junction to stay proceedings at law shall be prayed for by the bill, and shall either not be obtained, or having been obtained, shall have been dissolved upon the merits stated in the answer, and the plaintiff shall afterwards amend his bill, and the defendant shall not plead, answer, or demur to the amended bill within eight days after appearance, the plaintiff shall be entitled to move for an injunction, upon affidavit of the truth of the amend

ments.'

The amendment of a bill is not such a procedure as will prevent the defendant moving to dismiss, unless a subpoena is issued, or a replication filed (Bramston v. Carter, 2 Sim. 458.)

When the plaintiff amends his bill without requiring any further answer, and the amendments are any other than the alterations of names, dates, or sums, or the correction of clerical errors; the defendant has eight days to consider whether he will answer the same, after which the plaintiff may reply, and set down the cause on bill and answer, unless the defendant serves an order or warrant for further time to answer the amendments (14 Order, 21 Dec. 1833, and Lloyd v. Lloyd, 2 Cox, 631.)

Costs of.] If the plaintiff amends his bill before the defendant has appeared, it is without costs. So also after appearance, and even after answer, if the plaintiff require no answer to the amendments, it is without costs, provided the bill be not re-engrossed; but in such case the plaintiff must amend the defendant's office copy bill.

Previously to the orders of 3rd April 1828, if a new engrossment was necessary, or the plaintiff required a further answer to the amendments, 20s. costs were paid to the defendant. But by the 29th of these orders it is ordered, "That where the plaintiff is directed to pay to the defendant the costs of the suit, there the costs occasioned to a defendant by any amendment of the bill, shall be deemed to be part of such defendant's costs in the cause, (except as to any amendment which may have been made by special leave of the court, or which shall

appear to have been rendered necessary by the default of such defendant;) but there shall be deducted from such costs any sum or sums which may have been paid by the plaintiff, according to the course of the Court, at the time of any amendment."

"That

And by the 30th id. it is also ordered, when upon taxation a plaintiff who has obtained a decree with costs, is not allowed the costs of any amendment of the bill, upon the ground of its having been unnecessarily made, the defendant's costs occasioned by such amendment, shall be taxed, and the amount thereof deducted from the costs, to be paid by the defendant to the plaintiff."

As to the dismission of a bill, (see poste, Part II. chap. 4.

SECTION 2.

THE SUBPOENA.

As soon as the bill is filed, the next step to be taken by the plaintiff, in order to compel the defendant's appearance to the suit, (except in the case of Peers), is to issue a writ of subpoena.

Form of.] The form of the writ is prescribed by the 1st order, 21st Dec. 1833, "with such alterations and variations as circumstances may require." By the 14th order, 26th Aug. 1841, however, it is ordered, "That the memorandum at the foot of the subpoena to appear and answer, shall hereafter be in the form following: that is to say,-"Appearances are to be entered in the Six Clerks' Office, in Chancery-lane, London, and if you do not cause your appearance to be entered within the time limited by the above writ, the plaintiff will be at liberty to enter an appearance for you, and you will be subject to an attachment, and the other consequences of not answering the plaintiff's bill, if you do not put in your

answer thereto within the time limited by the general orders of the Court for that purpose.' It will be per

ceived that in consequence of the abolition of the Six Clerks' Office, this memorandum requires to be further altered by substituting the words "Record and Writ," instead of "Six" (Clerks' Office,) and which it is presumed may be done under the authority of the 1st order, 21st Dec. 1833, which allows of "such alterations and variations, as circumstances may require."

How Indorsed.] The name or firm, and the place of business or residence of the solicitor or solicitors issuing a subpoena, must be indorsed thereon; and where such solicitors are 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 (3rd ord. 21st Dec. 1833).

Return of] By the form prescribed by the 1st ord. 21st Dec. 1833, the subpoena, in a town cause, or when the defendant resides in London or within 20 miles thereof, is made returnable within four days, and in a country cause, or when the defendant resides beyond that distance, within eight days after service thereof, exclusive of the day of such service.

