1846.-Wheatley v. Wheatley.

before the 28th of October, 1845.(a) In those cases, it is required for the purpose of doing that which is necessary for the purpose of putting the cause at issue, but which can no longer be done by service of a subpoena to rejoin, which, under the 93d order, (b) is not to be issued.

But where the subpoena to rejoin has issued and been served before the 28th of October, 1845, replication in the new form has no office to perform, and is not to be filed.

In this case, the cause is completely at issue, and the next thing to do is to pass publication, which I think ought to be by order; and unless some reason can be given why publication should not now pass, or any reasonable objection is made, I think that upon this application, I may order that publication do now pass. After the proper time, the defendant, if it should be necessary, may renew his motion to dismiss.[1]

[*580]

1846: January 23.

*BIDDULPH v. LORD CAMOYS.

Service abroad of a subpoena to appear and answer directed, under the 33rd order of May, 1845, upon a defendant of unsound mind not so found by iuquisition.

Two of the defendants, Edward Henry Darell and wife, were resident in Belgium. The husband was of unsound mind, though not so found by inquisition.

Mr. J. A. Cooke moved, under the 33d general order of May, 1845, (c) for liberty to serve these defendants with a subpoena to appear and answer.

(a) Spencer v. Allen, 4 Hare, 455. (b) Ord. Can. 319.

(c) Ord Can. 297.

[1] By the orders of May, 1845, (order 93,) the cause is fully at issue, by the filing of a general replication, without the necessity of any further pleading or proceeding. Such had long been the practice of the Court of Chancery of New York. Rules of Court of Chancery of the State of New York, Rule 65. 1 Hoff. Ch. Pract. 451; 1 Barb. Ch. Pract. 249.

1846-Biddulph v. Lord Camoys.

THE MASTER OF THE ROLLS said he would consider whether this could be done under the order referred to.

Jan. 23.-THE MASTER OF THE ROLLS:-Two of the defendants, husband and his wife, are resident in Belgium, and a motion is made, under the first article of the 33rd order of the 8th May, 1845, for leave to serve them with a subpœna to appear and answer. The evidence of residence abroad is suffi

cient to support the application.

But it appears, that the husband is of unsound mind, though not so found by inquisition, and the question is, whether a subpœna ought to be issued in such a case. As nothing can be done upon the service without the leave of the court, I think that the motion ought to be granted. The order which is asked will only have the effect of placing the defendant in the position, in which other defendants, in the same circumstances, but resident within the jurisdiction, are placed without special order.

*Care should however be taken, that no application is [*581] made to enter an appearance, under the fourth article of order 33, unless the defendant should have recovered at the time when the subpoena is served. And I think, that in this case, that object may be sufficiently secured, by requiring the plaintiff to undertake, that he will not apply for an order to enter an appearance for the defendant, without producing the affidavits which have been read on this occasion.

Upon an application to serve a subpæna abroad, under the 33rd order of May, 1845, an affidavit merely showing the place of residence abroad of the defendant seven weeks previous is insufficient.

MR. GLASSE applied under the 33rd order of May, 1845,(u) for liberty to serve a subpoena abroad. The affidavit in support

(a) Ord. Can. 297.

1845.-Fieske v. Buller.

of the application showed merely, that the defendant, on the 17th of September last, was resident at Calais in France, and that it was probable he was still there; but no further information was furnished as to his subsequent residence.

THE MASTER OF THE ROLLS said there appeared to have been no communication with the defendant during the last seven weeks, and he therefore thought, that the affidavit was not sufficient to show the present residence of the defendant. That the motion might however stand over to supply the defect.

[*582]

1845 November 3.

*BROWN v. STANTON.

Liberty being given under the 33rd order of May, 1845, to serve a subpana in Ireland, the periods limited under the 2d article were ten days to appear, six weeks to plead, answer, or demur, not demurring alone, but no order was made as to the time for demurring alone.

MR. AMPHLETT applied, under the 33rd order of May, 1845, (a) for liberty to serve a subpoena upon the defendant in Ireland.

