bill need not be

on the file till the opening of the office on the

In cases which are within the exception in the Act, that is An injunction to say, where the bill prays an injunction, the bill need not be on the file before the return of the subpoena (g); and, as the day of the return does not expire till twelve o'clock at night, (after the office is closed) it is considered that the bill is in time if it be on the file at the time of opening the office the following morning.

morning after

return.

SECT. V.

Of Service of the Subpoena.

Not good on
Sunday.

ALL subpoenas must be served before the last day of the Within what term next following the term or vacation in which it is sued time. out (h). And, it is to be observed, that service on a Sunday is not good service (i); so that where the last day of the term is on a Monday, the writ must be served before twelve o'clock on the Saturday night preceding. The service of a subpoena is either ordinary or extraordinary. Ordinary service is effected by serving the party with the Ordinary serwrit personally, or by leaving it at his dwelling-house, or vice.

usual place of abode. According to the new orders, personal Personal. service is to be effected by delivering a copy of the writ and

of the indorsement thereon to the person served, and at the

same time producing to him the original writ (k).

Personal service upon an infant may, as we have seen, be Upon infants. effected in the same manner as service upon adults, though if the infant cannot be got at, the writ may be served upon his father or mother, or other guardian or person having the care of it. Such service, however, ought to be warranted by a previous order of the Court (1).

Service upon a married woman may be effected by serving On feme covert. her husband (m); and it seems that service on the wife was

(g) Ibid. 104.

(h) Orders, 21 Dec. 1833; Ord. 7. (i) Mackreth v. Nicholson, 1 Newl. Prac. 66.

(k) Orders, 21 Dec. 1833; Ord. 4.

(1) Ante, 229.

(m) Ante, 216.

Ordinary Ser

vice.

under the old practice good service on the husband, if done by leaving the body of the subpoena with her at her husband's dwelling-house (n); under the present practice, therefore, serUpon husband. vice of a copy of the writ, upon the wife at her husband's dwelling-house will be good service upon the husband.

Where suit re

When the bill relates to the wife's separate estate, and the lates to wife's se- husband is abroad, the subpoena may be served upon the wife

parate property.

Service on corporation.

At the dwellinghouse.

Copy may be left.

Must be at the

residence at the

time.

alone (o).

If a bill be filed against a corporation, the process must be served upon some one of the members (p).

Where a subpoena was served at the dwelling-house of the party, it was formerly necessary to leave the body of the writ itself with some one of the family there; but now it is ordered, that in all cases where a subpoena might formerly have been served by leaving the body thereof at the party's dwellinghouse, or otherwise than personally, it shall be sufficient to leave a copy of the subpoena with the person upon whom it is served, producing the original writ to such person (q).

Service at the dwelling-house to be good, without special place of actual order, must be at the place where the defendant actually resides, and the mere leaving the writ or the copy at a defendant's ordinary place of business, if he does not reside there, will not be good service; and therefore where, under the old practice, a subpoena, returnable immediately, was moved for upon affidavit, stating that the defendant lived at Epsom, but that he had chambers in the Temple and resided there, Lord Thurlow said that as it did not appear that his place of abode was in the Temple he could not make the order(r). Where, however, a Member of the House of Commons having a house at Southampton and no town residence, was served with a subpoena, returnable immediately, at a friend's house in London, with whom he was upon a visit, and for default of appearance a sequestration had been awarded, and a motion was made at the instance of the defendant to set aside the sequestration for irregularity, Lord Thurlow said he could not suppose that the defendant, a Member of Parliament, during the ses

Secus in case
of a Member of
Parliament.

(n) Ante, 217.
(0) Ibid.

(p) Hind. 87.

8

Orders, 21 Dec. 1833; Ord. 4. v. Shaw, Hind. 92.

vice.

Service at the town-house of a abroad good.

Peer who is

sion of Parliament had no town residence, or that the residence Ordinary Serabove stated should not be taken as a residence quoad the defendant, whose duty it was to attend, and actually did attend, the House, and therefore refused to grant the motion. And so where a letter missive, and subsequently a subpoena, had been served at the town residence of a Peer during the sitting of Parliament, Lord Thurlow appears to have been of opinion that it was good (s), and in a recent case where a letter missive, and afterwards a subpœna, had been served at the town residence of a Peer, who at the time was abroad, and afterwards an order nisi for a sequestration was issued, the Vice-Chancellor refused a motion to discharge the order nisi, and his Honor's decision was confirmed by the Lord Chancellor (Lord Brougham)(t).

Formerly, where the defendant was a Member of the House of Commons, service at his dwelling was the most convenient and most usual way of serving him, because, previously to the 47 Geo. 3, c. 40, the service of the writ upon a Member of the House of Commons was accompanied by an office of the bill, signed by the proper Six Clerk or his deputy. The above statute has however dispensed with the necessity of this proceeding.

copy

It should be observed that if there be any irregularity in the service of the subpœna, the defendant, if he means to avail himself of the objection, should not appear, as by so doing he will waive the irregularity. He should move to discharge the attachment when it issues (u).

