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such manner and in such cases as it shall think 158 16Vict. fit (f). (e) See 10th and 11th Orders, 7th August, 1852.
The Service of service of a subpæna, except for costs, was of no validity bill or claim. if not made within twelve weeks after the teste of the writ. (16th Order (Art. 1), May, 1845.) During this period Sundays are excluded, on which days no service can be effected. (Machuth v. Nicholson, 19 Ves. 367.) Ordinary service must be within the jurisdiction of the court, and is effected by delivering a copy of the bill or claim, and of the endorsements thereon, to the person to be served, or else by leaving such copy at the dwelling-house of the person to be served. Where husband and wife are defendants, service upon the husband alone is sufficient. (Gee v. Cottle, 3 My. & C. 180.) So service on the husband, who was a prisoner for debt in the Queen's Prison, was held good service on the wife, she not being separated from her husband. (Holcombe v. Trotter, 9 Jur. 637.) Service on the deputy-governor of a prison has, under particular circumstances, been held good service upon a defendant confined therein. (Newenhum v. Femberton, 2 Coll. 54.) Service of a subpæna, by leaving a copy at the defendant's residence, sealed up in a letter, at the same time producing the original, was held regular. (Earl of Chesterfield v. Boud, 2 Beav. 263.) Sending a copy of a subpæna to the defendant at his father's residence was held insufficient, although the defendant had admitted the receipt of it. (Gathercule v. Wilkinson, 11 Jur. 1096.) Affidavits, filed for the purpose of proving the service of the writ, are to state when, where, and how the writ was served, and by whom such service was effected. (34th Order, May, 1845.) An affidavit not showing where the writ was served was held insufficient. (Beckford v. Skewes, 9 Sim. 426.) The acts, 2 Will. 4, c. 33, Service of and 4 & 5 Will. 4, c. 82, contain provisions as to the service process out of process on defendants in any part of the united kingdom diction. of Great Britain and Ireland : both these acts extend to Scotland. (Cameron v. Cameron, 2 My. & K. 289; Purker v. Lloud, 5 Sim. 508.) Since the promulgation of the orders of May, 1845, proceedings against defendants out of the jurisdiction have generally been taken under such orders, and not under the statutes. Subpænas to appear, or to appear and answer, which are served out of the jurisdiction of the court, are to be made returnable at such time after the service thereof as the conrt by special order may direct; and if an answer be required, each such subpæna is to specify the time after service within which the defendant is required to answer. (23rd Order, May, 1845.) Where a defendant in any suit is out of the jurisdiction of the court, the court, upon application supported by such evidence as shall satisfy the court in what place or country such defendant is or may probably be found, may order that the subpæna to appear to and answer the bill may be served on such defendant in such place or country, or
158 16Vict. within such limits as the court thinks fit to direct. (33rd
Order (Art. 1), May, 1845.) An affidavit, stating the residence of the defendant seven weeks prior to the application, was held insufficient for the purpose of showing the present residence. (Freshe v. Buller, 7 Beav, 581.) Such order is to limit a time (depending on the place or country within which the subpæna is to be served), after service of the subpæna, within which such defendant is to appear to the bill, and also (if an answer be required) a time within which such defendant is to plead, answer or demur, or obtain from the court further time to make his defence to the bill. (33rd Order (Art. 2), May, 1845.) At the time when such subpæna shall be served, the plaintiff is also to cause such defendant to be served with a copy of the bill, and a copy of the order giving the plaintiff leave to serve the subpæna. (33rd Order (Art. 3), May, 1845.) It is not necessary so to limit the plaintiff in serving the subpæna, as to confine him to the city or place where the evidence states that the defendant may be found, but the order may extend to the whole of the kingdom, as 'any where in Scotland.” (Blenkinsopp v. Blenkinsopp, 8 Beav. 612 ; Preston v. Dickenson, 9 Jur. 919; Jones v. Giddes, 9 Jur. 1002.) And if, upon the expiration of the time for appearing, it appears to the satisfaction of the court that such defendant was duly served with the subpæna, and with a copy of the bill and a copy of the order, the court may, upon the application of the plaintiff, order an appearance to be entered for such defendant. (33rd Order (Art. 4), May, 1845.) Under the 33rd Order of May, 1845, it is in the discretion of the court to order that service shall, or shall not, be made on defendants abroad, in any suit whatever concerning a subjectmatter over which the court has jurisdiction. (Whitmore v.
