SECT. L rectly as to the nature of the rule required. (As to before whom CHAP. XXXI the affidavit should be made see post, Chap. 36). Then give the motion paper and affidavit to counsel, who, after signing it, will either give it to one of the masters, or move it in court before the single judge, sitting in pursuance of the 11 Geo. 4 & 1 W. 4, c. 70, s. 1, according to the nature of the motion. The motion paper and affidavit, however, must be handed in to one of the masters, whether the rule be granted or refused. If the rule be granted, call in the evening at the master's office, and draw up the rule, and serve a copy of it upon the attorney or agent of the opposite party, as directed post, 1188. If the rule required be a rule nisi only, give the motion paper, with the affidavit annexed, to counsel, who will move it accordingly. The motion, unless in cases of criminal information, new trials, in arrest of judgment, and other very special motions, should now in general be made before a single judge, sitting in pursuance of the 11 G. 4 & 1 W. 4, c. 70, s. 1. If granted, draw up the rule with one of the masters, and serve a copy of it as hereafter directed (a). Rule, when The affidavit upon which the motion is founded must be Affidavit in made before the rule is moved for, and produced in court at the support of the time of making the motion, and must be filed or deposited with the and how made masters, otherwise the rule shall not be drawn up, or, if drawn and filed, &c. up, shall be of no force or effect (b). The affidavits, if not already filed, must be handed in to the master, whether the rule nisi be granted or refused (c). And where an affidavit has been sworn in the afternoon before a judge at chambers, after the rising of the full court, the masters will not draw up a rule nisi of that day. A party, in order to make use of an affidavit, sworn or filed after he has drawn up and served a rule nisi, must, in general, withdraw his motion and move it again (d). But before the rule is drawn up, he may apply to the court to have it drawn up on reading the supplemental affidavit also (e). Sometimes, also, as in motions to stay proceedings on bail bonds, for setting aside an attachment, or against the sheriff on payment of costs, if on shewing cause it be objected that the affidavits on which the rule nisi was obtained are informal, as, on account of not swearing in a strictly formal.. manner to a defence on the merits, or that the application is at the instance of the bail, the court will enlarge the time for discussing the rule, and permit a supplementary affidavit to be produced and filed (ƒ). And in a recent case, the Court of Queen's Bench allowed a fresh affidavit to be filed in support of a rule nisi to set aside an award after the rule was obtained(g). If you intend, in arguing the case, to rely on any affidavits in the same cause, already on the files of the court, such affidavits must be specified in the rule nisi(h); and it may be (a) See as to the form of a rule nisi, Chit. Forms, 649. (b) R. H., 36 G. 3. See Williams v. Reeves, 2 Chit. Rep. 218: Ditchett v. Tollett, 3 Price, 259: Salloway v. Whorewood, 2 Salk. 461: Er p. Dicas, 2 Dowl. 92. (c) Er p. Dicas, 2 Dowl. 92: Ex p. Elderton, Id. 568. (d) Tilly v. Henly, 1 Chit. Rep. 136: Shaw v. Mansfield, 7 Price, 709. (e) Per Littledate, J., Bail Court, M. 1838, 2 Jurist, 990. (f) Merryman v. Quibble, 1 Chit. Rep. 127: Chit. Sum. Prac. 103: see Anderson v. Ell, 3 Dowl. 73. (g) Perrin v. Kymer, 1 H. & W. 20; 4 Nev. & M. 477. (h) MS., E. 1824, per Bayley, J.: De Woolf v. —, 2 Chit. Rep. 14. PART I. BOOK IV. right to mention the fact to the court, at the time of making the motion. As to when such affidavits cannot be used, see post, 1192. An affidavit sworn before judgment signed, has been held good on motion to issue execution, notwithstanding a tricky writ of error(i). And, in general, it seems to be no objection to an affidavit that it was sworn before the precise circumstances arose on which the motion is founded, provided it could in any way be material at the time (j). As to the title and jurat, and other parts of the affidavit, see post, 1207 to 1213. If unnecessarily long, the court will sometimes