after exceptions to an answer for insufficiency have been taken, such amendment operates as a waiver of the exceptions. An order to amend, merely by adding a party, not requiring a further answer, does not prevent the plaintiff taking exceptions.(1) Where the plaintiff obtains an order to amend without requiring any further answer, and amends the bill any otherwise than by an alteration of names, dates, or sums, or the correction of clerical errors only, the defendant has, as of course, eight days' time to consider whether it is necessary for him to answer the [ *307 ] same, at the end of which time the plaintiff is at liberty to file a replication, or set down the cause for hearing on bill and answer, unless the defendant has previously served an order for time to answer, or taken out and served a warrant for time to answer such amended bill.(2) If the plaintiff wishes to amend without prejudice to the exceptions he should make a special application for that purpose.(3)

The plaintiff, by amending, prevents the defendant dismissing his bill for want of prosecution, but an order neither drawn up nor served does not.(4) If an order to amend is drawn up, not requiring a further answer from the defendant, it only stays the defendant eight days after the plaintiff's bill has been amended, from serving a notice of motion to dismiss, supposing him to be in other respects in a situation to do so; but if the order is not so expressed, and the plaintiff serves a subpoena, or, if the defendant appears, or, as is contended by some, the defendant sends his office copy to be amended, which is by them considered as equivalent to an appearance, the defendant cannot move to dismiss for want of prosecution until two months after his answer to the amended bill is to be deemed sufficient.

In Kendall v. Beckett,(5) it was decided that the defendant, by delivering to the plaintiff his office copy, for the purpose of being amended, waived his right to dismiss the bill; but in Cooke v. Davis,(6) it was held, that notwithstanding the defendant's copy had been amended, yet if no subpoena is served to answer the amended bill, the amendments go for nothing, and that the defendant may

(1) Taylor v. Wrench, 9 Ves. 315.

(3) De la Torre v. Barnales, 4 Madd. 396. (4) Morris v. Owen, 1 Ves, & B. 523.

(2) 14 N. N. 0.

(5) 1 Russ. 152. (6) 1 T. & R. 309.

dismiss; and in Branstone v. Carter,(1) it is laid down that the amendment of a bill after answer without service of a subpoena *to answer the amendments, does [ *308 ] not prevent the defendant dismissing the bill.

As an order to amend, in some cases, delays the defendant from dismissing the bill for want of prosecution for eight days, and in others prevents the plaintiff filing a replication, obtaining an injunction, or otherwise proceeding with his cause for a like period, it becomes of essential importance precisely to ascertain upon what principle the eight days are computed. The following practice is adopted in the Six Clerks' office :-The eight days, like those allowed for appearing, are eight entire days; thus, if computed from the 4th, the whole of the 12th would be included. If the bill is re-engrossed the defendant's time to appear or answer is computed from the period when the amended record is entered in the book of the Six Clerk, and the plaintiff's clerk in court either has handed over the record bill as amended to the defendant's clerk in court, or given him a written notice that it is amended. If the plaintiff amends the defendant's office copy, and it is left at any time before the record is amended, or with due diligence after being called for by the plaintiff's clerk in court, the eight days are exclusive of the day on which such office copy is returned to the defendant. If the office copy is not left at the time the record is amended, or within a reasonable time after being called for, the plaintiff's clerk in court gives a written notice that the record is amended, and that he will reply or otherwise proceed after the expiration of eight days from that date; and where every hour's delay is of importance, as soon as the draft amended bill is left, the plaintiff's clerk in court calls for the defendant's office copy; and immediately he has amended the record, in the event of such copy not being then left, gives a notice, similar to that above-mentioned, of having amended, and of his intention to proceed. If the plaintiff *pays costs, and the defendant's [ *309 ] own clerk in court amends his office copy, the eight days are computed from the time when the plaintiff's clerk in

(1) 2 Sim. 458.
Eng. Chan. Reps. ii. 498,

court either hands over the record bill as amended to the defendant's clerk in court, or gives him a written notice that it is amended.

When the plaintiff amends the defendant's office copy, immediately the order to amend is served, the defendant should leave his copy to be amended. Though by the courtesy of the Six Clerks' Office a notice is given calling upon the defendant to leave his office copy, yet if inadvertently the notice should be neglected, the defendant could not avail himself of the want of notice as an objection.(1)

TO ENFORCE AN APPEARANCE TO AN AMENDED BILL.

