And under the 115th of the same Orders, if he has after answer amended his bill without requiring an answer to the amendments, and does not intend to file a replication, he must set the cause down to be heard, on bill and answer, within the periods mentioned in the Order under different circumstances.1 It will be recollected that the term last answer means here the last answer of all the defendants.2 Previous to a cause being set down to be heard, it is necessary for the party setting it down to obtain a certificate from the Clerk of Records and Writs that the cause is in a fit state for hearing. It is not now necessary that there should be any fiat, order or direction from the Lord Chancellor for the purpose of setting down a cause, but the same is set down by the Registrar upon the production of the certificate.8 By the 39th Order of 1828, it is directed, "That when any cause shall become abated, or shall be compromised, after the same is set down to be heard in either of the said two Courts, the solicitor for the plaintiff shall also certify the fact, as the case may be, to the Registrar of the Court where the cause is so set down, who shall, in like manner, cause an entry thereof to be made in his causebook; and the solicitor for the plaintiff shall be allowed the same fee of six shillings and eightpence for such certificate, if he shall certify the fact as soon as the same shall come to his knowledge.” 4 The 116th Order of May, 1845, provides that the defendant may, after the expiration of four weeks from the closing of the evidence, set the cause down at his own request. The defendant will have to pursue the same course as the plaintiff of obtaining a certificate from the Clerk of Records and Writs, and the cause will be set down, designated as set down at the request of the defendant. The defendant must then serve the plaintiff with the subpoena to hear judgment.5 Certain causes, generally called short causes, have a privilege of being heard before their turn. To obtain this privilege, there must be a certificate from the counsel of one of the parties, that the cause is fit to be heard as a short cause. 1 See ante, p. 800. Preston v. Collett, 3 Mac. & Gor. 432. * 23d Order, February, 1850; and see Regulations of 1st March, 1850, as to the certificate. Saner v. Dewin, 14 Beav. 646. Smith v. Wells, 6 Mad. 123. Upon the production of this certificate to the Registrar the cause will be marked short. The consequence of which is, that the cause will be heard on the next short cause day. Notice that the cause has been so marked must be given to the other solicitors in the cause, by the solicitor who has caused it to be so marked. The party thus advancing a cause proceeds at his peril, and if upon the hearing coming on before the Court it shall appear that the cause is not one which is entitled to be so advanced, the costs occasioned by the advancement will have to be paid by the party who has been the cause of it. CHAPTER XXIII. OF THE SUBPOENA TO HEAR JUDGMENT. WHEN the cause has been set down, the next step is to give notice to the adverse party of the day appointed for hearing. This is done by means of a writ called a subpæna to hear judgment. The Orders of May, 1845, have rendered it incumbent upon the plaintiff to obtain and serve a subpoena to hear judgment, as well as to set his cause down for hearing, within the period of four weeks from the time of publication, otherwise the defendant may move to dismiss the bill for want of prosecution. The practice is for this subpoena to issue at the time the cause is set down; and if the plaintiff sets his cause down without then suing out the writ, he will not be able to obtain it subsequently without a special application to the Court to adjourn the cause, so that the subpoena may issue and bear date at the time when the cause is entered for hearing.2 It is sometimes the practice amongst solicitors, instead of serving subpoenas to hear judgment, to take each other's undertaking to appear at the hearing. This, however, is an unsafe practice; and in cases where it is important to the party that the suit should be disposed of, ought not to be resorted to; because, if the party giving the undertaking fails to appear at the hearing, the party setting down the cause can do nothing, and the cause must be struck out of the paper: whereas, if, after subpoena to hear judgment duly served, default is made by the party served, the other party, if plaintiff, will, upon producing to the Court an affidavit of the service of the subpoena, be permitted to take a decree against the defendant making default. And so where a cause has been set down at the request of a defendant,,if the plaintiff, having been served with a subpoena to hear judgment, omits to appear when the cause is called on, the defendant will be in a situation to have the bill dismissed with costs, upon producing an affidavit of service of the subpoena.2 The subpoena to hear judgment is prepared by the solicitor requiring it, who, previously to suing it out, must procure from the Registrar a note, in writing, of the day appointed for the return of the subpoena. This note is called a "subpœna note," and is filed in the Subpoena Office; by an order of the Court, "the Registrar or any of his clerks are not to make any such note before they have a certificate that the cause is ready for hearing." The form of the writ, according to the Orders of May, 1845, is as follows: : "We command