ᏢᎪᎡᎢ 1. BOOK IV. the defendant's residence being unknown, the court gives leave to serve him in a particular manner, they will not, in general, make a prospective rule, that service of future rules, &c., may be effected in the same way (n). Affidavit of How far a In general, the affidavit of a service of a rule must allude to the "rule annexed," and not "the rule in this cause" (o). An affidavit stating the service of "a true," omitting the word copy," has been held sufficient (p). So has an affidavit of the service of the original rule, and not a copy (9). How far a Rule operates as a Stay of Proceedings.] As to Rule operates this, see ante, 1045, 1187. If a rule nisi be moved for on the as a Stay of Proceedings. last day of term, it will not operate as a stay of proceedings, nor will the court allow the rule to be worded so as to give it such an operation, unless, perhaps, under very special circumstances (r). If the rule operate as a stay of proceedings, and if any proceedings, directly or collaterally, be had in the cause in the meantime, the court, upon application, will set them aside (s). Abandoning Shewing a Rule Nisi. Abandoning Rule Nisi.] A party who has obtained a rule nisi cannot be compelled to proceed with it (t); and it would seem, that he may abandon it, even after service, on giving notice of abandonment to the opposite side, and paying, or offering to pay, any costs which may have been incurred in consequence of the rule. Shewing Cause against or Enlarging a Rule Nisi.] Upon the Cause against day appointed by the rule, the opposite party must shew cause against it, unless by consent it stand over until another day in the same term. In some cases cause is permitted to be shewn in the first instance, but this is a matter entirely in the discretion of the court, even where notice has been given to the party moving (u). No person not included in the rule nisi has a right to shew cause against it, even though he may have been served with a copy of the rule, and the court will not allow him his costs of appearing (v). After the day mentioned in the rule, no cause can be shewn against a rule nisi for costs of the day, or any other rule which becomes absolute without further motion (x). Enlarging Either party, if not prepared to support or shew cause against the rule, should move that it be enlarged to a future day in the same or the next term; or to support or shew cause against it before a judge at chambers in the vacation. In a recent case, it was considered, that where a defendant resides such a distance from town that he cannot be served before the day for shewing cause, and the term expires on the day after that day, the rule may be revived in the next term (y). If a rule be drawn up to shew cause in one term, it cannot be made absolute in the next term without enlarging it, though it may be (n) Martin v. Colvill, 2 Dowl. 694: Layton v. Mason, 6 Dowl. 275. (o) Fidlett v. Bolton, 4 Dowl. 282. (p) R. v. Sheriff of Stafford, 5 Dowl. 238. (9) Leaf v. Jones, 3 Dowl. 315, (r) Ante, 1187. (( Ante, 1045, (t) Doe Harcourt v. Roe, 4 Taunt. 883. See form of notice, Chit. Forms, 605, (u) Doe v. Smith, 3 Nev. & P. 335: see Quin v. King, 4 Dowl. 736: Aron, 4 Taunt. 690. (v) Johnson v. Marriott, 2 Dowl. 343. SECT. 1. revived (z). But it is not by any means of course that the CHAP.XXXIV. court should thus enlarge a rule; sufficient grounds must be stated to induce them to do so (a). If the application be made by the party who obtained the rule, the court usually grant it where it is in his own delay; but not where it would have the effect of detaining the opposite party in custody; nor in other cases, without consent or some evident necessity: if moved for by the opposite party, the court will frequently enlarge it upon terms; or, if the rule were not served in time to give the party an opportunity of shewing cause against it, he may demand that the rule be enlarged as a matter of right (b). Formerly, if a party wished to have a rule enlarged, it was usual to give notice to the counsel for the adverse party of the intended motion to the court to have it enlarged; and the Court of Common Pleas would not, if the rule nisi had been served, have enlarged the rule unless such notice had been given (c). And now, by a general rule of all the courts of H. T., 2 W. 4, s. 1, r. 97, "a rule may be enlarged, if the court think fit, without notice." It is not the practice to serve enlarged rules, because both parties are before the court (d). If it be enlarged to a subsequent term, it is set down in the peremptory paper, and called on in its order (see Vol. I. 96); but if it be enlarged or stand over to another day in the same term, either party may bring it on, upon the day so appointed, by moving to discharge the rule, or make it absolute. In order to shew cause against a rule nisi, get an office copy Cause, how of the rule, and of the affidavit (f) upon which it was granted; shewn. and give them, together with an affidavit when necessary, and a brief, to counsel. made and The affidavits should be sworn, and handed to the coun- Affidavits for, sel who is to shew cause, before the day named in the rule when and how for shewing cause; and, after shewing cause, counsel can- filed, &c. not come on another day in such term with better affidavits (g). But, in general, an affidavit sworn after the appointed day, but before the actual time of shewing cause, may be read for the party shewing cause (h). When, however, a particular day or time