
    Graham and others, vs. Cook and others.
    
    The act of 1801, ch. 6, sec. 29, only authorizes a suit in chancery to be dismissed where no steps are taken by the complainant in two terms alter the defendant is compelled to answer or plead.
    When an amended bill is filed at the same term that an answer to the original bill is filed, the defendant is not compelled to answer until the next term thereafter, nor is the complainant compelled to reply before »uch term, although the defendant may have answered the bill at the term it was filed.
    The bill was filed in this cause in the chancery court at Jackson, on the 9th September, 1831. Subpoenas to answer issued from March term, 1831, to the sheriff of Madison county, returnable to September term, 1831. The sheriff returned on these subpoenas that the defendants were not found. At the same time, affidavit being made of the non-residence in this State of all the defendants, except David W. Cook and wife, an order of publication was made. At the March term, 1382, David W. Cook and wife filed their answer, and at the same term two of the defendants, Alexander J. Nelson and Thomas J. Nelson filed their plea. At the same term the complainants, by leave of the court, filed their amended bill, making additional parties, setting out new matter, and requiring a further answer from the defendants to the original bill. Subpoenas to answer the amended bill issued from the March term, 1832, and returnable to September term, 1832. On the subpoenas for Alexander J. and Thomas J. Nelson, the sheriff returned that they were not inhabitants of the State. As to the other defendants, proceedings were regularly had with a view to place the cause in a condition for final hearing, but as to Alexander J. and Thomas J. Nelson no further proceeding seems to have been had until the March term, 1533; when, on motion of the defendants, the original and amended bills were dismissed, because the complainants had failed to apply to or set for hearing the plea of Alexander J. and Thomas J. Nelson which had been filed to the original bill at March term, 1832. From this decree the complainants prosecute this appeal.
    T. Washington, for the complainants.
    
      A. B. Bradford, W. Stoddart, and P. M. Miller, for defendants.
   Green, J.

delivered the opinion of the court.

We think that in this case the Chancellor made an improper application of the act q£ 1801, ch. 6, sec. 29. In this case the plea was filed' at March term, 1832; at the same term an amended bill was filed wherein new matter is alleged, and an answer from the two defendants who filed the plea was required. In order to obtain their answers, subpoenas issued returnable to the September term. These defendants could not be compelled to put in a further answer until September term, before which time the plaintiffs had no right to file a replication. 2 Mad. Chan. 369-70. This rule applies as well in this case as if the defendants had answered the original bill, arid plaintiffs had failed to reply. If this order of the court allowing the amendment postponed the time for replying until September term, the plaintiffs were not in default until then, and the decree dismissing the bill was premature. The decree will be reversed, and the cause remanded to the chancery court at Jackson to be proceeded in.

Decree reversed.  