.By the Court.
Warner, J.
delivering the opinion-
This bill was originally filed on the 25th day of November, 1851, against the administratrix of Daniel McDougald, Alexander McDougald and Duncan McDougald, praying for the appointment of a receiver, &c. to secure the assets belonging to the estate of Daniel McDougald, for the benefit of his creditors. On the 10th day of May, 1852, Ann E. McDougald, the administratrix, filed her answer, and on the 13th of May, 1852, the other two defendants filed their joint answer to the bill.
On the 13th of May, 1852, the complainant, by leave of the ' Court, amended his bill.
On the 23d of December, 1852, the complainant obtained leave of the Courtto make another amendment to his bill, by which Devon, Jones and Billing, administrators of Robert B. Alexander, were made parties to the original bill, and an order wras granted by the Court, that the several parties be served within thirty days from the date of the order, with a copy of the amendment, and that Devon, Jones and Billing, the newly made parties defendants, be served within the time aforesaid, with a copy of the original bill as amended ; and it was further ordered, that all the parties should appear and answer the billas amended, on or before the first day of the then next term of the Court, with liberty of demurring or pleading thereto, or both, as they might think proper.
To the granting this latter order by the Court, the defendants excepted, and now assign the same as error, on the ground that the granting such order, necessarily extended the time beyond which the Statute requires the cause shall be ready for trial.
[1.] This question involves the construction of the 53d section ofthe Judiciary Act of 1799, which declares that the proceedings on the Equity side of the Court shall be by bill and such [560]*560other proceedings as are usual in such cases, until the setting down of the cause for trial; and the Court shall order the proceedings in such manner, as that the same shall be ready for trial, at furthest, at the third term from the filing such bill inclusive, unless very special cause be shewn to induce the Court to continue the same, which shall not extend to. more than four terms; and a copy thereof shall be served on the opposite party, at least thirty days before the filing such bill in Court; and the party against whom such bill shall be filed, shall appear and answer to the same at the next Court; and if he, she or they, shall fail to do so, the facts in the said bill shall be taken pro conjesso, and the Court may proceed to decree as to justice shall appertain. Prince, 447.
[2.] The several provisions of this Statute impose the same obligation and duty upon the Courts, as the provisions of any other Legislative enactment of the sovereign authority of the State. The special and imperative requirements of this Act of the Legislature, cannot be considered by the Courts, as mere brufum julmén, and disregarded at their will and pleasure, in ordering the proceedings in Equity causes in this State. It is our duly, therefore, to give to this Statute, such a construction as will make it a practical working Statute, according to the true intent and meaning of the Legislature.
[3.] When a bill is exhibited to the Court, and the necessary process annexed thereto, and a copy thereof is served on the defendant thirty days belore the Court to which it is made returnable, it is then to be returned to the Court, and filed in the Cleik’s office of such Court. The bill being filed in contemplation of the Statute, the defendant must appear at the term of the Court at which the hill is filed. If the defendant desires to demur or plead to the bill, he must file his demurrer or plea at the return term thereof, and such demurrer or plea, must be argued and determined by the Court at that term, unless sufficient cause be shewn. See 3d rule Equity Practice, 2 Kelly, 481.
[4.] At the next term of the Court after that at which the bill has been filed, the defendant must answer the bill.
[5.] If the complainant desires to except to the defendant’s answer, he must do so by filing bis exceptions before the hour [561]*561for Jury business, on the second day of the term in which the answer is required to be fded, and the Court must determine as to the sufficiency or insufficiency of the answer at that term. See 4:th rule Equity Practice, 2 Kelly, 482. It will be observed, that by our rules^of Equity Practice, the filing his answer by the defendant, does not necessarily overrule his demurrer or plea, but that the same may be separately disposed of in their order.
[6.] The Statute evidently contemplates, (as do the Rules of Practice, to carry into effect the provisions of the Statute,) that the cause shall be ready to beset down for trial, during the second term of the Court, next after that to which the bill was made ■•returnable and filed; and it is the duty of the Court so to order the proceedings, if possible, as to have the cause set down for trial at that term.
[7.] We understand “ the setting dowm the cause for trial” to mean, that when the demurrer, plea, exceptions to the answer, &c. have been disposed of by the Court, as required by our rules of practice; in other words, when the pleadings are made up, and'the parties thereto are at issue, the complainant files his replication, as required by the 5th Equity rule of Practice, and then the Court orders the cause to be set down for trial.
The Statute, as we have seen, makes it the imperative duty of the Court so to order the proceedings, as that the cause . shall be set down and be ready for trial, at farthest, at the third term of the Court, from the filing the bill inclusive, unless very special cause be shewn, to induce the Court to continue the same, which shall not extend to more than four terms. At the forth term from the filing the bill inclusive, the cause must be tried.
[8.] When the cause is set down for trial by the order of the Court at the second term thereof after the filing of the bill, neither party will be required to proceed to trial at that term, but will have until the next term of the Court thereafter, to procure their testimony.