for filing affidavits is prescribed by the rule nisi, or, as is more frequent, in the case of enlarged rules, no affidavit filed afterwards is admissible, unless under special circumstances of inevitable accident (i); and then a special motion should be made before the day of shewing cause for leave to file the affidavits nunc pro tunc (k). In the Exchequer, upon an enlarged rule, the affidavits must be filed before shewing cause, although it be not so expressed in the rule of enlargement (1); but in that court, if a rule is enlarged from Trinity to Michaelmas term, if the affidavits are filed a (z) Smith v. Collier, 3 Dowl. 100. (a) MS., E. 1814. (b) Tidd, 447, 448: see Anon., 1 Smith, 199. (e) R. M., 2 Geo. 2, C. P.: and see Anon., Cas. Pr. C. P. 67. (d) Anon., 1 Smith, 199. (f) This does not seem absolutely requisite. (Pitt v. Coombs, 1 H. & W. 13, Q. B.; 4 Nev. & M. 535, S. C.: but see Brown v. Probert, 1 Dowl. 659). (g) Kibblewhite v. Jeffreys, 1 Chit. Rep. 142: Tripp v. Bellamy, 5 Price, 384: Oakes (h) 1 Chit. Rep. 27 a: Tilly v. Henly, (i) R. M., 36 G. 3: Hoar v. Hill, 1 Chit. (k) Hoar v. Hill, 1 Chit. Rep. 27. BOOK IV. The Argument, &c. Reference to Motion to make Rule absolute where no Cause shewn. week before Michaelmas term, that is sufficient (m). And in the Queen's Bench, affidavits to shew cause against an enlarged rule must be filed a week before the term to which it is enlarged (n). And the same, it seems, in the Common Pleas (6). Where a rule is enlarged, and affidavits to be used on shewing cause, are, by the rule, to be filed on a certain day, if affidavits are filed accordingly, the opposite party has a right to take office copies, and make use of them, though the party who filed them may not be desirous of doing so(p). ́Affidavits sworn in opposition to one rule on which the allegations in them may be immaterial, cannot be used without re-swearing in opposition to another rule on which they may become material, although the same question may be intended to be raised by the first rule which was actually raised on the second (q). But if they could be material at the time, it would seem they may be used (r). If there is a defect in the intitling the affidavits produced in shewing cause against a rule, the court will sometimes allow the rule to be enlarged, in order that the title may be amended (s). If a rule is moved without affidavits, none can be used in answer to it(t). No affidavits can be used in reply to those used by the party shewing cause (u). It is usual for the counsel who is instructed to shew cause to hand over the affidavits on his side to the opposite counsel, in a reasonable time before the day appointed for shewing cause. Upon the day for shewing cause, or usually the day after, (except when a rule is drawn up in one term to shew cause in another, and the same is put into the peremptory paper, when cause must be shewn on the very day for which the rule is drawn up(v)), your counsel will shew cause accordingly; and the counsel for the party who obtained the rule will then be heard in reply: also, if cause be shewn in the first instance, the counsel who moved for the rule nisi is in like manner entitled to the reply (x). Although the court will seldom hear more than one counsel upon moving for a rule nisi, yet, upon shewing cause, the number is not limited: and if there be two or more counsel on either side, they are heard in the order of their precedence. After the argument is concluded, the court deliver their opinion, and make the rule absolute or discharge it accordingly. Or in a case involving complicated accounts, or confused or contradictory statements of fact, the court will frequently refer the case to one of the masters. On such a reference, the master may receive fresh affidavits, but cannot, except by special direction in the rule, receive vivâ voce evidence (y). If no cause be shewn on the day appointed, counsel may move on the following day to make the rule absolute, on an affidavit of service of the rule nisi(z); and if cause be not (m) Johnson v. Marryatt, 2 Dowl. 343. (0) See Harding v. Austen, 8 Moore, (p) Price v. Hayman, 4 M. & W. &. (r) See Baskett v. Barnard, 4 M. & Sel. (8) Anderson v. Ell, 3 Dowl. 73: ante, 1137. (t) Atkins v. Meredith, 4 Dowl.618: Doe v. Baytun, 1 H. & W. 270. (u) Shaw v. Mansfield, 7 Price, 703 (y) Noy v. Reynolds, 4 Nev. & M. 483 SECT. 1. then shewn, the court will grant a rule for making the former CHAP.XXXIV. rule absolute (a). Draw up this latter rule with one of the masters, and serve a copy of it upon the opposite attorney, or agent, before nine at night (b). But when the counsel who is instructed to shew cause informs the opposite counsel that he is instructed so to do, it is the usual practice for the opposite counsel not to move for the rule absolute till a subsequent day. And if, after a rule has been made absolute, it appear that counsel was instructed in time, it is usual and proper courtesy, in most cases, to open the rule, and obtain back the brief, without compelling such counsel to move the court that he may be heard; but if this be refused, the court will order the rule to be opened (c). on ground that stated The rule nisi cannot be supported or made absolute upon a Rule not ground different from that stated therein: therefore, if a rule made absolute nisi be drawn up for setting aside proceedings for irregularity, different from it cannot be made absolute on the ground of such proceeding being against good faith (d). The