the whole bill, the record being entire,(1) an insufficient [ *196 ] answer being no answer, (2) the plaintiff is entitled to take a bill pro confesso notwithstanding the defendant has put in an insufficient answer,(3) if the defendant stands out process of contempt for want of a further

answer.

The decision in Hawkins v. Cook (4) appears at first sight to contradict the proposition that after an insufficient answer the bill may be taken pro confesso, but upon examination it has not that effect; there a defendant being in contempt to a sequestration, got the cause to stand over, and in the mean time filed his answer, which was insufficient; the plaintiff then served him with a subpœna to make a better answer, whereupon the defendant put in two insufficient answers, and then the plaintiff, instead of referring the answer he himself had by his subpoena called for, wished to take the bill pro confesso. This is totally a different case from that of a defendant putting in an insufficient answer, and then standing out process of contempt to a sequestration for want of his answer to the exceptions.(5)

An answer having been filed without payment or tender of costs in a case where the plaintiffs were in a condition to take the bill pro confesso, they moved to take the bill pro confesso notwithstanding the answer. The Court said a motion should be made that the answer should be taken off the file for irregularity, and the defendant was remanded in the mean time; but the plaintiff having taken an office copy of the answer, the motion was refused.(6)

[ *197 ] *WHEN THE PLAINTIFF IS ENTITLED TO RESUME

PROCESS OF CONTEMPT.

Although the defendant, immediately on filing his answer and payment or tender of costs of contempt, is entitled to his discharge from custody without waiting until the plaintiff is satisfied with the sufficiency of his answer, yet

(1) Jopling v. Stuart, 4 Ves. 619. Davis v. Davis, 2 Atk. 24.

(2) Gregor v. Lord Arundel, 8 Ves. 87.

(3) Jopling v. Stuart, 4 Ves. 619. Accepting the costs of exceptions for insufficiency does not prejudice the plaintiff's right so to do.

(4) 2 P. W. 555.

(5) See Lord Hardwicke's Observations on this case, Davis v. Davis, 2 Atk. 24. (6) Sedgier v. Tyte, 11 Ves. 202.

if the Master reports the answer to be insufficient,(1) or if the defendant submits to answer the exceptions, the plaintiff is entitled to resume his process of contempt.(2) Thus a defendant having answered before the serjeant-atarms could apprehend him, and the answer having been excepted to, and defendant having submitted to answer the exceptions, the serjeant-at-arms was ordered against the defendant.(3)

By the old practice, acceptance of the costs of contempt prevented the plaintiff from resuming the process,(4) but this is altered by 24 N. O. which directs that when a defendant, in contempt for want of answer, obtains, upon filing his answer, the common order to be discharged as to his contempt, on payment or tender of the costs thereof, or the plaintiff accepts the costs without order, he shall not, by such acceptance, be compelled, in the event of the answer being insufficient, to recommence the process of contempt against the defendant, but shall be at liberty to take up the process at the point to which he had before proceeded.

By the old practice, if the defendant put in a fourth answer, and the same was reported insufficient, it was a *motion as of course that the defendant should be [ *198 ] examined upon interrogatories, and stand committed.(5) By the 10th N. O. the same remedy is given to the plaintiff after a third answer reported insufficient. Where a defendant being in contempt under an order for a messenger, put in an answer to which exceptions were allowed, it was decided that the plaintiff not having accepted the costs,(6) might proceed immediately on the old process without subpoena or notice for better answer.(7) This is so, notwithstanding the General Order of 1676,(8) the Lord Chancellor observing " upon principle, repeated decisions forming a series of practice, as it must be against an order, may with safety be taken to amount to a reversal of that order;"(8) but if the plaintiff served a subpœna(9)

(1) If a defendant is in contempt, the Master, upon reporting his answer to be insufficient, cannot fix a time to put in a further answer, pursuant to the 8th New Order.

(2) Child v. Brabson, 2 Ves. 110.

(4) Bailey v. Bailey, 11 Ves. 152.

(3) Waters v. Taylor, 16 Ves. 417, a. (5) Farquharson v. Balfour, Turn. 184. Boehm v. De Tastet, 1 V. & B. 328.

(6) And even now if he has accepted costs, 24th New Orders. (7) Coulson v. Graham, 1 V. & B. 331. (8) The Order of 1676, seems to me rather to assume that an eight-day rule (or eight days) was allowed by the then practice after a contempt, and only orders that the party shall be at liberty to resume the process, notwithstanding the costs of contempt have been paid. Beam. Ord. 251. (9) By New Orders, no subpœna is now necessary.

for a better answer, he could not resume process until the expiration of eight days.(1)

If after a sequestration nisi against a person having privilege of parliament, the answer is reported insufficient, the plaintiff is not entitled to move to make the sequestration absolute, but must obtain another order for a sequestration nisi.(2) But in Butler v. Rashfield,(3) it is said, if exceptions are taken to an answer of a member of parliament filed before order nisi was made absolute, the Court will enlarge the time for showing cause till it appears whether the answer is sufficient. The first case appears most consonant to practice, as the defendant not [199] being in contempt, until the order nisi is made absolute, there being no contempt, none can be presumed on the answer being reported insufficient.

