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bill the same infants were parties-on motion, an order was made that the guardian who put in their answer to the original bill, might put in their answer to the supplemental bill. Lushington v. Swell, 6 Mad. 28.

(e) Sufficiency.

A person answering a bill, must answer it fully; and cannot answer part, and refuse to answer the remainder, unless the answer would tend to criminate him.

The rule in equity, that a party is not bound to disclose his own case, is confined to mere matter of title, and does not extend to matters of account. Corbett v. Hawkins, 1 Y. & J. 425.

In the Exchequer, a defendant may, by his answer, object to reply to any part of a bill, if he states in his answer the ground of objection, without resorting to a plea or demurrer. John v. Dacie, 13 Price, 632.

A purchaser for a valuable consideration cannot protect himself by answer, from making a full disclosure on a bill for a discovery. Ovey v. Leighton, 2 S. & S. 234.

Although an answer be to all the particular charges, yet if it be general, it is sufficient. Wharton v. Wharton, 1 S. & S. 235.

It is not a valid exception to an answer containing a denial in general terms, that to a particular interrogatory, it had not answered so as to meet it in all its parts, if it be in general satisfactory. Bally v. Kenrick, 13 Price, 291.

An answer will not be ordered to be taken off the file as evasive, though it answers only some one or two interrogatories, if the Court is satisfied that it is intended to raise a fair question on a point of law. Green v. Weaver, 6 Law J. Chanc. 1, s. c. 1 Sim. 404.

Where three insufficient answers have been put in by a defendant, and he is in custody for want of a fourth, immediately he files the fourth, he is entitled to his discharge; though, if the fourth be insufficient, it is a motion of course, that he shall be examined upon interrogatories, and stand committed.

In deciding on the tenability of a fourth answer, the Court will look at, and take into consideration, the three preceding ones. Farquharson v. Balfour, 1 Turn. 189, s. c. 1 S. & S. 72.

It is irregular to refer two separate answers for insufficiency by one order of reference. Where, to one certificate of insufficiency, exceptions are taken by two defendants, there must be two deposits. Allanson v., 4 Law J. Chanc. 100, s. c. 2 S. & S. 478.

(f) Erasures and Alterations.

Erasures in the answer, jurat, and commission, are not a ground for taking demurrer off the file; and the Court refused the costs to the party against whom the application was made. Gwynn v. Bodmer, 9 Price, 320.

(g) Taking off the File.

If a defendant's answer is filed while the suit is abated, and the plaintiff does not complain of the irregularity, the Court will not, on the application of the defendant, permit the answer to be taken off the file, except upon his undertaking to put in an

answer in the same words. Pratt v. Barker, 2 Law J. Chanc. 89.

Where an answer to an amended bill merely denied the amendments, which, in effect, had been answered by the previous answer, it was ordered to be taken off the file. Newham v. May, 10 Price, 117.

Answer taken off the file for irregularity, on the grounds (inter alia) that in the jurat, as to one defendant, a mistake had been made in the year, (1817 being written for 1827); and that the answer had been affirmed by another of the defendants, who was a quaker, under a commission issued to take the answer of that defendant upon his corporal oath. Parke v. Christy, 1 Y. & J. 533.

The Court refused to order an answer to be taken off the file on the alleged ground that it was illusory, the defendant merely stating, "that he had no knowledge of any of the matters in the bill mentioned," and left the plaintiff to except. Olding v. Glass, 1 Y. & J. 340.

It is irregular to file a replication to the answer of a deceased defendant.

A replication irregularly filed, is a proceeding in the cause until it is taken off the file. Dawson v. 2 Law J. Chanc. 143.

Semble-If a plaintiff is misnamed in an order to dismiss a bill for want of prosecution, through an error in the six clerk's certificate, a replication filed subsequent to the service of the order, will not be irregular. Verlander v. Codd, 1 Turn. 94, s. c. 1 S. &. S. 94.

The Court will, on payment of costs, permit a plaintiff to withdraw a replication, and amend his bill. Petre v. Wells, 11 Price, 667.

