Writ. Form of the but the form prescribed by Lord Brougham's orders appears fully to carry into effect the proposition of the Commissioners in this respect, by making all subpœnas ad respondend; returnable, not immediately, but within four days, if the cause be a town cause, or eight days if a country cause, after the service of the writ, exclusive of the day of service. Indorsement. By this judicious alteration in the form of the writ much of the obscurity which was occasioned by it as originally framed, has been removed; and the defendant, upon whom it is served, is now distinctly informed by the writ itself, of what he is really required to do, and what will be the consequence of his disobedience. It will be observed, that in the old forms of the writ, nothing was stated as to the day upon which the defendant was to appear in consequence of it; this was generally specified by indorsement, if it included only one defendant, and if there were more defendants than one, in what were termed the labels, (which were slips of parchment attached to the writ, in order that, when there were more defendants than one included in the same subpæna, they might be torn off, and served upon such of them as were not served with the writ itself): the day of appearance now appears in the body of the writ. The names of the party, at whose suit the subpœna is issued, and the nature of the proceeding which the defendant is called upon to appear to, are now also inserted in the body of the writ; whereas formerly these matters were only mentioned in the label, and by indorsement on the writ (k). The defendant is also informed, by the memorandum at the foot of the subpoena, of the proper place to which he is to go, for the purpose of entering his appearance, in case he wishes to do so in person. By the third order of the 21st December 1833, the indorsement of the writ must contain the name or firm, and the place of business or the residence, of the solicitors or solicitor issuing the subpæna; and where such solicitors shall be agents only, then there must be further indorsed thereon the name or firm, and place of business or residence, of the principal solicitor or solicitors. (k) Hinde, 78. By the ancient practice of the Court, the names of three defendants might be inserted in the same subpoena, husband and wife being accounted but as one (7) and to each writ containing more names than one, there was a label for each additional name (m). This label, as we have seen, was added for the convenience of service of the writ, which, in ordinary cases, was effected, where there were more defendants than one, by showing the subpoena and delivering a label to the two first, and leaving the writ itself with the last, or at his dwelling-house (n). This method of service, however, was found to be frequently productive both of inconvenience and expense, for it often happened that one or both of the two first defendants could not be found so as to be personally served, before the return of the subpoena, in consequence of which the plaintiff was put to the delay and expense arising from the necessity of suing out a new writ. To remedy this, it was proposed by the Commissioners, that " a writ of subpoena should be sued out for each defendant, and that the costs of all such writs should be costs in the cause." (o) This proposition was carried into effect by Lord Lyndhurst's orders (p); but the practice of allowing three names in each subpoena has been restored by Lord Brougham's orders (q), by which it has been ordered "that every subpæna other than a subpœna duces tecum, shall contain three names where necessary or required;" and the inconvenience alluded to, as arising under the old practice, has been obviated by the new form of the writ, and the method of service directed by those orders. The names of husband and wife are considered but as one name under the new practice, as well as under the old. Form of the Three defendants may be included in one subpoena. how taken advantage of. Care must be taken in making out the subpoena that there Mistakes in the be no mistake in the form of the writ, for if there be any, subpœna; and a defendant discovers it, he may take advantage of such mistake; and, if prosecuted for want of appearance, he may refer the subpoena for irregularity, and obtain costs (r). however, in the interval, between the time of suing If, Can only be rec tified before ser out vice. Form of the Infant not baptized, how described. the subpoena and the service of it, the plaintiff discovers any mistake or error in the names of the parties, he may correct it, and have the writ resealed upon payment to the clerk of the Subpoena-office of a fee of one shilling, and at the same time having a corrected præcipe of such subpoena, marked" altered and resealed," and signed with the name and address of the solicitor or solicitors suing out the same (s). `** It may be observed in this place, that where an infant was born pending a suit, and the parents, in order to interpose difficulties in the plaintiff's way, refused to have her baptized, an order was made that she should be described in the subpoena as the youngest female child of her father and mother (t). How Sued out, and Issued. Under the old practice. SECT. IV. How sued out, and Issued." To obtain a subpoena, the first process, under the old practice, was to leave a præcipe or the subpoena-note at the Subpoena-> office, in the following form: viz., in Chancery. "Subpoena A. B., C. D., E. F. to appear in Chancery, returnable the 23d