Ryan, 4 Hare, 612.) Substituted (f) Where it shall appear upon affidavit, to be made to the tains a review of the cases.) The court will require satisfac- 158 16Vict. tory evidence that the defendant has appointed an agent for
satisfaction of the Court of Chancery, that any defendant in any suit concerning funds, stock or shares, cannot, by reasonable diligence, be personally served with the subpæna to appear and answer, or that upon inquiry at his usual place of abode he could not be found, so as to be served with such process, and that there is just ground for believing that such defendant secretes or withdraws himself so as to avoid being served with the process of such court, then such court may order that the service of the subpæna to appear and answer shall be substituted in such manner as the court shall think reasonable and direct by such order. (4 & 5 Will. 4, c. 82, s. 2. See 31st Order, May, 1845, and Cope v. Russell, 2 Phill. C. C. 404.) If a defendant, who is out of the jurisdiction, has given special authority to a person within the jurisdiction to act as his agent with respect to the property which is the subject of the suit, the court would order service of the subpæna to appear and answer on that person to be deemed good service on the defendant. (Hobhouse v. Courtney, 12 Sim. 140, which con
c. 86. the purposes of the suit (Murray v. Vipart, 1 Phill. c. č. 521); and has refused to sanction service on a solicitor who stated that he had no authority to appear for the defendant, who was abroad, and that he was not professionally concerned for him. (Webb v. Salmon, 3 Hare, 251. See Cooper v. Webb, 5 Beav. 391 ; Weymouth v. Lambert, 3 Beav. 333.) On a bill to enforce the performance of trusts for the sale of estates, part of which had been sold, against the trustees, who could not be found, substituted service was ordered on the defendant's solicitor, who had acted on his behalf in the business of the preparation of the trust deed, and of all the sales which had taken place under it. (Hornby v. Holmes, 4 Hare, 306. See Murray v. Vipart, 1 Phill. c. c. 521.) After a decree for a specific performance the sole plaintiff died; his personal representatives filed a bill of revivor ; one of the defendants was supposed to be in America, but he had not absconded within the meaning of the 31st Order of May, 1845, and his actual place of residence was not known; substituted service of the subpæna for him to appear to the bill of revivor was allowed to be made upon the solicitor who had acted for him in the original suit. (Norton v. Hepworth, 1 Mac. & G. 54; 1 Hall & T. 158. See Bankier v. Ponle, 3 De G. & S. 375; Wallis v. Derby, 6 Hare, 618; Laurie v. Burn, ibid. 308.) defendant having gone abroad, substituted service of the replication, and other process in a supplemental suit, was ordered to be made on the solicitor in the original suit. (Scott v. Wheeler, 20 Law J. Ch. 331.)
VI. Notwithstanding the provisions hereinbefore Written cocontained, the clerks of records and writs of the pies of bills said court may receive and file a written copy of served in cerany bill of complaint praying a writ of injunce upon plaintion (g) or a writ of ne exeat regno (h), or filed for tiff under the purpose either solely or among other things of taking to file making an infant a ward of the said court, upon copy in fourthe personal undertaking of the plaintiff or his solicitor to file a printed copy of such bill within fourteen days, and every bill of complaint so filed shall be deemed and taken to have been filed at the time of filing the written copy thereof; and a written copy of any such bill of complaint, stamped as aforesaid, and with such endorsement thereon as aforesaid, may be served on any defendant thereto, and such service shall have the same effect as the service of a printed copy.
(8) See 2nd and 3rd Orders, 7th August, 1852. To justify
or claim at
158 16Vict. the application for an order for an injunction, it is necessary
that a bill should have been filed, there being no instance of the writ of injunction having been granted without the institution of a suit. (4 Inst. 92; 1 Vern. 156.)
(h) A bill must be filed before the plaintiff can move for a writ of ne ereat regno, and before any affidavit in support of the motion can be sworn. (Anon. 6 Madd. 276.)
VII. The plaintiff in any suit to be commenced deliver printed co.
in the said court after the time hereinafter appointed pies of bill for the commencement of this act shall be bound rate pre
to deliver to the defendant or his solicitor, upon scribed by
application for the same, such a number of printed copies of his bill of complaint or claim as he shall have occasion for, upon being paid for the same at such rate as shall be prescribed by any general order of the Lord Chancellor in that behalf (i).
