CH. XXIV. give the subpana note, until the cause has been set down for May be served and returnable any day; and must be returnable not less than twenty-eight days from teste; and be served ten days before return. Where subpiena issued too late to allow twentyeight days. Where cause set down by defendant. Indorsement. Number of names allowed. Service: how effected. Within what time. hearing.1 A subpæna to hear judgment may be served and returnable on any day, as well out of as in term; 2 but it 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. It is, therefore, necessary to issue the subpoena as soon as the cause is set down for the date inserted in the subpona note by the Registrar seldom exceeds twenty-nine or thirty days from the time it is granted by him. If the subpoena has not been issued in such time as will allow twenty-eight days between the teste and the return of the writ, an alteration and extension of the return in the subpana note must be procured from the Registrar: otherwise, the subpana will not be sealed." Where the cause is set down by the defendant, it should appear in the subpana that the cause is set down "at the request of the defendant."7 In such a case, the defendant setting the cause down need only serve the plaintiff: it being the latter's duty to serve the other defendants, if any. Upon the back of the writ, as upon other proceedings, must be indorsed the name and place of business of the solicitor issuing the subpoena, and of his agent, if any, or the name and place of residence of the party where he sues it out in person, and, in either case, the address for service, if any; and an affidavit of service of the subpana must state the indorsement.10 A subpoena to hear judgment may contain three names where necessary or required: " in reckoning which, the names of husband and wife are counted as one. Service upon a defendant's solicitor of a subpoena to hear judgment, is to be deemed good service upon such defendant.12 The service of the subpana is effected, by delivering a copy of the writ, and of the indorsement thereon, and at the same time producing the original writ.13 The service of the subpoena will not be valid, unless made at least ten days before the return of the writ.14 errors. In the interval between the suing out and service of any subpœ- CH. XXIV. na, the party suing out the same may correct any error in the names of parties or witnesses, and may have the writ resealed, Correction of upon leaving a corrected præcipe of such subpoena, marked with the words, "altered and resealed,” and signed with the name and address of the solicitor suing out the same.1 in service If an irregularity occurs, either in the writ or in the service of Irregularity it, the appearance of the parties in pursuance of the writ will cured by waive the irregularity. And where a defendant, after service of a appearance. 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.2 New service not necessary, after plain on revivor, tiff's death. Quære, on defendant. When a cause has been once set down, and a subpana 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. In Byne v. Potter, however, where the abatement was occasioned by the death of a sole defendant, death of sole the Registrar considered that service of a new subpoena to hear judgment, upon the executor, was necessary: though Lord Rosslyn doubted it, and appeared to think that the service of the order to revive was sufficient notice to the defendant. seems that, where a cause is ordered to stand over for want of parties, with liberty to amend, the mere service of the order to that effect will not prevent the necessity of serving a new subpœna to hear judgment.5 But it 6 After cause ordered to stand over for want of parties. where de fendant bankrupt. Where a defendant became bankrupt after the institution of the suit, and his assignees were made parties by supplemental pro- becomes ceedings, it was held to be unnecessary to bring the bankrupt to the hearing, by serving him with a subpoena to hear judgment. Where the plaintiff was unable to effect service, the Court, on an ex parte motion by him, allowed the subpana to hear judgment to be advertised." Where, upon a motion to dismiss for want of prosecution, a plaintiff undertakes to set down his cause for hearing, it is held, that his undertaking extends to serving a subpoena to hear judg 1 Ord. XXVIII. 5. 2 Carvick r. Young, Jac. 524. Bray v. Woodran, 6 Mad. 72; Sparrow v. Ewing, 1 W. N. 191; 12 Jur. N. S. 428, V. C. W. 45 Ves. 305; see, however, Cockburn . Raphael, 4 Sim. 18. The correct practice would seem to be to serve only the new parties. Braithwaite's Pr. 259. 5 Knowles v. Spence, Mos. 224, 226; Davis v. Prout, 7 Beav. 256; Cockburn v. Raphael, ubi sup. 6 Stahlschmidt v. Lett. 5 Hare, 595; 11 Jur. 885; and see ante, p. 159. 7 Jenkin v. Vaughan, 24 L. J. Ch. 495; Lechmere v. Clamp, 30 Beav. 218; 9 W. R. 625. For form of motion paper in such case, see Vol. III. Subpoena may be advertised. Undertaking to set down & cause, implies serving a subpœna to hear judgment. CH. XXIV. ment.1 Where, however, a plaintiff, who had replied to the Affidavit of service. 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 service of the order made thereon was equivalent to serving a subpæna to hear judgment; and upon the plaintiff's not appearing when the cause was called on, the bill was dismissed with costs.2 Each party, as well the one served as the party serving the subpoena, will do well, before the day of hearing, to file at the Record and Writ Clerks' office an affidavit of the service of the writ, 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 should be made by the person serving the writ, or served with it, as the case may be; and must state when, where, how, and by whom the service was effected. The affidavit should contain a statement of the writ, and should show that it was duly indorsed: otherwise, a decree taken upon the production of such affidavit will be irregular. If the service of the subpoena is made on the solicitor on the record, it is sufficient if the affidavit states that such solicitor is believed to be the solicitor of the defendant." Whenever a party does not appear at the hearing, it is advisable to get the affidavit entered by the Registrar, in order that the decree may be taken on the affidavit of service. 