Clerk in Court; but if an Order to dismiss has been obtained after an Abatement, although irregular, it is not to be regarded as a nullity, the Order must be discharged before the Plaintiff can obtain an Order to revive (a). And if it should appear at the Hearing that the Plaintiff had no Title to revive, he cannot have a Decree (b); but it appears to be unnecessary to revive against a Defendant who has not answered (c).

In an Injunction Cause, if the Suit abates by the Death of the Plaintiff, the obtaining an Order nisi by the Defendant to revive, or to dissolve the Injunction, which is of course, obliges an immediate Revival of the Suit (d).

If the Defendant has appeared and answered the Original Bill, if he cannot be found to be served with the Subpana to revive and answer, it should seem that the Plaintiff must proceed under the Stat. 5 Geo. 2. c. 25, to have the Bill taken pro Confesso (e); but although the Defendant has appeared to and answered the Original Bill, the Court will not make an Order that Service of the Subpœna to revive and answer on the Defendant's Clerk in Court in the original Cause, should be good Service upon the Defendant (f). It seems to be undecided whether a Defendant to the Original Bill, who has run out the usual Orders for Time to answer, is entitled over again to obtain the usual Course of Orders for Time to answer a Bill of Revivor (g). Notwithstanding an Abatement by Death, the Court, sometimes by Consent of all Parties interested, will order collateral Matters to be done, as the Delivery of Deeds, &c., or Payment of Money out of the Bank, &c. But this seems to be restricted to Cases where the Court must deliver itself

from the Custody thereof some Way or other, and proceeds ex officio (a).

If the Plaintiff should be advised that the Defendant's Answer admits the Plaintiff's Case, or sufficient to enable the Plaintiff to hear the Cause without the Examination of Witnesses (b), he may set down the Cause for hearing upon Bill and Answer only; but in such Case the whole of the Answer is admitted in all Points as true (c), and therefore it would be advisable previously, to lay a State of the Case, and the Pleadings, &c., before some senior Counsel, for his Advice and Opinion thereon.

If the Defendant's Answer is full and sufficient, and the Bill requires no Amendment to put the Facts in issue, the Plaintiff must file a Replication, which is the Plaintiff's Answer or Reply to the Defendant's Plea or Answer, and is merely a general Denial of the Truth of the Plea or Answer, and of the Sufficiency of the Matter therein alleged, to bar the Plaintiff's Suit; and an Assertion of the Truth and Sufficiency of the Bill (d). Formerly Replications were General or Special (e); the latter were occasioned by the Introduction of new Matter in the Plea or Answer; but the unnecessary Length of Pleading it gave rise to, induced the Necessity of altering the Practice, and Special Replications are now out of use (f): Amendments of the Bill have been substituted, and the Plaintiff must be relieved according to the Form of the Bill, in its original or amended State: but a distinguished Writer has observed, that if a Plaintiff is disposed to controvert a Part of a Case made by an Answer, and to admit the Rest, he may still put in a Replication so far Special, that it is confined to the

(a) 2 Ves. 400. I Ves. 185, 6. Eq. Ca. Abr. 2.

(6) Prac. Reg. Wy. Ed.

374.

(c) Toth. 55. Ord. Can. Bea. Ed. 180. 2 Atk. 377.

(d) Red. Tr. Ch. 259. Coop. Tr. 328.

(e) Harg. J. Arg. 508.
(f) Red. Tr.

1 Vern. 351.

Ch. 260.

particular Matter controverted, instead of being a general Denial of the Truth of the whole Answer, and then Defendant is put to the Proof only of the Matter replied to (a). Where there is a Plea and Answer, and the Plaintiff replies, the Replication must be to both Plea and Answer; a Reply to the Plea only, would be irregular (b); or if the Defendant rests his Defence upon a Plea only, the Plaintiff may put the Facts pleaded in issue, by a Replication (c): not so, if the Defendant disclaims generally; there, if the Plaintiff replies, it would be at the Risk of Costs; but not if the Disclaimer be to Part, and a Plea and Answer to the Residue (d). Where a Supplemental Bill is not a Supplemental Suit, but only introduces Supplemental Matter to sustain Relief by the same Plaintiff from the same Defendant, the whole Record is one Cause, and a General Replication applies to the whole Record, and not merely to the Original Bill (e). Where a Notice to dismiss for Want of Prosecution, had been given, and before the Motion came on, a Replication had been filed, the Court held the Replication to be regular, but allowed the Defendant the Costs of the Motion (f). If a Plaintiff replies to an Answer, and without Rejoinder or Rules to produce Witnesses, brings the Cause to a Hearing, the Answer will be taken as true; the Defendant being deprived of the Opportunity of going into Proof (g); and although the Plaintiff needs no Witness on his Part, it may, in some Cases, be necessary to reply, and put the Defendant on Proof of some Part of his Answer, as where the Answer admits an Allegation, and sets up some further Matter in bar of Plaintiff's Equity (h). The Plaintiff, after Replication, must serve Defendant with

(a) Red. Tr. Ch. 260. (b) 2 Vern. 46. 2 Madd. Ch. 350.