refer it to the masters, and make the party using it pay the costs occasioned by the unnecessary matter (k). What Matters cannot be moved on last In some cases, where the rule is misi only, you cannot move on the last day of the term, as for an attachment (7); or in some Day of Term. cases to set aside an award (m); or to answer matters of an affidavit (n); or to stay proceedings (o). But where the subject-matter of the motion has occurred at the end of the term, and the party could not complete his affidavits before the last day, and the matter is of a nature pressing for immediate decision, the court, or the judge sitting in pursuance of the 11 G. 4 & 1 W. 4, c. 73, s. 1, on the last day of the term, will sometimes grant a rule nisi to shew cause in the following vacation, on an early day, (say a week or more), before a judge at chambers (p), or direct the party to apply by summons to a judge at chambers; and such judge would, when justice requires it, either make an order, or stay the proceedings till the next term, in order to give the party an opportunity then to move the court. And although the full court will not permit a matter of law to be discussed on the last day of term, they, in a recent case, allowed cause to be shewn against a rule praying for a writ of restitution, where it was referred to the full court from the Bail Court, and counsel had been unable to bring it on till the last day, owing to the press of business in the court, the case being very urgent (9). A motion for an attachment for non-payment of costs, and against the sheriff for not returning the writ or bringing in the body, may be moved for on the last day of the term (r). Notice of Mo tion, when given, and Effect of Previously to moving for a rule nisi, a notice of the intended motion is sometimes given to the opposite party, particularly where it is desired that time and expense may be saved by affording the adverse party an opportunity of shewing cause against it in the first instance, or where the object is to induce the court to disallow the costs of proceedings had after such notice, and before motion (s). In the Queen's Bench, notice of motion is necessary in the case of an in (i) Baskett v. Barnard, 4 M. & Sel. 331. (k) Lewis v. Woolrych, 3 Dowl. 692. (m) Nettleton v. Crosby, Tidd, Pract. 23. (n) Baily v. Jones, 1 Chit. Rep. 744: Er p. Anon., 2 Dowl. 227: Re Turner, 3 Dowl. 557. The Court of Exchequer has refused to permit such a motion to be made so late in the term that the oppo site party could not shew cause in that term. (Ex p. Anon., ubi supra). (0) Baily v. Jones, 1 Chit. Rep. 744: Anon., 2 Price, 143. (p) Chit. Sum. Prac. 196: sed vide Fall v. Fall, 2 Dowl. 88. (q) Doe Stevens v. Lørd, 6 Dowl. 256. (r) 1 Burr. 651; Rez v. York, 5 Burr. 2686: Rer, in the case of Walker v. Whe ley, and M·Evoy v. M'Intosh, 1 Chit. Rep. 249. (8) Tidd, 441: see Anon,, 1 Wils. 30. And see Chit. Forms, 648. SECT. 1. formation, or to quash a conviction (t). It need not, in CHAP.XXXIV. that court, be given in order to obtain a rule for a stay of proceedings (u), unless, perhaps, in the case of a rule under the first section of the Interpleader Act (x): but in the Exchequer it is otherwise (x); and so in the Common Pleas (y); and in the Exchequer a two days' notice is requisite (z). By a general rule of all the courts of H. T., 2 W. 4, r. 1, s. 68, (ante, 1076), "a rule nisi for judgment as in case of a nonsuit may be obtained on motion without previous notice, but in that case it shall not operate as a stay of proceedings.' Where no proceedings have been had for four terms exclusive, a term's notice of motion is in general requisite (a): but as the object of the rule is, that the opposite party may be informed of an intention to take a step in proceeding to judgment, it does not apply to applications to set aside proceedings (b). Rule should The rule nisi thus granted, unless when moved for on For what the last day of the term, requires the opposite party to shew Time the cause upon some day certain in term, usually three or four be drawn up. days in a town cause, or six days in a country cause, or more, (according to the distance of the opposite party's residence), after it is drawn