C. XXI. Service of notice allowed to be made out of the jurisdiction; or on a substi tute within; or by public advertise ment. Order to serve: how obtained. Form of notice. How soon replication In proper cases, the notice will be allowed to be served out of the jurisdiction; and for this purpose, the time for service will be extended; service of the notice may also be substituted; and this has been done by allowing the notice to be advertised in the Gazette, and in two newspapers circulating in the county in which the defendant was last known to have resided. An order for leave to serve notice of the replication, in any of the modes above mentioned, may be obtained on ex parte motion, supported by an affidavit of the facts; and a copy of the order must be served with the notice. In giving notice of the filing of replication, the most convenient course is to serve a copy of the replication; but it is not essential to do so; and if not done, the notice must show the purport of the replication. The time for closing the evidence is computed from the day on which the replication is filed. 6 The plaintiff may file replication immediately after the answers may be filed: have been put in, or a traversing note has been filed and served; or, where no answer is required, immediately after the time allowed for answering has expired; and when he desires to file replication, without waiting till all the answers required by him have been put in, or till the time has expired for defendants to answer voluntarily, he should amend the interrogatories," by striking out so much of the heading and foot-notes as requires an answer from the particular defendants who have not answered; and should obtain the consent of the solicitor of those defendants whose time to answer voluntarily has not elapsed, to such replication being filed, notwithstanding the time to file a voluntary answer has not expired." Where formal defendants have been served with copy of bill. Where bill taken pro confesso against any defendants. 8 Where any formal defendants have been served with a copy of the bill, replication may be filed, notwithstanding a memorandum of such service may not have been entered: it being sufficient if such memorandum is entered before the certificate to set down the cause is granted.10 If the plaintiff proposes to take the bill pro confesso against any defendant, he cannot file replication until the order to take the bill pro confesso has been obtained; and such order must be produced to the officer when the replication is presented for filing: unless it 1 Lanham v. Pirie, 2 Jur. N. S. 1201, V. Barton v. Whitcomb, 17 Jur. 81, L. C. 4 For forms of motion paper and affidavit, see Vol. III. 5 Braithwaite's Pr. 79. For form of notice, see Vol. III. 6 Braithwaite's Pr. 74, 76; and see Ord. XXXIII. 10, 12; ante, p. 828. 7 As to amending interrogatories, see ante, p. 486. 8 Braithwaite's Pr. 76. 9 Ibid. The consent should be indorsed on the proposed replication. For form of consent, see Vol. III. 10 Braithwaite's Pr. 74. has been previously left for entry, in the cause-book kept by the C. XXI. Clerks of Records and Writs.1 8 after a suffi after under taking to reply to plea; ersing note; after time to after a trav Replication must be filed within the times following: within Times limited for filing; four weeks after the answer, or the last of the answers required to be put in by a defendant, is held or deemed to be sufficient; or, cient answer; where the plaintiff has undertaken to reply to a plea, within four weeks after the date of his undertaking; or, where a traversing note has been filed, within four weeks after the filing of the traversing note; or, where he has amended his bill without requiring an answer, within one week after the expiration of the time within which the defendant might have answered, but does not desire to voluntarily answer, or within fourteen days after the refusal of further time amendments: to put in his answer, or within fourteen days after the filing of and answer the answer: unless the plaintiff has, within such fourteen days, not in; obtained a special order to except to such answer, or to reamend time refused; the bill." 9 8 answer and further or answer in. of time for filing. Vacations: when reck oned in time for filing replication. The plaintiff may, however, in all these cases apply by motion, Extension or by summons in Chambers, upon notice to the defendants, for an order to enlarge the time for filing replication. In computing the fourteen days, within which the plaintiff must file replication, in