REFERENCE OF BILL FOR SCANDAL OR IMPERTINENCE.

If the bill on inspection is found to contain scandalous or impertinent matter, the defendant is entitled to have the same expunged, and may have it referred to the Master to ascertain whether it be so; but if the Master reports that the bill is not scandalous or impertinent, the party procuring the reference must pay the costs of it, although, if he be dissatisfied with the Master's report, he may except to it.

The Order to refer a bill for scandal or impertinence was formerly obtained as of course. But by Order 11, of the 3d April, 1828, no Order of reference for scandal or impertinence shall be made, unless exceptions are taken in writing and signed by counsel, describing the passages which are considered to be scandalous or impertinent; nor unless such Order be obtained within fourteen days after the delivery of such exceptions. On this Order the manner of proceeding is to employ counsel to draw exceptions to the particular passages, a copy of which exceptions on paper is then delivered by the exceptant's Clerk in Court to the opposite Clerk in Court, as in the ordinary case of answers excepted to; and then the Order of reference is obtained, and the pleadings and exceptions carried before the Master in the usual way, by furnishing him with copies thereof on brief paper.

By the 22d of the Orders of 21st December, 1833, all Orders to refer an answer or other pleading, or matter depending before the Court, for scandal or impertinence, shall contain a direction to the Master to expunge any such scandalous or impertinent matter as he shall certify to be contained therein, and which shall have been the subject of the reference; and the Master shall be at liberty, without further order, to tax the costs of such reference

and consequent thereon, and to direct by whom the same shall be paid, and the same shall be recoverable by subpoena; but such scandalous or impertinent matter shall not be expunged, nor costs taxed, until the expiration of four days from the filing of the report of such scandal or impertinence, in order that the adverse party may have an opportunity to file exceptions to such reports.

Having already stated the proceedings necessary to be taken as to the defendant's answer in a cause, it has been thought proper to state here more at large the nature and effect of the two other modes of defence, namely, Demurrer and Plea.

DEMURRER.

A demurrer is either general to the whole bill, or special where the particular imperfections are pointed out. Any irregularity also in a bill of any sort, is ground of demurrer. As where a bill seeks to vary a decree, and yet is neither a bill of review, nor a supplementary bill in nature of a bill of review, which are the only kinds of bills that can be brought to affect or alter a decree, unless the decree has been obtained by fraud. The principal ends of demurrer are to avoid a discovery prejudicial to the defendant, or to cover a defective title, or to prevent unnecessary expense, otherwise demurrers are of little use, as generally, if a demurrer will hold, the Court would not give relief, though the defendant should answer the bill. 1 Atk. 291.

Should counsel, upon sight of the bill, advise upon demurring to it, twelve days and no more are allowed, exclusive of the day of defendant's appearance for putting in a demurrer only to a bill, or what is called a general demurrer, or demurrer to the whole bill; for although a demurrer must be signed by counsel, yet never being on oath like a plea or answer, no extension of the twelve days is

granted, except on very special grounds. No time therefore should be lost, if a demurrer be contemplated, in order to avoid liability to attachment, yet the demurrer may be filed after the twelve days, if an attachment be not actually issued. Therefore, defendant may wait until the plaintiff's Clerk in Court calls upon him for his answer, and then file the demurrer immediately, if he has it prepared and ready. If the defendant is advised to demur, the demurrer must be drawn, or at least signed by counsel, and transcribed on parchment, not omitting the counsel's name, but without the oath or signature of defendant: it must then be filed, by delivering the same to the Clerk in Court for that purpose, who enters it with the Registrar within eight days from the filing, but without a deposit as on exceptions: if not entered, the demurrer is disallowed of course, and the plaintiff may take out process for 40s. costs, and to put in a better answer. (Newl. 114.) The demurrer being regularly entered with the registrar, either side may, on petition to the Lord Chancellor or Master of the Rolls, as the case may be, under Orders 6 and 10 of the Orders of the 5th of May, 1837, by being left in his secretary's office, obtain an Order for setting it down to be heard, and the Registrar will, as in the case of exceptions, set it down for argument in the proper paper, but the Order (which is the judge's fiat on petition) must be brought to the Registrar, at least two days before the day appointed for the hearing, and if it is the Order of and meant to be heard before the Chancellor himself, and not before the Vice Chancellor, the same proceeding must be taken as mentioned in case of exceptions. The Order must be drawn up, and in all respects used as that on exceptions, served, &c. and an affidavit of the service made and filed, and the service on the opposite Clerk in Court ought to be two days before the hearing. A few days before the day of hearing (which will be ascertained by an inspection of the Registrar's book), a copy of the bill and the demurrer, both separate, and brief-ways, must be left for the Lord Chancellor

