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How ob tained.
given to the defendant to pay the balance of his ac-
In one case, however, an affidavit of merits was
This motion however has been refused, where no declaration has been delivered (c); and in a case, where costs had been taxed upon a judgment, as in case of a nonsuit, but not paid; inquiry was made of the plaintiff's attorney where the plaintiff resided, that the costs might be paid; but the attorney not only refused to satisfy the inquiry, but threatened to bring a fresh action; the court, upon this motion being made, said it differed from the ordinary case, as there was no action either commenced or depending; that the costs are merely personal to the party: and as to the threat used by the plaintiff's attorney, it could not, upon that circumstance alone, grant the motion (d).
(a) Nunes v. Jaffray, ib. 226. Vide also Wattleworth v. Pitcher,
(6) Royal Exchange Insurance Company v. Ward, ib. 225.
If the defendant appears, it cures all irregularity How obin the service of the subpæna (a). Lord Hardwicke, however, was of opinion, that where the service had Effect of apbeen just before the long vacation, and the defendant pearance. had chosen to appear rather than be liable to an attachment, that he might still be at liberty to insist upon the want or irregularity of the service (6). If an appearance has been entered, the party will not be suffered to strike it out upon a discovery of an irregularity in the service of the subpæna; though there are cases, in which the court will give leave, on motion, that the entry may be withdrawn (c).
The Bill having been filed, and process regularly served, an Injunction, the force and extent of which will be explained hereafter, may be obtained in the Four following cases.
1st. For want of appearance in due time after Injunction service and return of the subpæna. In the Court of for want of
appearance. Chancery, where the defendant resides in London, or within twenty miles (in which case the cause is termed a town cause), if he has been served four days or more before the return of the subpæna, he has time, until the return day: if he be served on the return day, or a day or two before, then four days after the service. If the defendant reside more than twenty miles from London (in which case
(a) Anon. 3 Atk. 567.
How ob tained.
the cause is termed a country cause), he has eight days after the return day, unless he has been served eight days before, in which case he must appear on the return day; if served four or five days before the return, he has then four or five days after the return. Where the subpæna is returnable the last day of term, the defendant has till the first return of the following term. Where a defendant resides within ten miles of London, the subpæna may be returnable immediately; but, as mentioned before, it must be served on the same day that it is taken out, before the rising of the court; in this case, the defendant must appear, within four days inclusive of the day of service (a).
In the Court of Exchequer, a defendant is not bound to appear till the return of the process, however long before he may have been served with it; but by the fifth general rule of that court, the defendant must appear on the next day after service of process returnable immediately (which in that court is London, or within five miles), and upon the second day on process returnable on a day certain, and on the fourth day after every common return. But in bills for injunctions to stay proceedings at law, if a defendant appears before the sitting of the court on the next day after he is bound to appear by the above rule, it will be sufficient, according to the present practice, to prevent an injunction from being obtained for want of appearance; though in strictness such defendant is liable to an attachment, and must pay the costs of it, if it should be made out before he appears. Upon a subpoena returnable immediately, he must therefore How ob
(a) Wy. Pr. Reg. 37. Pr. 84.
Harrison, Ch. Pr. 108.
1 Turn. Ch. answer.
tained. enter an appearance on the second day after being served with it; where the subpæna is returnable on a day certain, an appearance must be entered before the sitting of the court on the third day after the return of the writ (a).
If an appearance be not entered in time, an affidavit of service of the subpoena must be left with the clerk in court, who will issue an attachment against the defendant; and the court may then be moved for an injunction, which will be granted of course, on a suggestion that an attachment has issued (b). ! :
2dly. For want of an answer. In the Court of Chan- Injunction cery a defendant has in all cases eight days, exclusive for want of of the day of appearance, to answer. If his appearance be time enough within the term, a rule may be given to him to answer within the term ; but if no rule be given, he is at liberty to answer at any time within the term (c). In the Court of Exchequer the time is eight days after the delivery of the plaintiff's bill, and before the sitting of the court, the following day (d). If no answer be put in by the time prescribed, an attachment issues, upon which an order for an injunction is obtained as a motion of course. The instant the attachment is issued, the plaintiff is intitled to his injunction, as was determined in the case of King v. Harrison (e), although the answer
(a) 1 Fowl. Ex. Pr. 224.
How ob- tained.
had come in the evening before the injunction was moved for. For this purpose an answer, though sworn, and in the master's office, is not to be considered as such, until it is actually on the file : an answer had been sworn at six in the evening at the master's house, and there left, the clerk of the public office being informed of it: next morning the plaintiff finding that it was not on the file, obtained an order for an injunction, the defendant being in contempt to an attachment; the delay in filing the answer arose, from the master being from home, when the clerk in the public office called for the answer: Lord Eldon, however, refused to discharge the order for the injunction or the attachment (a). In a subsequent case, Sir J. Leach refused a motion to set aside an injunction with costs, the order having been obtained for want of an answer; and before it was sealed at the next seal after the order, an answer was put in (6). When the defendant's answer cannot be put in within the proper time, the usual practice is for the defendant's clerk in court, to signify to the plaintiff's clerk in court, that he may move for an injunction upon the defendant's praying time to answer; and it is then incumbent upon the defendant's clerk in court, to obtain an order for a month's time to answer upon the same day on which the order is made for the injunction; if this be not done, the defendant is liable to an attachment (c).
(a) Bruce o. Webb, 2 Meriv. 474.