frequently called on the clerk in court for the defendants who had not answered, and threatened an attachment, but had not issued one, the court was of opinion that an attachment ought to have been issued.(0) Where a bill has been amended against the other defendants, and they have been served with a subpoena to answer the amended bill, the circumstance of their time for answering the amended bill not having expired, will be a sufficient reason for not dismissing the bill.(p) So, if one of the other defendants has died, without answering the bill, and the complainant has had no opportunity to revive the suit against his representatives, either from the circumstance of no representatives having been constituted, or from their not having been constituted in sufficient time to enable the complainant to revive against them, the court will probably allow the complainant sufficient time to enable him to get the representatives before the court. But in a case of that nature, he must show that previous to the abatement of the suit, he used due dili gence to procure the answer of the original defendant.(q)

Although a bill which has been dismissed for want of prosecution, is so effectually out of court that no motion or proceeding can be had in the cause, except for the purpose of carrying the order of dismissal into effect, it seems that the court will, under certain circumstances, entertain a motion to restore it.(r) It is not, however, the ordinary course of the court to restore a bill which has once been dismissed. It must be shown that substantial justice requires that it should be done; and then, upon the particular circumstances, the court will make the order.(s) And there is no instance to be found in which the court has restored a bill which has been regularly dismissed, for the mere purpose of agitating the question of costs.(t)

The method of restoring a causc, after a dismissal for want of prosecution, appears to be by obtaining an order to discharge the order dismissing the bill; which can be procured only upon the terms of the complainant's paying the costs of obtaining that order and of the application for the order to discharge it. In Jackson v. Purnell,(u) the order appears to have been made upon the complainant's undertaking to amend within a week, amending the office copy, and not requiring any

(0) Gully v. Van Bodicoate, 5 Sim. 668.

(p) Partington v. Baillie, 5 Sim. 667. (q) 2 Dan. 371.

(r) Jackson v. Purnell, 16 Ves. £04. For. Rom. 112.

(s) Hannam v. South London Waterworks Co., 2 Mer. 63. (t) Id. ib. (u) 16 Ves. 204.

further answer, and to reply forthwith, and speed his cause to a hearing.(v)

Where a bill is dismissed for want of prosecution, it operates as a discontinuance of the suit, and does not prevent the bringing of a new bill,(w)

In order to procure a dismissal of the bill for want of prosecution, draw up an affidavit stating that the cause is in readiness for hearing on bill and answer as to the defendant applying; the time when his answer was put in, and so much of the complainant's proceedings with respect to the other defendants, as to show that he has not used due diligence in proceeding against them.

Swear to this affidavit, and serve a copy upon the complainant's solicitor, together with a notice of motion to dismiss the bill for want of prosecution to be made on some regular motion day within the time specified in the 89th rule.

A motion to dismiss the bill may be made by a person named as a defendant in the prayer for process, and who has appeared and answered without the service of a subpoena.(x)

SECTION IL

CROSS BILL.

This is the proper stage of the cause for filing a cross bill, but it will be more convenient to reserve the consideration of the subject until we come to speak of the different kinds of bills. (See post, Book IV. chap. 9.

SECTION 111.

PUTTING COMPLAINANT TO HIS ELECTION.

If a complainant sues a defendant at the same time, and for the same cause, at law and in equity, the defendant may apply to this court for

(v) Vide 3 Ves. & B. 1 n. S. C. (w) McBroom v. Sommerville, 2 Stew. 515.

(x) Hume v. Babington, 1 Hogan, 8.

an order that the complainant make his election in which court he will proceed.(y)

This motion must be made after the defendant has put in his answer; and the order is, that the complainant elect within eight days after the service thereof; and that if he elects to proceed at law, the bill be dismissed.(z)

If the complainant, after an order to elect, elects to proceed in equity, this court will restrain his proceedings at law by injunction.(a) But if he elects to proceed at law, and fails there, the dismissal of his bill will be no bar to his filing a new bill for the same matter.(b)

Where a judgment had been given at law, that a power of sale had not been well executed, the defendants at law, under the alleged execution of the power, filed a bill in equity to have the defect in the execution of the power supplied, and the instrument by which it had been executed rectified; and they, at the same time, prosecuted a writ of error on the judgment; the suit in equity having been brought to a hearing, it was held that the complainants in equity were bound to elect either to have the bill dismissed, or to abandon the writ of error.(c) So where a creditor filed a bill to set aside or obtain relief against a judgment at law, confessed by his debtor, in favor of a third person, on the ground of fraud, and during the pendency of his suit in equity, he proceeded at law, recovered a judgment and issued execution, under which the property of the debtor was advertised for sale, the court ordered the complainant to make his election, either to stay execution during the continuance of the injunction, or consent to have the injunction dissol ved. And the complainant refusing to make an election, the injunction was forthwith dissolved.(d)

