417.

Where the court is satisfied that a rule nisi for an attachment has reached the hands of the person against whom it is directed, and that he is keeping out of the way to avoid service, the court will make the rule absolute, notwithstanding its not having been served personally. Morris. In re, 1 B. C. C. 190; 1 C. L. R. 522.

A rule nisi for an attachment must be personally served. Even when against an attorney. Wilkinson v. Pennington, 5 Scott, 401; 6 D. P. C. 183; 7 L. J., C. P. 21. S. P., Anon., 1 D. & R. 529. Personal service of the rule for payment of costs is necessary in order to obtain an attachment, although the defendant is an attorney. Albin v. Toomer, 3 D. P. C. 563; 1 H. & W. 215. The court refused to order that service at the dwelling-house should be deemed good service of a rule for an attachment, upon an affidavit that the defendant was "shy and difficult to be met with," and that the deponent had tried all the means in his power, for two months, before he could serve the defendant personally with the award, for the non-performance of which the attachment was sought to be enforced. Garland . Goulden, 2 Y. & J. 89.

In order to ground an attachment for non-payment of costs, the rule for the payment of them, as well as the rule nisi for an attachment for non-payment, must be personally served. Birket v. Holme, 4 D. P. C. 556; 1 H. & W. 659.

In order to obtain an attachment for non-payment of costs, pursuant to a rule of court, or the Master's allocatur, there must in all cases be a personal service, unless it appears that the rule or allocatur has been seen in the actual possession of the party. Dicas v. Warne, 1 Scott. 537.

The court will not grant an attachment without personal service, in any case where the party applying has another remedy. Lowe, In re, 4 B. & Ad. 412.

It is not sufficient to show the party the original rule, without personal service of a copy. Parker v. Burgess, 3 N. & M. 36.

It is not necessary to place the original in the defendant's hands; if shown to him, so that he can read the contents, it is sufficient. Calvert v. Redfearn, 2 D. P. C. 505.

In order to obtain an attachment for non-payment of costs, pursuant to the Master's allocatur, it is not indispensably necessary that a copy of the rule and allocatur should be left in the hands of the defendant. Rex v. Koops, 3 D. P. C. 566; 1 H. & W. 213.

To bring a party into contempt for non-payment of costs, pursuant to the Master's allocatur, a copy of the rule and allocatur must be left with the defendant. Dalton v. Tucker, 5 D. P. C. 550; W. W. & D. 199.

Where it is clear that the copy of the rule and allocatur have come to the hands of the defendant, an attorney, the court will grant a rule nisi for an attachment, although strict personal service has not been effected. Phillips v. Hutchinson, 3 D. P. C. 583. S. P., Rex v. Dignam. 4 D. P. C. 359.

An order made in the presence of the party, on a motion in which he appeared by counsel, need not be served on him, to ground an attachment for non-compliance. D'Arcy v. D'Arcy, 1 Ir. Eq. R. 407.

An order which is made on hearing counsel on both sides, need not be served. Bambridge v. Castel, Mos. 199.

Where a person attends a cause to which he is a defendant, and had notice of the decree by being present when it was pronounced, if he does any act in contravention of it, he is guilty of a contempt, and liable to be committed. Skip v. Harwood, 3 Atk. 564.

Whether publication of decree of court in the provincial newspaper is a sufficient notice to agent in that neighbourhood of its contents, so as to commit him for breach of injunction, quære. Lewes v. Morgan, 5 Price, 518; 19 R. R. 566.

The practice of personal service as a foundation for process of contempt, dispensed with where the party has had notice, as upon being in court on making a short order for execution of a decree. Rider v. Kidder, 12 Ves. 202. S. P., De Manneville v. De Manneville, Id. 203; 7 R. R. 340.

A personal service of a rule of court must be made to ground an attachment for non-payment of money, pursuant to a judge's order, which is afterwards made a rule of court; and service of the order and allocatur is not sufficient, nor is service of the rule on the London agents of the attorney sufficient. Woollison v. Hodgson, 3 D. P. C. 178.

It is no answer to a rule for an attachment, that the judge's order, which has been made a rule of court, has not been personally served, if the rule itself has been regularly served. Greenwood v. Dyer, 5 D. P. C. 255.

Where, in moving for an attachment absolute in the first instance for non-payment of costs, pursuant to a rule of court, it appears that accidentally it has not been stated that the original rule was shown at the time of service, the court will allow the attachment to lie in the office until the defect is supplied. Davies v. Skerlock, 7 D. P. C. 592.

Disobedience to Order of Court.]—The court will not dispense with personal service of a rule nisi for an attachment for disobedience of a rule of court. Swinfen v. Swinfen, 1 C. B. (N.S.) 364; 26 L. J., C. P. 97; 3 Jur. (N.s.) 85; 5 W. R. 203.

