ON PETITION TO REHEAR.
Complainants’ petition is overruled, but in considering the points made therein it has occurred to us that in order to prevent a misconception, we should make some additional observations upon one phase of the subject discussed in the original opinion.
It is first to be noted that the system of appearance and trial terms pertaining to courts of law has no place in our chancery practice; hence the cases which complainants’ counsel cite concerning trial term at law have no bearing. In chancery the issue is made up, not at appearance terms, but chiefly at rules. Each day of the term is a rule day, and the first Monday of every ifionth during vacation. Shannon’s Code, sec. 6233. While subpoenas to answer may in some instances be made directly returnable to terms of court (Shannon’s Code, section 6160), they are, in general, to be made returnable to rule days (section 6159); also publication notices (section 6164; Fellows v. Cook, 10 Heisk., 81, 82, 83). When the terms of court continue long enough such process, if issued more than five days before the term, may be made returnable to any Monday of the term, and if executed five days before such return day, *712the defendant must cause his appearance to be entered, and make defense, or obtain time therefor within the three succeeding days and the cause will stand to he proceeded in at that term (Chancery Rule 11; Shannon’s Code, p. 1783), if such process be executed within five days before such return day, then it is to be returned to the succeeding Monday, and the defendant is allowed the three succeeding days thereafter to cause his appearance to he entered, and make defense or obtain time therefor, and the cause will stand to he proceeded in at that term (Id., sec. 2).
Large powers are rested in the chancellor and in the master to facilitate the preparation of causes during vacation. Sections 6220-6245.
A rule may be made in the master’s office during vacation requiring either party to take any step necessary to the progress of the cause. Section 6199. If this step he not taken the chancellor can at the next term make the rule peremptory, requiring compliance with it on penalty of dismissal. Section 6200.
Upon being summoned to answer, the defendant may make defense by demurrer, plea, or answer, hut upon such demurrer or plea being overruled, he must answer by the next rule day, if no time be granted by the court. Section 6205. The next rule day during the term of the court would be the next day.
Upon answer being filed, whether in vacation or in term time, it is the duty of the clerk and master at once *713to set the cause for bearing, and transfer it from the rule docket to the trial docket. Section 6243.
Tbe cause is then ready for the taking of testimony, and it is the duty of the parties to proceed. Section 6273, rule 1, section 6; Shannon’s Code, p. 1777.
The general chancery rule (rule 2, sec. 4), and the Code (Shannon’s Code, sec. 6274), allow to each party four months in which to take original evidence and two months for rebutting evidence. This does not mean, however, that six mouths must elapse after a cause in chancery is at issue before either party can force the other to trial. Rather v. Williams, 94 Tenn., 543, 29 S. W., 898.
In the case cited, the complainant obtained a trial at the expiration of three months and five days from the date when the cause was put at issue. He accomplished this by taking his own evidence promptly and notifying his adversary that he had closed his case. The state of the pleadings was such that the defendant had no original evidence to offer. Two months elapsed between the date of the notice to him, and the day when the cause was called for trial. Of course he could have introduced his rebutting evidence within this time, if he had any. But he did not show that he had any such evidence. He stood simply upon the rule, claiming that a trial could not be demanded as a matter of right until six months had expired. The court held this position was untenable.
Although some delay necessarily results where the *714parties avail themselves of the benefits of rale 2, section 4, and of Code, section 6274, however much its operation may he restricted by the diligence of either party, it must he remembered that the rule does not apply where a jury trial is demanded, in the pleadings under section 6283. The necessity for its use, the time to take and file evidence, is superseded by the presence of the witnesses themselves before the court and jury.
The next section (6284) quoted in the original opinion, contemplates a case where the demand is not made until after the cause is at issue. It applies equally to cases in which no evidence has been filed, to those in which some evidence may he on file, and to those in which all the evidence is on file in the form of depositions or documentary evidence.
In the first of these the evidence is supplied by the testimony of witnesses introduced on the trial; in the second, the depositions and documentary evidence are supplemented by oral evidence; in the third the evidence is already complete.
But in determining the meaning of this section, it should be construed in connection with the one immediately preceding it, and also with section 6274, and chancery rule 2, sec. 4. Holding all of these provisions under one view, we think the following conclusion is obvious and inevitable.
If a jury is not demanded in the pleadings filed by either party, under section 6283, then the case falls within the operation of section 6274, and chancery rule *7152, section 4, and a jury cannot be demanded by either party, under section 6283, until the rights of the other have been fully enjoyed under section 6274, and the said rule 2, section 4.
But, as has been already pointed out, that time is by no means necessarily six months from the day the cause was put at issue. It -has been seen by the example which the case of Rather v. Williams, supra, furnishes, that the complainant,may sometimes, by diligence on his own part, reduce the time by about one-half. Cases may be conceived where the reduction would be even greater.
Thus it may often happen, where the terms of court are long, particularly in the cities of the state, that issue will be made, proof taken, and the cause stand for trial, all within the period of a single term.
Now what are the rights of the parties in respect of a jury trial in a situation such as this? We think it clear that, after the cause has thus become ready for hearing, either party would have the right at any time thereafter, during that term, under section 6284, to demand a jury trial.
Rule 35 could have no application to such a state of facts, because, if so construed, it would be brought into conflict with the statute. Or, to state the point in a different way, in so far as the general language in which the rule is couched would extend its operation to cases in such a situation it must be held void. But its operation would be free and unembarrassed at any subsequent *716term. Wbat is said in tbe original opinion, therefore, upon the subject, must be understood as qualified and explained, here.
The defendant’s petition to rehear is also overruled. The point made in this petition is that defendant did not apply for the reference, hut it was made upon the chancellor’s own motion. This is the form of the matter, but not the substance. What happened was that the chancellor himself suggested the order of reference, and granted it, in order to enable the defendant to get in his proof. He accepted and acted on it. The principle is the same. Kelly v. Smith, 1 Blatchf., 290, Fed. Cas., No. 7675; Atkinson v. Whitehead, 77 N. C., 418; Grant v. Hughes, 96 N. C., 177, 2 S. E., 339.