8

petition, or affidavit, to be of unnecessary length, may
direct payment of a sum in gross in lieu of taxed costs Costs of plead-
therefor, or may fix the length at which the same shall ings unneces-
sarily long.
be considered on taxation; or may direct the taxing
master to look into such pleading, petition, or affidavit,
and distinguish what parts or part thereof are or is im-
proper or of unnecessary length; and' may direct the
taxing-master to ascertain the costs occasioned to any
party by such parts or part thereof, as in the one case may
have been declared to be, and in the other case may have
been distinguished as being improper or of unnecessary
length; and may make such order as is just for the pay-
ment, set off, or other allowance of such costs, by the
party, his solicitor or counsel, as to the Court may seem
just.

A notice of the filing of any appearance, or pleading,
must be always served on the opposite party, under the
following rule.

1850.

XLVII.

When any solicitor or party shall cause an appearance Notice of filing to be entered, or an answer, demurrer or replication to be appearance and filed, he shall on the same day give notice thereof to the pleadings. solicitor of the adverse party, or to the adverse party himself, if he act in person.

CHAPTER VIII.

The Replication.

Replication.

After the filing of the answer, the next proceeding is to file the Replication, which must be done by the Plaintiff within the time limited by the following Orders, or to set down the cause to be heard upon Bill and answer. Setting down The effect of setting down the cause on Bill and answer is that the truth of the answer is admitted, and the Plaintiff the answer, and on nothsupport his claim to a

cause on Bill and answer.

must rely upon what he finds in ing more, as his evidence, to decree. He cannot go out of the answer to prove his case, (Jones vs. Griffith, 8 Jurist, 733). Under the old practice, when the Defendant was compelled to make full discovery of all the facts, in answer to the specific Interrogatories of the Bill, he frequently could not avoid making such admissions as were sufficient to sustain the Plaintiff's case, notwithstanding anything else in the answer contained. In such cases the Plaintiff might at once, without replying to the answer, set down the cause. If he replied, the Defendant was then, as now, at liberty to go into evidence; but the Plaintiff might and still may read from the answer, as true, to support his cases any passages he may think proper as evidence. Under Not likely to the present practice the Defendant, not being compelled to be now usual, make full discovery, is unlikely to state such a case on his answer as will alone sustain the Plaintiff's case, and therefore causes will very seldom be set down to be heard on Bill and answer.

The replication will then in most cases be necessarily filed.

No subpoena to rejoin is hereafter to be issued, and only one replication is to be filed in the cause, unless the Court otherwise orders; and the replication is to be in the form set forth in Schedule E. to these Orders appended, or as near thereto as circumstances admit and require; and upon the filing of the replication the cause is to be deemed to be completely at issue.

The following is the form :—

Between A. B.

and

C. D., E. F., G. H., &c.

Plaintiff,

Defendants.

1850.

XLV. Cause put at issue by replication.

Form of

The Plaintiff in this cause joins issue with the Defendant C. D. (all the Defendants who have answered, or against whom a traversing note has been filed), and will replication. hear the cause upon bill and answer against the Defendant E. F. (all the Defendants against whom the cause is to be heard on bill and answer) and on the order to take the bill as confessed against the defendant G. H. (as the case may be).

The subpoena to rejoin had been already abolished by the 157th Order of 1845, which gave the following very short form of replication. "The Plaintiff replies to the Defendant's answer." The above form under the New Order, it will be seen, is to meet any case of several Defendants. If all the Defendants have answered, the first clause will of course be sufficient, and so on, according to the circumstances. The 157th Order of 1850 is repealed, and the replication will therefore always commence according to the above form under the Order of 1850.

There should be only one replication to all the answers, and, a replication to one answer having been filed, and another answer afterwards coming in, an application to the Court will be required to withdraw the first one. (Stinton vs. Taylor, 4 Hare, 608; 10 Jurist, 386).

The Plaintiff (not obtaining an Order for leave to amend his bill) must either file his replication, or set down the cause to be heard on bill and answer, within one month after the filing of the last answer. The plaintiff having obtained an order for leave to amend after answer, must

D

Subpoena to rejoin abolish

ed in 1845.

1850.

XLVI.

Replication one month after last answer.

Amendment, but no answer, plaintiff must reply after eight and within fourteen days.

Within fourteen days after further time to answer refused.

If amendments answered. Replication within fourteen days after

answer.

either file his replication, or set down the cause to be heard
on bill and answer. within the times following, viz.:
1. Where the plaintiff amends his bill, and no answer
is put in thereto, and no warrant for further time
to answer the same is served within eight days after
service of the subpoena to answer the amended bill,
the plaintiff is, after the expiration of such eight days,
but within fourteen days from the time of such
service, either to file his replication, or set down the
cause to be heard upon bill and answer. Otherwise
any defendant may move to dismiss for want of
prosecution.

2. Where the plaintiff amends his bill after answer,
and a defendant, within eight days after the service
of the subpoena to answer the amended bill, serves a
warrant for further time to answer the amendments,
but the Master refuses to grant such further time,
the plaintiff is, within fourteen days after such refu-
sal, either to file his replication, or to set down the
cause to be heard on bill and answer. Otherwise
any defendant may move to dismiss the bill for want
of prosecution.

3. If a defendant puts in an answer to amendments, the plaintiff must, within fourteen days after the filing of such answer, either file his replication, or set down the cause to be heard on bill and answer, unless in the meantime he obtains from the Court a special order for leave to amend the bill. Otherwise any defendant may move to dismiss the bill for want of prosecution.

The above introductory clause of the 46th Order is taken from Article 37 of the English Order 16 of 1845. Article 1 of the above Order 46 is from 38th Article

Compared with English Orders. of the English 16th Order. Article 2 is from Article 40 of the said 16th Order, and Article 3, from Article 41 of the 16th Order; all with a few verbal alterations, necessary to adapt them to our practice, of never compelling an answer. The authorities on this subject will be found under the Orders as to Dismissal of Bill.

CHAPTER IX.

Traversing Note.

Another mode of proceeding, which the Plaintiff may adopt, if, after the appearance the Defendant neglect to answer, is under the following Order :

At the expiration of the time allowed to a defendant to answer or demur (not demurring alone) to any original bill or bill amended before answer, if such defendant have filed no answer or demurrer, the plaintiff may file a note to the following effect: "The plaintiff intends to proceed with his cause as if the defendant had filed an answer traversing the case made by the bill."

1850. XXXII. Traversing

note.

Form.

served.

A traversing note having been filed, a copy thereof Copy to be shall be served on the defendant against whom the same shall be filed, and thereupon such note shall have the same effect as if such defendant had filed an answer traversing the whole bill on the day on which such note shall be filed.

After service of a copy of a traversing note, filed as aforesaid, a defendant is not at liberty to answer or demur to a bill without the special leave of the Court; and the cause is to stand in the same situation as if such defendant had filed an answer to the bill on the day on which the note was filed.

Same effect as

answer.

In case of

ruled.

Where a demurrer to the whole bill is overruled, the plaintiff may immediately file his note in manner and with demurrer overthe effect hereinbefore directed, unless the Court, upon overruling such demurrer, give time to the defendant to answer or demur; and in such case, if the defendant shall file no answer or demurrer within the time so allowed by the Court, the plaintiff may, on the expiration of such time, file such note.