A replication was permitted to be withdrawn, on payment of costs, for the purpose of being amended, though it did not appear that the matter sought to be introduced had come to the party's knowledge subsequent to filing the replication. Callanan v. Salwey, 1 M'Clel. & Y. 598.

But it is not a motion of course to be at liberty to withdraw a replication filed, and amend the bill, nor can it be made in the Exchequer, without an affidavit shewing the nature and materiality of the proposed amendment. Markham v. Smythe, 9 Price, 163.

Neither is it an application of course to withdraw a replication, and amend the bill after plea pleaded, and replication filed, although it is prior to the plea being set down; therefore, where an order of course had been obtained, the Court discharged it for irregularity, and the amended bill was ordered to be taken off the file. Carleton v. L'Estrange, 1 Turn.

23.

The Court will, under special circumstances, give

leave to withdraw the replication, and file exceptions to the answer nunc pro tunc. Evans v. Veysey, M'Clel. 341.

(F) DEMURRER. [See DEMURRER.]

(G) PLEA.

By analogy to the rule at law, matters arising between the bill and plea may be pleaded in equity. Turner v. Robinson, 1 S. & S. 3.

If a writ of attachment with proclamations, issued against the defendant, has not been returned, the defendant may put in a plea and answer. Sanders v. Murney, 1 S. & S. 225.

Filing a plea after the return of a simple attachment, is not irregular. Hamilton v. Hibbert, 2 S. & S. 225.

A party in contempt, who has obtained an order for a commission to take his "plea, answer or demurrer," may put in a plea.

Quære, If the commission had been merely to take his answer, whether he could have put in a plea. Barber v. Crawshaw, 6 Mad. 284.

When a plea is filed to a bill, the defendant should not only set down the plea, but give a rule for arguing it. Parker v. Alcock, 1 Y. & J. 195.

(H) MOTIONS.

Motions cannot be made, even in term, except upon seal days, unless leave to make them on any other day be obtained by special leave of the court. Anon. 4 Law J. Chanc. 204.

A motion cannot be made to adjourn a petition in bankruptcy; a petition in the bankruptcy is sufficient for that purpose. In re Hardy, 6 Mad. 252.

A motion to enlarge the time for foreclosing, is not a motion of course, although the interest and costs be paid up. But if there be no opposition, the Court will give further time in its discretion. Quarles v. Knight, 8 Price, 630.

(I) PETITIONS.

A person who has lent deeds, and which deeds have been brought into the Master's office under the usual directions in the decree, may, although he be not a party to the cause, present a petition to have the same delivered to him. Marriott v. White, 1 S. & S. 17.

If the Court takes possession of the property of an individual, by mistake, he may apply by petition, pro interesse suo, and the Court will immediately grant him relief. Anon. 1 Law J. Chanc. 11.

The Court will not on motion enforce an arrangement by consent, since it must be brought before the Court by petition. Gribble v. Carpenter, 11 Price, 509.

The matter of a report directed, not by the decree, but by subsequent order, can be brought on only by petition. Clarke v. Elliott, 3 Law J. Chane. 200.

Where a bill is filed merely to obtain a transfer of stock, standing in the name of a trustee, who is out of the jurisdiction of the Court, the order must be made at the hearing of the cause, and cannot be obtained by petition. Burr v. Mason, 2 S. & S. 11.

A sum of stock, claimed as a legacy, by A, was ordered by the decree to be carried over to the DIGEST, 1822-1828.

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account of A, "subject to the further order of the Court," with a direction that it should not be sold or transferred without notice to B: Held, that the Court might, upon petition and without rehearing the former decree, order the money to be paid to B, if his title appeared to be the better of the two. Barksdale v. Abbott, 3 Russ. 186.

Where a petition is presented in a cause, for a reference to inquire whether an infant is a trustee under the statute of Anne, and the infant is not a party to the cause, it is not enough that the petition be entitled in the cause, it must be entitled also in the matter of the infant. Headley v. Redhead, 1 Law J. Chanc. 159.

A signature to a petition, "authenticated by me A B, solicitor to the petitioner in the matter of the petition," is not an attestation of the signature within the meaning of the general order. In re Dumbell, 5 Law J. Chanc. 83.

