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ing it under cover, to the person to whom the de- How ob
tained. fendant desired plaintiff to address his letters, has been ordered to be good service (a); service upon the defendant, while abroad, or in Scotland, has been deemed sufficient(b). There seems to be considerable doubt, whether leaving the subpæna or label at the counting-house, or place of business of a defendant, will be sufficient service. In a case in the Exchequer, where this point was discussed, two precedents (c) were produced in favour of the practice; the court, however, said, that a counting-house was not a proper or convenient place to serve a party with a subpæna, being neither the place of his abode nor residence, but devoted to mercantile concerns; and notwithstanding the precedents, held that it was not good service (d). Lord Thurlow also, in a case where the defendant lived at Epsom, and, being a barrister, had chambers in the Temple, was of opinion that service at his chambers was not sufficient (e). In a recent case, however, it seems to have been admitted that the subpæna may be left at the counting-house or place of business of a person abroad at the time, if it be delivered to some partner or acknowledged clerk (f). But in that case, the defendant used as his counting-house, a room in the lower part of the dwelling-house of a
(a) Hunt v. Lever, 5 Ves. 147.
(6) Bourke v. Lord Macdonald, 2 Dick. 587. Scott v. Hough, 4 Bro, C. C. 213.
(c) Shoolbred v. Boats in Scac. 25 Nov. 1795. The Attorney General v. Cecil, ib. 24th March, 1787.
(d) Nesbitt v. Bird, 1 Fowl. Ex. Pr. 124.
person who let the whole of the apartments on his ground floor to different merchants for the purpose of business; the subpæna had been left with the servant of the proprietor of the house, which the court held insufficient. Leaving the subpæna at the lodgings of a defendant, who had left them twelve months previous thereto, was holden insufficient (a). The court on motion will order that leaving the subpæna with the turnkey of a prison, be good service on a prisoner at large. If the defendant be in close custody, such service is good without motion (6).
Service on the husband alone is good service where both husband and wife are co-defendants; but service on the wife will not be deemed sufficient, though an order may, under circumstances, be specially obtained for that purpose (c). Where children are defendants, and their parents are secreting them, service has frequently been directed to be made upon the parents (d). Service on one partner is good service upon another partner who is abroad (e).
Great laxity of practice formerly prevailed in permitting service upon agents, clerks in court, and other persons, to be good service where a defendant
Substituted service of subpæna.
(a) Parker v. Blackburn, 2 Vern. 369.
(c) Pulteney v. Shelton, 6 Ves. 147. according to the correct statement of the case among the errata at the beginning of that volume.
(d) Baker v. Holmes, 1 Dick. 18. Hockley v. Lukin, ib. 353. Garnum v. Marshall, ib. 77. S. C. 2 Atk. 70. Thompson v. Jones, 8 Ves. 141.
(e) Lady Carrington o. Cantillon, Bunb. 107. Furnes v. Lawes, ib. Coles v. Gurney, 1 Mad. Rep. 187.
was abroad (a). This, however, has since been How obremedied, and even where there has been a cross cause, service on the clerk in court, has been holden to be insufficient (6). But where a defendant, to a bill to restrain his Service on
defendant's proceeding at law, resides abroad, it is usual to direct
attorney at that service of the subpæna, upon the attorney em- law. ployed in the cause at law, shall be deemed good service. This practice was made a vehicle of great injustice, from the delay which it permitted a defendant to interpose, to the right of a plaintiff who happened to be abroad. The courts, therefore, established a rule, that where a plaintiff at law is abroad, the defendant at law shall not obtain an injunction, without an affidavit of the equity of his bill. There is a difference in the practice of the Courts of Chancery and Exchequer as to the stage of the proceeding when this affidavit is required, and as to the mode in which the application is to be made. They are neither of them, however, very material, as substantial justice is obtained by the practice of both courts. In the Court of Chancery an affidavit of merits, In the Court
of Chancery must attend the application that service of the sub
(a) Hales v. Sutton, 1 Dick. 26. Carter o. De Brune, ib. 39. Hide v. Forster, ib. 107. Leslie v. cit. 1 Sch. & Lef. 238. Gardiner v. Mason, 4 Bro. C. C. 478.
(6) Roberts v. Worsley, 2 Cox, 389. Bond v. Duke of New. castle, 3 Bro. C. C. 389. Anderson v. Lewis, ib. 429. 2 Dick. 776. Smith v. Hibernian Mine Company, 1 Sch. & Lef. 238. Rickcord v. Nedriff, 2 Meriv. 458. In Gildenichi v. Charnock, 6 Ves. 171. service
upon the clerk in court of a subpæna to answer an amended bill was under very peculiar circumstances allowed to be good service.
How oo. tained.
pæna on the defendant's attorney at law, should be good service (a). In one case, indeed, Lord Thurlow was of opinion, in conformity to the practice in the Exchequer, that this order might be obtained without affidavit, and that the affidavit must be made upon the subsequent application for the injunction (6). In a previous case, however, he had been of a different opinion (C), and his first determination has been subsequently followed (d). It has also been decided in opposition to the practice in the Exchequer, that it is not necessary, that the affidavit should state, a previous refusal by the attorney to
accept the subpæna (e). In the Court The practice in the Court of Exchequer, is stated of Exchequer.
by Mr. Fowler (f), to be for the attorney of the defendant at law, to apply to the plaintiff's attorney, to know if he will accept of a subpæna to appear. If he refuses, an affidavit is made of such application and refusal, and the court makes the order. This is a motion of course, and no affidavit of merits is required (8). If the attorney neglect to enter an appearance, an injunction is moved for, upon the expiration of the return of the subpæna, supported by an affidavit of the merits of the bill upon an attach
(a) The affidavit may be made by the solicitor, if he has personal knowledge of the merits. 3 Mad. 551.
(6) Burke v. Vickars, 3 Bro. C. C. 24.
(d) Stephens v. Cini, 4 Ves. 359. Fullarton v. Wallace, ib. 360. n. Anderson v. Darcy, 18 Ves. 447. White v. Klevers, ib. 471, Kenworthy v. Accunor, 3 Mad. 550. Baillie v. Larkens, cit. ib.
(e) French v. Roe, 13 Ves. 593.
ment. When the eight days for answering are ex- How ob
tained. pired, an attachment pro formá is made out, and upon producing this to the court, and reading an affidavit verifying the facts stated by the bill, the court, if satisfied with the merits of the case, will grant an injunction till answer or further order (a).
This motion is generally made without notice ; in the following case, however, the court held that notice was necessary.
An agent had effected a policy for his principal, who resided in Spain, and afterwards brought an action in his own name only, against the underwriters and others, who filed a bill for an injunction against both the principal and agent; the agent appeared and answered in eight days: the usual affidavit of merits was produced on moving for an injunction against the principal: the counsel for the agent objected to the motion for want of notice, and the court held, that though in ordinary cases notice is not necessary, yet that it was so in the present case, the action having been brought in the name of the agent only (6).
The court, it is said, does not expect a plaintiff to verify all the allegations in his bill with the same precision that is required in an answer; it will be sufficient, if he substantiate the general head of equity, which will entitle him to an injunction (c): but a material variance, between the bill and the affidavit, would be fatal. As where the bill stated that bills of exchange, which were the subject of the action, were lent for the defendant's accommodation, whereas the affidavit stated that they were
(a) 1 Fowl. Ex. Pr. 223, et seq.