A rule nisi was obtained against a solicitor to show cause why an attachment should not issue against him for disobedience to an order of the court. There was no personal service of such rule nisi upon him. He had at one time instructed counsel to show cause against the making absolute of such rule, and such counsel had consented to an application for a postponement of the hearing being made to the court by the counsel for the applicant, but upon the application to make absolute the rule nisi, the counsel who had been instructed formerly did not appear, nor did any one appear on behalf of

An attachment may be issued for disobeying an order to do an act within a specified time after notice of the order, although the person served has received actual notice of it (by means of an informal service), and the specified time after receiving that actual notice has already elapsed before the order is regularly served. Gregg, In re, Prance, In re, 39 L. J., Ch. 107; L. R. 9 Eq. 137; 23 L. T. 234; 18 W. R. 589.

Service on Solicitor.]-Service of a notice of motion for a writ of attachment upon the solicitor on the record of the party against whom the attachment is to be issued, is sufficient notice to the party, without personal service. Browning v. Sabin, 46 L. J., Ch. 728; 5 Ch. D. 511. S. P., Richards v. Kitchin, 36 L. T. 730; 25 W. R. 602. A party must be personally served with notice of a motion for an attachment, and service on his solicitor in the cause will not be sufficient, although the order, in respect of a breach of which the attachment is asked for, has been personally served, unless it is shown that personal service on the party cannot be effected. Mann v. Perry, 50 L. J., Ch. 251; 44 L. T. 248. And see Hampden v. Wallis, col. 900, supra.

Waiver, Appearance does not Operate as.]— There must be a personal service of a notice of motion for committal, and the appearance of the contemnor upon the hearing of the motion to commit in order to take an objection to an irregularity in the service of the notice of motion does not operate as a waiver of the irregularity, since the liberty of the subject is in question. Mander v. Falcke, 61 L. J., Ch. 3; [1891] 3 Ch. 488; 64 L. T. 791.

Indorsement of Copy of Order Served.]-An attachment may be granted for disobedience of an order, though the copy of the order served on the party in default has not the indorsement required by the CIVth Gen. Ord. of March, 1843, or the XCIXth Gen. Ord. of October, 1867, as varied by the Ist Gen. Ord. of April, 1873. Thomas v. Palin (21 Ch. D. 360) followed. Wallace v. Graham, 11 L. R., Ir. 369.

On Defendant's Wife.]-The court refused to make a rule absolute for an attachment, where the service of the rule nisi had been on the wife of the defendant at his dwelling-house, the person effecting the service exhibiting the original. Guard, In re, 6 Jur. 916.

On Defendant's Son.]-Where a copy of a rule nisi for an attachment was delivered to the defendant's son, who refused to say where his father was, and an appointment was made for a subsequent day :-Held, not sufficient to dispense with personal service. Ibbertson, In re, 5 D. P. C. 160.

Insufficiency of Demand.]-A judge's order was served upon C., an attorney, calling upon him to deliver his bill of costs to B. within ten days. This order, not having been obeyed, was made a rule of court, and the rule was served upon C. by B.'s clerk, who at the same time demanded the bill of costs, but had no power of

On Partners.]-An attachment for disobedience of a judge's order will not be issued against two partners unless each has been served with the order. Welland, Ex parte, 11 C. B. 544.

On Sunday.]-A rule nisi for an attachmentMaster's allocatur cannot be served on a Sunday. for non-payment of money pursuant to the beham v. Smith, 8 Term Rep. 86.

Non-Service-How Objection Taken.]-The court will not open a rule for an attachment not been served; at least unless he shows some on the mere affidavit of the party that he has mistake in the service. Hopley v. Granger, 1 Bos. & P. (N.R.) 256.

served

father named Holt should deliver over his infant Order Wrongly Entitled.]-An order that a daughter to her mother was intituled in the matter of the infant (naming her), and in the matter of the Act 36 & 37 Vict. c. 12. The copy matter of the act, but was indorsed on the outon the father was intituled only in the side "Re Holt":-Held, that the service was ineffectual, and that the order to attach must be discharged. Holt. In re, 11 Ch. D. 168; 40 L. T. 207; 27 W. R. 485.

d. Demand.

When Necessary.]-In order to bring a party into contempt by not paying money according to an order, a demand of the money must be made after the order has been made a rule of court. Chilton v. Ellis, 2 D. P. C. 338; 2 C. & M. 459; 4 Tyr. 369.

Where a judge's order directed that certain deeds should be given up on a tender of, &c., to the plaintiffs or their agent:-Held, that before an attachment for a refusal of the tender to him, the plaintiffs must have notice of that tender, and be personally required to give up the deeds. Evans v. Millard, 3 D. P. C. 661; 1 Gale, 138; 4 L. J., Ex. 156.

To sustain an attachment for disobedience of a rule requiring a party to execute a conveyance, it is not enough merely to serve him with a copy and to show him the original rule; there must be an express demand upon him to do the act which the rule commands him to do. Swinfen v. Swinfen, 18 C. B. 485; 25 L. J., C. P. 303.

