adduce evidence by the production of witnesses on a motion for a decree, yet, in practice, the evidence upon such occasions is usually given by affidavits. And this seems to have been the view of the Judges of the Court, who, by the 23d Order of August, 1852, have directed that "The affidavits to be used in support of such motion are to be filed before the service of such notice, and a list of such affidavits is to be set forth at the foot of such notice."

If the notice be served on a defendant out of the jurisdiction, the time for filing affidavits in reply must be specified in the order for leave to serve, which is to be drawn up and served with the notice; but it is discretionery whether copies of the plaintiff's affidavits should be served.1 This Order does not in terms apply to the evidence to be adduced orally by witnesses, but the 36th of the same Orders directs that "Any party in any cause or matters requiring the attendance of any witness before an examiner, for the purpose of his being examined or cross-examined, with a view to his evidence being used upon any claim, motion, petition or other proceeding before the Court, not being the hearing of a cause, shall give to the opposite party or parties forty-eight hours' notice at least of his intention to examine such witness, and of the time and place of such examination, unless the Court shall in any case think fit to dispense with such notice." By the 22d of the same Orders," One month's notice is to be given by the plaintiff to the defendant or defendants of the motion for a decree or decretal order." 2

After the defendant has received the notice, the 24th of the same Orders directs that, "Within fourteen days after service of such notice, he is to file his affidavits in answer, and to furnish the plaintiff or his solicitor with a list thereof." We have seen that the answer of the defendant may be used as an affidavit, but it need not be specified in the list unless it is to be read as evidence. against another defendant.

The defendant appears to have the same power as the plaintiff of examining a witness, and of course is subject in the same manner to the provisions of the 40th section.

1 Meek v. Ward, 10 Hare, Appx. 55.

And if the cause is not set down with the Registrar within the month, the Court will not afterwards order it to be set down except on motion with notice to the defendant; Boyd v. Jagger, 10 Hare, Appx. 54; 17 Jur. 635.

Cousens v. Vasey, 9 Hare, Appx. 61.

After the defendant has filed his affidavits, the plaintiff can file affidavits in reply, and the 25th Order directs that, "Within seven days after the expiration of such fourteen days, the plaintiff is to file his affidavits in reply, which affidavits shall be confined to matters strictly in reply, and he is to furnish the defendant or his solicitor with a list thereof; and, except so far as these affidavits are in reply, they are not to be regarded by the Court, unless upon the hearing of the motion the Court shall give leave to the defendant to answer them; and in that case the costs of such affidavits, and of the further affidavits consequent upon them, shall be paid by the plaintiff, unless the Court shall otherwise order, after the affidavits in reply are filed."

Moreover, by an Order of the 1st of June, 1854, it is directed, that "If the fourteen days within which, pursuant to the Orders of the Court, a defendant is bound to file his affidavits in answer to a motion for a decree, or the seven days within which the plaintiff is bound to file his affidavits in reply thereto, or the nine weeks after issue joined, within which the evidence in any cause to be used at the hearing thereof is to be closed, or the month after the expiration of such nine weeks, within which a witness who has made an affidavit intended to be used by any party to such cause at the hearing thereof is subject to cross-examination, shall expire in the long vacation, the time for the several purposes aforesaid respectively is hereby extended to the fifth day of the ensuing Michaelmas Term, and is to expire on that day unless enlarged by order provided always, that in cases where the above-mentioned periods of fourteen days and nine weeks respectively shall be extended by virtue of this Order, the seven days within which the plaintiff is bound to file his affidavits in reply, and the month during which a witness is subject to cross-examination, shall be respectively taken to commence from the expiration of such extended period. By the 26th Order, "No further evidence on either side is to be used upon such motion for a decree or decretal order, without leave of the Court." 1

By the 27th Order, "Every notice of motion for a decree or decretal order is to be entered with the Registrar, who is to make out a list of such motions, and the same are to be heard according to such list, unless the Court shall make order to the contrary."

1 The application cannot be made ex parte; Richards v. Curlewis, 18 Beav.

The consequence of this Order is, that a motion for a decree is set down, like the hearing of a cause, and comes on in its turn; and, under fit circumstances, will be taken as a short cause before the expiration of the month required by the 22d section.1 In other respects the hearing of such a motion is similar to the hearing of other motions.

It appears that the motion for a decree should be entered with the Registrar at the same time that the notice is given.

It has been decided that a plaintiff, who has given notice of motion for a decree, may obtain an order of course to amend his bill after the defendant has filed his affidavits in opposition to the motion.2

CHAPTER XX.

OF REPLICATION.

If the plaintiff does not adopt the course mentioned in the last Chapter, namely, moving for a decree, he must consider whether sufficient is admitted by the answer to enable him to go to a hearing of the cause, as it stands, upon bill and answer, or whether it will be necessary to file a replication, or enter into evidence.

If upon the answer alone, without further proof, there is a sufficient ground for a final decree, the plaintiff should proceed to a hearing, without replying or examining witnesses.

The plaintiff must, however, bear in mind, that on a hearing upon bill and answer, the answer will be taken to be true against him in every point, because the defendant has been precluded from substantiating it by evidence. It not unfrequently therefore happens, that though the plaintiff needs no witness on his 1 Ames v. Ames, 10 Hare, Appx. 54.

* Gill v. Rayner, 1 Kay & J. 395.