Of a Member of the House of

Commons.

Service upon a
Member of the

House of Com-
mons need not
be accompanied
by a copy bill.

service.

Where a subpœna cannot be served by either of the ordi- Extraordinary nary methods before pointed out, extraordinary means may be resorted to. Such service, however, ought in general to Previous order. be warranted by a previous order of the Court, though sometimes where an extraordinary service has been effected the

(s) Attorney-general v. Earl of Stamford, 2 Dick. 744.

(t) Thomas v. Earl of Jersey, 2 M. & K. 398.

(u) Bound v. Wells, 3 Mad. 434. It seems, however, to be necessary, before he moves to discharge the at

tachment, that he should enter his
appearance with the Registrar, which
can only be done on his entering into
an undertaking that the serjeant-at-
arms shall be sent against him in case
he shall be found in contempt. Vide
post, Chap. X. of Appearance.

Extraordinary
Service.

Not necessary when it can afterwards be proved that subpæna came to defendant's hands;

or that he was in the house at the time;

or had notice;

In general previous order is necessary.

Service upon prisoner.

At the suit of the Crown.

Court have considered it to be good; thus where A., who served the subpoena, deposed that he hung the same upon B.'s door, and within half an hour after saw him abroad with a writ in his hand, which he supposed to be the subpoena, an attachment was awarded, and B. committed to the Fleet for his non-appearance (a); and it has been held good service, if a person keeps the door of his house shut, and refuses to open it, to leave the writ under seal hanging upon the door of the house, or to put it into the house under the door, or within the windows; but none of these are good service, unless it can be proved that such subpoena afterwards came to the defendant's hands, or he was in the house at the time, or had notice of it; as where a plaintiff made oath that he had heard the defendant confess that he had been served with a subpoena, but had not appeared (y). And so where a person made oath that he showed and offered to deliver the subpoena to the defendant, but that he refused to accept it, and did not appear, an attachment was issued (z).

In general, however, if an extraordinary service is necessary, the safest course is for the plaintiff to apply in the first instance to the Court, by motion, supported by affidavit stating the circumstances, for an order that the particular mode of service required may be good service. Orders of this nature have, as we have seen, been granted where infants have been secreted or kept out of the way, so that they could not be personally served (a); and the Court has ordered that leaving a subpoena with the turnkey of a prison shall be good service on a prisoner at large, though if the defendant had been a close prisoner such service would be good without order (b). With reference to this case, it is to be observed, that no process can be served upon a prisoner committed at the suit of the Crown without leave, though if he has once appeared you may go on against him (c). In a case before Lord King, where an application was made that service of a subpoena on the turnkey of Newgate might be good service upon a prisoner who had been committed to that prison for

57.

(a) Rickers v. Stileman, Cary,

(y) Waters v. Bird; How v. Maddock, Cary, 104. 115.

(1) Paris v. Thomas, ibid. 134. (a) Ante, 299.

(b) Hind. 85.

(c) Anon. Mos. 237,

Service.

murder, of which he had been indicted, and a special verdict Extraordinary found, but not argued, his Lordship, as one of the commissioners of oyer and terminer before whom he was tried, made an order that the keeper of Newgate should admit the plaintiff's solicitor to serve the process upon the prisoner (d). Upon the same principle, where a defendant has quitted At defendant's last place of his residence and cannot be found, orders have been made abode. that service at his last place of abode may be good service (e), and in Sir William Pulteney v. Shelton (f), an order was obtained, upon motion, that service at the last place of abode of the defendant's wife might be good service.

-Not good

unless defendant has resided there

It seems, however, to be necessary, where service is to be made at the defendant's last place of abode, that the defendant should have resided at such place within the period within a year. of twelve months before the service of the writ; and where a writ was served at the defendant's last place of abode under an order, and it appeared afterwards that he had left his lodging above a year before, the Court held that the service was not good(g).

under cover.

The Court has permitted service of a subpæna to be made By sending it by sending it under cover to the person to whom the defendant had directed his letters to be sent; thus where a defendant had formerly frequented a certain public-house, but had not been there for six months, and had concealed himself to avoid his debts, and had written to the plaintiff upon the subject of the suit, and desired him to send his answer to a particular address, an order that service of the subpœna by sending it under cover to that address was made (h). We have seen, however, that where there was a covenant in a mortgage deed, that if the mortgagee should be desirous of filing a bill of foreclosure, service of a subpæna on a person therein named should be good service, Lord Thurlow refused to order substituted service upon such person, because to make the order sought involved the necessity of deciding upon the validity of the deed itself, which he could not do without having the party before him(i).