shall, upon overruling such demurrer or plea, give 'time to the defendant to plead, answer, or demur; 'and in such case, if the defendant shall file no 'plea, answer, or demurrer, within the time so allow'ed by the Court, the plaintiff, if he does not require an answer, shall, on the expiration of such time, 'be at liberty to file such note.”

SECTION 4.

Taking Issue on the Plea.

Ir the plaintiff, being of opinion that the plea, though good in form and substance, is not true in point of fact, reply to it before it comes to argument, (by which he admits the goodness of the plea in point of form as fully as if it had been allowed on argument), in that case the defendant must prove the truth of his plea by depositions, as in the case of an answer. If he succeed in establishing the truth of his plea, then, so far as it goes, the suit is at an end. If he fail, so that the plea is held to be no bar, then, in order that the plaintiff may not lose the benefit of the discovery sought by the bill, the Court will order the defendant to be examined on interrogatories, to supply this defect.

SECTION 5.

Amendment of Plea.

AFTER a plea allowed, and replied to, the Court will not allow the plaintiff to withdraw the replication

and amend the bill, with a view to vary the case originally made. (Barnett v. Grafton, 8 Sim. 72).

If the plea be good in substance but defective in form, the Court will give leave to amend; (Dobson v. Leadbetter, 13 Ves. 281; Mereweather v. Mellish, ibid. 438); or to plead de novo, if that course be more convenient than amendment; (Nobkissen v. Hastings, 2 Ves. jun. 87); or allow the plea to stand for an answer with liberty to except: (Wood v. Strickland, 2 Ves. & B. 56): but in any of these cases the Court expects to be told precisely what the amendment is to be, and how the slip happened. (ub. sup).

SECTION 6.
Costs.

By the 31st of Lord Lyndhurst's Orders, if the plea be allowed, "the plaintiff shall pay the defend'ant the taxed costs thereof, and if it be to the whole

bill, then the further taxed costs of the suit also, 'unless the plaintiff shall undertake to reply thereto, ' and then the costs shall be reserved, or unless the 'Court shall think fit to make other order to the con'trary." Under this order it has been held, that, "if

a plea to the whole bill is argued and allowed, the 'plaintiff, although he undertakes to reply to the plea, 'must pay the costs of it;" but the other costs of the suit will be reserved. (Fry v. Richardson, 10 Sim. 475). And by the 3rd of the same orders, if the plea be overruled, "the defendant shall pay to the plaintiff the taxed costs occasioned thereby, unless

'the Court shall make other order to the contrary." If the plea be ordered to stand for an answer, with liberty to except, the defendant pays the usual costs. (Howling v. Butler, 2 Mad. 245). If the benefit of the plea be reserved to the hearing, this exempts the defendant from the payment of costs, unless the Court declare otherwise. (Wy. Prac. Reg. 330).

In a case decided before the date of Lord Lyndhurst's Orders it was held, that if a plea be set down, and the plaintiff, on the plea coming on to be heard, decline arguing it, but desire leave to amend his bill, he thereby admits the validity of the plea, and that "it must be allowed on payment of the 'usual costs of £5." (Lopes v. De Tastet, 3 Madd. 183). It is apprehended, however, that, though such a case may not appear exactly within the letter of the 31st Order, it is within the spirit and intention of it, and that now, instead of £5, taxed costs would be given to the defendant.

CHAPTER XV.

OF THE ANSWER.

1. Drawing and engrossing the | 10. Exceptions insufficiently Answer, 90. Answered, 109.

2. The Answer is put in upon 11. Answer Excepted to, when to be deemed sufficient, 110.

Oath, when, 91.

3. Supplemental Answer, 96. 4. Insufficiency, 98.

5. Exceptions to the Answer

for Insufficiency, 103. 6. Order of Reference, 106. 7. The Master's Report, 107. 8. Arguing the Exceptions, 109.

9. Further Answer, 109.

SECTION 1.

Drawing and engrossing the Answer.

THE answer is commonly drawn, but must be signed and settled by counsel; (Brown v. Bruce, 2 Mer. 1); except it be taken in the country by commission, in which case the signature of counsel is not necessary. (Ib.; and see Simes v. Smith, 4 Madd. 366). It is then engrossed on parchment, and signed by the defendant. The engrossment must of course be legible, although, in one case, the Court refused a motion to have it taken off the file on an affidavit that it was legible when sworn. (Attorney-General v. Mayor of Fowey, 3 Swanst. 184).

SECTION 2.

The Answer is put in upon Oath, when.

THE answer is put in on the defendant's oath, except in the case of Quakers, whose affirmation is received; and of peers, who answer upon their protestation of honour. After the answer is sworn, the Master will not part with it out of his hands, except to the clerk of the Public Office. (Bruce v. Webb. 2 Mer. 475). In certain cases the answer will be received without the oath or signature of the defendant; but for this purpose an order must be obtained on the special circumstances of the case. The oath and signature of the defendant being for the protection of the plaintiff, such an order will not be made without his consent, and is generally made on his application, for the purpose of avoiding delay and expense. Where the defendant is resident within the jurisdiction, the order is, "that he shall be at liberty to put 'in his answer without oath or signature;" but if he be resident abroad, the order can only be made on his consent, even at the application of the plaintiff. (Codner v. Hervey, 18 Ves. 468).

When an answer is sworn in town, as is always the case in a town cause, and may be so with a country cause, if the defendant prefer coming up to town to swear it in preference to having it taken by commission, the parties, in the usual course, swear to it at the Public Office of the Master, and the confidential person in the office carries the answer to the Six Clerks' Office; if the Public Office of the