$ that any Defendant, against whom a Subpoena to appear or to appear to and answer a bill has been issued, has been within the jurisdiction of the Court at some time not more than two years before the subpoena was issued, and that such Defendant is beyond the seas, or upon inquiry at his usual place of abode (if he had any), or at any other place or places where, at the time when the subpœna was issued, he might probably have been met with, he could not be found so as to be served with process, and that in either case there is just ground to believe that such Defendant is gone out of the realm, or otherwise absconded, to avoid being served with process, then and in such case the Court may order that such Defendant do appear at a certain day to be named in the Order; and a copy of such Order, together with a notice thereof to the effect set forth at the foot of this Order, may, within fourteen days after such Order made, be inserted in the London Gazette, and be otherwise published as the Court directs; and in case the Defendant does not appear within the time liuited by such Order, or within such further time as the Court appoints, then, on proof made of such application as aforesaid of the aforesaid Order, the Court may order an appearance to be entered for the Defendant on the application of the Plaintiff. The notice appended is in the words of that above given, at the foot of Order 24. Under the English Order 31 of 1845, answering to the above Order 24, it has been decided, that it is not necessary to prove that the Defendant absconded to avoid process in that particular suit. (Cope vs. Russell, 2 Phillips, 404; 12 Jurist, 105.) CHAPTER VI. Demurrer. Demurrer must If the Defendant is advised that the Plaintiff's bill is, be within four- for any thing apparent on the face of it, bad in law, and teen days after appearance. the Plaintiff therefore not entitled to the relief sought by 1850. XXVI. the bill, he may, as we have seen, demur. This demurrer must be filed, and an office copy served on the Plaintiff's Solicitor within fourteen days from the time of appearance entered. In counting this time, the day of appearance is exclusive and the day of demurring inclusive. When the demurrer is filed, either party may set it down with the Registrar to be argued on præcipe. Eight days' notice must then be given to the opposite party of the day of argument, and care must therefore be taken, in setting down the demurrer, to have it set down for a day which will leave time for the eight days' notice. The following are the rules governing this practice :— A Defendant may demur alone to any bill, within fourteen days after his appearance thereto, but not afterwards. Demurrer,four- It needs not be entered with the Registrar; but, upon the teen days. filing thereof by a defendant, either party is to be at liberSetting down. ty to set the same down for argument immediately. The former practice was to allow the demurrer, unless the Plaintiff set it down to be argued within a limited time. The Rule, under which the eight days' notice is required, is the 158th Order, of January, 1845, which, as so far as it is consistent with the New Orders, is still in force. It is as follows:-The parts italicised are inconsistent with the New Orders, and therefore not in force. Order of 1851. [That no subpana to hear judgment shall be sued Eight days out in any case but] the party setting down the [plea or] notice of argu- demurrer, to be argued, [or the cause to be heard] shall ment of demur- give a notice in writing, stating that the [plea or] demurrer rer. [or the cause] has been entered in the Cause Book with the Registrar for argument [or hearing], and stating the day on which the same is to be argued [or heard]. And that such notice shall be served eight days before the day of argument [or hearing], and that it shall be the duty of the party entering such [plea or] demurrer, [or cause] to be argued [or heard], at the time of entering thereof to furnish the Registrar with the day on which the same is to be argued [or heard], in order that the same may be entered in the Cause Book. The 111th Order of 1842, under which the Plaintiff had a time, within which to set down the demurrer, is expressly repealed, and 97th Order of 1842, allowing the Defendant to set it down after ten days, is also abolished, being not "consistent with" the above 26th Order. The demurrer must now be set down and disposed of. The above Order only ap plies to demur ers. The above language of this Order, so far as it abolishes the subpoena to hear judgment, is not now in force, because the 69th New Order establishes the practice of Subpoenas to hear judgment. The rule does not apply to pleas, because they are abolished. And it does not apply to setting down Causes, because the 69th New Order provides for a different kind of notice, namely a service of the Subpoena to hear judgment. But, although the 69th Order says that Demurrers as well as Causes