In order to obtain an attachment for non-payment of costs, a demand is not necessary, if the party sought to be served by his violence prevents the demand from being made. Wenham v. Downes, 3 D. P. C. 573; 1 H. & W. 216.

An attorney's bill having been ordered to be taxed after the client had given a bill of exchange for the amount, it was found that he had been overpaid, and the attorney was ordered to refund the overpayment to the client; and also, by a subsequent order, to pay the costs of taxation, more than a sixth having been taken off. Upon an application of the attorney to be allowed to pay these sums to the holder of the bill of exchange (which had been dishonoured), instead of his client, he was ordered to do sowithin a week, or, in default, that an attachment.

Bail.-Two days' notice of bail on an attachment is not required, nor any justification of such bail. Rer v. Hall, 2 W. Bl. 1110.

A defendant may be admitted to bail, and sworn to answer interrogatories upon an attachment for contempt, although a defective notice of bail has been served on the prosecutor. Anon.,

4 D. & R. 393.

Jurisdiction to Commit for Default in Payment of the Costs.]-Upon a motion for an attachment, no order was made, except that the respondent pay the costs of the motion. Upon default in payment:-Held, that the court had no jurisdiction to commit to prison for the default. Micklethwaite v. Fletcher, 27 W. R. 793.

Attachment for costs, not absolute in first instance when rule ordering payment is a rule making a judge's order ordering to do an act a rule of court, and the applicant will not abandon the right to apply for an attachment on the other party for disobedience of the order. Crisp v. Groombridge, 27 L. J., Q. B. 183.

Discharge from Arrest.]- An attorney was arrested under an attachment issued by a court of law for contempt of court in not obeying a previous order that he should pay to a client a sum which he had received for him while acting in the capacity of attorney. Before the attachment issued the attorney had been adjudicated bankrupt, but when he was arrested the bankruptcy was not closed, nor had he obtained an order of discharge :-Held, that the Court of Bankruptcy ought not to order his release from custody, but ought to leave the court of law to decide whether the attachment was merely a process to compel payment of a debt, or whether it was issued in the exercise of the court's quasi criminal jurisdiction over its own officer. Deere, Ex parte, Deere, In re, 44 L. J., Bk. 120; L. R. 10 Ch. 658; 33 L. T. 115; 23 W. R. $66.

Where a party is arrested under an attachment for contempt of court in not paying money, he is not entitled to be discharged upon tendering the amount to the officer. Pitt v. Coombs, 3 N. & M. 212; 5 B. & Ad. 1078.

A party irregularly arrested upon an attachment on the 3rd of February, did not apply for his discharge until the 10th day of Easter Term, which was at the end of the month of April:Held, that the application was too late. Reg. v. Burgess, 3 N. & P. 366; 8 A. & E. 275 ; 2 Jur. 856. If there is a misnomer of the christian name of the defendant in a writ of attachment, though amended by order of a judge after arrest, the court will discharge him out of custody. Reg. v. Burgess, 1 W. W. & H. 46; 2 Jur. 396.

Priority of Motion to Discharge a Prisoner from Custody.]-A motion to discharge a prisoner from custody has priority over all other motions. Ashton v. Shorrock, 43 L. T. 530; 29 W. R. 117.

Setting Aside.]-A rule for an attachment having been obtained on the part of a woman, who described herself in an affidavit as a widow, against her attorney for not paying her a sum of money, the court set aside the rule on its being shown that she was a married woman (her second marriage having taken place subsequently to her employment of the attorney), since, although the concealment of her second marriage was not made with any fraudulent intention, she had deceived the court, made a false affidavit, and was no longer in a condition to give a legal discharge for the money. Reg. v. Carttar, 1 L. M. & P. 386; 19 L. J., Q. B. 422; 15 Jur. 176. A summons or notice of motion to set aside

proceedings for irregularity should state the several objections on which the applicant intends to insist. (See Ord. LXX. r. 3.) Ib.

Sheriff-Execution of Writ-Breaking Open Outer Door.]-Where a writ of attachment has issued against a party to an action for contempt of court in non-compliance with an order for the delivery over of deeds and documents, the officer charged with the execution of the writ may break open the outer door of the house in order to execute it. Burdett v. Abbott (14 East, 1), and Freeston, In re (11 Q. B. D. 545), discussed. Harvey v. Harvey, 26 Ch. D. 644 ; 33 W. R. 76; 48 J. P. 468.

ATTAINDER.

(See 33 & 34 Vict. c 23, s. 1.)

Of Peers.]-See PARLIAMENT.

J. M. L.

Effect of Felony.]-See CRIMINAL LAW (FELONY).

ATTENDANT TERM. See MERGER.

ATTORNEY.

See SOLICITOR.

Power of.]-See PRINCIPAL AND AGENT.

ATTORNEY-GENERAL.

See CROWN (LAW OFFICERS).

See WARRANT OF ATTORNEY.