Contee v. Dawson, 2 Bland, 264; Childs v. Horr, 1 Clarke (Iowa), 432; Rogers v. Mitchell, 41 New Hamp. 154; Pierce v. West, 1 Peters C. C. 351; Pickett v. Chilton, 5 Munf. 467; Scott v. Clarkson, 1 Bibb, 277. But where the cause is set down for hearing on bill, answer, and depositions, the replication is mere form, and the Court will suffer it to be filed nunc pro tunc. Scott v. Clarkson, ubi supra; Demaree v. Driskill, 3 Blackf. 115; Pierce v. West, ubi supra; Glenn v. Hebb, 12 Gill & J. 271; Armistead v. Bozman, 1 Ired. Ch. 117; Smith v. West, 3 John. Ch. 363. See Reading v. Ford, 1 Bibb, 338.

part, yet he must reply to the answer, for the purpose of putting the defendant to prove the allegations in his answer, and prevent the answer being taken to be true in every particular, as when he confesses the matter alleged by the plaintiff, but sets forth some further matter in bar of the plaintiff's equity. By replying to the answer, the plaintiff does not preclude himself from reading any part of the answer he may consider essential to assist his

case.

If, upon consideration of the matter, the plaintiff is advised that the answer of the defendant, or of some of the defendants, will not allow him to proceed to a hearing in reply upon bill and answer, he must file a replication. A replication must also be put in when the defendant has pleaded to the bill, whether the plea be accompanied by an answer or not. It is, however, to be recollected, that if the plaintiff replies to a plea before it is argued, he admits the plea to be valid, if true, and he cannot object to it afterwards on the ground of its invalidity or irregularity.

By the 93d Order of May, 1845, it is directed, that "No subpœna to rejoin is hereafter to be issued, and only one replication is to be filed in each cause, unless the Court otherwise orders; 4

1 See Tunstall v. McClelland, Hardin, 519.

* In Maine, "within thirty days after the answer is filed, unless exceptions are taken, or within fifteen days after it is perfected, the plaintiff's counsel shall file the general replication, and give notice thereof; or give notice of a hearing at the next term on bill and answer." Rule 9, of Chancery Practice. See Rule 17, N. Hamp. Chancery Practice, 38 N. Hamp. 608. If the plaintiff wishes to prove any fact, on the hearing, not admitted by the answer, he must file a replication. Mills v. Pittman, 1 Paige, 490.

Hughes v. Blake, 6 Wheaton, 472; S. C. 1 Mason, 515; Daniels v. Taggart, 1 Gill & John. 312; Brooks v. Mead, Walk. Ch. 389; Bellows v. Stone, 8 N. Hamp. 280; Newton v. Thayer, 17 Pick. 129; Hurlburt v. Britain, Walk. 454. Upon a replication to a plea, nothing is in issue except what is distinctly averred in the plea. Fish v. Miller, 5 Paige, 26.

By 45th Equity Rule of the United States Courts, no special replication to any answer shall be filed. But if any matter alleged in the answer shall make it necessary for the plaintiff to amend his bill, he may have leave to amend the same with or without the payment of costs, as the Court, or a Judge thereof may in his discretion direct.

In Massachusetts, "no special replication to an answer shall be filed, but by leave of the Court, or one of the Justices thereof for cause shown; and, as a substitute for the general replication now in use, the plaintiff shall enter in the cause, that he joins issue on the answer." Rule 14, of the Rules for Practice in Chancery. In New Hampshire, a replication shall be entitled as an answer, and shall

and the replication is to be in the form set forth at the foot of this Order, or as near thereto as circumstances admit and require; and upon the filing of such replication, the cause is to be deemed to be completely at issue, and each defendant may, without any rule or order, proceed to examine his witnesses, and the plaintiff may in like manner proceed to examine his witnesses, so soon as evidence of the replication being filed has been duly served on all the defendants who have filed an answer or plea, or against whom a traversing note has been filed."1

The replication is in the following form:

Between A. B.

and

C. D., E. F., G. H., &c. .

Plaintiff,

Defendants.

The plaintiff in this cause hereby joins issue with the defendant C. D., and will hear the cause on bill and answer against the defendant E. F., (all the defendants against whom the cause is to be heard on bill and answer), or on the order to take the bill as confessed against the defendant G. H.2

The signature of counsel to a replication is not necessary.

It is prepared by the solicitor of the plaintiff, written upon parchment, and filed at the Record and Writ Clerks' Office; and the solicitor must on the same day give notice thereof to the solicitors of all the defendants.

The recent Chancery Amendment Act, sect. 26, provides that, "In suits commenced by bill, where notice of motion for a decree or decretal order shall not have been given, or having been given, be in substance, "The plaintiff says his bill is true, and the defendant's answer, as set forth, is not true, and this he is ready to prove." Rule 22, of Chancery Practice. See Story Eq. Pl. § 878; Storms v. Storms, 1 Edw. Ch. 358; Dupote v. Massy, Cox's Dig. 146; Brown v. Ricketts, 2 John. Ch. 425; Lyon v. Tallmadge, 1 John. Ch. 184; Livingston v. Gibbons, 4 John. Ch. 94; Thorn v. Germand, Ib. 363; Pratt v. Bacon, 10 Pick. 123. If the plaintiff files a replication to the answer after he is apprized of the necessity for an amendment of his bill, he precludes himself from making such amendment. Vermilyea v. Odell, 4 Paige,

121.

1

1 In America, generally, if not universally, the pleadings terminate with the replication, and no rejoinder is filed; and the case is deemed at issue upon the filing of the replication. This is the general practice in the Courts of the United States. Story Eq. Pl. § 879, note; 66th Equity Rule of the United States Courts; Rule 27, of the Reg. of Prac. in Chan. in Massachusetts.

For a form of a general replication, see Story Eq. Pl. § 878, note; Barton Suits in Equity, 144, 145.