you, [and every of you,] that you appear before our Lord High Chancellor [or before his Lordship or Honor the Master of the Rolls, as the cause may be set down] on the day of next, or whenever thereafter a certain cause now depending in our High Court of Chancery, wherein A. B. [and others, or another, are or] is plaintiff, [or plaintiffs,] and C. D. [and others, or another, are.or] is defendant [or defendants], shall come on for hearing, then and there to receive and abide by such judgment and decree as shall then or thereafter be made and pronounced, upon pain of judgment being pronounced against you by default. "Witness, &c. DEVON." The 16th Order of May, 1845, Art. 46, directs, that "A sub 1 See post, p. 758. Ellis v. King, 5 Mad. 21. See also Cook v. Bromhead, 16 Ves. 134. A. v. B., to be heard the day of pœna to hear judgment is not to be returnable at any time less than one month from the teste of the writ; and it is to be served at least ten days before the return thereof." 1 Formerly a subpoena to hear judgment could only be made returnable in term time, but by the 82d Order of 1828, it may be made returnable as well out of term as in term. Upon the back of the writ, the name or firm and the place of business or residence of the solicitor or solicitors issuing the subpœna must be indorsed; and where such solicitors shall be agents only, there must be further indorsed thereon the name or firm and place of business or residence of the principal solicitor or solicitors. And it is to be observed, that an affidavit of service of such a subpoena must state the indorsement.3 By the 5th Order of 1833, it is provided, that this subpoena, as well as all others, except a subpana duces tecum, shall contain three names where necessary or required. In reckoning which the names of husband and wife are counted as one.1 Personal service of the subpoena to hear judgment was dispensed with by the 20th Order of 1828, and by the 26th Order of May, 1845, "Service upon a defendant's solicitor of a subpoena to answer an amended bill, or to hear judgment, is to be deemed good service upon a party." No subpoena (except for costs) can be served after twelve weeks from the date of the writ; 5 and the 25th Order of May, 1845, directs, that "In the interval between the suing out and service of any subpoena the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed upon payment to the clerk of the Subpoena Office of a fee of one shilling, and at the same time leaving a corrected præcipe of such subpoena marked, altered or resealed, and signed with the name and address of the solicitor or solicitors suing out the same." If, however, an irregularity occurs either in the writ or in the service of it, the appearance of the parties in pursuance of it will 1 The subpoena note usually appoints the day for the return of the subpoena to hear judgment one calendar month from the time of issuing it, so as to enable the party to sue and serve the subpoena before the lunar month begins to run. 3d Order, 1833. Powell v. Martin, 1 Jac. & W. 292; Rigg v. Wall, 3 M. & C. 506. ⚫ Beames's Ord. 7. 16th Order, Art. 1. waive it; and where a defendant, after service of a subpoena to hear judgment, in which the plaintiff's name was misspelt, appeared upon a motion to advance the cause, and opposed it, but did not appear at the hearing, whereupon a decree was made by default, it was held that the defendant had waived the objection by appearing upon the motion, and not then objecting.1 Where a cause has been set down by a defendant, he is not obliged to serve any other party with a subpoena to hear judgment than the plaintiff, and if there are other defendants, it is the duty of the plaintiff, and not of the defendant setting down the cause, to serve them.2 When a cause has been once set down, and a subpoena to hear judgment served, a revivor of the suit, after abatement by the death of the plaintiff, will not render the service of a new subpoena to hear judgment necessary.3 Whenever a plaintiff undertakes to set down his cause for hearing, it is held, that his undertaking extends to serving a subpœna to hear judgment.* Where, however, a plaintiff, who had replied to the answer, was permitted to withdraw his replication, upon his undertaking to set the cause down for hearing upon bill and answer, it was decided, that the service of the order was equivalent to serving a subpoena to hear judgment, and upon the plaintiff's not appearing when the cause was called on, the bill was dismissed with costs.5 Each party, as well the one served as the party serving the subpoena, will do well, before the day of hearing, to have an affidavit of the service of the writ filed at the proper office, and to be provided with an office copy of it, to be made use of in case the opposite party do not appear when the cause is called on. Such affidavit, when filed on behalf of the plaintiff, should be made by the party serving it, and it must distinctly describe the manner of service, and must contain a copy of the writ, as well as of the indorsement upon the writ as of the body of it; otherwise a decree taken upon the production of such affidavit will be irregular. 1 Carrick v. Young, Jac. 524. 8 Smith v. Wells, 6 Mad. 193. Bray v. Woodran, Mad. & Geld. 72; and see Byne v. Potter, 5 Ves. 305; Knowles v. Spence, Mos. 225. Dixon v. Shum, 18 Ves. 520. Rogers v. Goore, 17 Ves. 130. • Powell v. Martin, 1 Jac. & W. 292; Bigg v. Wall, 3 M. & C. 506. |