If the defendant files a demurrer and answer, after an attachment cepi corpus has been returned against him for want of his answer, although the defendant is irregular, yet if the plaintiff obtains an order for a messenger before he has taken the demurrer and answer off the file, it will be discharged with costs.(4) If a defendant demurs alone after the expiration of twelve days after appearance, or files an answer and demurrer after the first attachment has issued, or a plea and answer after the return of an attachment with proclamation, the plaintiff must move to take them respectively off the file before he can sue forth process of contempt.

Exceptions were allowed to the answer of the defendant; the plaintiff obtained an order to amend, and for an answer to exceptions at the same time; the defendant only answered the amended bill; the plaintiff issued an attachment for want of answer to exceptions, which was held to be irregular, and that the plaintiff should have moved to have taken the second answer off the file.(5)

A plaintiff cannot enforce a further answer pending exceptions to a Master's report of insufficiency; and service of the order to set down the exceptions prevents process of contempt from issuing.

(1) Agar v. Regent's Canal Company, 19 Ves. 379. (2) Lord Clifford's case, 2 P. W. 385.

(4) Curzon v. De la Zouch, 1 Swanst. 189.

(3) 3 Atk. 739.

(5) De Tastet v. Lopez, 1 Sim. 11. Eng. Chan. Reps. ii. 6.

CHAPTER XV.

THE MANNER IN WHICH A SUIT IN CHANCERY MAY BE DEFENDED.

THE defence to a suit in Chancery may be either by a demurrer, a plea, an answer, or a disclaimer. The defendant by demurrer may demand the judgment of the Court, whether he shall be compelled to answer the bill or not. By plea, he may show some cause why the suit should be dismissed, delayed, or barred. By answer, controverting the case stated by the plaintiff, he may confess and avoid, or traverse and deny the several parts of the bill; or admitting the case made by the bill, may submit to the judgment of the Court upon it, or upon a new case made by the answer, or both; or by disclaimer he may at once terminate the suit by disclaiming all right in the matter sought by the bill. And all or any of these modes of defence may be joined, provided each relates to a separate and distinct part of the bill.(1)[a]

(1) Mitf. Pl. 98.

[a] Story's Eq. Pl. 346. 349; Robertson v. Bingly, 1 McCord's Ch. Rep. 352; Clark v. Phelps, 6 Johns. Ch. Rep. 214; Beauchamp v. Gibbs, 1 Bibb, 481; Portarlington v. Soulby, 6 Sim. 356, (9 Eng. Chan. Rep. 308;) Davies v. Davies, 2 Keen, 538; Ellice v. Goodson, 3 Myl. & Cr. 653; S. C. 2 Lond. Jur. 249.

15*

CHAPTER XVI.

DEMURRER.

Grounds of demurrer to original bill, 201. To bill of discovery, 203. To other bills, 204. Qualities and requisities for demurrer, 205. Within what time to be filed, 207. Within what time a demurrer and answer, 208. How demurrer prepared, signed, and filed, 209. Demurrer by married woman or infant, 209. Entry of, 209. Plaintiff may amend if he considers demurrer good, 210. Defendant may withdraw demurrer, 210. Costs of demurrer, 212. How recovered, 213. Effect of demurrer allowed or overruled, 213. The like of demurrer and answer, 214.

THE GROUNDS OF A DEMurrer, and WHEN IT IS A GOOD DEFENCE.

WHENEVER any ground of defence is apparent on the bill(1) itself, either from matter contained in it, or from defect in its frame, or in the case made by it, the proper mode of defence is by demurrer.(2) The causes of demurrer are merely upon matter in the bill, or upon the omission of matter which ought to be therein or attendant thereon, and not upon any foreign matter alleged by the defendant.(3)[a]

The principal grounds of objection to the relief sought by an original bill, which may be taken advantage of by demurrer,(4) are these:-1. That the subject of the suit [ *202 ] is *not within the jurisdiction of a court of equity;(5) as where the plaintiff may have his remedy at law;(6) or in an Ecclesiastical Court or other court of ordinary jurisdiction.(7)[6] 2. That it appears on the face

(1) Mr. Bell in his evidence before the Chancery Commissioners, says, "When we begin practice, it is a common error until corrected by advice and experience, to think we may serve our clients by a demurrer, but they seldom end a cause."-Com. Rep. 1826, p. 16.

(2) Mitf. Pl. 99.

(4) Mitf. Pl. 100. Beam. Ord. 26.

(4) In treating of demurrers and pleas, writers frequently point out both as proper defences on the same ground, "as personal disability," "or want of jurisdiction," which may be taken advantage of as well by plea as by demurrer. The student must bear in mind the leading distinction as mentioned in 58th of Lord Bacon's Ordinances, "that a demurrer is properly upon matter defective contained in the bill itself, and no foreign matter, but a plea is of foreign matter." Beam. Ord. 26.

(5) Mitf. Pl. 102.

(6) Mitf. Pl. 113.

(7) Mitf. Pl. 114.

[a] Story's Eq. Pl. 351, 352; Alderson v. Biggars, 4 Hen. & Munf. 473; Harris v. Thomas, 1 Hen. & Munf. 18; Mitchell v. Lenox, 2 Paige, 280; Smets v. Williams, 4 Paige, 364; Kuypers v. Dutch Reformed Church, 6 Paige, 570.

[6] Or that in a suit concerning property, the amount in dispute, is not sufficient to