or Master of the Rolls, as the case may be, with his gentleman, and the sum of 5s. paid on leaving them. Counsel also must be furnished with a sufficient brief of the pleadings, and such observations as may be thought expedient. If a demurrer be over-ruled, the Order will be drawn up by the plaintiff's solicitor: but if it is allowed, the defendant, after having received his costs, may move that the bill be dismissed, with costs to be taxed. Harr. 216.

On the subject of costs it is necessary to state the two new Orders 31 and 32, of April, 1828; the first of which directs, "that upon the allowance of any plea or demurrer, the plaintiff shall pay to the defendant the taxed costs thereof, and when such plea or demurrer is to the whole bill, then the further taxed costs of the suit also; unless the Court shall think fit to make other order to the contrary ;" and the latter of the said Orders directs, that upon the over-ruling of any plea or demurrer, the defendant shall pay to the plaintiff the taxed costs occasioned thereby; unless the Court shall make other order to the contrary."

See further 1 Grant.

PLEA.

Pleas are special matter pleaded by the defendant to a bill on which an objection is not apparent, so as to admit of a demurrer; and it shows and relies upon facts set forth by it, as cause why the plaintiff should not obtain the relief asked, and is in bar to any relief or discovery sought by the bill. It is nothing more than a special answer, showing or relying upon one or more things as a cause why the suit should either be dismissed or barred. (Redes. Tr. Pl.)— Pleas are generally considered as of three kinds; to the jurisdiction of the Court; to the person of the plaintiff or defendant; in bar of the suit. (Ibid.) Though the subject of a suit may be within the

jurisdiction of a Court of Equity, yet if the Court of Chancery is not the proper jurisdiction, the defendant may plead the matter which deprives the Court of jurisdiction. (Harr. 219.) Pleas to the disability of the person are, outlawry, excommunication, attainder, &c. (Hind. 214.) Pleas in bar are nearly of a similar description to the grounds of a demurrer. Harr. 221.

The regular time for putting in a plea is eight days from the appearance; but if on oath, and if the defendant's place of residence entitle him to the time of a country cause, he may have a commission of course, with the same time to return it as in the case of an answer; and if the usual Order for time to plead, answer, or demur, or to answer only, has been obtained, the defendant may put in a plea to the whole bill under such Order, (1 Br. C. C. 56 ;) and it may be stated that the same rules as relate to answers, apply also to pleas. If a plea on argument deemed defective in point of form or substance, and therefore disallowed, yet either the benefit of it may be saved to the hearing of the cause, or it may be ordered to stand for answer. (Redes. Tr. Pl.) If it be ordered to stand for an answer, it is considered, either as not a full defence, or informal by way of plea or not properly supported by the answer, and therefore doubtful, but is allowed as a sufficient answer to so much of the bill as it covers; unless by the Order on which it stands for an answer, liberty is given to the plaintiff to except. (2 Atk. 241.) The costs of allowance of pleas are regulated by the Orders 31 and 32, of April, 1828, above stated.

The defendant filing his plea within the required time with his Clerk in Court, the latter, as in the case of a demurrer, enters it with the Registrar within the eight days afterwards, otherwise it will be overruled with 57. costs, and defendant to put in a better answer, as in demurrer, the course in which is to be followed with regard to pleas mutatis mutandis, and the same mode of preparing for the argument by briefs to counsel, &c