principal sum of one thousand dollars, herein before mentioned and expressed, and so due to your Orator as aforesaid on the said bond or obligation and Indenture of Mortgage in manner aforesaid: and all the interest money due, and to grow due thereon, together with all your Orator's costs and Charges in this behalf sustained and that your Orator may have such other and further relief in the premises as to your Honor may seem proper, and shall be agreeable to equity and good conscience. May it please your Honor, the premises considered, to grant unto your Orator the most gracious writ of Subpoena of the people of the state of New-York, issuing out of and under the seal of this Honorable Court, to be directed to the said C. D. and E. his wife, therein and thereby commanding them and each of them on a certain day, and under a certain penalty therein to be inserted, personally to be and appear before your Honor, in this Honorable Court, then and there to answer all and singular the said premises, and to stand to and abide by such order and decree, therein, as to your honor shall seem meet and shall be agreeable to equity and good conscience. And your Orator will ever pray, &c. F. H. Solicitor, for Complainant. 1 Patent &c. under the seal. of the court. 2 Number of names in each subpœna. 3 When tested and made returnable. THE WRIT OF SUBPOENA. Special contents. I. Patent, &c. under the seal of the court, III. When tested and returnable. IV. The time of serving it. V. The manner of serving it. VII. Attendance, cures irregularities. VIII. When the service to be made. IX. Service on the mother, &c. X. On the clerk. XI. How made, if defendant be in prison. XII. How to obtain a subpoena. XIII. Præcipe. XIV. Form of subpœna. UPON filing the bill, the clerk in court issues the subpoena, the form of which is given in the second rule of the court. (a) As to all other proces of the court it is patent, and issues under the seal of the court. (b) Of the names of the defendants there is no limited number to be inserted in each subpoena in the same cause. (c) There appearing no law or rule of court prescribing that there shall be any time between the test and return of the subpœna, and the Officina Justicia being always open, it is presumed it may be issued, tested, and made returnable at any time. If the subpoena is returnable immediately, the defendant hath four days exclusive of the day of service to appear. (d) (a) 2d Rule, post p. 70. (c)78 Rule. (d) 4 Rule, 1 Har. 170. in notis. CHANCERY. PRACTICE. The return day is commonly called the appearance day. 4 The time of The subpoena must be served on or before the ap-serving it. pearance day, but like all other civil process, it cannot be served on a Sunday. (e) 5 The manner of serving it, The service may be either by the delivery of the subpoena or a copy thereof, showing the original at the time of such delivery to the defendant or his wife, or servant, at his dwelling house or usual place of abode. (f) If the service of the subpoena is by copy, it must Service by be inscribed," copy," and subscribed by the complainant or his solicitor with his name. If the defendant appears, it cures all irregularities in the service of the subpoena. (g (g) copy. 6 8 viee to be made The service at any period of the return day of the When sersubpoena before 12 o'clock at night is deemed good service. (h) mother. 9 The service of a subpoena upon the mother or father- Service on a in-law of an infant, has on a motion for that purpose been allowed, as where the mother secreted the infants, parties to the suit. (i) 10 Service of a subpoena upon a defendant's clerk in On the clerk. court where he is beyond the jurisdiction thereof, is not allowed to be good service. (j) 11 If the defen If the defendant be a close prisoner, service of the dant be in pribody of the writ on the turnkey seems sufficient. (K) Wherever a person is called upon to answer for a contempt, the court exercises its sound discretion on the subject; and considers whether the parties acted under a mistake or contumaciously towards the court.(1) son how ser vice made. How to ob. tain a subpœ 12. In order to obtain a subpoena, let a præcipe be delivered to the clerk in the following form: In Chancery, A. B. Plaintiff, Between and Præcipe. Form of the subpoena. (m) C. D. Defendant, Subpoena ad respondendum, returnable 3d Monday in Sept. next, issued the day of 1818. E. T. Solr. Form of the Subpæna. The People of the State of New-York, by the Grace of God, free and independent, to Greeting, We command you that you personally appear before our Chancellor, in our court of Chancery, on day of wheresoever the court shall then be, to answer to a bill of complaint exhibited against you, in our said court, by and to do further and receive what our said court shall have of A. B. Solr. (m) 2. Rule. Elmendorf, Clerk. APPEARANCE. Special contents. Title and division thereof. I. Where the service of the subpœna is personal, and the defendant appears. 1. How the appearance is entered. 2. Notice thereof. 3. Time allowed for entering the appearance. 4. Order for entering the appearance. 5. Form of the notice of defendant's appearance. II. Where the service of the subpoena is personal, and the defend ant neglects to appear and answer. 1. To proceed against him by attachment, or take the bill pro 2. How the bill may be taken pro confesso. 3. Affidavit of the service of the subpœna. 4. Order Nisi to take the bill pro confesso. 5. Affidavit of receiving no notice. 6. Order made absolute that bill be taken pro confesso. III. Where the defendant appears, but neglects to file his answer. 1. Petition to the Chancellor. 2. Certificate of the Clerk, or affidavit. 3. Order of the Chancellor. 4. Service of a copy of the order. 5. Copy of the order. 6. Affidavit of service thereof. 7. Order to take the bill pro confesso. Appearance. of. 1. Title and THIS title is divided into two general heads; the first head is intended to point out the mode of compelling the defendant to appear where the service of the sub- division therepœna is personal; and the second head, where the service is otherwise. Again, the ordinary proceedings which come under the first head, are of a threefold nature. 1. Where the service of the subpoena is personal, and the defendant appears. |