A petition having received the Lord Chancellor's fiat, the affidavits were filed: an informality being discovered, the petition was then amended, and received the Lord Chancellor's fiat anew, and was ordered by his Lordship to be received into the petition paper: Held, that the petition could not be heard, because the affidavits were filed before the amended petition was regularly in court. Ex parte Bygrove, Law J. Chanc. 147.

After a petition has been struck out, the Court cannot order it to appear on the paper till it is again set down. Ex parte Piper, 2 Law J. Chanc. 168.

(J) ORDERS.

Where a purchaser has obtained an order nisi, and has omitted to confirm it, the vendor may confirm it. Anon. 5 Law J. Chanc. 147, s. c. as Chillingworth v. Chillingworth, 1 Sim. 291.

A defendant is not entitled to apply for an interlocutory order for his own relief and security, if he is not a party seeking the aid of the Court, unless his motion may be imposed as a condition on an order applied for by the plaintiff. Wynne v. Griffith, 1 Law J. Chane. 110, s. c. 1 S. & S. 147.

Quære, Whether the Court will at one and the same time, order the Chancellor of the Duchy of Lancaster to return the writ, and the sheriff to return the mandate which has been issued to him. Anon. 1 Law J. Chanc. 117.

The Lord Chancellor, by empowering the Vice Chancellor to sit for him, does not thereby authorize him to alter or discharge orders made by the former.

If the Lord Chancellor authorize the Vice Chancellor only to discharge an order, he cannot alter it.

Quare, Whether the Vice Chancellor has power to discharge or alter an order made by the Lord Chancellor, although it be only to hear a motion by consent. Saunders v. King, 2 J. & W. 429. [See 53 Geo. 3, c. 24, s. 2.]

The Vice Chancellor cannot discharge orders of course made by the Master of the Rolls. Whitehouse v. Hickman, 1 S. & S. 104, s. c. Anon. 1 Law J. Chanc. 72.

Orders already made will be set aside, where similar motions for the same orders have been refused, but the costs not paid. Killing v. Killing, 6 Mad. 68.

It is not of necessity that an order shall be dis3 G

A defendant cannot obtain an order to examine, as a witness, a plaintiff who does not consent. Foreday v. Whightwick, 6 Law J. Chanc. 60.

A plaintiff cannot obtain leave to examine a coplaintiff as a witness, on giving security for costs. Benson v. Chester, 1 Jac. 577.

After committal for filing insufficient answers, the defendant, instead of putting in a written examination to the interrogatories, is to be examined personally upon them by the Master.

On the examination of a defendant, who is attending before the Master in consequence of insufficient answers, he may avail himself of the attendance of counsel.

A viva voce examination at law, and a personal examination in equity, are not synonymous.

The defendant is not to be discharged out of custody upon the Master's report of the sufficiency of his examination, till the plaintiff has seen the examination.

The object of the Court in directing the defendant to be examined upon interrogatories is, that, upon that examination, he shall not be liberated out of custody till he has given a sufficient answer, not only to the questions contained in the bill, to which he has not before answered, but to every question which the Master thinks may fairly arise out of the matter, which may be contained in the answers to those questions, without putting the plaintiff to the trouble of amending his bill.

But it seems, the proper mode of discussing the insufficiency of the defendant's examination is, upon the old exceptions, with respect to any of the original interrogatories in the bill remaining unanswered; and upon new exceptions, with respect to any new questions which the Master may have introduced in settling the interrogatories. The insufficiency of the examination, however, was in this case permitted to be shewn as cause against the defendant's discharge. But an examination may be quite sufficient, though it is untrue and inconsistent with what has been sworn by the defendant in his answers. Though the true principle is, that the

plaintiff must be satisfied with what the conscience of the defendant allows him to swear. Farquharson v. Balfour, 1 Turn. 184, 201.

When a sequestrator has been examined in the Master's office, the examination need not be signed by counsel. Keene v. Price, 1 S. & S. 98.

