this affidavit must state when, where, and how the subpoena was served, and by whom the service was effected; if this affidavit sufficiently proves the service to have been personal, or at the dwelling-house or usual place of abode of the defendant, the plaintiff's solicitor, if the defendant is not an infant, nor a person of weak or unsound mind, unable of himself to defend the suit, and is within the jurisdiction of the Court, will be enabled to enter an appearance for the defendant, and proceed with the suit, but this appearance should be entered within three weeks after the service of the subpoena; for if not entered within that time, an application to the Court for leave to enter it must be made, which will of course increase expense; may also be observed, that the plaintiff cannot enter an appearance for the defendant until after the expiration of the eight days which are allowed to the defendant to appear. If the service on the defendant does not appear by the affidavit to have been personal, or at his dwelling-house or usual place of abode, an appearance cannot be entered by the plaintiff for the defendant (even within the three weeks) without an application to the Court; but on such an application being made, the Court will, if it think the service sufficient, make an order that the plaintiff have leave to enter an appearance for the defendant, and the appearance may then be entered by the plaintiff accordingly.

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Where the plaintiff has duly caused an appearance to be entered for any defendant, he is entitled as against the same defendant to the costs of and incident to entering such appearance, whatever may be the event of the suit, and such costs are to be added to any costs the plaintiff may be entitled to receive from such defendant, or set-off against any costs which he may be ordered to pay to such defendant, but payment thereof cannot be otherwise enforced without leave of the Court. A defendant, notwith

taken and expressed in the first person of the deponent. Or. ders of 8th May, 1845; Orders 126, 128.

standing an appearance may have been entered for him by the plaintiff; may afterwards enter an appearance for himself in the ordinary way; but such appearance will not affect any proceeding duly taken, or any right acquired by the plaintiff under or after the appearance entered by him, or prejudice the plaintiff's right to be allowed the costs of the first appearance.

It is to be observed, that a defendant who has been duly served with a subpoena, and who neglects to appear in pursuance of it within the time allowed, is guilty of a contempt of the Court, and therefore is liable to an attachment, and the process of contempt, of which the attachment is the first step: the power which a plaintiff now has of taking steps to enter an appearance for the defendant has not been accompanied by the abolition of the process of contempt as a means of enforcing the defendant's appearance, and it may still, in some cases, be found necessary or prudent to resort to this process, but as it is applicable to many other purposes than to compel an appearance, it will be sufficient here to refer to a subsequent part of this work, where it is separately treated of under the title "Process of Contempt." We will then suppose that either voluntarily, or by means of this process, the defendant has appeared, or that the plaintiff has entered an appearance for him; the next consideration is, the defence which is to be made to the plaintiff's bill, and this will either be a demurrer, a plea, a disclaimer, or an answer, and in some cases it may be necessary to file a cross-bill. A demurrer amounts to an admission of the truth of the plaintiff's bill, or of that portion of it to which the demurrer is put in, but insists upon some defect or objection apparent on the face of the bill, which may be offered in bar of the suit; as, if the facts stated in the bill do not entitle the plaintiff to any relief; or if it be so framed as to be insufficient to found a definitive decree upon; or if the plaintiff appear upon his own statement to have no interest in the subject of the suit; or if the bill be multifarious, that is, if it embrace several objects