The affidavit in support of the motion stated positively, upon the belief of the deponent, that the defendant was now in or near Limerick.

He asked that the court would limit, under article 2, the time "after service of subpoena within which such defendant was to plead, answer, or demur," and he also asked that a time might be limited for demurring alone.

THE MASTER OF THE ROLLS said that the defendant ought to have ten days after the service of the subpoena to appear, and six weeks after appearance to plead, answer, or demur, not demurring alone; but he said it was not necessary to fix any time

(a) Ord. Can. 293.

1845.-Brown v. Stanton.

for demurring alone, which would be twelve days,(a) according to the usual practice.

NOTE.-In Preston v. Dickinson, Sir J. L. Knight Bruce, on the application of Mr. Headlam, gave liberty to serve the defendant within the Grand Duchy of Baden, and limited the time for appearance, and for pleading, answering, and demurring not demurring alone. In drawing up the order, a question arose, whether the following paragraph should be inserted, " But in case the said defendant should be advised to demur alone, he is to do so within twelve days after such appearance," and also whether the form of subpæna mentioned in the orders of May, 1845, ought to be varied in conformity, under the 24th order of May, 1845.(b) The Lord Chancellor was applied to, and a communication was had with the Master

of the Rolls, who expressed himself as follows:-"The order as original- [*583] ly made by the Vice-Chancellor Knight Bruce is perfectly correct, and it is quite unnecessary to specify a limited time for demurring alone, or to make any alteration in the form of the subpœna, under the authority given by order 24." The order and subpoena were thereupon directed to be prepared in conformity with this opinion.

1845: November 13.

MOORE v. PLATEL.

On an application to appoint a solicitor guardian ad litem, to a defendant of unsound mind, not so found by inquisition, the court required to be first satisfied that no relative would undertake the defence.

MR. TURNER moved, under the 32nd order of May, 1845,(c) for an order appointing one of the solicitors of the court guardian ad litem of a defendant of unsound mind, not so found by inquisition.

It was stated, that the defendant had, for some time, been resident with a Mr. Snow, and that application had been made to the solicitors of the other defendants to undertake his defence, but that they had refused.

THE MASTER OF THE ROLLS :-The object of the court is

(a) 16th order of May, 1845, art. 10. Ord. Can. 280.

VOL. VII.

(b) Ord. Can. 293.

(c) Ord. Can. 296.

63

1845.-Moore v. Platel.

to see how this defendant may be best protected. You have only applied to the solicitor of the other defendants, who has refused; but it is not stated whether any application has been made to the relatives, or whether they will undertake the protection of this defendant's interests. If they will not, I shall appoint Mr. Johnson, the solicitor of the suitors' fund, to be guardian; but I do not wish to do so until I am satisfied that no natural protector will undertake his defence.

The matter had better stand over for a further affidavit.

NOTE-See Needham v. Smith, 6 Beavan, 130, note a, and Mackeverakin v. Cort, 7 Beavan, 347.

[*584]

1845 November 23.

*HUGHES V. THOMAS.

Exceptions were shown as cause on the day they were filed. Held that they might be referred instanter, notwithstanding the 16th order of May, 1845, art. 25.

THIS was an injunction case. The plaintiff obtained the common injunction, for want of answer, which, however, was afterwards filed.

On the 20th of November, the plaintiff excepted thereto for insufficiency, and on the same day, upon a motion before ViceChancellor Knight Bruce to dissolve the injunction, the exceptions were shown as cause. It was then proposed to refer the exceptions instanter; but a question arose whether this could be done, since the 16th general order of May, 1845, art. 25, which prohibits the plaintiff referring exceptions for insufficiency until the expiration of eight days from the filing of such exceptions.(a) The senior Registrar, by the direction of his Honor the ViceChancellor Knight Bruce, applied to the Master of the Rolls.(b)

THE MASTER OF THE ROLLS expressed the following opinion. "The plaintiff having filed exceptions for insufficiency is not

(a) 16th order of May, 1845, art. 25, and see articles 26 and 28. Ord. Can. 284, 285.

(b) 2 Colly, 239.