A plaintiff cannot, by an order of course, refer the examination of a defendant for insufficiency, after he has proceeded upon it. v. Ure, 4 Law

J. Chanc. 206.

On a re-examination, on the ground of irregularity, no new witness can be examined. Perry v. Sylvester, 1 Jac. 83.

The rule that a witness cannot be examined after publication passed, is not imperative under every variety of circumstance; but it will not be departed from, unless the Court is satisfied, by the best evidence, that it was impossible for the party to have had the benefit of the testimony before publication passed. Anderton v. Wilbraham, 3 Law J. Chanc. 130.

Permission was reluctantly granted to the plaintiff at the hearing, to exhibit an interrogatory as to the loss of a deed by mistake omitted to be proved. Cox v. Allingham, 1 Jac. 337.

The Court will, on motion, when a cause has been set down for re-hearing, permit interrogatories to be exhibited, to prove exhibits not before the Court on the original hearing, upon an affidavit stating that they have come to the plaintiff's knowledge since, and that when the cause was heard he did not know of their existence. Williamson v. Hutton, 9 Price, 194.

At the bearing, liberty given to a plaintiff, suing as administrator, to exhibit interrogatories to prove the death of the person, whose administrator he claimed to be; and the cause permitted to stand over for that purpose. Moons v. De Bernales, 1 Russ. 301.

Where a defendant, being examined in the Master's office on a general interrogatory as to his receipts and payments, answers by referring to a former answer, which, in fact, contains no information on the subject, the Master will be ordered to receive interrogatories as to his receipt of particular sums. If the Master refuses to receive such interrogatories when tendered to him, the application is made regularly by motion as well as by petition. Porter v. Woodbridge, 4 Law J. Chanc. 68.

In a country cause, an order to file cross interrogatories, for the cross examination of the witnesses of the adverse party, is an order of course. Anon. 6 Law J. Chanc. 21.

Impertinent interrogatories can only be taken advantage of by demurrer.

Interrogatories, however impertinent, if answered, cannot be suppressed, as the answer waives all objections. Jefferies v. Whittuck, 9 Price, 486.

A demurrer to interrogatories, some parts of which are free from objection, must particularize the objectionable parts. Jackson v. Benson, 1 Y. & J. 32.

If an answer to interrogatories be not only too general, but insufficient, exceptions will most undoubtedly be allowed.

Held, that an interrogatory asking, whether there were not a bona fide consideration, and if not, what was the consideration, is answered by a denial, that there had been a bona fide consideration, since any other than a bona fide consideration is unknown to the law.

The practice relative to costs on exceptions taken to interrogatories is, that, on overruling exceptions, forty shillings are allowed, and, on allowing them, sixty shillings.

If out of thirty-five exceptions taken to an interrogatory, five be only allowed, and, on argument, one of the five be overruled, the defendant is not entitled to costs. Daniel v. Bishop, 13 Price, 15. Where a party, who has put in insufficient answers, is to be examined upon interrogatories, such interrogatories must be settled by the Master, and must go directly to the points, to which the exceptions are sustained. Farquharson v. Balfour, 1

Turn. 184.

(M) DEPOSITIONS.

Quare-Whether depositions taken in a cross cause, after publication passed in the original cause, can be read at the hearing of the original cause. Horlock v. Priestley, 1 Law J. Chanc. 73.

The Court will not reject depositions on the certificate of the commissioners, before whom they were taken, on the ground that the witness under examination had not only consulted minutes of her own, but a document drawn out for her by plaintiff's attorney, and had given her testimony upon them. Anon. 2 Ken. 27. Chanc.

Depositions taken to perpetuate the testimony of witnesses cannot be obtained from the Court, for the purpose of perfecting the title to an estate. v. Teule, 1 S. & S. 385.

Teale

Where depositions were returned on paper, the Court allowed them to be engrossed on parchment, and the engrossment to be filed. Willis v. Garbutt, 2 Y. & J. 326.

Depositions taken by commission, suppressed, it appearing that the evidence had been taken by the clerk to the commissioners, and that the effect of some of the depositions had been communicated to the agent on the other side. Lennox v. Munnings, 2 Y. & J. 483.

(N) EXHIBITS.

