John McLean

“ On the 24th of December, 1839, a motion was sustained to set aside the decree nisi, and leave was given the defendants to file answers, which does not appear from the minutes then to have been done; and the complainants were, by order of the court, protected in their right thereafter to file any exception to the answers that might be filed. Let it be borne in mind, that the decree nisi was set aside without putting the parties defendant upon any terms whatever; they were not even compelled to pay costs. ”

“ The rule referred to is, 'if the plaintiff shall not reply to, or set for hearing any plea or demurrer before the second term of the court after filing the same, the bill may be dismissed, with costs.' No plea had been filed in the case, and the demurrer filed had been overruled, so that the rule did not apply to the case as it stood at the time of the dismissal. The rule can only apply to demurrers and pleas technically so called. And there is no other rule of proceeding which authorized the decree of the court. The complainant may, if he choose, go to the hearing on the bill and answer. ”

“ Some of the defendants, availing themselves of the 23d rule of practice, instead of filing a formal demurrer or plea, did insist on some special matter in the answers, which they left with the clerk of the court, and claimed to have the benefit thereof, as though they had pleaded the same matter. They commence 'The several answer of,' &c.-'The said answer also to serve and be instead of a demurrer and pleas to the said bill of complaint.'-Was there then a plea in the cause? Surely not. ”