require an answer, shall, on the expiration of such time, be at liberty to file such note.

XXXIV. That where the defendant shall file a demurrer to the whole Bill, the demurrer shall be held sufficient, and the plaintiff be held to have submitted thereto, unless the plaintiff shall, within twelve days from the expiration of the time allowed to the defendant for filing such demurrer, cause the same to be set down for argument: and where the demurrer is to part of the Bill, the demurrer shall be held sufficient, and the plaintiff be held to have submitted thereto, unless the plaintiff shall within three weeks from the expiration of the time allowed for filing such last-mentioned demurrer, cause the same to be set down for argument.

XXXV. That where the defendant shall file a plea to the whole or part of a Bill, the plea shall be held good to the same extent and for the same purposes as a plea allowed upon argument, unless the plaintiff shall, within three weeks from the expiration of the time allowed for filing such plea, cause the same to be set down for argument, and the plaintiff shall be held to have submitted thereto.

XXXVI. That no demurrer or plea shall be held bad and overruled upon argument, only because such demurrer or plea shall not cover so much of the Bill as it might by law have extended to.

XXXVII. That no demurrer or plea shall be held bad and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by such demurrer or plea.

XXXVIII. That a defendant shall be at liberty by answer to decline answering any interrogatory or part of an interrogatory, from answering which he might have protected himself by demurrer; and that he shall be at liberty to decline, notwithstanding he shall answer other parts of the Bill from which he might have protected himself by demurrer.

XXXIX. That where the defendant shall, by his answer, suggest that the Bill is defective for want of parties, the plaintiff shall be at liberty, within fourteen days after answer filed, to set down the cause for argument upon that objection only; and the purpose for which the same is so set down shall be notified by an entry, to be made in the Registrar's Book, in the form or to the effect following; (that is to say,) "Set down upon the defendant's objection for want of parties;" and that where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course, to an order for liberty to amend his Bill by adding parties: but the Court, if it thinks fit, shall be at liberty to dismiss the bill.

XL. That if a defendant shall, at the hearing of a cause, object that a suit is defective for want of parties not having by plea or answer taken the objection, and therein specified by name or description the parties to whom the objection applies, the Court (if it shall think fit) shall be at liberty to make a decree saving the rights of the absent parties.

XLI. That where a defendant in equity files a cross Bill against the plaintiff in equity for discovery only, the costs of such Bill, and of the an

swer thereto, shall be in the discretion of the Court at the hearing of the original cause.

XLII. That where a defendant in equity files a cross Bill for discovery only against the plaintiff in equity, the answer to such cross Bill may be read and used by the party filing such cross Bill, in the same manner, and under the same restrictions, as the answer to a bill now praying relief may now be read and used.

XLIII. That in cases in which any exhibit may by the present practice of the Court be proved vivá voce at the hearing of a cause, the same may be proved by the affidavit of the witness who would be competent to prove the same viva voce at the hearing.

XLIV. That where a defendant makes default at the hearing of a cause; the decree shall be absolute in the first instance, without giving the defendant a day to shew cause, and such decree shall have the same force and effect as if the same had been a decree nisi in the first instance, and afterwards made absolute in default of cause shewn by the defendant.

XLV. That every decree for an account of the personal estate of a testator or intestate shall contain a direction to the Master to inquire and state to the Court what parts (if any) of such personal estate are outstanding or undisposed of, unless the Court shall otherwise direct.

XLVI. That a creditor, whose debt does not carry interest, who shall come in and establish the same before the Master, under a decree or order in a suit, shall be entitled to interest upon his debt, at the rate of 41. per cent. from the date of the decree, out of any assets which may remain after satisfying the costs of the suit, the debts established, and the interest of such debts as by law carry interest.

XLVII. That a creditor who has come in and established his debt before the Master under a decree or order in a suit, shall be entitled to the costs of so establishing his debt, and the same shall be taxed by the Master, and added to the debt.

XLVIII. That in the reports made by the Masters of the Court, no part of any state of facts, charge, affidavit, deposition, examination, or answer, brought in or sued before them, shall be stated or recited. But such state of facts, charge, affidavit, deposition, examination, or auswer, shall be identified, specified, and referred to, so as to inform the Court what state of facts, charge, affidavit, deposition, examination, or answer, were so brought in or used.

XLIX. That it shall not be necessary in any Bill of Revivor, or supplemental Bill, to set forth any of the statements in the pleadings in the origi. nal suit, unless the special circumstances of the case may require it.

L. That in any petition of rehearing of any decree or order made by any Judge of the Court, it shall not be necessary to state the proceedings anterior to the decree or order appealed from, or sought to be reheard.

