Page:Federal Reporter, 1st Series, Volume 10.djvu/347

 MASON V. HARTFOED, PROVIDENCE & FI8HKILL B. CO. 335 �The defendant William T. Hart now moves — First, that the repli- cation to his plea be stricken from the files, because it is special, and sets up new matter, and matter accruing after the filing of the bill of revivor; and, second, that the bill of revivor be dismissed, because the complainants have not taken issue on the plea, nor set the same down to be argued, though the same bas been filed more than a year. �The New York & New England Eailroad Company also move that the replication to the demurrer be stricken from the files, and that the bill of revivor be dismissed, because the complainants have not set the demurrer down for argument, though filed over one year before. �It is apparent that the replications here filed are special, setting up new matter, and matter accruing since the filing of the bill of revivor; therefore they are irregular. By equity rule 45, of the United States court, "no special replication to any answer shall be filed." �In Vattier v. Hinde, 7 Pet. 262, 274, the supreme court declare that no special replication can be filed except by leave of the court ; holding it to be contrary to the rules of a court of chancery for the plaintiff to set up new matter necessary to his case by way of repli- cation ; that omissions in a bill cannot be supplied by averments in the replication ; and that a plaintiff cannot be allowed to make out a new case in his replication. This is equally true whether it is an answer or plea that is replied to. See Daniell, Ch. PI. & Pr. (4th Ed.) 828, note 1. "Matters in avoidance of a plea, which have arisen since the suit began, are properly set up by a supplemental bill, not by a special replication;" citing Ghouteau v. Rice, 1 Minn. 106. In Mitford & Tyler, Pi. & Pr. in Eq. 412, 413, we find, "special replica- tions, with all their consequences, are now out of use, and the plain- tiff is to be relieved according to the form of the bill, whatever new matters have been introduced by the defendant's plea or answer." The replications to the plea and demurrer cannot be sustained. �The second motion of the defendants, that the bill of revivor be dismissed, is based upon equity rule 38, which provides that if the plaintiff shall not reply to any plea, or set down any plea or demur- rer for argument, on the rule-day when the same is filed, or on the nest sucoeeding rule-day, he shall be deemed to admit the truth and sufficiency thereof, and his bill shall be dismissed as of course, unless a judge of the court shall allow him further time for the purpose. �It appears in this case that the bill of revivor was filed August 14^ ��� �