Brooks v. Mead , 1 Walk. Ch. 389 ( 1844 )

The Chancellor.

I can take no notice of the parol agreement between the solicitors, dispensing with service of a copy of the replication. The S7th rule requires every agreement, in respect to the proceedings in a cause, to be reduced to the form of an order by consent, and entered in the book of common orders, or to be in writing, and signed by the party against whom it is alleged.

By attending and cross-examining the witnesses, defendant waived all objections to the replication. 1 Hoff. Ch. Pr. 452. His application to the solicitors of the other parties, to assent to a commission for the examination of his witnesses, shows his understanding of the state of the pleadings. If there were no replication to his answer, he could examine no witnesses. Where, by mistake, a replication has not been filed, and yet witnesses have been examined, the Court will permit a replication to be filed nunc pro tunc. Mitf. Pl. 323; 1 Smith Pr. 336.

Motion denied,