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the court have directed the service of a subpæna upon the turnkey; though, if he had been a close prisoner, such order would have been unnecessary and the service would have been good. A service has been directed to be made by sending a copy of the writ under cover to the person to whom he had directed his letters to be sent." Though in general, when there are several partners defendants, the writ must be served on each of them ; 12 yet, when one of the partners is abroad, out of the jurisdiction of the court, a subpoena has been directed to be served on the partner who was present.
4192. The service of a subpoena upon an aggregate corporation must be made upon such officer as by law may be served with process, or, it is said, upon some one of the members. 14
4193. Upon the return of the subpæna, as served and executed upon any defendant, the clerk enters the suit upon the docket of the court, as pending in the court, and the defendant is required by the return day of the writ, if he has been served with process in proper time, according to the rules of the court or the provisions of the law, to enter his appearance. The appearance of the defendant is a formal entry, to the effect that the party appears, made at the request of the defendant or his solicitor by the clerk of the court.15
It is not required that the subpæna should be served on the defendant to entitle him to enter an appearance; he may appear voluntarily to a bill, and, after such appearance, have it referred for impertinence, 16 or plead an answer ; and he does not lose his costs by such voluntary appearance."
17 An infant must appear by his guardian,18 a married woman by her husband, and an idiot by his committee.
According to the English law, the defendant must enter an actual appearance; in this country, at least in some of the states of the Union, the party is considered in court on the return of the sheriff that he has served the subpoena on the defendant, which saves much trouble, and renders the writ of attachment and sequestration unnecessary.
4194. By the English law, when a defendant who has been duly served with a subpæna neglects or refuses to appear within the time required by law, or the rules of the court, he is said to be in contempt. He is also declared to be in contempt if, having appeared, he refuses to answer or to obey any decree or order which may be made by the court touching the suit.
Contempts of this nature are styled ordinary contempts, or contempts of process. They are so called to distinguish them from extraordinary contempts, which are not a mere disobedience of process, but a resistance of the officer who serves the subpoena, or abusive, scandalous words respecting the court, which render the guilty party liable to attachment and imprisonment.1%
The ordinary contempts, to which our observations in this place will be confined, relate to the transactions between party and party; the offender, in such cases, may purge his contempt by doing whatever the act is, the non-perform
10 Anon. Mosel. Ch. 237.
See Livingston v. Gibbons, 4 Johns. Ch. N. Y. 94. 16 Fell v. Master of Christ's College, 2 Brown, Ch. 279; Shelton v. Tiffin, 6 How. 163, 186.
17 Bowhee v. Grills, 1 Dick. Ch. 38. 18 Irons v. Crist, 3 A. K. Marsh. Ky. 143; Bradwell v. Weeks, 1 Johns. Ch. N. Y. 325.
19 1 Daniell, Chanc. Pract. 568, 569. In some of the United States, nothing can be considered a contempt, unless it happens in the presence of the court, or it be in disobedience of its mandates.
ance of which has brought him into contempt, and paying to the other party whatever costs may have been occasioned by his conduct.
4195. Before proceeding to the examination of the remedy against natural persons for a contempt of the subpoena, it will be necessary to say a few words as to the manner of compelling the appearance of a corporation aggregate. For this purpose a writ of distringas is the first process. This is a writ directed to the sheriff, commanding bim to distrain the lands, goods, and chattels of the corporation, so that they may not possess them till the court shall make other order to the contrary, and that in the mean time he, the sheriff, do answer to the court for what he so distrains. Under this writ, a nominal distress is made, and the writ is returned; if this prove insufficient, an alias distringas issues, under which a greater distress is made, and the writ is returned ; if the corporation still remains disobedient, a pluries distringas issues. If this last writ fails of its effect, upon being returned by the sheriff a commission of sequestration may be obtained against the corporation. When a sequestration has been made, it cannot be discharged until the corporation shall have performed what they are enjoined to do, and paid the costs of the several distringases and of the sequestration. Upon the performance of all this the sequestration may be discharged upon motion.
After the sequestration has been issued against a corporation, and before it has been discharged, the plaintiff may, at his choice, set down the cause to be heard, and have the bill taken pro confesso against the corporation, in the same way as can be done by an ordinary person.20
4196. The usual processes to compe) the appearance of a corporation sole, or of a natural person, are the writ of attachment, and the process of sequestration.
4197. In those states where the English practice has been adopted in this respect, the first process against an individual for not appearing or not answering according to the exigency of the writ of subpæna is an attachment. In such case the defendant is in contempt, because he has disobeyed the order of the court commanding him to appear; and, like every other person in contempt, either in courts of law or courts of equity, is liable to an attachment.
4198. The word attachment is said to be derived from the French word attacher, which signifies to bind, to tie. The writ of attachment is addressed to the sheriff or other proper officer, commanding him to attach the defendant, so that he may have him before the court to answer touching the contempt with which he is charged, as well as such other matters as shall be then and there laid to his charge. An attachment is said to differ from an arrest in this, that by an arrest is meant the seizing of the person of another by lawful authority for the purpose of taking him before a superior officer to be disposed of forthwith; on the contrary, an attachment signifies the taking of a person and presenting him in court at the day assigned. In modern usage, however, the distinction is but little observed.
4199. To this writ of attachment the sheriff is required to make a return. When the defendant is not found within his bailiwick, he returns this fact. This is called a non est inventus, and upon this return further proceedings are grounded. If, on the contrary, the defendant has been found, the sheriff returns, “I have attached the within named A B, as within I am commanded.” This is denominated a return of cepi corpus, which, when once returned, puts an end to all the ordinary process to compel an appearance.