up; but where the rule is obtained the day before the last day of term, and the transaction to which it relates took place in town, it may be drawn up for the last day of term, and may be made absolute at the rising of the court on that day. A rule nisi for setting aside an award, however, should not be drawn up for the last day of term; for by R. M., 36 G. 3, counsel cannot be heard to shew cause against it on that day (c). A rule nisi granted in court will not be drawn up to shew cause in chambers; at least it is very unusual to do so (d). clude. The rule should be drawn up in such a manner that all those What Parties who are to be affected by it, and upon whom it is intended it should into be served, shall be required to shew cause against it; for the court cannot make an order upon any person, not even on the attorney in the cause for payment of costs, unless he be called upon by the rule nisi to shew cause against it (e). A rule nisi cannot be supported or made absolute on a Grounds of ground different from that stated therein (f). Also, by R. T., the Rube 42 G. 3, K. B. (g); R. M., 10 G. 4, r. 2, C. P. (h), "where correctly a rule to shew cause is obtained in this court for the purpose stated. of setting aside an annuity, the several objections thereto intended to be insisted upon by the counsel at the time of making such rule absolute shall be stated in the said rule to shew cause." So, by R. E., 2 G. 4, K. B.; R. M., 10 G. 4, r. 3, C. P. (i), "where a rule to shew cause is obtained in this court to set aside an award, the several objections thereto intended to be insisted upon at the time of making such rule absolute shall be stated in the rule to shew cause." (t) Rer v. Johnson, M., 22 Geo. 3, Q. B.; Tidd, New. Pract. 241. (u) Stratton v. Regan, 2 Dowl. 585: overruling Fortescue v. Jones, 1 Id. 524. (z) Smith v. Wheeler, 3 Dowl. 431; 1 Gale, 15, S. C. See Rolfe v. Brown, 1 Hodges, 27. (2) Hannah v. Wyman, 3 Dowl. 673. (a) Tipton v. Meeke, 8 Moore, 579. (b) Lumley v. Hempson, 6 Dowl. 558, BOOK IV. Amendment of. Service of. Shewing Original Rule. At what How. Personally. At House or Business. If the rule be drawn up wrong by mistake, the court will order it to be corrected (¿). Service of] A copy of the rule nisi, or the rule nisi itself (j), must be served on the party against whom it has been obtained. By a general rule of all the courts of H. T., 2 W. 4, r. 51, "it shall not be necessary to the regular service of a rule, that the original rule should be shewn, unless sight thereof be demanded, except in cases of attachment” (k). It must be served at or before nine o'clock at night; if served after that hour, the service will be void (?). It cannot be served on a Sunday (m). It must be served a reasonable time before the day specified in it for shewing cause. Where a rule nisi to compute was served at York on the day cause was to be shewn, it was held insufficient to authorize making the rule absolute, even although ten days had elapsed since the service (n). As to enlarging the rule when it is served so late that the party cannot shew cause against it in time, &c., see post, 1190. Personal service is required only in the case of a rule nisi for an attachment, or where a rule is served, and the money or other thing required by it is demanded, with a view to obtaining an attachment for the disobedience of it; and in such a case, the original must be shewn to the party at the time the copy is delivered to him. Service on the undersheriff, &c., is, however, sufficient in case of rule against the sheriff (o). Where personal service is not required, the rule may be left for the party, if he have not appeared to defend in person, at his place of business or dwelling-house, if his family be residing there, though he himself have gone away (p), upon his clerk, or some person who may be presumed to have authority from him to receive it; and if served upon an attorney, it must always be left for him at his chambers or place of business before nine o'clock at night, unless there be some satisfactory reason to the contrary. Service of a rule nisi to compute upon the defendant's mother at his residence has been deemed sufficient (q). Service by leaving the