[9.J At the next succeeding term of the Court after the cause has been set down for trial, either party will be entitled to a continuance on special cause shown: but such continuance cannot [562]*562postpone the trial of the cause beyond the fourth term of the Court from the filing the bill inclusive; for the reason, that the Statute so expressly declares.
It was suggested on the argument, that in case the defendant should die, or the case be carried up to this Court by writ of error, the trial of the cause would necessarily have to be postponed beyond the fourth term of the Court, and therefore, the provisions of the Statute could not be practically carried into effect. The answer is, that when the parties and the Court are prohibited from proceeding with the cause, by the express enactment of the law, the time during which they are so prohibited, is not to Be computed against them.
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.By the Court.
Warner, J.
delivering the opinion-
This bill was originally filed on the 25th day of November, 1851, against the administratrix of Daniel McDougald, Alexander McDougald and Duncan McDougald, praying for the appointment of a receiver, &c. to secure the assets belonging to the estate of Daniel McDougald, for the benefit of his creditors. On the 10th day of May, 1852, Ann E. McDougald, the administratrix, filed her answer, and on the 13th of May, 1852, the other two defendants filed their joint answer to the bill.
On the 13th of May, 1852, the complainant, by leave of the ' Court, amended his bill.
On the 23d of December, 1852, the complainant obtained leave of the Courtto make another amendment to his bill, by which Devon, Jones and Billing, administrators of Robert B. Alexander, were made parties to the original bill, and an order wras granted by the Court, that the several parties be served within thirty days from the date of the order, with a copy of the amendment, and that Devon, Jones and Billing, the newly made parties defendants, be served within the time aforesaid, with a copy of the original bill as amended ; and it was further ordered, that all the parties should appear and answer the billas amended, on or before the first day of the then next term of the Court, with liberty of demurring or pleading thereto, or both, as they might think proper.
To the granting this latter order by the Court, the defendants excepted, and now assign the same as error, on the ground that the granting such order, necessarily extended the time beyond which the Statute requires the cause shall be ready for trial.
[1.] This question involves the construction of the 53d section ofthe Judiciary Act of 1799, which declares that the proceedings on the Equity side of the Court shall be by bill and such [560]*560other proceedings as are usual in such cases, until the setting down of the cause for trial; and the Court shall order the proceedings in such manner, as that the same shall be ready for trial, at furthest, at the third term from the filing such bill inclusive, unless very special cause be shewn to induce the Court to continue the same, which shall not extend to. more than four terms; and a copy thereof shall be served on the opposite party, at least thirty days before the filing such bill in Court; and the party against whom such bill shall be filed, shall appear and answer to the same at the next Court; and if he, she or they, shall fail to do so, the facts in the said bill shall be taken pro conjesso, and the Court may proceed to decree as to justice shall appertain. Prince, 447.
[2.] The several provisions of this Statute impose the same obligation and duty upon the Courts, as the provisions of any other Legislative enactment of the sovereign authority of the State. The special and imperative requirements of this Act of the Legislature, cannot be considered by the Courts, as mere brufum julmén, and disregarded at their will and pleasure, in ordering the proceedings in Equity causes in this State. It is our duly, therefore, to give to this Statute, such a construction as will make it a practical working Statute, according to the true intent and meaning of the Legislature.
[3.] When a bill is exhibited to the Court, and the necessary process annexed thereto, and a copy thereof is served on the defendant thirty days belore the Court to which it is made returnable, it is then to be returned to the Court, and filed in the Cleik’s office of such Court. The bill being filed in contemplation of the Statute, the defendant must appear at the term of the Court at which the hill is filed. If the defendant desires to demur or plead to the bill, he must file his demurrer or plea at the return term thereof, and such demurrer or plea, must be argued and determined by the Court at that term, unless sufficient cause be shewn. See 3d rule Equity Practice, 2 Kelly, 481.
[4.] At the next term of the Court after that at which the bill has been filed, the defendant must answer the bill.
[5.] If the complainant desires to except to the defendant’s answer, he must do so by filing bis exceptions before the hour [561]*561for Jury business, on the second day of the term in which the answer is required to be fded, and the Court must determine as to the sufficiency or insufficiency of the answer at that term. See 4:th rule Equity Practice, 2 Kelly, 482. It will be observed, that by our rules^of Equity Practice, the filing his answer by the defendant, does not necessarily overrule his demurrer or plea, but that the same may be separately disposed of in their order.
[6.] The Statute evidently contemplates, (as do the Rules of Practice, to carry into effect the provisions of the Statute,) that the cause shall be ready to beset down for trial, during the second term of the Court, next after that to which the bill was made ■•returnable and filed; and it is the duty of the Court so to order the proceedings, if possible, as to have the cause set down for trial at that term.
[7.] We understand “ the setting dowm the cause for trial” to mean, that when the demurrer, plea, exceptions to the answer, &c. have been disposed of by the Court, as required by our rules of practice; in other words, when the pleadings are made up, and'the parties thereto are at issue, the complainant files his replication, as required by the 5th Equity rule of Practice, and then the Court orders the cause to be set down for trial.