1 Dixon v. Shum, 18 Ves. 520; and see Bartlett v. Harton, 17 Beav. 479. 2 Rogers v. Goore, 17 Ves. 130. 8 See Evans v. Evans, 2 Keen, 604; Frost v. Hilton, 15 Beav. 432; and post, pp. 976, 977. 4 Ord. XXVIII. 8. 5 Powell v. Martin, 1 J. & W. 292; Rigg v. Wall, 3 M. & C. 505; 2 Jur. 1080; ante, p. 967. For forms of affidavit, see Vol. III. 6 See Ord. XXVIII. 7 7 Marsden v. Blundell, 15 Jur. 809, V. C. K. B. CHAPTER XXV. HEARING CAUSES. causes: how made out. THE Registrars keep distinct lists of the causes and other Lists of matters set down to be heard before each Judge;1 and from these lists, the paper of causes to be heard on each day of hearing is made out by them. Usually, twelve causes are put in each paper, and are taken from the cause-books in the order in which they have been set down. A copy of this paper is put up in the Registrars' office, and on the doors of the respective Courts, in the afternoon of the previous day.2 But, although causes are always taken from the Registrars' of advancing books, for the purpose of being entered in the paper for hearing, 1 Ord. VI. 8; see Chancery Rules of New Jersey, Rule 12, 2 M'Carter, 515. In Massachusetts, cases in Equity, and motions and other applications therein, whether interlocutory or final, shall in the first instance be heard and determined by one Justice of the Supreme Judicial Court. Genl. Stats. c. 113, § 6. All hearings shall be had in the county in which the cause is pending, if the Court is in session therein; unless otherwise ordered for special cause. Rule 33 of the Rules for Practice in Chancery. A single Justice, or the full Court, sitting in one county, may, when needful, hear and determine cases pending in another county, and any motion therein. And all orders and decrees made on such hearings shall be transmitted to the clerk in the proper county, to be by him entered. Genl. Sts. c. 113, § 18. Sect. 19 provides for reasonable notice in such cases to the adverse party or his counsel. When any party shall desire a hearing in Equity before a single Justice, except at a term of the Court held in the county where the cause is pending, he may apply to a Justice to appoint a time and place for the hearing; and when such time and place shall have been appointed, he shall give notice thereof to the adverse party, or his solicitor. But this rule shall not prevent a party from obtaining a preliminary injunction, or a dissolution of an injunction, or other order, upon a shorter notice, or without notice, if the Court shall think the same reasonable. And cases may be heard by consent of parties, and the permission of All notices in a case required to be By Rev. Stats. of Maine, cases in Equity, presented on demurrer to the bill, or when prepared for final hearing, come before the Law Court, c. 77, § 17. Hewett v. Adams, 50 Maine, 271. 2 Formerly, the last cause in the paper was privileged; but this is no longer the case. Flower v. Gedye, 23 Beav. 449. causes: CH. XXV. On the ground that the object of the suit will be lost. in the order in which they stand, it frequently happens that the Court, upon a proper ground being stated, will order a cause which has been set down for hearing to be taken out of its turn: for the Court holds, that a defendant has no right to object to a cause being heard, at any time, after it has been set down for hearing. Thus, where, in a suit for the specific performance of an agreement to accept a lease for a term of years, the plaintiff applied to the Court to have his cause advanced, on the ground that the term of years would expire before the case could come on in its regular course, the order was made: on the plaintiff's undertaking to give due notice of the advancement to the defendant; and if in such a suit the plaintiff does not apply to have the cause advanced, and by his delay allows the time to expire before the hearing of the cause, the Court will not direct an inquiry as to damages. So, where an annuity, claimed by the bill, was all the subsistence the plaintiff had for herself and nine children, that was held a sufficient ground for having the cause advanced.* And Where bill to where an order has been obtained for taking the bill pro confesso, be taken pro the Court may appoint a special day for the hearing. Formerly, the Court would not advance suits for the foreclosure of mortgages; but such causes will now be advanced under the same circumstances, and subject to the same rules, as other causes.7 confesso. Foreclosure suits. Short causes: Where a cause involves no question of difficulty, and is not likely to take up much time in argument, or is such that the subject-matter of it would authorize the Court to make a decree as of course, it may be heard as a short cause, amongst the short causes, for the hearing of which one day in each week is appointed, both in term and in the sittings after term. To obtain this privilege, there must be a certificate from the counsel of the plaintiff, that the cause is fit to be heard as a short cause; but the consent of the solicitors for any of the defendants will not be required.10 Upon the production of such certificate to the Registrars' clerk, at the order of course seat, he will mark the cause as short," in the cause-book. Notice that the cause has been so marked must be given to the other solicitors in the cause, by the solicitor of the plaintiff. The plaintiff, thus advancing a cause, proceeds at his of the defendants, before the cause is called on. 9 In Hargraves v. White, 17 Jur. 436, V. C. W., the certificate was dispensed with. For form of certificate, see Vol. III. 10 Reg. Regul. 15 March, 1860, r. 10. A cause is not, generally, fit to be heard as a short cause if it will take more than ten minutes. Anon., 17 Jur. 435. 11 A decree will not be made in a short cause against a defendant who does not appear, unless it is shown that this notice was given. Molesworth v. Snead, 11 W. |