But the complainant will not be put to his election where the bill is for discovery only, and no relief prayed; for from the discovery he may be able to proceed at law, when without it he could not.(e)

If the complainant considers that the bill and action are for different matters, and that he ought not to be compelled to elect, he may oppose the motion on that ground; and the court will examine the pleadings in each suit, and generally decide without further inquiry. But the

(y) Mitf. 249.

(2) Jones v. Earl of Stafford, 3 P. Wms. 90. 1 Ves. & B. 381. Rogers v. Vosburgh, 4 John. Ch. Rep. 84.

(a) Mitf. 249.

(b) Id. ib. Countess of Plymouth v. Bladon, 2 Vern. 32.

(c) Cockerel v. Cholmeley, 1 Russ. & My. 418. 6 Bligh, N. S. 120, S. C. (d) Livingston v. Kane, 3 John. Ch. Rep. 22.

(e) Forum Romanum, 201.

ordinary practice is to obtain an order of reference to ascertain if the complainant's proceedings at law and in equity relate to the same matters.(f) This, however, is granted only in cases of difficulty. If it clearly appears that both suits are not for the same matter, the court will determine without the reference.(g)

If a reference is granted, it operates as a stay of proceedings in both suits, in the meantime.(h)

If the master reports that the matters of the two suits are distinct, the order for the complainant to elect will be discharged, with costs.(i)

The right to put the complainant to an election is not confined to suits brought in our own courts; but he may be compelled to elect whether he will proceed in this or in a foreign court.(k)

The complainant is entitled to a complete answer before he can be put to his election; for possibly he cannot decide in which court it would be most advisable he should prosecute his claim, until he has a full and complete answer from the defendant. He therefore cannot be put to his election, after exceptions are filed, until they are answered. And it is irregular to obtain an order to elect, before the common time for filing exceptions has expired.(1)

And inasmuch as a plea avers there is no relief to be given in equity, if the defendant has pleaded, even to a part of the bill, the order to elect will be discharged; as such an order supposes that relief can be obtained in both tribunals.(m)

A special application to the court, on notice to the complainant's solicitor, is necessary, to obtain an order that the complainant elect.(n) Which application should be founded on an affidavit stating that the two suits are brought for the same purpose, and upon copies of the pleadings in each suit, to show that the matters in both suits are identical..

CHAP. IX.

REPLICATION.

Nature and office.] A replication is the complainant's reply to the defendant's plea or answer. It is a mere averment of the truth and sufficiency of the bill, and a denial of the allegations in the answer. (a) Its office is merely the production of the issue.

If the complainant wishes to prove any fact, on the hearing, not admitted by the answer, he must file a replication. (b) And sometimes, though he should happen to need no witness on his part, yet it may be necessary to reply, for the purpose of putting the defendant to prove the allegations in his answer; as where he confesses the matter alleged by the complainant, but sets forth some further matter in bar of the complainant's equity.(c) For if no replication is filed, the defendant's answer will be taken as true, and no evidence can be given by the complainant to contradict it.(d)

And on a bill for a divorce, or to annul a marriage contract for any other cause than physical incapacity, if the material allegations in the bill are denied by the answer, the complainant must file a replication ; otherwise the defendant may apply to have the bill dismissed.(e)

A replication may be filed as well to a plea as to an answer; and this, whether the plea be accompanied by an answer or not. It is to be observed, however, that if the complainant replies to a plea before it has been argued, he admits the plea to be valid, if true; and that he cannot afterwards object to it on the ground of its invalidity or irregularity.(ƒ)

Where a defendant puts in a general disclaimer to the whole bill, the complainant ought not to reply to it. It is otherwise, however, where the disclaimer is to part, and there is an answer or plea to another part

(a) Barton, 142.

(6) Mills v. Pittman, 1 Paige, 490. (c) Prac. Reg. 375.

(d) Pierce v. West, 1 Peters' C. C. Rep. 351. Pickett v. Chilton, 5 Munf.

(e) Rule, 167.

(f) Hinde's Ch. 225. Harris v. Ingledew, 3 P. Wms. 94. Danels v. Ta ggart, 1 Gill & John. 312.