him, on a day or time to be therein named, or on the seal or motion day then next following, to show cause, if he can, why such relief as is claimed by the plaintiff should not be had; or why such order as shall be just with reference to the claim should not be made (n): the time named for showing cause is to be fourteen days at the least after service of the writ; but, by consent of the parties, and with the leave of the Court, cause may be shown on any earlier day (o).

The only person who need be named in the writ of summons, as defendant to the suit in the first instance, is the person against whom relief is directly prayed (p).

Proceedings by claim, under the Orders of April, 1850.

Special claim.

Writ of summons.

Who to be named defendant.

(l) See Orders 1 and 2. (m) Order 6.

(n) See Orders 5, 6. (o) Order 1.1.

At the time named in the writ for showing cause, or on the seal or motion day then next following, or so soon after as the case can be heard, the defendant, having previously appeared, is, personally or by counsel, to show cause in Court, if he can, (and, if necessary, by affidavit (q),) why such relief as is claimed by the claim should not be had against him (r).

At the time appointed for showing cause, upon the motion of the plaintiff, and on hearing the claim, and what may be alleged on the part of the defendant, or upon reading a certificate of the appearance being entered by the defendant, or an affidavit of the writ of summons being duly served, the Court may, if it shall think fit, make an order granting or refusing the relief claimed, or directing any accounts or inquiries to be taken or made, or other proceedings to be had for the purpose of ascertaining the plaintiff's title to the relief claimed: and the Court may direct such (if any) persons or classes of persons as it shall think necessary or fit, to be summoned or ordered to appear as parties to the claim, or on any proceedings before the Master with reference to any accounts or inquiries directed to be taken or made, or otherwise (s).

Every order to be so made is to have the effect of, and may be enforced decree or decretal order made in a suit commenced by bill, and duly prosecuted to a hearing, according to the previous course of the Court (t).

If, upon the application for any such order, or during any proceedings under any such order when made, it shall appear to the Court that, for the purposes of justice between the parties, it is necessary or expedient that a bill should be filed, the Court may direct or authorize such bill to be filed, subject to such terms as to costs or otherwise as may be thought proper (u).

Showing cause.

Hearing and order thereon.

Effect of order.

Court at hearing may direct bill to be tiled.

(p) Order 8.

(q) It is understood that, in practice, the plaintiff is allowed to file affidavits in reply.

(r) Order 12. (s) Order 13. (t) Order 14.

The orders made for granting relief in the several cases to which the forms set forth in Schedule A. are applicable, may, if the Court thinks fit, be in the form and to the effect set forth in Schedule C. as applicable to the particular case, with such variations as circumstances may require (v).

If any of the cases enumerated in Order I., involve, or are attended by, such special circumstances affecting either the estate or the personal conduct of the defendant, as to require special relief, the plaintiff is at liberty to seek his relief by bill, as if the orders had not been made (w).

If any suit, for any of the purposes to which the forms set forth in Schedule A. are applicable, shall be commenced by bill and prosecuted to a hearing in the usual course, and, upon the hearing, it shall appear to the Court that an order to the effect of the decree then made, or an order equally beneficial to the plaintiff, might have been obtained upon a proceeding by summons in the manner authorized by the orders, the Court may order the increased costs occasioned by proceeding by bill, beyond the costs which would have been sustained in proceeding by summons, to be paid by the plaintiff (x).

It has been decided (y), that the above orders do not extend to injunction suits: and the form of claim given in Schedule A. seems adapted only to cases where the plaintiff relies on a written agreement, (the documents constituting which, must, if not admitted, be produced and proved at the hearing), (y) And the 1st Order has been held not to include a claim for specific performance of an agreement to grant (z) or take (a) a lease; although it may be filed by special leave under the 6th Order; but a claim for specific performance of a contract for purchase against the executors and devisee of the purchaser, claiming specific performance and costs, and in default, an administration of the purchaser's personal estate for the benefit of the plaintiff and creditors generally, and that, if plaintiff should not thus be fully paid, he might be declared to have a lien on the estate, and that it might, if necessary, be sold, has been held not to require leave (b); nor is leave necessary where, the title having been accepted, the purchaser refuses, on some collateral ground, to complete (c). V. C. K. Bruce has evinced a disposition to put a wide construction upon the orders; but the prevalent opinion seems to be, that they are, in the present shape, adapted only to clear and simple cases (d).

Form order.

Plaintiff may, under special circumstances, proceed by bill.

As to extra costs occasioned by unnecessarily proceed ing by bill instead of claim.

In what cases orders apply.

(u) Order 15. (v) Order 16.

(w) Order 31; that is, without in-curring any special liability to costs.

(x) Order 32.

(y) Holden v. Chalcraft, 14 Jur. 846.