court, however, are not bound by the exact terms of the rule nisi, but may mould it so as to meet the justice of the case (ante, 1136). in it. Date of Rule. Title and Date of Rule.] By rule of all the courts of H. T., Title and 1 Vict. r. 4, it is ordered, "that henceforth every rule of court, delivered out in vacation, shall be dated the day of the month and week on which the same is delivered out, but shall be intitled as of the term immediately preceding such vacation." Costs.] The costs of the application are wholly in the dis- Costs. cretion of the court. When the rule nisi is drawn up upon payment of costs, whether cause be shewn against it or not, and whether made absolute or discharged, the court almost always make the party who obtained the rule pay the costs. If the rule nisi be drawn up with costs, if no cause be shewn against it, it is made absolute, with costs, as of course; if cause be shewn against it, and the rule be made absolute, the court will make it absolute with costs, or without, in their discretion, according to the circumstances of the case; but, if it be discharged, the court almost uniformly discharge it with costs to be paid by the party who obtained it. Where the rule nisi is for setting aside proceedings for irregularity, if no cause be shewn against it, it is made absolute, as of course, with costs; if cause be shewn against it, and the rule be made absolute, it is made absolute almost uniformly with costs; if discharged, it is also almost always discharged with costs, to be paid the party who obtained it; and by the R. M., 37 G. 3, shall be deemed to have been so discharged, even although the rule discharging it contains no special directions upon the subject. But if the rule be silent as to costs, then, if no cause be shewn, neither party is ordered to pay costs; but if cause be shewn, the rule is made absolute or discharged, with or without costs, in the discretion of the court, according as they are of opinion that the motion ought or ought not to have (a) See the form, Chit Forms, 649. (b) Ante, 1188. (c) Chit. Sum. Pract. 108. (d) Smith v. Clarke, 2 Dowl. 218: and see ante, 1187. BOOK IV. the Rule, or been made, and ought or not to have been resisted (e). In general, where a party shews cause successfully in the first instance, he is not entitled to costs (ƒ). If the party who obtained the rule succeed only in part, the court will not give costs (g); and it seems that the opposite party would be entitled to costs if he gave notice that he was ready to yield the points on which the rule was afterwards made absolute (h). Where aparty applies to the court where he ought to have applied to a judge at chambers, he will not in general be allowed costs (i). Where a rule is discharged on a mere technical objection, it is generally so without costs (k), but sometimes with costs (). Where a rule to refer a matter to the master has been moved without costs, and the subject-matter for inquiry is matter of fact only, the court will not entertain an application for costs of the inquiry after the report of the master is made (m). Where libellous and impertinent matter is introduced into an affidavit in support of the rule, the court will sometimes deprive the party of the costs of the rule to which otherwise he would have been entitled (n). Opening and Opening and rescinding the Rule, or moving again.] There is rescinding an old rule of court, H., 3 J. 1, by which it is ordered, that if moving again. a cause he moved in court in the presence of counsel of both parties, and the court shall thereupon make an order, no person shall afterwards cause the same to be moved contrary to such rule or order, under pain of an attachment; and the counsel knowingly making such motion shall not be heard here in any cause during the same term. If, however, the rule have been made absolute too soon, or either party have been taken by surprise, the court will open the rule, upon application. But they will not open a rule merely because the affidavit upon which cause was shewn against it was false (o); or because counsel omitted to present to their notice a statute, or other authority, which might have affected their decision (p). A rule made in the Bail Court is not more liable to be re-opened than a rule made in full court; therefore such a rule will not be permitted to be reopened and argued in full court after the term in which it was made, although the judge who heard the case sanctioned the application to the full court (q). This rule against opening or rescinding rules made after hearing both parties does not apply to rules which are made absolute in the first instance. The party against whom such rules are made absolute may move to discharge them, on shewing sufficient reasons why they should not have been granted, as in the case of the common rule for changing the venue (ante, 962). (e) See Anon., 1 Chit. Rep. 390, n.: Tilly v. Henly, Id. 136: and see Husset v. Parkin, 1 Bing. 65: Rex v. Sheriff of Middlesex, in Duncombe v. Crisp, 2 Dowl. 5. (f) Fitch v. Green, 2 Dowl. 493: Reed (g) Aliven v. Furnival, 2 Dowl. 49. (i) Vaughan v. Trewent, 2 Dowl. 299. (k) Prudy v. Lovell, 4 Dowl. 671. (1) Houlditch v. Swinfen, 5 Dowl. 36. (m) Holmes v. Edwards, 6 Dowl 51. (n) Thompson v. Dicas, 2 Dowl., 93. (0) Davies v. Cottle, 3 T. R. 405: Rosett v. Hartley, 1 H. & W. 581; 7 A. & E. 522, n.: Dillamore v. Capon, 1 Bing. 398. (p) Dillamore v. Capon, 8 Moore, 462; 1 Bing. 398, S. C (q) Todd v. Jeffry, 2 Nev. & P. 443; 7 A. & E. 519, S. C. |