be made;1 or to substitute service, or give notice by advertise- CH. VII. § 2. ment or otherwise, in lieu of such service. The party having the prosecution of the decree should, therefore, in the first place, consider what persons not named on the record ought, under the provisions of the Chancery Amendment Act of 1852, to be served with notice of the decree. On this subject, he is referred to the former part of this treatise. He should then consider whether the circumstances of the case, and the nature of their interest in the suit, are such as will justify an application to the Judge to dispense with service on any of them; or to sanction some special mode of service: as, on one or more for all the members of a class, or by public advertisement, or through the post, or on a substitute. An application of this description to the Judge is usually required to be made by an ex parte summons," supported by evidence of the facts on which it is founded; and where a special mode of service is directed, an order is ordinarily drawn up by the Registrar, which will contain a direction that a copy of it shall be served with the notice. Where service is dispensed with, an order to that effect is not usually drawn up; but the fact is stated in the Chief Clerk's certificate of the result of the proceedings. post: how au thenticated. If service through the post is sanctioned, and no special Service by directions are given as to the mode of authenticating such service, it seems advisable to enclose the notice in a letter addressed to the person to be served, and to request him to acknowledge, through the post, the receipt of the notice; and it would be well to enclose a form of acknowledgment for signature. The service, in this case, will be deemed to have been effected at the date of the letter of acknowledgment.' The Judge will, usually, proceed to give his directions as to the manner in which the decree is to be prosecuted, notwithstanding evidence is not adduced to satisfy him that all proper parties have been served with notice.10 Indeed, it not unfrequently happens, that the persons to be served cannot be known till some of the inquiries under the decree have been prosecuted at Chambers: as where the members constituting a class of residuary legatees, or next of kin, have to be ascertained; and by directions being obtained for insertion of advertisements for creditors and other claimants to come in, and for the accounts to be brought in, and the inquiries answered, before these class inquiries are entered 1 Ibid.; Ord. XXXV. 18. 2 Ord. XXXV. 18; for form of summons in such case, see Vol. III. 3 15 & 16 Vic. c. 86, § 42, rr. 1-8. ✦ See ante, pp. 216-218, 225, 226, 244. 5 For a form, see Vol. III. 6 But is sometimes; see Gavin v. Osborne, cited Seton, 1213. 7 For form of letter, see Vol. III. 8 For forms of acknowledgment and affidavit of service, see Vol. III. 9 Braithwaite's Pr. 522. 10 See Ord. XXXV. 16. Where decree may be proseservice of cuted before notice of it. CH. VII. § 2. upon, much time in prosecuting the decree may be saved, without prejudicing persons who may be subsequently served with notice of the decree, and obtain orders to attend the proceedings. . Memorandum to be indorsed on notice. Service of copy equivalent to service of notice. Memorandum of service to be Record and Where service irregular. Certificate of for Chambers. The notice of the decree must be entitled in the cause; and a memorandum must be indorsed thereon, giving the person served notice that from the time of service he will be bound by the proceedings in the cause, in the same manner as if he had been originally made a party; and that he may, by an order of course, have liberty to attend the proceedings, and may, within one month after service, apply to the Court to add to the decree.1 Service of a copy of the decree is regarded as service of notice of the decree; but the copy must be indorsed in like manner as a notice.2 When any party has been served with notice of a decree, a memorandum of service must, upon proof by affidavit that the service has been duly effected, be entered in the office of the Clerks of Records and Writs." When it appears by the affidavit that the service has not been effected in accordance with the ordinary practice in these cases, and the Record and Writ Clerk refuses, in consequence, to enter a memorandum of service thereon, the plaintiff may instruct counsel to apply to the Court, ex parte, for its sanction to the memorandum being entered; or, where directions for the service have been given at Chambers, or the service is required for the purpose of proceedings pending there, the application should be made at Chambers, ex parte, by the solicitor, without summons. The sanction, if given, is evidenced by an indorsement on the affidavit to the following effect: "Let the memorandum of service be entered on this affidavit;" and such indorsement is signed by the Registrar in Court, or by the Chief Clerk at Chambers, as the case may be, and will be acted on by the Record and Writ Clerk, without a formal order being drawn up.