plaintiff shall make default herein, then upon application by the defendant, upon notice of motion, the plaintiff's bill shall stand dismissed out of Court with costs, unless the Court shall make special Order to the contrary. And in case the plaintiff serves a subpoena to rejoin, within three weeks after filing the replication, but does not obtain and serve an Order for a commission to examine witnesses within that time, then the defendant shall be at liberty, without notice, to obtain an Order for a commission to examine witnesses, returnable at the like period as the plaintiff is entitled to pursuant to this Order, and shall have the carriage of such commission. And if the plaintiff obtains an Order for and sues out a commission, and neglects to execute and return the same at or within the time stated in this Order, the defendant shall be entitled to an Order, as before stated, for a commission returnable on the last return of the term following that which is allowed to the plaintiff by this Order for the return of his commission. And when any commission issues pursuant to this Order, or the last foregoing Order, the parties shall have liberty to execute the same in term time; and publication shall stand enlarged, until the commission shall be returnable, and the plaintiff shall be at liberty to set down the cause in the meantime, without the necessity of inserting such directions in the Order for the commission."

It has been held that where the plaintiff's solicitor, through ignorance or mistake, has neglected to comply with the exigency of the Order, the Court will not relieve the plaintiff from the consequences of his neglect without the consent of the other party.— Walmesley v. Froude, 1 Russ. & M. 334.

By Order 14, April 3, 1828, "if the plaintiff does not amend his bill within the time limited by the Order to amend, such Order becomes void, and the cause, as far as relates to any motion to dismiss the bill for want of prosecution, stands in the same situation as if such Order had not been made."

Under these Orders, no bill can be dismissed at any stage of the suit without notice.

REPLICATION, REJOINDER, AND JOINING IN COMMISSION.

A replication is the plaintiff's answer or reply to the defendant's plea or answer.

When the answer is sufficient, and denies, or does not admit the truth of the plaintiff's case; or admitting it, yet insists upon new facts, which, if true, would prevent the plaintiff from succeeding; the plaintiff cannot then with safety set down the cause to be heard upon bill and answer, without replying, because, if he did, the whole of the answer would be taken as true; the plaintiff' must therefore file a replication to the answer of the defendant, which need not be signed by counsel, and merely insists generally that the allegations in the bill are true, and denies those in the answer to be so. The defendant is thereby put to the necessity of proving his case also.

It may be taken as a rule, that a replication ought never to be omitted in suits which are adverse, but only in those amicable suits which create no contest, and require no evidence on either side, and wherein the parties only want the sanction and decision of the Court to establish their rights and interests. But if the defendant by his answer sufficiently admits the plaintiff's case, he may then set down the cause on bill and answer without filing a replication, and consequently without entering into any further evidence. When a plaintiff has replied, the next step to be taken by the defendant is by rejoinder, whereby he traverses the plaintiff's replication and insists upon the truth and sufficiency of his own answer. However a rejoinder is now never actually filed, but the plaintiff obtains, as of course, an Order for a subpœna returnable immediately, requiring the de

fendant to appear to rejoin. And by the 20th Order, 3d April, 1828, service on the Clerk in Court of any subpoena to rejoin &c. shall be deemed good service, the object of the subpoena being merely to put the cause completely at issue between the parties, who then may, if they please, proceed to examine their witnesses.

The subpoena to rejoin is obtained by petition to the Master of the Rolls, the Order whereon, which is of course, includes, in a country cause, a direction for the defendant to join in commission with the plaintiff for examination of witnesses, or that the plaintiff may have one to his own commissioners.

EXAMINATION OF WITNESSES.

The mode of examining witnesses in equity (unless in particular instances of vitâ voce examination being allowed) is by interrogatories in writing, exhibited by the party, plaintiff or defendant, in a cause touching the merits thereof, or of some incident therein, as well as touching contempts; whereupon the party offending is to be examined, and such examination is either by the Examiner in town, or under a commission directed to commissioners in the country. Harr. 259.

As on hearings upon bill and answer no evidence is to be admitted (except matters of record) but what arises from the bill and answer itself, so when the parties proceed to the examination of witnesses, the cause is determined by such evidence as arises from the depositions of witnesses examined upon interrogatories. And both the plaintiff and defendant may ordinarily exhibit interrogatories; for when parties are at issue it is necessary to consider what the other side may examine into, as well as what ourselves can prove, and so counter or cross interrogatories may be prepared if there be occasion. - Harr. Witnesses in a town cause are

examined at the Examiner's Office, in Rolls' Yard. In a country cause they are examined under a commission directed to commissioners in the country, and the depositions are taken there, if the parties do not come up to town to be examined, as in some particular cases it may be proper they should do.

When a witness is to be examined in town, the interrogatories (drawn or perused and signed by counsel, and ingrossed on parchment) are to be left with one of the Examiners, who takes the causes alphabetically comprised in the letters written over their respective doors, and within which letters the particular cause may be included. This is called filing interrogatories. If both town and country witnesses are to be examined in the suit, the one in town and the others by commission, the whole set of interrogatories for each need not be filed with the Examiner, but only such as relate to the witnesses who are to be examined there. And in every case the Examiner, or the commissioners on the execution of the commission, should be informed of the points to which it is desired the witnesses should be examined. This information is usually given by a note or memorandum stating the particular interrogatories wished to be made the subject of such witness's examination. An appointment should then be obtained from the Examiner when the witnesses are to attend to be examined, and notice thereof given to the witnesses; this being done the solicitor should attend them on the day and hour appointed to the Examiner's Office, where he will leave them, and he is then to serve or leave at the seat of the Clerk in Court of the opposite party (who sends it to his client, the solicitor) a notice in writing containing the name and description of the witness, (Order 25, April 1828,) and the opposite party may then attend at the Examiner's Office to identify him, and thereby prevent witnesses being personated, and take the required steps, if necessary, for his cross-examination. The Examiner's clerk will take the witness, with the interrogatories, to

they are to be closely kept by them in their office, and no copy or abstract is to be delivered out until publication pass by Rule, or by Order of the Court. Those taken by commission are, immediately upon bringing in, to be delivered to the Sworn Clerk who made out the commission, to be kept without opening until publication regularly pass in the cause.

When publication has passed, and the parties have copies of the depositions delivered to them, and having perused the interrogatories exhibited by each side, if they find them to be leading, or the depositions scandalous or impertinent, then is a proper time to refer them to the Master, by motion or petition, for his report thereon.

See further, 1 Grant.

PUBLICATION.

Publication passes either by Rule of the Court, or by consent, or by the running out of the time to which it has been enlarged by Order. When witnesses have been examined in the Examiner's Office, or where one party takes out a commission for the examination of witnesses in the country, and the other party does not join therein, or if he does join does not examine any witnesses under it, or where no witnesses are examined on either side, the party who would have publication pass may give the other party Rules for publication; first, an ordinary Rule, calling on the other party to produce witnesses; and then another Rule for a day to show cause why publication should not pass. But where witnesses are examined on both sides, under a joint commission, one Rule only (viz. the latter one) is sufficient.

In these cases, if no good cause is shown to the contrary, publication passes. Either side who has examined may give Rules. These Rules are both eight-day Rules, and must be given in term time.