cases where he has amended his bill, without requiring an answer to the amendments, and the defendant has answered the amendments, vacations are not reckoned; 10 but in computing the time in all other cases, they are reckoned."1 By not filing replication within the time allowed for so doing, Consequences the plaintiff subjects himself to an application for the dismissal of of not filing, his bill for want of prosecution; 12 but the replication will be received and filed at any time at the Record and Writ Clerks' Office, if it appears by the books of that office that the cause is in a state to admit of its being filed, even after notice of motion to dismiss has been served; and, indeed, to do so, and tender the costs of the motion, is generally the best way of meeting it.13 1 Braithwaite's Pr. 74. 2 Ord. XXXIII. 10 (1); ante, p. 828, note. 8 Ord. XXXIII. 10 (2). 4 Ord. XXXIII. 10 (1). 5 Ord. XXXII. 12 (1); XXXVII. 7. 6 Ord. XXXIII. 12 (2). 7 Ord. XXXIII. 12 (3). As to filing replication in anticipation of some of the answers, see Braithwaite's Pr. 74. 8 Ord. XXXIII. 10, 12; Ord. XXXVII. 17; see Stinton v. Taylor, 4 Hare, 608, 610; 10 Jur 886; Dalton v. Hayter, 9 Jur. 1000, M. R. For form of summons, see Vol. III. 9 Under Ord. XXXIII. 12 (3). 10 Ord. XXXVII. 13 (4). 11 Stinton v. Taylor, ubi sup. 12 See 66th Equity Rule of the United States Courts; Rule 17, Mass. Chancery Rules. In reference to extending the time to reply, in New York, see The Sea Ins. Co. v. Day, 9 Paige, 247; Kane v. Van Vranken, 5 Paige, 63. If the plaintiff wishes to amend his bill, and a special application to the Court for leave to do so is necessary, he should not file a replication, but should obtain an order to extend the time for filing the replication, until after the decision of the Court upon the application to amend. Vermilyea v. Odell, 4 Paige, 122. If the plaintiff files a replication to the answer after he is apprised of the necessity of an amendment of his bill, he precludes himself from making such amendment. Vermilyen v. Odell, ubi supra. 18 Braithwaite's Pr. 78; and see ante, p. 805. within time. C. XXI. replication, for the purpose of amending bill; We have seen before, that after a replication has been filed, a plaintiff, if he wishes to withdraw it and amend his bill further Withdrawing than by adding parties, must make a special application by summons for leave to do so:1 in which case, in addition to the affidavit ordinarily required upon an application to amend, a further affidavit is necessary, showing that the matter of the proposed amendment is material, and could not, with reasonable diligence, have been sooner introduced into the bill. After the evidence is closed, the application will be refused; but where, during the time for taking the evidence, the plaintiff discovered an important mistake of facts in the bill, the Court, thinking that the plaintiff had not shown such want of diligence as to preclude it from giving him leave to amend, gave liberty to withdraw replication and amend the bill, on the terms of the plaintiff paying the costs of the suit then incurred, including the costs of the application.* or of setting down cause on bill and answer; or without prejudice to evidence taken. Where replication is omitted to be filed before evidence 8 A plaintiff has also been permitted, on motion, to withdraw his replication, and set his cause down for hearing upon bill and answer.5 Where replication is withdrawn, after evidence under it has been entered into, the order should provide that the withdrawal is to be without prejudice to such evidence. It has sometimes happened that, even after witnesses have been examined, it has been discovered that, owing to a mistake, no replication has been filed: in such cases, the Court has permitted the entered into. replication to be filed nunc pro tunc.® And it seems that the Court has permitted this to be done after the cause has come on for hearing, and the reading of the proofs has been commenced." No excep tions to answer, after replication. Replication to answer to supplemental statement. Effect of Bankruptcy Act, with respect to rejoinder. After replication has been filed, exceptions cannot be taken to the answer for insufficiency." Replication may be filed to an answer put in to a supplemental statement." By the Bankruptcy Consolidation Act, it is enacted that, in all suits in Equity, other than a suit brought by the assignees for any debt or demand for which the bankrupt might have sustained a suit in Equity had he not been adjudged bankrupt, and whether at the suit of or against the assignees of a bankrupt, no proof 1 Woods v. Woods, 13 L. J. Ch. 98, V. C. E.; Wilson v. Parker, 9 Jur. 769, V. C. K. B.; Ord. XXXV. 61; ante, p. 417. For form of summons, see Vol. III. 2 Ord. IX. 15. For form of affidavit, see Vol. III. 8 Gascoyne v. Chandler, 3 Swanst. 