* 5 The Record and Writ Clerk will give a certificate of the entry entry. Copy of the memorandum of service; and a copy of such certificate, certified by the solicitor, is to be left at the Chambers of the Judge to whose Court the cause is attached." Parties served may apply to add The party served may apply, within one month after service, for leave to add to the decree. Such application is usually made 1 Ord. XXIII. 20; for forms of notice and indorsement, see Vol. III. 2 Braithwaite's Pr. 519. 3 Ord. XXIII. 19. An office copy of the affidavit, together with the præcipe to enter the memorandum, and any exhibits or orders connected with the affidavit of service, are required to be left at the office for examination, but will be returned to the solicitor. For forms of præcipe and affidavits, see Vol. III. 4 See Braithwaite's Pr. 521; and Re Newbold, there cited. 5 The fee is 48. Regul. to Order, Sched. 4. For form of certificate, see Vol. III. 6 8th Regulation, 8 Aug., 1857. form of certificate, see Vol. III. For 7 15 & 16 Vic. c. 86. § 42, r. 8; Ord. XXXIII. 18; the month is lunar, Ord. XXXVII. 10. Where the party to be served is out of the jurisdiction, an enlarged time may be given; see Strong v. by summons: which must be served on the solicitors of all parties CH. VII. § 2. to the cause, and of all persons who have obtained orders to attend. The party served may also obtain an order of course, upon petition at the Rolls, or on motion, for liberty to attend all proceedings under the decree.* 3 5 Infants, and persons of unsound mind not so found, attend the proceedings by their guardians ad litem, who are appointed in the same manner as guardians ad litem to answer and defend suits; and the Judge may, at any time during proceedings in Chambers, under any decree or order, require a guardian ad litem to be appointed for any infant, or person of unsound mind not so found by inquisition, who has been served with notice of such decree or order.R Where a person served with notice of the decree obtains an order for leave to attend the proceedings, no other evidence of service of the notice on him will be required; the Judge must, however, be satisfied of his identity with the person on whom the notice ought to have been served. A copy of every order for leave to attend proceedings should be served on the solicitors of all parties in the cause, and of all persons who have leave to attend the proceedings; and a copy, certified by the solicitor to be a true copy, should be left at the Judge's Chambers. No appearance is to be entered at the Record and Writ Clerks' office by a person served with notice of the decree; nor is it necessary that any order he may obtain to attend the proceedings should be produced or entered there. The practitioner will, therefore, be unable to ascertain from the books of that office what parties have, by obtaining orders to attend the proceedings, entitled themselves to be treated as quasi parties to the suit. He must seek this information by search in the books kept at the entering seat in the Registrar's office, at the Report office, and in the Secretary's office at the Rolls, for the entry of orders, and at the Chambers of the Judge; or by inquiring of the parties in the cause, what orders for leave to attend have been served on them. to decree, or attend pro for leave to ceedings. Guardians ad item may be appointed of infants, and persons of unsound mind. If the party served attends, without obtaining an order giving Costs of him leave, he will not be allowed his costs of such attendance, parties so attending. Moore, 22 L. J. Ch. 917, M. R. Semble, 8 For forms of petition and motion paper, see Vol. III. 4 The order can only be obtained by those persons who, under the former prac- 5 Ord. VII. 6; see ante, pp. 160, 176; 6 Ord. VII. 7. 7 For form of certificate, see Vol. III. 9 Braithwaite's Pr. 525. CH. VII. § 2. without a special order for that purpose; and it is to be observed, that the order giving a party served with notice of the decree liberty to attend, does not specify at whose costs he is to attend, but his costs are dealt with at the hearing of the cause on further consideration; and it is conceived that, where the Court is of opinion that the interest of the party in question is sufficiently protected by the parties named on the record, or who have already obtained leave to attend the proceedings, it will refuse to allow him any costs.2 A person who has been served with notice of the decree, and who has obtained leave to attend the proceedings, may, if aggrieved by any order in the suit, present a petition of rehearing in the usual manner, but if he is unable to raise the question on the pleadings, the proper course for him to pursue is to move, on notice, for leave to file a bill: which would be in the nature of a bill of review.1 1 Ord. XL. 28. 