Præcipe for.] A præcipe in the usual form, and containing further the particulars previously mentioned, with respect to the name and residence of the solicitor issuing the subpoena, must in all cases be delivered and filed at the Subpoena Office (id. 2).

scribed with the words 66

How Prepared and Issued.] All writs of subpoena are to be prepared by the solicitor of the party requiring the same, and the seal for sealing the same is to be inSubpoena Office, Chancery," (id. 1.) Every subpoena, other than a subpoena duces tecum, is to contain three names when necessary or required (id. 5), a husband and wife being reckoned as one. The writ is directed to the defendants by their christian

and surnames, but does not require any further description of them. Obtain a writ, which may be had at the Law Stationers, and fill it in as in form p. 17, Appendix, and on the back indorse the name and address of the solicitor and agent; after which prepare a pracipe (see form p. 20, Appendix) on a slip of paper.* Take the writ and præcipe to the Subpoena Office, and upon your handing them to the clerk of the subpoenas, he will seal the writ and file the præcipe. Pay him 5s. 6d.

Amendment of.] In the interval between the suing out and service of any subpoena, the party suing out the same is at liberty to correct any error in the names of parties or witnesses, and to have the writ re-sealed, upon payment to the clerk at the Subpoena Office, of a fee of 1s., and at the same time leaving a corrected præcipe of such subpoena marked, "altered and re-sealed," and signed with the name and address of the solicitor or solicitors suing out the same (7th ord. 21st Dec. 1833). This order merely applies to the names of parties and witnesses, and if any other correction becomes necessary, a fresh subpoena must be issued.

Service of] Formerly, the subpoena consisted of a body under seal and two lables. These lables were required to be served personally, whereas the body might be served by leaving it at the defendant's dwelling-house, or with his servant, or one of his family (Beam. ord. Chan. 169, 171.)

By the 4th order, 21st Dec. 1833, it is ordered, "That the service of subpoenas shall be effected by delivering a copy of the writ and of the indorsement thereon, and at the same time producing the original writ; and that in all cases where a subpoena might heretofore have been served by leaving the body thereof at the party's dwell

*It will be found convenient for the purpose of making indexes and searches, if all præcipes are written on paper of the same size, as on the sixth part of a sheet of draft paper, or the eighth part of a sheet of foolscap.

ing-house, or otherwise than personally; it shall be sufficient to leave a copy of such subpoena in the same manner, producing the original writ to the person with whom such copy shall be so left."

Make as many copies of the writ as there are defendants, and serve each defendant with a copy, at the same time producing the original; after which it will be advisable for the party serving the writ, to make a memorandum thereof on the back, in case an affidavit of service should be required (see form p, 11, Appendix.)

Where a subpoena was served by leaving a copy at the defendant's residence sealed up in a letter, at the same time producing the original, it was held to be regular, (Earl Chesterfield v. Bond, 2 Beav. 263.) A subpoena served on a Sunday is irregular, (Mackreth v. Nicholson, 19 Ves. 367.) The subpoena must be served by the last day of the Term next following the Term or Vacation in which it was sued out, (7th ord. 21st Dec. 1833.) Service on the solicitor of a subpoena to answer an amended bill, is deemed good service, (20th ord. 1828, as amended by 31st ord. 26th Oct. 1842.)

Substituted Service.] Under special circumstances, the Court will in some instances grant an order, to substitute service of the subpoena upon a party therein named (the defendant's solicitor, for instance), for the usual service. Thus, where a defendant's executor residing abroad, had given a power of attorney to any person to prove the Will, which was the subject matter of litigation, the court allowed service on such person to be good, (Smith v. Hibernian Mining Comp. 1 Sch. & Lef. 259,) so in an injunction cause, service on the Attorney at Law of the defendant was allowed, (ib.) Where, however, an application was made that service of the subpoena on the general solicitor of the defendant, who was a trustee of the fund in question in the cause, might be deemed good service, the defendant being abroad, the Court declined making any order (Node v. Backhouse, 7 Jur. 808). Where a bill was filed against two part