418. 4 Champneys v. Buchan, 3 Drew. 5. v. Ricketts, 2 John. Ch. 425. 6 Wyatt's P. R. 376; Armistead v. Bozman, 1 Ired. Eq. (N. C.) 117. 7 Rodney v. Hare, Mos. 296; see also Healey v. Jagger, 3 Sim. 494, 497. The like permission has also been given after the cause has been set down for hearing on bill and answer, and a reference ordered. Pierce v. West, 1 Peters C. C. 351; Smith v. West, 3 John. Ch. 363; Doody v. Pierce, 9 Allen, 141, 143, 144. 8 Ord. XVI. 7; ante, p. 695, note. 9 Braithwaite's Pr. 74. shall be required, at the hearing, of the petitioning creditor's debt, or of the trading or act of bankruptcy respectively, as against any of the parties in such suit, except such parties as shall, within ten days after rejoinder, give notice in writing to the assignees of their intention to dispute some and which of such matters. Rejoinder being abolished in Equity, it seems that the notice must be given within ten days after the filing of replication. 1 12 & 13 Vic. c. 106, § 235. 2 Ord. XVII. 2; ante, pp. 829, 830, note. 8 Pennell v. Home, 3 Drew. 337; see, however, Lee v. Donnistoun, 29 Beav. 465. C. XXI. CHAPTER XXII. EVIDENCE. Course to be pursued, after replication filed. THE cause being at issue, by the filing of the replication, the next step to be taken by the plaintiff is to prepare his proofs. The defendant also, if he has any case to establish in opposition to that made by the plaintiff, must, in like manner, prepare to substantiate it by evidence. For this purpose, both parties must first consider what is necessary to be proved; and then, the manner in which the proof is to be effected; and, in treating of these subjects, it will be convenient to consider, shortly, the general rules of evidence. With respect to the first point, it may be laid down as an indisputable proposition, that whatever is necessary to support the case of the plaintiff, so as to entitle him to a decree against the defendant, or of a defendant, to support his own case against that of the plaintiff, must be proved: 2 unless it is admitted by the other party. 1 In New Hampshire the rules in Chancery provide for the trial of the cause on depositions. "The plaintiff's depositions in chief shall be taken within two months from the expiration of the time allowed for the delivery of the replication, and the defendant's depositions in chief within three months from the same time, unless further time shall be allowed by the Court, or by a Justice on petition and notice to the other party." Rule 28 of Chancery Practice. Rebutting evidence may be taken by either party, within one month after the expiration of the time allowed for taking the depositions in chief of the defendant. Special orders may be made by the Court or by a Justice, upon petition and due notice, enlarging or reducing the time of taking testimony of either or both the parties." Rule 24, 38 N. H. 609, 610. In Maine, "all testimony is to be taken in writing, by virtue of a commission issued on interrogatories filed with the clerk," &c. The formalities to be observed in taking, filing, abstracting, and producing the evidence are minutely pointed out in Rules 13, 14, 15, 16, 17, 18, Chancery Rules, Maine, 37 Me. 585, 586. In Massachusetts, the evidence in proceedings in Equity is required to be taken in the same manner as in suits at Law, unless the Court for special reasons otherwise directs; but this does not prevent the use of affidavits where they have heretofore been allowed. Genl. Sts. c. 131, § 60. In this latter State, the plaintiff and the defendant, at any time after the filing of the answer, in a suit in Equity, may file in the clerk's office interrogatories for the discovery of facts and documents material to the support or defence of the suit, to be answered on oath by the adverse party. St. 1862, § 40. The rules of the Court of Chancery in New Jersey provide for the filing of interrogatories to the plaintiff. Rule 59; 2 McCarter, 525; so in England such interrogatories for the examination of the plaintiff may be filed under 15 & 16 Vic. c. 86, § 19. See ante, p. 758, and post, p. 840. 2 For what is sufficient to throw upon the defendant the onus of denying the plaintiff's case, see Bell v. Wilson, 11 Jur. N. S 437, V. C. K. 8 Nelson v. Pinegar, 30 Ill. 473. |