atkins case davis v davis January the that upon exception to a master report  you can read affidavit make subsequent to it notwithstanding the affidavit of  the adverse party be file but the evening before the report this case come  before the court upon a appeal from a former decree and likewise upon  exception to a master report there be a bill bring for pound legacy against  the defendant charge by a will upon a real estate the reversion of which  belong to the defendant the answer deny the whole equity of the bill but be  report insufficient the master have report the several process regular in this  cause exception be take to this part of his report and it be insist for the  defendant there be a material irregularity in the present case because the  process have never be duly serve and no endeavour to serve it for the  defendant have live for twenty year in one place be a considerable farmer have  appear public and deal public be seize of a real estate of pound per and  beside rend a large farm so that he may easy have be find the counsel for the  defendant in support of this fact offer to read affidavit subsequent to the  master report upon a suggestion that the plaintiff be make but the evening  before the master report and consequent they have not time to answer they but  Lord chancellor will not allow they to be read for he say this will be  determine the matter ex post facto they likewise insist for the defendant that  this decree be ex part for the defendant have yet never be hear  notwithstanding he have put in a answer for where a defendant by his answer  deny the whole equity of a two though upon a reference to a master it be  report insufficient yet it be so far a answer that a bill can be take pro  acknowledged admitted fact in support of this doctrine the case of Hawkins and  crook before Lord chancellor king on a appeal from the roll wms be cite and  what material weigh with the court in that case be the cost be pay to the  plaintiff N B Mr peer William in his report of the case have omit to mention  this circumstance upon the defendant answer be report insufficient and  likewise the subpoena be take out for the defendant put in a better answer so  that this the court say in some measure do establish it as a answer atkins  Lord chancellor there be two question arise in this case first whether there  have be a irregularity in serve the process second whether there be error in  the judgement of the court the first come proper before the court on exception  to the master report in certify that the process of this cause be regular for  if they have either irregular issue or have be irregular serve the exception  be well find but upon hear the affidavit on the plaintiff behalf I be of  opinion that the master report be right and that the exception ought to be  overrule it be most manifest in this case that the defendant have abscond and  that he go arm it be say indeed that a pitchfork and hedge bill be tool of his  trade but the question be what use be make of they if to prevent his be arrest  they be as bad weapon as a sword or a dagger and be such a reasonable terror  as may deter a sheriff officer without be a coward from attempt to arrest it  be true if a process of outlawry and a capias utlagatum have issue irregular  and there have be no attempt to serve they the court will make the plaintiff  pay cost but there be no pretence for a complaint of this sort in the present  case the second question be upon the decree that have be make upon the hear of  this cause and this be a very considerable question with regard to the  authority of this court and the execution of justice in it I shall not give  any conclusive opinion in this point till I have consult the master of the  roll for unless some method can be find to remedy this inconvenience any  defendant may elude the justice of the court atkins er p the practical  register be not a book of authority but it be better collect than most of the  kind vide title sequestration page and atkins a plaintiff be not to be tell  because he have a sequestration execute against a defendant for not put in his  answer and good or real estate be seize upon the sequestration that he must  stop there for he may still proceed in this court till he have get the bill to  be take pro acknowledged admitted fact the principal question be whether the  court can take a bill pro acknowledged admitted fact where a answer have be  put in which be report insufficient now consider the proceed of this court  compare with other they have be form accord to the course of the civil law in  some respect and analogous to the commonlaw in other the ecclesiastical court  proceed no further than excommunication for contempt the cause be at a stand  till that censure be remove at commonlaw there be two default one for want of  appearance and the other for want of plead and for this the defendant may be  outlaw but then there can be no judgement in chief but after the estate and  good be seize upon a capias utlagatum you must go into a court of revenue and  in a suit in the name of the attorney general at the relation of the plaintiff  you may have a decree for these good or a lease of the defendant land from  that court the act of the that of George the second ch empower the plaintiff  to go on as well upon a sequestration for not appear as upon a sequestration  for not comply with a decree which can not be do in equity till then for  accord to the saint sect of that act where person do not enter a appearance  within the usual time after a subpoena issue and be just suspect to abscond to  avoid the process then the court out of which such process issue be to fix a  day for his appearance to be insert in the London gazette and publish on the  lord day in the parish church of the defendant and a copy of the order of the  court be to be post up at some public place at the royal exchange in London  and on the defendant not appear within the time limit by the court the court  may order the plaintiff bill to be take pro acknowledged admitted fact his  effect or estate to be sequester and the plaintiff demand to be satisfy out of  the estate or effect so sequester in court of commonlaw where there be no plea  put in at all the judgement be by nil to say but if a plea be put in though  ever so imperfect there can be a judgement nil to say the plaintiff must  demurrer and if the demurrer be allow then the plaintiff have judgement  because the plea or answer of the defendant for the word answer be equal use  at law as in equity be insufficient atkins so in equity the take a bill pro  acknowledged admitted fact be analogous to take the declaration for true where  he plea or answer of the defendant be insufficient why be not take a bill pro  acknowledged admitted fact when a answer be report insufficient equal just as  take a declaration for true where the plea fail for if a plea upon argue the  demurrer be find insufficient unless the defendant put in a better plea the  plaintiff shall have judgement in chief see Abergavenny v Abergavenny vin pl  Eq ab pl though in equity you can demurrer because a answer be insufficient  yet take exception to it before a master be tantamount to a demurrer upon a  insufficient plea what must the plaintiff do in such a case can he reply to a  answer that have be report insufficient and be full of absurdity and  inconsistency he must injure himself by such a reply and therefore the court  will not oblige he to it a plaintiff can have the same benefit in carry on the  several process upon a contempt of the defendant before the hear as upon a  absolute decree for in this latter case the plaintiff after the process have  be execute and good and estate sequester under they may have both apply to  satisfy his demand which he can have upon process for contempt only and  therefore there be a material and essential difference between the two these  be the thing which stick with I as to the principal point as to the case which  have be mention before lord king Hawkins v crook I be of counsel in it and I  believe I may venture upon my memory to say that the bar be not satisfy with  the reason of that case for all I do not understand how receive cost upon a  master report a answer insufficient can be say to be accept it for a answer in  any sort whatsoever see Lord king order Cox p W n atkins er p beside in that  case there be a three answer which have never be refer for insufficiency upon  the record of the court this be a material circumstance for that answer stand  as it do the court will not examine whether it be sufficient or not atkins  where there have be a amend bill as in the present case and no answer put in  to it then the question be whether the plaintiff will not be entitle to a  decree pro acknowledged admitted fact abstract from any proceed in the  original cause if the plaintiff shall not be entitle to such a decree under  these circumstance then the authority of this court be very defective and the  justice of it may be elude but I will not give any judgement now and in the  mean time will order precedent to be search see Helston v Robinson vin pl N B  this matter never receive any determination the party have enter into a  agreement to withdraw the appeal and affirm the decree which agreement be make  a order of court the that of December