defendant having obtained one order for time, was allowed, on affidavit that the papers were not left for inspection till some time after that order had been obtained, as much time in addition, without prejudice to the usual order on a second application, after that additional time was expired.(1) But in a recent case the Court refused, on motion by a defendant, to compel a plaintiff to produce documents in his possession, although the defendant swore that an inspection of them was necessary to enable him to answer the bill.(2)

If either party is dissatisfied with the decision of the Master, he may appeal by motion from the order made on such applications, either to the Lord Chancellor, Master of the Rolls, or to the Vice Chancellor, but the order made on such appeal is final and conclusive.(3)

Although, as a general rule, all applications for time are to be made to the Master, yet the Court still exercises the jurisdiction to grant time in certain cases. Thus if a demurrer or a plea has been overruled, the Court may grant time to answer notwithstanding the New Orders.(4) The application should be made when the plea or demurrer is overruled, otherwise the plaintiff will be in a situation to issue an attachment forthwith.[a]

[ *166] *If a former suit has been decided for the same purpose and a new bill is brought, and the costs of the former suit remain unpaid, the defendant is entitled to an order to stay proceedings in the second suit until payment of the costs of the first, and of the application; and the order is drawn up in the terms of giving the defendant time to answer until a given time after payment of the costs of the former cause.(5)[b] The application is made by a notice of motion, which is served on the clerk in court, of the plaintiff in the second cause.

(1) Farnsworth v. Yeomans, 2 Mer. 142. Princess of Wales v. Earl of Liverpool, 3 Swanst. 567.

(2) Penfold v. Nunn,a 2 Sim. 409.

(4) Waterton v. Croft, 6 Sim. 431.

(3) 3 & 4 Will. 4, c. 94, s. 13.
(5) Pickett v. Loggan, 5 Ves. 702.

[a] Sec 1 Hoff. Ch. Pr. 228; 1 Dan. Ch. Pr. 619. 625.

[b] A bill had been dismissed for want of prosecution, but before the costs were paid, the defendant died, and the plaintiff filed another bill for the same object against the defendant's executor: the proceedings in the latter suit were stayed, until the costs of the former suit were paid. Spires v. Sewell, 5 Sim. 193.

See the cases at law on this subject, 2 Chit. Archb. 7th ed. 990 et seq.; Gra. Prac. 2d ed. 551-555.

a

Eng. Chan. Reps. vii. 468.

Eng. Chan. Reps. ix. 345.

But where a person, who in a former proceeding sued in forma pauperis, has instituted a second suit for the same purpose, not being dispaupered in the former, there is no instance that the Court ever stayed the second proceeding until he had paid those costs not due by a former judgment, but so become due by taxation, unless the new proceeding was to be justly characterized as very vexatious.(1) Since the above decision the question has been much discussed in a case of Brook v. Alcock, and an order dated 20th March, 1834, was made by the Vice Chancellor to stay the proceedings in a second suit, until costs of first suit, which had been dismissed for want of prosecution, had been paid.[a]

(1) Wild v. Hobson, 2 V. & B. 112.

[a] See Weston v. Withers, 2 T. R. 511; Goodtitle v. Mayo, Tidd, 98; Hawes v. Johnson, 1 You. & Jerv. 10; 2 Chit. Archb. 7th ed. 920.

CHAPTER XIV.

TO COMPEL AN ANSWER.

How a defendant is compelled to answer, 167. Attachment, 168. Cases where attachment discharged for irregularity, 168. How attachment executed and returned, 171. If sheriff attaches defendant and takes bail, 172. Motion for a messenger, 172. Committal to the Fleet, 172. Orders for habeas corpus, and for clerk in court to attend, 173. How habeas corpus issued, and return of, 174. How defendant brought up and bill taken pro confesso on motion, 174. When bill taken pro confesso on motion, 175. If defendant on being brought up swears that from poverty he is unable to employ a solicitor, 176. If sheriff sends or detains defendant in gaol, 177. Motion for habeas corpus, 177. Allowance to gaoler acting under, 177. Motion to com. mit defendant to Fleet, 177. Order for habeas corpus and for clerk in court to attend, &c., 177. When defendant brought up, bill taken pro confesso on motion, 177. Where defendant cannot be brought up, 178. Where defendant confined for a misdemeanor, 179. If the messenger cannot find the defendant, or he is taken into custody before messenger can capture him, 180. Motion for messenger refused where sheriff had discharged defendant, 180. If sheriff returns non est inventus to attachment, in what case serjeant-at-arms ordered, 181. Attachment with proclamation, 183. Commission of rebellion, 183. Serjeant-at-arms, 184. Sequestration, 185. Bill pro confesso, 187. If defendant taken on any of the foregoing processes, 188. Where a plaintiff is allowed to put in a formal answer for a defendant, 188. To compel answer of privileged persons and others, 189. Sequestration nisi and absolute, 189. Pro confesso under inherent jurisdiction of the Court, 190. Distinction between taking a bill of discovery and one praying relief, pro confesso, 191. To com. pel answer of a corporate body, 192. Of an infant, 192. Of a person of unsound mind, 193. Of a feme covert, 193. Bill pro confesso, notwithstanding amendment or an insufficient answer, 195. Resuming process of contempt, 197.

Ir the defendant does not put in an answer within the time allowed him for that purpose, the plaintiff is entitled to issue an attachment against him. This attachment is made out by the clerk in court without order or an affidavit of any kind being required, and is executed and returned in the manner explained in treating of " Attachments for want of appearance."(1)

It has become a custom in the Six Clerks' office, long established by courtesy, before sealing an attachment for want of an answer, to give one or two notes to the opposite clerk in court, apprising him of such intention; and experience will, I think, bear out the assertion, that the

(1) An attachment cannot issue for want of answer to an amended bill, until the amended bill is entered in the Six Clerks' book. Adamson v, Blackstock, 1 S. & S. 120.

⚫ Eng. Chan. Reps. i. 59.