11 Ves. 73; and see Bishton v. Birch, 2 Ves. & Bea. 43). As no general order in correction of this abuse had been made at the time when March v. Hunter (3 Madd. 438) was before Sir J. Leach, his honour held, that an application to have an answer taken off the file, as being delusive, in answering only two unimportant facts and leaving the rest of the bill unanswered, was not warranted by the existing practice of the Court, and that the plaintiff must proceed in the ordinary course by taking exceptions. In the case, however, just alluded to, Smith v. Serle (11 Ves. 415) was not cited, where Lord Eldon declared he was so unwilling to give any countenance to such an abuse of the practice, that he thought he should never again be induced to make such a decision; but if an attempt was made to put in an unsubstantial answer he would hold it to be no answer. It being denied by counsel that the answer was unsubstantial, a reference was directed to inquire into the fact. (Ib. 416). In Newnham v. May (10 Price, 118), Richards, C. B., ordered an evasive answer to be taken off the file.

SECTION 4.

A Defendant is precluded from Pleading or Demurring, when.

UPON the old practice, after a defendant had obtained an order for time to answer, the Court would not afterwards grant leave to plead, answer, or demur, not demurring alone (Dyson v. Benson, Coop. 111; Mann v. King, 18 Ves. 297; Penn v.

Lord Baltimore, 1 Dick. 273), except under special circumstances, by which is meant a case of mistake, as surprise, fraud, &c.,-it not being sufficient on an application for such purpose, to state, on the merits of the case, that a plea or demurrer might be proper. (Bruce v. Allen, 1 Madd. 556). The practice that one order for time to answer having been obtained, the defendant could not have another order to plead, answer, or demur, not demurring alone, proceeded upon the ground that the first order is an admission by the defendant that the case calls for an answer and an answer only. (Taylor v. Milner, 10 Ves. 448). This rule, coupled with the modern practice, that an answer shall not be allowed to be taken off the file, seems in the case last cited to have led to the notion that a demurrer and answer being filed after an order for time to answer only, as the answer could not be taken off the file, so neither could the demurrer, as being inseparably connected with it, and that the proper course was to overrule the demurrer; but in Curzon v. De la Zouch, (1 Swanst. 193), Lord Eldon held differently, on the ground that overruling the demurrer was an admission of its being regularly filed, and ordered both the answer and demurrer to be taken off the file.

If an attachment has issued against a defendant for want of answer he cannot demur alone; (Mellor v. Hall, 2 Sim. & Stu. 321); nor can he file a demurrer and answer, (Curzon v. De la Zouch, 1 Swanst. 193, overruling Cosserat v. Tollett, 3 Swanst. 684), although the former is confined to an allegation which the defendant might by answer have insisted he was

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not bound to answer; (Vigers v. Lord Audley, 8 Sim. 333; S. C. 2 My. & Cr. 49); and the demurrer and answer must be actually taken off the file before another answer can be filed. (Cust v. Boode, 1 Sim. & Stu. 22). Defendant cannot file a demurrer to part of the bill and an answer to the remainder upon a common dedimus, but must sue out a special dedimus for that purpose. (Tomlinson v. Swinnerton, I Keen, 9).

SECTION 5.

Application for further Time.

Ir the defendant require further time to plead, answer, or demur, he must apply to the master to whom the cause is referred; (1 Will. 4, c. 94, s. 13); and in every such order it shall be made a condition that the defendant enter an appearance with the serjeant-at-arms, as on a commission of rebellion returned non est inventus, unless the Master direct otherwise. (B. 21).

SECTION 6.

Traversing Note.

By the 21 (C. & L.) it is ordered, "That after 'the expiration of the time allowed to a defendant 'to plead, answer, or demur (not demurring alone) 'to an original bill, if the defendant shall have 'filed no plea, answer, or demurrer, the plaintiff 'shall be at liberty to file a note at the Six Clerks'

'Office to the following effect: "The plain'tiff intends to proceed with his cause as if the 'defendant had filed an answer, traversing the 'case made by the bill, and the plaintiff had replied 'to such answer, and served a subpœna to rejoin." 'And that a copy of such note shall be served on 'such defendant in the same manner as a subpoena 'to rejoin is now served, and such note, when filed, (a copy thereof being so served), shall have the same effect as if the defendant had filed an answer, 'traversing the whole of the bill, and the plaintiff ' had filed a replication to such answer, and served a subpoena to rejoin. And after such note shall 'have been so filed, and a copy served as aforesaid, 'the defendant shall not be at liberty to plead, answer, or demur to the bill without the special 'leave of the Court." It is further ordered, however, that the "plaintiff shall not be at liberty to file a 'note under the preceding Order, until he has ob'tained an order of the Court for that purpose, which 'order shall be applied for upon motion, without no'tice, and shall not be made unless the Court shall be 'satisfied that the defendant has been served with a 'subpoena to appear and answer the bill; and that 'the time allowed to the defendant to plead, answer, 'or demur, not demurring alone, has expired. (22 L. & C.) The proper evidence in support of this motion would be an affidavit of service of the subpoena, and the Six Clerk's certificate of the date of filing the bill; and that no plea, answer, or demurrer has been filed; but any circumstances from which the same conclusion may be drawn will be suffi

cient. Thus, in Evans v. Williams, (5 Jur. 1194—R.), the defendant being in custody of the sheriff, leave was given to file the traversing note on production of the writ with the sheriff's endorsement, by which it appeared that the defendant had been attached for want of answer.

CHAPTER XIII.

OF THE DEMURRER.

1. Preparing and setting down | 2. Arguing the Demurrer,78.

Preparing and setting down the Demurrer.

AFTER the draft of the demurrer has been settled and signed by counsel, it is then engrossed on parchment and carried to the defendant's clerk in Court to be filed, and within eight days (which mean office days, (Bullock v. Edington, 1 Sim. 481)), after filing, it must be entered with the registrar in order to be argued. (Bea. Ord. 77). If not entered within that time it is overruled of course, and the plaintiff may take out process for 40s. costs, and to put in a better answer. If regularly entered with the registrar, then, according to the former practice, either party, on petition to the Lord Chancellor, might obtain an order for setting it down to be heard, which was taken to the registrar, and a copy thereof served on the opposite clerk in Court, at