proving its allegations. As infants cannot be bound by admissions, it is proper, in all cases where there are infants, to reply and go into evidence as to the material allegations necessary to support the suit. Those answers only should be replied to, which require to be supported by proof, as, by doing so, the plaintiff entitles all the defendants to whose answers he replies, to take copies and give briefs of his evidence.

SECTION 2.

Filing Replication.

THE replication is filed by the plaintiff's clerk in court, who gives notice to the defendant's clerk in court of having done so. If not filed within two months after the last of the answers is to be deemed sufficient, the defendant may move to dismiss. (L. & B. 16). If the plaintiff reply, he cannot set down the cause, unless by consent, till publication has passed. The plaintiff cannot withdraw replication, without a special order of the Court, (L. & B. 15), and, after witnesses have been examined, cannot, it should seem, withdraw it at all. (Gascoyne v. Chandler, 3 Swanst. 420).

A supplemental bill, which merely introduces supplemental matter to sustain the relief sought by the same plaintiff from the same defendant by the original bill, is not a supplemental suit; and in such case there is only one record, and one replication, and one cause to be set down. (Catton v. Earl of Carlisle, 5 Madd, 427).

CHAPTER XXXVIII.

SUBPOENA TO REJOIN.

1. Issuing of Subpæna to Rejoin, 331. 2. Form of, 331. 3. Service of Subpœna to Rejoin, 332.

SECTION 1.

Issuing of Subpoena to Rejoin.

THE subpoena to rejoin cannot be issued, or at least made returnable, before replication; (Bea. Ord. Ch. 184); and in ordinary practice, the subpoena to rejoin is not issued till after replication. (And see Brown v. Moore, 2 Sim. 464).

SECTION 2.

Form of.

ACCORDING to Lord Brougham's Orders, the subpœna to rejoin is in the following form:

We command you [and every of you] that immediately after the service of this writ you do appear in our High Court of Chancery, then and there to rejoin and join in commission, if thereunto required, in a certain cause there depending, wherein [and others or another] are plaintiffs, and

others or another] are defendants.

Witness, &c.

[and

COURTENAY.

It is to be prepared by the solicitor. (B. Ord. 1).

A præcipe in the usual form, and indorsed with the name or firm and place of business or residence of the solicitor issuing it, must be delivered and filed at the Subpoena Office, (Id. 2), and when such solicitor shall be agent only, then there must be further indorsed the name or firm and place of business or residence of the principal solicitor, (Ib. 3). Each subpoena shall contain three names where necessary or required. (Ib. 5).

SECTION 3.

Service of Subpoena to Rejoin.

It is presumed, notwithstanding the general terms of the 4th of the New Orders, that the 20th of Lord Lyndhurst's Orders is still in force, and that service of this subpoena on the clerk in court of the defendants is good. By the service of the subpoena to rejoin, the cause is at issue.

CHAPTER XXXIX.

SETTING DOWN THE CAUSE.

IF the plaintiff be content to hear the cause on bill and answer, he may set it down as soon as he is satisfied with the answer. If he reply, he cannot set down the cause till after publication passed; and must at the latest set down his cause and serve the

subpoena to hear judgment returnable in the succeeding term. (L. & B. 7). For the purpose of setting down the cause, the plaintiff gets the six clerk's certificate that the pleadings have been regularly filed and publication duly passed. This he carries to the senior clerk of the registrar of the Court where it is proposed to be heard, who enters it in a book kept for the purpose, and gives a note of the day on which the cause is fixed for hearing, which may be either in term or vacation. (L. & B. 82).

the

A cause cannot regularly be set down before publication without a special order, which is sometimes made when the defendant enlarges publication; and therefore where a cause has been set down and subpœna served before publication, publication having been twice enlarged at the instance of the plaintiff, the cause was ordered to be struck out of the paper, the subpoena quashed, and the plaintiff to pay costs of the application. (Ellis v. King, 4 Madd. 126). By the 82nd Ord. L. & B., after reciting that, the then present practice, that causes could only be entered for hearing during the time of term, and that the subpœna ad audiendum judicium could only be then returnable, was productive of great delay and inconvenience, it was ordered, "that from thenceforth causes might be set down for hearing, and the subpoena ad audiendum judicium served and returnable on any day as well out of term as in term."

Under Lord King's Order, 9th July, 1725, a cause can not be set down in the term in which publication passes, unless by consent; the reason being that otherwise it might come on to be heard in the same term,

and when the defendant can not possibly be prepared: but it may regularly be set down for hearing in the vacation after any term; (Partridge v. Cann, 1 Sim. & Stu. 466; Lord v. Genslin, 5 Madd. 83) As the cause-book of a term includes the sittings after that term, it has been determined, upon the 82nd Ord. L. & B., that a cause may be set down for hearing in the cause-book of the same term in which publication has passed, (Turner v. Hitchon, 1 Kee. 814), provided it be not in fact set down until after the last day of the term. (S. C. 2 My. & Cr. 710).

Where a defendant sets down the cause, he is only bound to serve the plaintiff, it being the plaintiff's duty to serve the other defendants. (Smith v. Wells, 6 Madd. 193).