CHAPTER XXXVIII.

SETTING DOWN THE CAUSE AT THE REQUEST OF THE
DEFENDANT.

By one of the General Orders, it is provided, That after the examination of witnesses in any cause, either by commission or in the Examiner's Office, no cause shall be set down to be heard the same term wherein publication doth pass, and in case the plaintiff doth not think fit to set down the cause for hearing the term after publication hath passed, then the defendant after that term, (if he think fit) may set down the cause to be heard ad requisitionem defendentis,(1) unless upon application to the Court, it shall appear, upon affidavit, that it will be to the particular prejudice of any party to wait for publication.(2) In injunction cases, the defendant was at liberty to apply to set down the cause ad requisitionem defendentis the term next after publication passed.(3).

*After a subpoena to rejoin had been served, the [*405 ] defendant could not, under the old practice, as has been before observed, move to dismiss the bill for want of prosecution; and his only mode of getting the suit disposed of was, by urging on the suit to a hearing. To effect this, he was entitled, after waiting one clear term after the subpoena to rejoin had been served, to enter a rule to produce; after waiting another clear term, he was entitled to enter the rule to pass publication, and after waiting a further clear term, to set down the cause: thus, if the subpoena to rejoin was served in Hilary term, 1820, he was entitled to enter the rule to produce in the following Trinity term, and the rule to pass publication in Hilary term, 1821; and to set down his cause for hearing in Trinity term, 1821.

The defendant, in proceeding to bring the cause to a determination, procures a certificate and sets the cause down" at the request of the defendant," and takes out a

(1) Beam. Ord. 319.

(3) Beam. Ord. 334, and 337.

(2) Beam. Ord. 334.

subpoena to hear judgment in the usual way. The defendant only serves this subpoena on the plaintiff's clerk in court.(1) If, on the cause being called on, the plaintiff does not appear, upon an affidavit of service of the subpoena, the bill is dismissed with costs as against the defendant setting down the cause, but no decree can be pronounced.

The General Orders of 1828 were intended to remedy this dilatory mode of proceeding, but it has been decided that under certain circumstances the defendant must still proceed under the old practice by setting down the cause.

(1) Clark v. Dunn, 5 Madd. 474.

CHAPTER XXXIX.

SUBPOENA TO HEAR JUDGMENT.

THE plaintiff must serve a subpoena to hear judgment returnable at the latest in the term succeeding that in which he is bound to enter the rules.

A subpoena to hear judgment is prepared by the solicitor in the form prescribed by the General Orders of 1833, and and is taken by him to the Subpoena Office to be sealed. The subpoena states before which of the equity judges the cause is set down for hearing. The solicitor at the time of presenting the subpoena to be sealed, leaves a precipe prepared according to the general orders,(1) and also the note given him by the Registrar fixing the day of hearing.(2)

The return day of the subpoena, is the day fixed in the Registrar's note for the hearing, and may either be in term time or vacation.(3)

A subpoena may contain the names of three defendants. A subpoena to hear judgment may be served on the clerk in court.(4) The service need not be personal, but is good if served on the clerk or agent of the clerk in court at his seat *at the Six Clerks' Office. The service is effected [ *407 ] by delivering as many copies of the subpoenas, and of the endorsement thereon, as there are defendants for whom the clerk in court appears, at the same time producing the original writ. The subpoena must be served fourteen clear days exclusive of the day of service and that fixed for the hearing in a country,(5) and ten days in a town cause, before the day fixed in the subpoena "to hear judgment," or according to the new form of the subpoena "to receive, and abide by such judgment and decree as shall then and there be made and pronounced."

Though the cause is set down under a peremptory

(1) See 2 vol. 489.

(2) The clerk is not to make out the subpoena to hear judgment without the Regis. trar's note of the day appointed for the hearing thereof. Beam. Ord. 46.

(3) 82 N. O.

(5) Beam. Ord. 170.

(4) 20 N. O.

undertaking, yet the service of the subpoea to hear judgment is necessary.(1)

An undertaking of the solicitor to appear on hearing is not sufficient if default is made, but the Court said, on application, they would make the solicitor pay the costs of default.(2) Irregularity in the subpoena to hear judgment in the manner of spelling the defendant's name, is waived by the party so served appearing on a motion to advance the cause, and not then taking the objection, and the Court refused to set aside a decree made on default of the defendant's appearance at the hearing, on the ground of such mistake in the subpoena to hear judgment.(3) A decree by default made upon service of subpœna, not regularly made out, was discharged on motion.(4)

When causes come to a hearing in court, no decree bindeth any person who was not served with process ad audiendum judicium according to the course of the Court, or did appear in person, in court,(5) (by counsel is sufficient.)

[ *408 ] *Before the recent General Orders, if a plaintiff was unable to serve the defendant with a subpoena to hear judgment, upon a fit case being made out, an order was made that service on his attorney or clerk in court should be deemed good service on the defendant.

Immediately the subpoena to hear judgment is served, the parties are entitled to make briefs of the pleadings and depositions, with which they furnish their counsel in sufficient time to enable them to make themselves masters of the cause before the hearing. The affidavit that the defendant has been served with this subpoena, is made by the clerk or agent of the clerk in court on whom the subpœna was served. It is advisable for both the plaintiff and defendant to be provided with an affidavit of the service of the subpoa; for the plaintiff, because the production of such affidavit entitles him to a decree nisi against a defendant making a default, whereas, if unprovided with such affidavit his cause would be struck out; for the defendant, because if the plaintiff does not appear, the production of the affidavit entitles him to have the bill dismissed as against the defendant with costs.

(1) Dixon v. Shum, 18 Ves. 520.

(2) Ellis v. King, 5 Madd. 21. Cook v. Broomhead, 16 Ves. 134. (3) Carvick v. Young, Jac. 542.

(5) Beam. Ord. 7.

(4) Powell v. Martin, 1 J. & W. 292.

CHAPTER XL.

HEARING THE CAUSE.

In preparing a brief for the hearing, the title of the cause is written in half margin on the top of the right hand side of the paper. The rest of the brief in whole margin, excepting the prayer of the bill which is written in half margin. The introduction and words of course, and the interrogating part of the bill are omitted; the whole of the answer is copied (except the formal words and the schedules.) The depositions are copied without the interrogatories in half margin on the left-hand side of the brief, leaving the right side for the names of the witnesses; and if they are numerous, it is convenient to index them at the beginning of the brief.

The defendant, in preparing his brief, only copies the bill and his own answer, and his own and the plaintiff's depositions, as he can neither read the answers, nor the evidence of co-defendants. In addition to the copy of the pleadings, it is customary for the solicitor to prepare observations directing the attention of counsel to the leading points in the case.

In causes of importance, it is usual to have a consultation with counsel, before the cause comes on for hearing; for this purpose the solicitor attends upon the clerk of the senior counsel, who appoints a day and hour which is endorsed *on the brief of the junior counsel, and [ *410 ] at the time fixed, the senior and junior counsel, and the solicitor, attend the consultation. In term time, the consultation is usually held at the coffee-house near Westminster Hall, and in the vacation at the chambers of the senior counsel. It is desirable, where the nature of the case requires a consultation, that the rule at law, allowing the costs of consultations between party and party, should be followed in this Court,

The plaintiff's solicitor should be careful before the cause comes on for hearing to leave with the secretary of the Judge before whom the cause is to be heard, a copy on unruled brief, of the title of the cause, and of the prayer of the bill.