(c) Dick. 510.

(d) 3 Atk. 581. Prac. Reg. Wy. Ed. 374.

(e) 5 Madd. 427.

(ƒ) 4 Madd. 39.

(g) 2 Cha. Ca. 21.
(h) Prax. Alm. 14.

a Subpoena to rejoin, unless he will appear gratis, which puts the Cause completely at issue between the Parties. A Rejoinder is never filed. Immediately after Defendant's Appearance to rejoin gratis, or after the Return of the Subpoena, the Parties may proceed to the Examination of their Witnesses in support of the Facts alleged in the Pleadings on cach Side (a). Wherever Witnesses are to be examined in chief, a Replication must be filed: so it has been said to be the Course of Practice where an Infant is a Party, who, as his Answer cannot be read against him, can admit nothing; that the Plaintiff, therefore, must prove his Case (b); but upon an Application to discharge an Order obtained by an Infant Plaintiff to withdraw his Replication upon Payment of twenty Shillings Costs, this Rule as to an Infant was disputed; and Lord Eldon observed, that it had been said, that in the Case of an Infant Plaintiff, there must be a Replication, but that he never could find it laid down in any Book of Practice: and that a Plaintiff may of course apply to withdraw his Replication upon Payment of twenty Shillings Costs, without amending, and refused to discharge the Order (c). It should seem that a Plaintiff may apply to withdraw his Replication, and amend the Bill, as of course, unless some further Proceeding has been taken in the Cause, or the Plaintiff has undertaken to speed the Cause: where Rules had been given to produce Witnesses, and an Application was made to withdraw the Replication, and the Rules to produce Witnesses, and for Leave to amend the Bill, the Court held that the Motion required Notice, and a Special Case to support it (d). The Court will not permit a Plaintiff to withdraw the Replication, unless it be added for the Purpose of Amendment; and in some Instances, the Court has expected the Plaintiff

(a) Mos. 296.

(b) 2 Madd. Chanc. 275. 2 Atk. 377. 1 P. Wms. 237. note.

(c) 3 Ves. and Bea. 20.
(d) 4 Madd. 212.

to shew the Materiality of the Amendment, and why the Matter of Amendment was not stated before (a).

But

there are Instances where Liberty has been given to amend without withdrawing the Replication (b). If Witnesses have been examined, and by a Mistake, a Replication has not been filed, the Court has permitted a Replication to be filed, nunc pro tunc (c). And for the Purpose of giving Notice under the Stat. 49 Geo. 3. c. 121. s. 11., to dispute an Act of Bankruptcy, and petitioning Creditor's Debt, after Witnesses have been examined, the Court has made an Order to withdraw the Rejoinder, and rejoin de novo; but being an Act of Indulgence, the Court requires an Affidavit of Surprise or Accident, and that it will be essential to the Justice of the Case, and upon the Terms of admitting particular Facts in Evidence, and the Payment of such Costs as the Court shall direct.*

A Replication filed on the Day a Motion was made to dismiss the Bill, has been held regular; and whether it was filed after the Motion to dismiss, or before, is immaterial, there being no Fraction of a Day, the Costs of the Motion were refused (d): but a Replication, filed after an Order to dismiss, though before Service of the Order, will not prevent the Effect of the Order, which operates from the Time of its being pronounced; but the Practice not being previously settled, the Bill was restored on Terms, and Payment of Costs (e).

(a) 3 Atk. 565. 1 Ves. j. 476. 7 Ves. 130. 3 Anstr. 807. 2 Madd. Ch. 276.

(b) 2 Dick. 768.

(c) Mos. 296.

(d) 5 Madd. 60.

(e) 1 Ja. and Walk. 284.

1 Ves. and Bea. 221. 1 Coop. Ch. Rep. 270. 1 Meri. Rep. 4.. and the Cases there cited, by which it appears that the Commission of Bankruptcy and Proceedings are not conclusive Evidence of the Act of Bankruptcy, but subject to be controverted like any other Evidence, and so decided in the Courts of King's Bench and Exchequer.