LI. That the foregoing Orders shall take effect as to all suits, whether now depending, or hereafter commenced, on the last day of Michaelmas Term, One thousand eight hundred and forty-one. COTTENHAM, C. LANGDALE, M.R.

Contempt-Bill pro confesso-Answer— 2nd Rule of 1 Will. 4. c. 36.

The 2nd rule of 1 Will. 4. c. 36. does not apply to proceedings in the Court of Exchequer, the words "last-mentioned rules" in the 20th section of the act, referring only to rules from 5 to 20 inclusive, directed to be adopted by the 19th section.

Quære, when a defendant is brought up under the 6th rule, whether it is incumbent on the plaintiff to examine the defendant as to the cause of his not answering, or on the defendant to plead his excuse.

The defendant, being in contempt for want of an answer, had been brought up to the bar of the Court, and committed to the Fleet prison. He was now brought up again, on the 2nd rule of the 1 Will. 4. c. 36, in order that the bill might be taken pro confesso against him. The question was, whether the second rule applied to proceedings in the Court of Exchequer.

Mr. K. Parker.-The 19th section of the act directs, that the rules from 5 to 20, both inclusive, shall be adopted by the Court of Exchequer, and the 20th section NEW SERIES, X.-EXCHEQ. IN EQ.

declares, that the powers and authorities contained in "such last-mentioned rules," and given by this act to the Lord Chancellor, shall and may be exercised in like manner, and are hereby given to the Court of Exchequer, and may be exercised by the said Court, or by the Lord Chief Baron thereof. The difficulty arises upon the words "last-mentioned," which seem to apply only to the rules from 5 to 20: yet it must have been the intention of the legislature, that all the rules should be adopted by this Court, because the act was to assist prisoners committed for contempt. It is submitted, therefore, that the words "last-mentioned" apply to the whole of the rules.

[LORD ABINGER, C.B.-That would be inconsistent, after ordering the Court to adopt them from 5 to 20. Does not the 6th rule apply to your case?" If the defendant makes oath that he is unable through poverty."]

He has been brought up under that rule, and never took advantage of it; he did not plead poverty.

[LORD ABINGER, C.B.-The rule says, he shall be examined in open court. You ought to have examined him.]

The practice of the Court of Chancery

B

Mr. Simpkinson and Mr. Dixon moved that the plaintiff might be at liberty to withdraw his replication, and amend by striking out eleven acres, claimed by the bill, and making T. C. P. a party defendant. The first part of the motion was afterwards abandoned.

Mr. Follett, contrà, objected, that the plaintiff was in contempt, and therefore could not apply; and, secondly, that he had been guilty of great delay, for that the fact of T. C. P. being a necessary party was known two years ago, and that he had not complied with the 15th of Lord Lyndhurst's orders, in swearing to the materiality of the amendment, or satisfactorily accounted for the delay; and contended, that the defendant was entitled to the common order to speed.

Mr. Spence, for other defendants, asked, that the plaintiff might be ordered to pay

the costs of this application, before he was allowed to amend.

Mr. Simpkinson, in reply.-There is no reason why the Court should go out of the common rule, and make the payment of costs a condition precedent. The plaintiff being in contempt is no impediment to his bringing his cause to a hearing. The 78th of Lord Bacon's orders is confined to a party coming forward voluntarily, and asking for indulgences-Ricketts v. Mornington (1). This is a similar case. The application is only to be at liberty to do that which is necessary to bring the cause to a hearing. The plaintiff must have leave to amend in this way at the hearing; and is, therefore, entitled to ask it now.

LORD ABINGER, C.B.-This exception to the rule is confined to cases in which the application made is necessary to the hearing; if it would follow then, you are entitled now to stand in the same predicament. But as the fact was known to the plaintiff so long ago, and as he was in contempt for non-payment of costs, I shall protect the defendant from costs, by making the payment of the costs of this application a condition precedent to granting the order. The amendment to be made in three days, and without prejudice to the defendant moving to speed the cause.

Evidence-Will-Advancement.

The testator, by his will, directed that his son H. should have the option of purchasing the good-will, &c. of his business, the purchase-money to form part of his residuary estate. The testator died in 1835, and H, who from 1820 had managed the business, and resided solely on the premises, as apparent owner, claimed it as an advancement, and alleged a parol agreement between him and the testator in 1825; and as proof thereof, gave in evidence declarations of the testator, about that time, to his neighbours, that he had set up H. in business, and had asked their custom for him :-Held, that as there was no direct transfer or proof of (1) 7 Sim. 200; s. c. 4 Law J. Rep. (N.S.) Chanc. 21.