2 See Ord. XXXV. 20; Seton, 187; Stevenson v. Abington, 11 W. R. 936, M. R.; Re Taylor, Daubney v. Leake, L. R. 1 Eq. 495, M. R.; Hubbard v. Latham, 1 W. N. 105; 14 W. R. 553, V. C. K.; Wragg v. Morley, 14 W. R. 949, V. C. W., as to classes of parties appearing by different solicitors; and see Bennett v. Wood, 7 Sim. 522; Hutchinson v. Freeman, 4 M. & C. 490; 3 Jur. 694; Shuttleworth v. Howarth, 4 M. & C. 492; 5 Jur. 2; C. & P. 228, where persons intervening, who were not made parties because they belonged to a very numerous class, were allowed the same costs as if they had been made parties to the suit. 8 Ellison v. Thomas, 1 De G., J. & S. 18; see post, Chap. XXXII. § 2, Rehearings and Appeals in the Court of Chancery 4 Kidd v. Cheyne, 18 Jur. 348, V. C. W.; see post, Chap. XXXIV. § 5, Bilis of Review. CHAPTER VIII. PROCESS TO COMPEL, AND PROCEEDINGS IN DEFAULT OF, APPEARANCE. SECTION I.-Service of the Copy of the Bill. FORMERLY, when the bill was filed, the ordinary course of proceeding against the defendants was to sue out and serve a writ of subpoena.1 This has, however, as we have seen, been abolished; 1 The former English practice of compelling the appearance of the defendant by issning and serving a writ of subpœna is still adhered to in the Circuit Courts of the United States, and in Massachusetts and some other State Courts. Under this practice the first step usually is, to sue out and serve a subpoena, which is a writ issuing out of the Court, and directed to the party himself, commanding him to appear (according to the old form of the writ), under a certain penalty therein expressed (subpæna centum librarum), and answer to the matters alleged against him. It is to be observed, that the writ of subpoena differs from the other writs of process, in being directed to the party himself, whereas the subsequent writs or orders are directed, not to the party himself, but certain ministerial officers, commanding them to take certain proceedings against the defendant, calculated to enforce his obedience. It would seem, according to the American practice, that the bill ought in all cases to be filed before or at the time of issuing the subpoena. 1 Hoff. Ch. Pr. 101, note; 1 Barb. Ch. Pr. 399; ante, 399, notes; Rule 2 of Chancery Practice in Massachusetts; Rule 11 of the Equity Rules of the United States Courts. Howe v. Willard, 40 Vt. 654. By the 7th Equity Rule for the U. States Courts, it is provided that the process of subpæna shall constitute the proper mesne process in all suits in Equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and by Rule 12, whenever a bill is filed, the clerk shall issue the process of subpœna thereon, as of course, upon the application of the plaintiff, which shall be returnable into the Clerk's office the next rule day, or the next rule day but one, at the election 2 of the plaintiff, occurring after twenty days from the time of the issuing thereof. Where there is more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpana against all the defendants. By Chancery Rule 17, in New Jersey, the names of all the defendants in the same cause shall be inserted in one subpana, unless the defendants reside in different counties, in which case the names of all those who reside in the same county shall be inserted in the same subpana; by Rule 18, copies of tickets served with the subpæna upon the defendants shall be annexed to and returned with the subpoena. In Massachusetts, the subpoena on bills in Equity shall be issued from the Clerk's office either in term time or in vacation upon a bill there filed, shall bear teste of the first Justice of the Court, who is not a party to the suit, and shall be under the seal of the Court, and signed by the Clerk. Genl. Sts. c. 132, § 18. The process shall be made returnable at the next succeeding term, or at any intermediate rule day, at the election of the party who takes it out. Rule 4, of the Rules of Chancery Practice. In Maine, "a subpoena in the form prescribed shall issue on the filing of the bill with the Clerk; and it may be made returnable on a day certain in or out of term time." Rule 2, of the Rules of Chancery Practice. In Connecticut, to a bill in Chancery against defendants residing in that State, a citation, signed by a magistrate, must be annexed, which must be served upon the defendants at least twelve days before 2 Except as to bills filed on or before 1 Nov., 1852; Ord. XXVIII. 10. Defendant to be served with printed copy of bill, properly stamped and indorsed. |