which ought to be the subjects of distinct suits; or if it require a discovery which if made would subject the defendant to a penalty or forfeiture; these or the like defects, appearing upon the face of the bill may be taken advantage of by a demurrer, which in form prays the judgment of the Court, whether the defendant can be compelled to answer the plaintiff's bill.. A plea is also understood to admit the truth of the bill, or of that portion of it to which it is pleaded (so far as not controverted by the plea); it is defined to be a special answer, showing or relying upon one or more thing or things, as a cause why the suit should be either dismissed, delayed, or barred; it does not, like a demurrer, rely upon facts stated in the bill, but alleges new facts to which the plaintiff may reply, such as, that his cause of complaint is barred by the Statute of Limitations, or has been released, or that certain persons are not made parties to the suit, in the absence of whom the Court cannot make a proper decree, or the like the facts stated in a plea must be such, however, as to reduce the matter relied on to a single point, and it must not consist of a variety of circumstances. Where a party is made a defendant in a bill in respect of some interest he is supposed to have in the subject-matter of the suit, but he does not in fact claim such interest, he may avoid the bill by a disclaimer, which in form disclaims all interest in such subject-matter, and prays that he may be dismissed with his costs. A disclaimer may be to the whole, or it may be to a part only of the subject-matter of the suit, according to circumstances. If there be nothing in the bill to which the defendant can demur, or if he do not choose to do so, and if he have not or do not choose to offer any exterior matter by way of plea, or having demurred or pleaded, if his demurrer or plea have been overruled, he must answer the bill. An answer, besides making any disclosures required by the bill, generally controverts the facts stated in it, or some of them, and states other facts to show the rights of the defendant in the subject of the suit; but some

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times it admits the truth of the case made by the bill" and either with or without stating additional facts, tional facts submits the questions arising upon the made to the judgment of the Court.

A cross-bill is al species of defence which a defendant sometimes finds it necessary to resort to, in conjunction with one or other or all of those which have been already mentioned; it is allowed, that the defendant may state his own case more advantageously than he could by his answer, and where he is unable to make a complete defence to the plaintiff's bill, without the disclosure of some facts which rest in the knowledge of the plaintiff himself, or some of the co-defendants to the suit. A cross-bill also may be filed where some matter of defence becomes available to the defendant at a period of the suit when it is too late for it to be insisted upon by plea, answer, or otherwise. A cross-bill differs from an original bill no otherwise than as arising from matter already in litigation, and the proceedings upon it do not materially differ from those upon an original bill; and when the cause comes on for hearing, it is, if practicable, heard upon the original and the crossbill at the same time.

It will sometimes happen, that where no direct relief is prayed against one of the defendants to a suit, he is neither called upon to appear nor answer the bill, but is served with a copy of it; the practice on this subject will be noticed in Chapter X.

Having endeavoured to point out the nature of the several defences which may be made to a bill in Chan cery, we shall proceed to point out the time and man ner of putting them in, and certain other circumstances to be attended to; and it is necessary to premise, that a plea, answer, demurrer, and disclaimer, or any twe or more of them, may be put in to different portions of the same bill; if a demurrer alone be put in, that is, a demurrer to the whole bill, it neither requires the oath nor the signature of the defendant, but an answer requires both, and all four require the signa ture of counsel, not that counsel must actually sign

the ingrossment, but he must have signed the draft, and his signature must be copied in the ingrossment; a plea is sometimes to be put in upon oath, and sometimes not; as to which, counsel will advise when he draws it.

Until the expiration of twelve days after the defendant has appeared, a demurrer alone may be put in ; but after that time, where a demurrer is put in, it must not be put in alone, that is, it must not be put in to the whole bill; and to that part of the bill to which it does not extend, a plea or answer must be put in with the demurrer. It is necessary to mention this point of practice, because where it is apprehended that a demurrer will be the proper mode of meeting the bill, counsel ought to be consulted in time to enable the agent to file the demurrer within the twelve days; but in general the same advantage may be obtained by answering as by demurring, except where the discovery would be prejudicial to the defendant, as where it would expose a defective title, or the like; and if the plaintiff is upon his own showing very clearly not entitled to relief, a demurrer may be advisable as a means of saving expense and litigation.

Having stated the time allowed for demurring alone, we shall proceed to state the time allowed to plead, answer, or demur, not demurring alone; and it will be convenient to speak of the time for answering only, though where that occurs, it must be understood as being applicable to the plea and limited demurrer also. The defendant has six weeks from the time of the appearance, whether entered by himself or by the plaintiff for him, to put in his answer to an original bill, or to a supplemental bill, and the like period of six weeks to put in his answer to an amended bill, where the plaintiff has amended his bill under an order for leave to amend obtained and served before an answer has been put in the six weeks run from the time the defendant is served with notice of the amendment of the bill. If the defendant, after having put in his answer, is served with a subpoena to appear to and

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