stated, and takes advantage of a common order to amend to change the whole nature of his Bill, he will not be permitted to do so without paying to the defendant all the costs he has been put to, beyond those he would have been charged with if the bill originally had been properly framed (m); and also that where a plaintiff, after putting a defendant to great expense in preparing to meet a particular part of the case made by the bill, makes use of an opportunity of amending to strike out that part of his case, he will not be allowed by that means to deprive the defendant of the costs occasioned by the part of the bill so struck out(n). Costs of amending. Against whom Issued. CHAP. VII. OF THE WRIT OF SUBPOENA. Nature of the writ; THE bill, being on the file, the next step is to sue out and serve a subpœna, which is a writ issuing out of the Court, and directed to the party himself, commanding him to appear why so termed. (according to the old form of the writ) under a certain penalty therein expressed, (subpœna centum librarum), and answer to the matters alleged against him. This writ is frequently called the first process of the Court, but the term process is more properly applicable to those proceedings which are subsequently resorted to for the purpose of compelling obedience to the subpoena, in the same manner that the term process at common law is applied, not to the original writ, (which is that part of their proceedings which answers to the subpœna in equity), but to the writs which are issued in case the defendant, upon being duly warned to obey the original writ, refuses to do so (a). And 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. Not issued against the At torney-general, nor against peers of the realm, in the first in stance. This writ must be issued and served upon all the parties defendant to a bill (except the Attorney-general, who being an officer of the Crown, always supposed to be present in Court, is, as we have seen, merely attended with a copy of the bill), (b) before a cause can be properly said to be commenced. It is to be observed, however, that before it is issued against a peer or peeress, it is necessary to procure in the first instance a letter missive. Letters Missive. SECT. II. Of Letters Missive. THE nature and form of letters missive have been before How obtained. pointed out (b), and all that remains now to be done, is to direct the reader's attention to the manner in which they are to be obtained and served. The first proceeding for this purpose is to leave a petition, praying for the letter missive, with the Lord Chancellor's secretary, who will get the petition answered, upon which being done in the affirmation, the letter missive must be bespoken at the same office (c). Peers not bound to take another copy of the bill. The original letter, with a copy of the petition, as an- How served. swered, must then be served personally, or left at the defendant's place of abode (d). An office-copy of the bill must also be served at the same time with the letter missive. And by an order of the 28th November 1783, persons having the privilege of peerage are not obliged to take or pay for any other copy of the bill upon their appearing thereto (e). It is to be observed, that this letter missive is only a compliment, it is not process to found proceedings upon, and the peer may appear to it or not, as he pleases; if upon such service he appears it is well, but if he makes default a subpæna must be awarded against him, because no subsequent process can be founded but upon a contempt to the Great Seal, which is the royal authority, and the contempt will not arise from the Chancellor's letter, which is ex gratia. Proceedings in If a peer of the realm fails to comply with the subpoena, Process against the subsequent process against him must be by writ of seques- peers and pertration and not by attachment, as in the case of ordinary vilege of Parsons having pripersons (ƒ). (b) Ante, p. 501. (c) Hinde, 82. (d) Ibid. (e) Hinde, 82. liament. Form of the Form of, according to the old practice. According to the present practice. SECT. III. Of the Form of the Writ. A subpoena (as we have seen) is a writ issued in the name of the King, and directed to the defendant in the suit; and, according to the antient term, it commanded and strictly enjoined the defendant, that laying all other matter aside, and notwithstanding any other excuse, he should personally appear before his Majesty in his Court of Chancery, on a certain day therein specified, wheresoever it shall then be, to answer concerning those things which shall be then and there objected to him, and to do further and receive what the said Court shall have considered in that behalf: and this the defendant was warned, that he might in no wise omit under the penalty of one hundred pounds. The form of subpoena, as now issued in pursuance of Lord Brougham's orders, is as follows (g): "William the Fourth, by the Grace of God of the United Kingdom of Great Britain and Ireland, King, Defender of the Faith. To X. Y. greeting. We command you [and every of you, where more than one Defendant], that within [four days, if a town cause, or eight days, if a country cause], after service of this writ on you, exclusive of the day of such service; laying all other matters and excuses aside, you do cause an appearance to be entered for you, in our high Court of Chancery, to a Bill, [or as the case may be, "an Information"] filed against you by A. B. [and others, or another], and that you do answer concerning such things as shall be then and there alleged against you; and observe what our said Court shall direct in this behalf, upon pain of an attachment issuing against your person; such other process for contempt as the Court shall award. Witness ourself at Westminster, the year of our reign." day of (g) Ord. 21st Dec. 1833. in the The following memorandum is directed to be placed at the foot of the writ:-" Appearances are to be entered at the Six Clerks' Office, Chancery-lane, London.” The alteration which has been thus made in the form of the writ, appears to have been suggested by the report of the Chancery Commissioners of the 28th February 1826; proposition 1 & 2, which recommended that the form of this writ should be altered, and the writ so formed, as upon the face of it, distinctly to inform the party upon whom it is served, what he is really required to do, and what will be the consequence of his disobedience. Form of the According to the old practice, generally speaking, all sub- Day of return. pœnas were returnable in Term-time only; but a plaintiff, in a town cause, (that is where a defendant resided in London, or within a certain distance from it), was entitled to a particular privilege, enabling him out of term, upon an allegation, supported by affidavit, that a defendant lived in London, or within ten miles thereof, to obtain an order for a subpœna to appear and answer, returnable, as it is technically called "immediately;" which abbreviated the ordinary return, and relieved the plaintiff from the necessity of waiting till the following term (h). The Commissioners for inquiring into the practice of the Court, adverting to the increased facility of communication which now subsists between the various parts of the kingdom, thought it unreasonable that any distinction should prevail between town and country causes, in this respect; and accordingly, among the alterations which they proposed in their report, they suggested, that every plaintiff, whether in a town or country cause, should at all times be at liberty, without order, to sue forth a subpoena to answer, returnable on a day certain, either in Term-time or vacation. This recommendation of the Commissioners was only partially adopted in Lord Lyndhurst's orders, which merely enabled the plaintiff to obtain an order for a subpoena, returnable immediately, without affidavit (i); (h) Chan. Report, 1826; Expla (i) Ord. 3 April 1828; 1. natory Papers, prop. 1. |