4200. After an attachment for not appearing, by the English practice a
20 1 Daniell, Chanc. Pract. 190. See Cursen v. The African Company, 1 Vern. Ch. 132 Salmon v. The Hamborough Company, 1 Chanc. Cas. 206.
writ of attachment with proclamations issues for the purpose of proceeding against the plaintiff to outlawry; the sheriff is required to make proclamations, and if the defendant does not come in under the proclamations, he is declared an outlaw. Then a commission of rebellion issues, and if he still continues to disobey, he is considered as a rebel and contemner of the laws. The next process under the English system is a sequestration. The process of sequestration is a writ or commission directed to the sheriff, or, which is more usual, to four persons of the plaintiff's own nomination, empowering them to enter upon and sequester the estate, real and personal, of the defendant, and to keep the rents, issues, and profits thereof, or pay the same in such manner and to such persons as the court may appoint until the defendant has appeared, or perform what he has been enjoined to do, and for not doing of which he is in contempt.2
All these processes, which in England must be sued out, become unnecessary by our practice, where the defendant is considered in court as soon as the writ of subpæna has been served upon him.
4201. After an appearance has been entered, or, by the rules of court or statutory provision, it is dispensed with, if the defendant does not demur, plead to, or answer a bill agreeably to the rules of court, or within the time required by law, the bill will be taken as admitted. In order to render its process effectual, the court in such case will treat the defendant's contumacy as an admission of the plaintiff's case by taking the bill pro confesso. In this case the bill may be proceeded in ex parte, and the matter of the bill may be decreed by the court if the same can be done without an answer and is proper to be decreed; or the plaintiff, if he requires any discovery or answer to enable him to obtain a proper decree, may sue the process of attachment against the defendant to compel an answer. 22
When the bill has been taken pro confesso, the defendant may in some cases be relieved by making an early application to the court and showing a reasonable cause, in which case the proceeding will be set aside and the time for answering enlarged.”
By the statutes 5 Geo. II, c. 25, repealed and re-enacted by the 11 Geo. IV, and 1 Wm. IV, c. 36, some provisions were made to remedy the inconveniences which had been felt before.
» See Rules of U. S. Courts, Rule 18.
DEFENCE, DISCLAIMERS, AND DEMURRERS IN EQUITY,
4202. Defence. 4203-4212. The nature of the defence.
4205. Dilatory defences. 4210-4212. Peremptory defences.
4211. Where the plaintiff never had an interest.
4225. Because the subject is not cognizable in any court.
4231. Demurrers to the person.
4243. For defect of form.
4245. For want of proper parties.
4248. The claim must be of a civil natures
4256. When the equity of the defendant is equal to that of the plaintiff:
4259. For want of privity.
4269-4272. The form of demurrers.
4273. The effect of demurrers.
4202. Having ascertained the rules which ought to be observed in the frame of a bill, the manner in which it ought to be filed, the nature of the subpæna, and what is an appearance, and the consequence of neglecting or refusing to appear, our next object will be an inquiry into the nature and necessity of the defence.
4203. By defence is meant the denial of the truth or validity of the complaint of the plaintiff. It is in general an assertion that the plaintiff has no ground for his suit. No right can be justly decided, or controversy settled, without hearing both parties, and the very subpoena is issued to require the defendant to set up his defence, and show just cause, if he can, why the plaintiff's claim should not be allowed. When a suit has been instituted against. him, the defendant may therefore disclaim all right to the matter in dispute, or he may insist upon his right and defend it. Defence, then, may be considered as to its nature or the facts of which it consists, and as to the mode of stating, such facts.
4204. A defence in equity, as at law, may be dilatory, which, without impeaching the cause of complaint, will suspend the suit until some obstacle to the plaintiff's recovery has been removed, or, peremptory or permanent, which goes to the foundation of the suit, and when established is a complete bar to the plaintiff's claim.
4205. Dilatory defences are of various kinds. Though not favored by the courts, still they are valid to suspend the proceedings when well founded. The principal of these are the following:
4206. Defences to the jurisdiction, which do not dispute the rights of the plaintiff in the subject of the suit, but rest simply upon the fact that the court in which the suit is instituted is not the proper court to take cognizance of those rights. When this want of jurisdiction is apparent upon the face of the bill; as, where in the courts of the United States the plaintiff and defendants are citizens of the same state, and the courts have no jurisdiction unless they are citizens of different states; the defendant may demur to the jurisdiction of the court.
4207. Another ground of defence is to the person of the plaintiff. In this case the defendant does not deny the validity of the rights which are claimed, nor that the court has jurisdiction, but simply that the plaintiff is disabled to sue by reason of some personal disability, either, first, absolutely, which extends to the whole bill, or sub modo; or, secondly, that he is not the person he pretends to be, or does not sustain the character he assumes; as, for example, when a person sues alone in a case when he has no right so to sue, as in the case of an infant, a married woman, or a lunatic. If, in such case, the objection is apparent on the face of the record, the defendant may successfully demur,
4208. A third dilatory defence to the form of the proceedings is that the suit is irregularly brought or defective in its appropriate allegations and parties. If, for example, a bill which is not a bill of review, nor in the nature of a bill of review, is brought to vary a decree not impeached for fraud, and the defect of course appears upon the proceedings, demurrer lies.?
4209. Another dilatory defence is the pendency of another suit between the parties for the same cause of action.”
1 Mitford, Eq. Pl. Jeremy, ed. 206.