January, at the suit of G. H., [or G. H. and another, or others]. This præcipe might be made out, either by the clerk in Court or the solicitor (u), (who put his name at the bottom of it,) and was the authority upon which the subpœna was made out and sealed. The præcipe having been left, the subpoena was then made out by the officer of the Subpœnaoffice, who got it sealed with the Great Seal in the usual way. After which the subpoena was left at the clerk in Court's seat by the bag-bearer of the office, or, if bespoke by the solicitor, it remained in the office until he sent for it (x). A material alteration has, however, been occasioned in the practice with regard to the suing out and preparing the sub (s) Ord. 21 Dec. 1833; 7. (u) 1 Harr. 97. Practice. pœnas issued by the Court of Chancery by the statute Under the new 3 & 4 Will. 4, c. 94, and the orders promulgated under its authority. By the 31st section of the Act, it is enacted, "that the patentee of the Subpoena-office shall forthwith provide a seal, in such form and with such impression as the Lord Chancellor shall approve of; and that the Lord Chancellor for the time being may cause such seal or impression to be varied from time to time as to him may seem fit; and that any person desirous of issuing a writ of subpoena, such as has been heretofore issued by such patentee, may prepare such subpœna, and present the same for sealing, and the same shall henceforth be an open writ, and either in the present form, or in any other form which the Lord Chancellor may from time to time direct; and such writ shall, upon presentment thereof for that purpose, be forthwith sealed with such seal, and shall have the same force and validity as a writ of subpœna now has when sealed with the Great Seal." In pursuance of the above section of the Act, it has been provided by the orders of the 21st December 1833, "that all writs of subpoena in this Court shall be prepared by the solicitor of the party requiring the same, and that the seal for sealing the same shall be marked or inscribed with the words "Subpoena-office, Chancery:" and such writs shall be in the forms mentioned at the foot of the orders, or as near as may be, with such alterations and variations as circumstances may require." The second order, however, directs that a præcipe in the usual form, and containing further the particulars thereinafter mentioned (as to the names and residences of the solicitors issuing the same), shall in all cases be delivered and filed at the Subpoena-office. The particulars required, with regard to the names and residences of the solicitors issuing the writs, are, "that the name or firm, and the place of business or residence of the solicitor or solicitors issuing a subpoena, shall be indorsed thereon; and that where such solicitors shall be agents only, then there shall be further indorsed thereon the name or firm, and place of business or residence of the principal solicitor or solicitors." Subpana made out by plaintiff's solicitor; but præcipe must be delivered and filed. Names and residences of solicitors or agents to be indorsed. Under the new Of mistakes in the pracipe. No subpana to be issued till after bill filed; except in injunction cases. Certificate of filing bill not necessary. Six Clerk not to antedate bills. Plaintiff issuing subpana before bill filed may retain it on payment of defend ant's costs. In consequence of the above Act of Parliament and order, the practice now is for the solicitor of the plaintiff to prepare the subpoena, and to leave it, together with the præcipe, as above directed, at the Subpoena-office to be sealed; and the præcipe being the authority for the sealing of the writ, is filed in the office. Care must be taken in the case of the præcipe, as well as of the writ, that no mistake is made in it, either of the parties' names, plaintiff or defendant, or in the return, for any such mistake will vitiate the writ (y). By statue 4 Ann, c. 16, no subpoena or other process for appearance shall issue till after the bill is filed with the proper officer, and a certificate thereof brought to the Subpoena-office, except in cases of bills for injunctions to stay waste, or to stay suits at law commenced (z). In consequence of this Act, it was formerly the practice, after filing the bill, to procure a certificate thereof from the Six Clerk in the cause, and without such certificate no subpoena, except in injunction cases, could be issued (a). That practice has, however, been discontinued, and the subpoena may now be sealed and issued without any such certificate. It is, however, quite irregular to issue a subpæna, except in the cases specified in the Act, until the bill is on the file; and if a plaintiff does so, it is at risk of costs (b); for if a defendant be served with a subpoena, and before the return he instructs a clerk in Court to search if any bill be filed, and it appears that no bill is filed, he may apply for costs, unless it be an injunction cause (c). It was in order to check a practice which formerly prevailed for the six clerks to antedate the bills, that the order before referred to (d)," that no Six Clerk presume to antedate any bill, was promulgated (e)." It is to be observed, that although a plaintiff issuing a subpæna before bill filed, does so at the risk of costs, he may nevertheless obtain an order to retain his bill, upon paying the defendant his costs out of pocket (ƒ). (y) 1 Turn. & V. 105. (z) Hind. 76. (a) Ibid. 77. (b) Ibid. 76. (c) Ibid. 77. (d) Ante, 508. (e) Beame's Ord. 168. |