rule with a porter at a club-house, where the party was a member of the club, and the action was on a bill accepted by him payable at the club-house, and it was sworn that his servant called there every day for his letters, &c., was deemed sufficient (r). Where there is a board on the door of the defendant's chambers, desiring all messages and parcels to be left at a particular place, service there will not, perhaps, of itself answer (s); but if it be left there, and the person with whom it is left afterwards says that (i) Ante, 1136. (j) See Leaf v. Jones, 3 Dowl. 315. (7) R. H., 2 W. 4, r. 50: ante, Vol. I. 2. (m) M'Ileham v. Smith, 8 T. R. & (n) Farrell v. Dale, 2 Dowl. 15, per Gurney, B. (0) Ante, Vol. I. 550. (p) See Payett v. Hill, 2 Dowl. 66 (q) Warren v. Smith, 2 Dowl 216: and see Payett v. Hill, Id. 688. (r) Ridgway v. Baynton, 2 Dowl. 183 (8) Stout v. Smith 1 Dowl 506. SECT. 1. he gave it to the defendant, that, it seems, will be suffi- CHAP.XXXIV. cient (t). Service at the chambers of an attorney on his laundress will, it seems, suffice, if she act as the servant of the attorney, and the affidavit of service state that fact, or the deponent's belief to it (u); otherwise, not. But where it was served at the defendant's chambers on a female servant (r), or on the servant of the laundress, the service was deemed insufficient (y). And service of a rule by putting it under the door of the defendant's (an attorney's) chambers is, it seems, not sufficient, although the laundress afterwards stated that the defendant would probably have the rule in the course of the day (≈). So, service of a rule by leaving it at chambers in college where there is no person there to receive it, is not sufficient (a). Nor is service at a house or place of business which the defendant has left (b). Nor is service on a workman on "the defendant's premises" (c). Nor is service on his landlady at his lodgings (d), unless it be afterwards ascertained that the party has received it. Where a copy of a rule nisi was sent in a letter by post By Post. to the defendant with the rule itself, and the latter was returned indorsed, "received a copy of the within rule," and signed by the defendant, the service was held to be sufficient (e). In the case of a prisoner, service with the turnkey of the On Prisoner. prison in which he is detained will suffice (ƒ). veral. Where several suffer judgment by default, in an action on On one of se a promissory note they acknowledge a joint cause of action, and that quoad hoc they are partners; service, therefore, on one is service for all (g). in Service, how waived. In all cases, even where personal service is required, any Irregularities irregularity in it is deemed to be waived by the party's moving to enlarge the rule (h), or appearing to shew cause against it (i). But by appearing he does not waive any irregularity in the copy of the rule served, as that it is not intitled in the cause, or the like (k). where Resi Sometimes, in the absence of the opposite party, or where Substitution his residence is unknown, the court will make it part of the of Service, rule that it be served in a particular manner. Where regular dence unservice of a rule is endeavoured to be dispensed with on the known, &c. ground of absence or otherwise, the affidavit must shew what efforts have been made to serve the party before secondary service will be allowed (1). Service of a rule by sticking it up in the office will not be allowed upon an affidavit that the attorney's residence is unknown, unless it is also sworn that the party's residence is unknown (m). Where, on account of (t) Engleheart v. Morgan, 1 Dowl. 422. (u) Kent v. Jones, 3 Dowl. 210: Williams v. Passmore, Id. 211, n. (x) Alanson v. Walker, 3 Dowl. 258. (y) Smith v. Spurr, 2 Dowl. 231: sed vide Dodd v. Drummond, 1 Dowl. 381: Stout v. Smith, Id. 506. (z) Strutton v. Hawkes, 3 Dowl. 25. (c) Hitchcock v. Smith, 5 Dowl. 248. see Grant v. Stoneham, 7 Dowl. 126. (f) Moore v. Newbold, Il Leg. Obs. 307. (g) Figgins v. Ward, 2 Dowl. 364; 2 Č. & M. 424, S. C.: see Carter v. Southall, 3 M. & W. 128. (h) Cartwright v. Blackworth, 1 Dowl. 489. (i) Tidd, 445: Levy v. Duncombe, 3 (k) Wood v. Critchfield, 1 C. & M. 72; |