The service of subpoenas to answer an amended bill on the clerks in court of those defendants who have answered the original bill is good service.(2) New defendants added by amendment are served personally, and are entitled to be treated as original defendants, and to have the same time to answer.

All those defendants who have answered the original bill, are, if required to answer the amendments, served with subpoenas,[a] but it is not necessary to serve those defendants who have appeared but not filed answers to the original bill with subpoenas to answer the amended bill; and if they do not answer within five weeks in a town cause, and seven weeks in a country cause, after the bill has been amended, an attachment may issue against [ *310] them.(3) If a demurrer or a *plea has been allowed, and the plaintiff amend, a new subpoena to answer the amendments is necessary.

(1) Lloyd v. Lloyd, 1 Amb. 70 (n.)

(2) 20 N. O.

(3) In Skeffington v. - ,4 Ves. 65, it appears to have been considered the practice after a sufficient answer has been put in, not to serve the defendant with a new subpoena to answer an amended bill. This is clearly a mistake of the reporter's; as although it is stated that no subpoena is required, yet it appears that an order was drawn up" that service of the subpoena on the defendant's clerk in court should be deemed good service;" which was moved in consequence of the defendant being abroad.

In Angerstein v. Clarke, 1 Ves. 250, the reporter lays down that it is not necessary to serve new subpoenas on the original defendants to answer amended bill; but neither the case nor the practice warrants this conclusion; the question in that case being whether a subpoena was necessary after an order had been obtained, to answer amendments and exceptions together. The rule is as above laid down.

[a] Where a bill is amended after answer, but no subpœna is served, to answer the amended bill, the amendments go for nothing. Cooke v. Davies, 1 Tur. & Russ. 310, (11 Eng. Chan. Rep. 173.)

An amended bill is not considered as on the file for the purpose of enabling the plaintiff to issue an attachment for want of an answer, until the amended bill is entered in the Six Clerks' book; and there is not any difference in this respect between an amended bill which has been answered, and one which has not been answered ;(1) nor can an appearance be enforced until after the costs of amendment are paid or tendered.

PROCEEDINGS ON THE PART OF A DEFENDANT AS TO AN

AMENDED BLL.

Those defendants who have appeared to, but not answered the original bill are allowed five weeks in a town cause, and seven weeks in a country cause to plead, answer, or demur, not demurring alone, to any amended bill to which the plaintiff requires an answer. The five weeks and the seven weeks in the above case, are computed from the time when the bill is amended; and a defendant's time for answering is not to be abridged by reason of the plaintiff amending his bill. For instance, suppose a bill filed 1st June, and that defendant appears the same day, and plaintiff *amends 2d June-the defendant is to have [ *311 eight weeks in a town, and ten in a country cause, and not to be curtailed to five or seven weeks, the period for answering an amended bill. Defendants having answered the original bill, are bound to appear as to an original bill within eight days in a country cause, and within four days in a town cause after service of a subpoena on their clerk in court; and are then allowed five weeks in a town cause, and seven weeks in a country cause to answer the amended bill.

The time for answering an amended bill (the original bill having been answered) is calculated from the date of the appearance and not from the time when the party is bound to appear by the subpoena ;(2) unless an attachment has issued against a defendant for want of his appearance, in which case the interval between the day fixed by the subpoena for appearance, and that on which

(1) Adamson v. Blackstock, 1 S. & S. 120. (2) Webster v. Threlfall, 1 S. & S. 135. Eng. Chan. Reps. i. 59.

Eng, Chan. Reps. i. 67.

the same is actually entered, is deducted from the before mentioned seven weeks or five weeks.(1) A defendant whose answer is reported insufficient, and to whom time has been given by the Master to answer exceptions, is, if the plaintiff obtains an order to amend his bill, and for the defendant to answer amendments and exceptions, entitled to the usual time allowed to answer an amended bill.(2)

The defendant is not bound to appear to an amended bill until his costs of amendment are paid; to obtain which, he instructs his clerk in court to give to the plaintiff's clerk in court a note as follows: "I am ready to appear when the costs of amendment are paid."

(1) 12 N. N. 0.

(2) Fosbrooke v. Balguy, 1 R. & M. 624. Eng. Chan. Reps. iv. 585.