The Statute, as we have seen, makes it the imperative duty of the Court so to order the proceedings, as that the cause . shall be set down and be ready for trial, at farthest, at the third term of the Court, from the filing the bill inclusive, unless very special cause be shewn, to induce the Court to continue the same, which shall not extend to more than four terms. At the forth term from the filing the bill inclusive, the cause must be tried.
[8.] When the cause is set down for trial by the order of the Court at the second term thereof after the filing of the bill, neither party will be required to proceed to trial at that term, but will have until the next term of the Court thereafter, to procure their testimony.
[9.J At the next succeeding term of the Court after the cause has been set down for trial, either party will be entitled to a continuance on special cause shown: but such continuance cannot [562]*562postpone the trial of the cause beyond the fourth term of the Court from the filing the bill inclusive; for the reason, that the Statute so expressly declares.
It was suggested on the argument, that in case the defendant should die, or the case be carried up to this Court by writ of error, the trial of the cause would necessarily have to be postponed beyond the fourth term of the Court, and therefore, the provisions of the Statute could not be practically carried into effect. The answer is, that when the parties and the Court are prohibited from proceeding with the cause, by the express enactment of the law, the time during which they are so prohibited, is not to Be computed against them. It was upon this principle that the case of Tarver vs. Cowart was decided, in which it was held, that the Statute of Limitations did not run against a plaintiff in this State during the twelve months he was inhibited from suing an executor or administrator. 5 Geo. Rep. 66. There is no practical difficulty then, in carrying into effect the 53d section of the Judiciary Act of 1799, when the Courts do what the Legislature has peremptorily declared they shall do, (to wit,) so to order the proceedings in Equity causes, as that the same shall be ready for trial at farthest, at the third term from the filing the bill inclusive, unless very special cause be shown to induce the Court to continue the same, which shall not extend to more than foxir terms. The work must be done by the Courts and the parties, within the time prescribed by the Legislature. It has also been suggested, that much delay will be occasioned when the parties are numerous, and widely scattered over the country. The reply is, that the bill is not ready to be filed in Court, until all the necessary parties have been served with process to appear.
The order of the Court excepted to, in the case now under consideration, was granted at the third term of the Court after the original bill was filed against Ann E. McDougald, Alexander DcDoúgald, and Duncan McDougald. By this order three new parties are made to the original, bill (to wit,) Devon, Jones, and Billing; they appear to be necessary parties, and a decree is [563]*563prayed against them. At the time this order was made by the Court, the cause had not been set down for trial. The new defendants insist, that they are entitled to the same time to demur, plead, and answer the bill, as they would have been entitled to, had they originally been made defendants thereto ; that it is not in the power of the complainant to deprive them of the time given by the Statute to make their defence to. the bill, by making them parties thereto by way of amendment.
The new defendants are required to answer the original bill as well as the amendments, and it is extremely difficult for us to come to the conclusion, that they are not entitled to all the rights and previleges, as defendants, which they would have been entitled to, had they been made original defendants. On the score of principle, we think they are entitled to the same rights and privileges, as the Statute gives to original defendants, against whom a bill in Equity is filed. They are required to make precisely the same defence as the original defendants to the bill, and why should they not have the same time to do it? In this view of the case, the original defendants contend, that will have the effect to pospone the cause beyond the four terms prescribed by the Statute for the trial thereof, from the time offiling the bill in Court, as to them.
We are of the opinion, that upon a fair construction of the Statute, that the bill is not to be considered as filed in Court, until all the necessary parties thereto have been served with process to appear. Devon, Jones, and Billing, are necessary parties to enable the complainant to obtain the decree which he seeks. This bill then, was not served upon all the necessary parties thereto, and filed in Court, as contemplated by the Statute, until the term at which t’he defendants, Devon, Jones, and Billing, were required to answer — that being the first term at which they were required to appear, and the first term of the Court after they were served with process to appear. The time within which the cause is to be tried, must be computed from that term of the Court in wffiich the bill was filed, after service having been perfected on all the necessary'parties thereto. Th'e [564]*564order of the Court requires them to appear and answer the original bill and amendments at the first term of the Court after service thereof, perfected on them, which term of the Court is the one at which' the bill is to be considered as filed, and the one to which they were bound to plead or demur, under the rule; but were not bound to answer under the Statute, until the next succeeding term thereafter. ■
So much of the order, therefore, as required the defendants, Devon, Jones, and Billing, to answer the bill at the then next term of the Court was error, and is reversed. The motion to compel the complainant to elect whether he would proceed in Equity or at Law, to collect the money sued for in the Common Law actions, was properly overruled by the Court; for the reason, that it does not appear from the prayer of the bill, that its object is to collect the money due on the demands sued for in the Common Law Court; its object being to secure the assets of the estate of Daniel McDougald from being wasted, so that the same may be applied to the payment of his debts.
Let the judgment of the Court below be reversed, on the ground before stated.