may be set down in vacation, it does not provide for any notice or Subpoena in respect of demurrers, and therefore as to them, we have to refer to the above Order. The 69th Order says that "The party setting down a 69th new Order Cause" &c., must sue out a Subpoena, but it does not make any provision of the kind for the setting down of demurrers. The Defendant may couple a demurrer with an answer, at any time within the time for answering; but the demurrer must not be to the whole material part of the Bill with a mere denial of fraud and combination. Some fact must be admitted, traversed or denied. (Wetherhead vs. Blackburn, 2 Vesey and Beames 123; Tomkin vs. Lethbridge, 9 Vesey 179, 463; Baker vs. Mellish, 11 Vesey 73). requires no subpoena ad audiendum for the hearing of demurrers. CHAPTER VII. The Answer. The answer formerly consisted of a complete, literal and substantial answer to the Interrogatories of the Bill. There are now no Interrogatories to the Bill, (except in Bills for Discovery, as to which the practice is peculiar,) and the answer may be as short a statement of the defence as the Defendant may think proper to put in. The answer must be filed within one month-twenty-eight days, the first being inclusive, and the last exclusive after appearance, unless further time be granted, which may be done under certain circumstances on application Form of, and to the Master as provided by the following Orders. The Order, by which the form of the answer is now governed, is the 27th Order of 1850. time for answer. 1850. XXVII. One month. A Defendant is to answer or demur, not demurring alone, to any original bill or bill amended before answer, within one month after appearance thereto has been entered by or for him, or from the time of amendment, as Eight days to the case may be. Where the Plaintiff amends his bill amended Bill. after answer, any Defendant desiring to answer the same must put in his answer thereto within eight days after service of the Subpoena to answer the amended bill, or within such further time as the Master may allow ; and a Defendant, being served with Subpoena to answer an amended bill, praying an injunction to stay proceedings at law, and desiring to avoid a motion for an injunction on affidavit of the truth of the amendments, has for that purpose only eight days after service of Subpoena to answer, within which he is to answer or demur to such amended bill. be sworn to. Must be con cise. The commencement and conclusion of the answer shall be in the form prescribed in Schedule D. to these Orders appended. It must be verified by the oath of the Defen- Answer must dant, as heretofore, but needs not be signed by counsel. It shall consist of a clear and concise statement of such defence or defences as the Defendant may desire to present. The silence of the answer as to any of the statements of the bill shall not be construed into an implied admission of their truth; and statements introduced into the answer, for the purpose merely of preventing such im- deny Bill, no plied admission, shall be considered impertinent. Provided always, that nothing herein contained shall be construed so as to prevent a Defendant from introducing into his answer any matter which may be material, for the purpose of preventing an injunction from being granted, or of procuring the same to be dissolved. The following is the form given in the Schedule. COMMENCEMENT AND CONCLUSION OF ANSWER. The answer of C. D., one of the Defendants to the bill of complaint of A. B., complainant. This Defendant, for defence to the said bill, says that, &c. (state the defence as succinctly as can be done consistently with due certainty, and in any language suitable to the purpose.) This Defendant therefore humbly insists that (where the Defendant requires any peculiar relief, it should be specially stated), and prays to be hence dismissed with his reasonable costs in this behalf wrongfully sustained. A second or supplemental answer could only be filed, according to the old practice, under very special circumstances, and was very rarely permitted. The practice is somewhat relaxed under the following Orders. It shall be competent to the Court, at any time, in furtherance of justice and upon such terms as may be proper, to permit a supplemental answer to be filed, for the purpose of putting new matter in issue. Leave to file a supplemental answer shall be applied for by motion, which shall set forth the proposed answer, and shall state the ground upon which the indulgence is asked. Notice of this motion must be served upon the solicitors of all parties to this suit; and, when any party has no solicitor, then upon such party, unless the Court under special circumstances shall dispense therewith; and it must be supported by such evidence as shall satisfy the Court of the propriety of permitting such supplemental Omission to admission. Impertinence. 1850. XXIX. Supplemental answer-on motion. Motion how made. |