Exhibits impeaching the validity of a deceased person's signature to a codicil are admissible. Machin v. Grindon, 2 Add. 91.

Where exhibits are left under an order with the clerk in court, and it becomes necessary to have them produced in court, or at the assizes, the Court will not order them to be given up to any person unless by the consent of all parties, and upon payment of

419

the clerk in court's fees. Harris v. Bodenham, 1 S. & S. 283.

(0) PUBLICATION.

It is of course to enlarge_publication before the cause is set down. Long v. Barne, 1 Law J. Chanc.

119.

Where no witnesses have been examined, it is a motion of course to enlarge publication. French v. Lewsey, 6 Mad. 50.

It is the course of the Court not to refuse enlargement of the time of publication when a proper application is made, though the party applying may have been extremely dilatory. Anon. 1 Law J. Chanc. 119.

The Court enlarged the publication under special circumstances, although the rule to pass publication had expired four months. Stevens v. Salwey, M'Clel. 596.

Publication enlarged under the circumstances. Cutler v. Cremer, 6 Mad. 253.

Publication after answer to original bill, will be enlarged, until the answers in a cross cause come in, upon the production of an affidavit verifying the facts stated in the cross bill. Edwards v. Morgan, 11 Price, 399.

In one suit, two distinct matters cannot be joined; as, where one requires that the depositions should not be published, till the hearing of the cause, and the other requires an immediate publication of the same depositions. Dew v. Clarke, 1 Law J. Chanc. 37, s. c. 1 S. & S. 108.

If the delay in proceedings on bill and cross bill be occasioned by the fault of all the parties thereto, the Court will on terms, and on payment of costs, grant a second order to enlarge publication in the original cause, so as to enable the party applying for time to consider the matter furnished by the answer to the cross bill newly filed. Lowe v. Firkins, and Firkins v. Lowe, 13 Price, 21.

Practice as to publishing depositions of witnesses examined after decree. Handley v. Billinge, 1 Sim.

511.

(P) CAUSES. (a) Setting down.

A cause ought not to be set down in the paper of further directions when only a separate report has been made, and there is no general report. Cochrane v. Chambers, 2 Law J. Chanc. 47.

A cause set down, without consent, in the vacation after the term in which publication has passed, is regular. Partridge v. Cann, 1 S. & S. 466.

A cause may be set down for trial pro formá, so as to enable a witness attending from a public office in the country to prove a document, without staying a longer period. Swift v. Grace, 9 Price, 146,

Where a defendant obtains an order for shewing cause against a decree which has been obtained by default, it is his duty, and not that of the plaintiff, to have the cause set down. Cooke v. Gould, 4 Law J. Chanc. 153.

(b) Adjournment of.

It is an established practice that no cause be adjourned, without production of an affidavit of due notice of the application to adjourn having been given to the other party. Anon. 2 Law J. Chanc. 55.

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A cause cannot be adjourned, if a new subpoena to hear judgment is necessary. Memorandum, 2 Law J. Chanc. 80.

The Court will postpone the trial of a cause, in order that a cross cause may be tried at the same time. Roberts v. West, 11 Price, 514.

(c) Restoring to the Paper.

Where a bill had been dismissed for want of prosecution, on an affidavit that the defendant's solicitor had instructed his clerk in court to file a replication, which he had omitted to do; the Court on the usual terms permitted the cause to be restored. Attorney General v. Fellows, 6 Mad. 111.

In equity, where a party shews upon affidavit that he was surprised by a cause being in the paper on a particular day, and being disposed of in his absence, the Court upon motion will restore it to the paper to be heard, and a petition is not necessary for that purpose. Rowley v. Carter, 1 Y. & J. 511.

(Q) SUBPOENA TO HEAR JUDGMENT.

After a subpoena to hear judgment served, and the suit revived in consequence of the plaintiff's death, it is not necessary that there should be a new subpœna. Bray v. Woodran, 6 Mad. 72.

A subpoena to hear judgment is not dispensed with by a solicitor's undertaking to appear. Bishop v. Bishop, 9 Price, 481.