(i) See 5th and 6th Orders, 7th August, 1852, post. Provisions as
VIII. Upon the amendment (j) of any bill of to filing, &c. prints of ori- complaint or claim to be filed in the said court ginalbill ex- after the time hereinafter appointed for the comamendments. mencement of this act, the provisions hereinbefore
contained with respect to filing and serving and ed bill may delivering printed copies thereof shall, so far as be wholly or partially
may be, extend and be applicable to the bill claim as amended : provided that where, according to the present practice of the said court, an amendment of a bill or claim may be made without a new engrossment thereof (k), or under such other circumstances as shall be prescribed by any general order of the Lord Chancellor in that behalf, a bill or claiin may be wholly or partially amended by written alterations in the printed bill of complaint
or claim so to be filed as aforesaid. Amendment (j) See post, s. 53. As to the amendment of bills and claims
see 7th, 8th, and 9th Orders, 7th August, 1852. Applications for leave to amend bills or claims are to be disposed of in chambers by the judges, 15 & 16 Vict. c. 80, s. 26. No alteration can be made in a bill or other pleading after it has been filed, and thus become a record of the court, without the sanction of a previous order. (Dan. Ch. Pr. 387, 2nd ed.) Where a bill is found not to contain such material facts, or to make such persons parties as are necessary to enable the court to do complete justice, it may be altered by the insertion of new matter subsisting when the bill was filed, but which was not then known, or which may have been then deemed unnecessary, or by the addition of such persons as may seem necessary parties. I
may also be altered by striking out irrelevant matter, or un- 158 16Vict. necessary parties, if such should appear; but though the bill thus altered is called an amended bill, it is in fact a continuation of the original bill, and constitutes with it but one record. (Hind, 21, 22.) Amendments, therefore, relate either to the parties or the substance of the bill. These amendments must be made in accordance with the rules laid down by the orders of the court. An order for leave to amend a bill may be obtained at any time before answer, upon motion or petition, without notice. (64th Order, May, 1845.) After one only of several defendants has answered, a second order to amend cannot be obtained as of course, even with his consent. (Bainbrigge v. Baddeley, 12 Beav. 152.) An order for leave to amend a bill, only for the purpose of rectifying some clerical error in names, dates, or sums, may be obtained at any time, on motion or petition, without notice. (65th Order, May, 1845.) One order of course for leave to amend a bill as plaintiff may be udvised, may be obtained by the plaintiff at any time before filing, or undertaking to file, a replication, and within four weeks after the answer, or the last of several answers, (Sprye v. Reynell, 10 Beav. 351,) is to be deemed sufficient. (See 16th Order (Art. 14), May, 1845; 18th Order, 2nd November, 1850.) A second order of course to amend is irregular. (Horsley v. Fawcett, 10 Beav. 191.) Afler replication, an order of course to amend, for the limited purpose of adding parties, is irregular. (Hitchcock v. Jacques, 9 Beav. 192.) An order for leave to amend a bill as plaintiff may be advised, or to amend by adding parties, does not authorize the putting in the names of other persons as coplaintiffs, (Milligan v. Mitchell, 1 My. & C. 433,) or striking out the names of co-plaintiffs with the statements relative to their interests (Sloggett v. Collins, 13 Sim. 456); but it was permitted on giving security for costs in Fellows v. Deere (3 Beav. 353). One of two co-plaintiffs, who had authorized the institution of a suit, refused to proceed therein ; the other plaintiff obtained an order to amend by making him a defendant, and to pay the costs. (Brown v. Sawer, 3 Beav. 598.) One order of course for leave to amend a bill as the plaintiff may be advised, may be obtained by the plaintiff, at any time before filing (or undertaking to file) a replication, and within four weeks after the answer, or the last of several answers, is to be deemed sufficient; but no further order of course for leave to amend a bill is to be granted after an answer has been filed, unless in the case provided for by Order 65. (66th Order of May, 1845.) The plaintiff is not to obtain an order of course for leave to amend his bill after a defendant (being entitled to move) has served a notice of motion to dismiss the bill for want of prosecution. (Order of 13th April, 1847. See Jones v. Lord Charlmont, 12 Jur. 389; 17 Law J. Ch. 449.) The expressions “last answer," and the “ last of several answers,' in the General Orders, regu