An application, that the service of a subpoena to hear judgment on the defendant's clerk in court might be deemed sufficient, was granted, on an affidavit stating that the defendant could not be found, and that his solicitor had refused to receive the same. Farquharson v. Theobald, 13 Price, 130.

(R) DECREES.

On the non-attendance of the defendants to an information by the Attorney General against a corporate body, the Court pronounced a decree nisi, on affidavits, first, of an indorsement on the distringas, by the defendants' solicitor undertaking to appear at the hearing of the cause; and second, stating service of a letter missive on the solicitors of the Bishop of Winchester, who signified that they did not think it necessary to appear for the Bishop. The Attorney General v. the Poor of Alverstoke, 9 Price, 482.

Where a defendant has produced uncontradicted prima facie evidence of a fact which constitutes his defence, but that evidence is not in itself conclusive, he will not be entitled to a decree, but a reference will be ordered as to the fact in question. Stephens v. Meecham, 6 Law J. Chanc. 28.

After a decree in one of two suits, commenced in the name of an infant, it is not usual to refer it to the Master to inquire which is most beneficial. Taylor v. Oldham, 1 Jac. 527.

Where a bill is taken pro confesso, and a decree made upon it, whether the defendant has or has not appeared, the Court will pronounce an absolute decree in the first instance, and will not give the defendant a day to shew cause. Landon v. Ready, 1

Law J. Chanc. 15, s. c. 1 S. & S. 44.

Semble-If the bill states, that persons, who in respect of their interests would be necessary parties to the suit, are not within the jurisdiction of the

Court, a decree may be made in the cause, though process is not prayed against them, nor any proof given that they are out of the jurisdiction. Haddock v. Thomlinson, 3 Law J. Chanc. 133, s. c. 2 S. & S. 219.

Where three plaintiffs hold a joint office, and the defendant has a good case against one of the plaintiffs, though not against the others, a decree cannot be made by the Court in that suit for the plaintiffs. Hunter v. Richardson, 6 Mad. 89.

A decree for payment of the debt of one creditor, under a deed of trust which provides for the payment of other creditors, is erroneous. So, if the bill, stating A to have been the survivor of the trustees named in the deed, makes the heir of A a party to the suit, as such supposed survivor, and that allegation proves to be false, the decree made upon such state of the pleadings is erroneous.

A bill to carry such a decree into execution, notwithstanding long acquiescence, cannot be sustained. The original decree may be examined, impeached, and varied, in a suit to carry that decree into execution; it is not conclusive until reversed by original bill, or bill of review, for error apparent on the face of the decree; and the Court may refuse to carry it into execution.

Interest ought not to be computed from the date of the decree for payment, but from the day when payment is by the decree directed to be made.

An erroneous decree, directing payment of interest, cannot give the right to interest, but interest may be due under circumstances.

No proper decree can be made for the purpose of raising any sum of money under a deed, without having before the Court all the persons interested in the property.

A party who comes into a court of equity, to have the benefit of a former decree, must shew that that decree was right; if it appears to be erroneous, the Court cannot carry it into execution.

A decree taken pro confesso, is the decree of the plaintiff who takes it, and it is his duty to see that it is right.

A decree taken pro confesso, against one of the defendants in a suit, may be impeached for error by a party claiming under that defendant; and the party claiming under the plaintiff in the suit, can have no benefit of that decree, if erroneous.

A decree taken pro confesso is conclusive against the defendant only, as to facts within his knowledge, not as to facts which the plaintiff has the same opportunity of knowing as the defendant, e. g. as to the survivorship of a trustee, which was alleged in the bill, but proves to be contrary to fact. Hamilton v. Houghton, 2 Bligh, 160.

A decree, which provides for the debt of one creditor under a deed of trust, upon a bill and answers raising questions as to the rights of subsequent incumbrancers, which are unnoticed by the decree, is defective on account of that decree; and semble, invalid as against those parties. But if they do not appeal, how far that defect is to be considered in the judgment in the appeal-quære.

In the case of an appeal against a decree, giving the benefit of a former decree which is erroneous, it is not necessary to appeal against the former decree. Hamilton v. Houghton, 2 Bligh, 185.

The devisee having taken the benefit of an insol