is to be numbered consecutively, or only the successive batches? There can hardly be a question that the latter, if not the true, is at all events the most reasonable, interpretation that can be given to the order.

A familiar illustration of the working of the order will occur at once in the case of an heir at law, made defendant for the purpose of admitting the will. Instead of requiring him to answer all the allegations of the bill, he will be required to answer merely to the death of the testator and the validity of the will, as a devise of real estate. Where any of the defendants are infants, as in such a case the plaintiff must prove his own title notwithstanding the admissions of the other defendants, it will be perfectly useless to call on them to answer any interrogatories on the facts which constitute the plaintiff's title; it will be sufficient to call on them to answer the interrogatories grounded on the statements which shew that they have such interests as are alleged in the matters in dispute, and so are proper litigating parties. If the bill, for example, were to foreclose a mortgage, it would be proper to interrogate them as to the allegations, shewing that they were interested in the equity of redemption; it would be perfectly nugatory to interrogate them as to the plaintiff's title; since, whatever admissions the adult defendants might make, the plaintiff would still have to prove it, as against the infant defendants. This order, if honestly carried out, will be extensively subservient to simplifying the record, and consequently reducing the expenses of the suit in

every stage. At the same time it must be admitted, that it imposes a most onerous responsibility on the draftsman, and will give rise to much contention in Court.

of bill to be

part of it.

It is further ordered, "That the note at the foot Note at foot of the bill, specifying the interrogatories which considered ' each defendant is required to answer, shall be con'sidered and treated as part of the bill; and the ' addition of any such note to the bill, or any alteration ' in or addition to such note after the bill is filed, 'shall be considered and treated as an amendment of 'the bill." (Id. 18). The note is part of the bill, and must be most carefully considered, since any alteration in it must be made upon an order to amend, which can only be obtained in the usual manner, and subject to the limitations prescribed by the practice of the Court.

introductory

interrogato

For the purpose of providing for the consequen- Form of the tial alteration in the introductory words to the inter- words to the rogatories, it is ordered, "that instead of the words ries. of the bill now in use preceding the interrogat'ing part thereof, and beginning with the words

To the end therefore,' there shall hereafter be used words in the form or to the effect follow'ing: To the end, therefore-That the said defendants may, if they can shew why your orator should not have the relief hereby prayed, and 'may, upon their several and respective corporal ' oaths, and according to the best and utmost of their 'several and respective knowledge, remembrance, in'formation, and belief, full, true, direct, and perfect ' answer make to such of the several interrogatories

'hereafter numbered and set forth, as by the note ⚫ hereunder written they are respectively required to answer; that is to say:

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“ 1. Whether, &c.

2. Whether, &c.” (Id. 19).

SECTION 4.

Prayer of Process.

HITHERTO it has been the practice to require all the defendants to appear and answer the bill, and however immaterial, might, as to the merits of the cause, be the appearance and answer of any one or more of the defendants, the plaintiff could not in general proceed to set down his cause for hearing till he had got the answers of all the defendants. The only exceptions were the case of taking the bill pro confesso, when that could be done, as against defendants, whose appearance or answer could not be got ina tedious process; and the case of a defendant being out of the jurisdiction, a fact which it was necessary to charge in the bill, and prove by evidence in the Now it is obvious, where no relief is asked against a defendant, that he must, in general, be merely a formal party, and that the cause may go on as well without as with him. There may be reasons, independent of any such relief, which would render it desirable on the part of the plaintiff that such a defendant should be before the Court, and should put in his answer; as there may, on the other hand, be reasons why such a defendant should desire to be an active party in the cause. Considerations of this

cause.

kind seem to have suggested the following order, which will greatly simplify the record, and enable the plaintiff, in many cases, to bring a cause to a conclusion, when its effectual prosecution would otherwise be entirely suspended. If the defendant, whom the plaintiff judges unnecessary in the actual prosecution of the cause, choose to come in, he may do so, at the risk of having to pay the consequential costs: so, on the other hand, if the plaintiff unnecessarily call upon a defendant to appear and answer, he is liable to pay the costs of the proceedings consequent thereon, if the Court think proper. By the order in question, it is provided, "That where no account, payment, conveyance, or other direct relief is sought against a party to a suit, it shall not be necessary for the plaintiff to require such party, not being an infant, 'to appear to and answer the bill. But the plaintiff 'shall be at liberty to serve such party, not being

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an infant, with a copy of the bill, whether the 'same be an original, or amended or supplemental bill, omitting the interrogating part thereof: and 'such bill, as against such party, shall not pray a subpoena to appear and answer, but shall pray that such party, upon being served with a copy of the bill, may be bound by all the proceedings in 'the cause. But this order is not to prevent the

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plaintiff from requiring a party against whom no ac

count, payment, conveyance, or other direct relief is 'sought, to appear to and answer the bill, or from prosecuting the suit against such party in the ordi

nary way, if he shall think fit." (C. & L. 23). The mode in which this order will operate, and the

subsequent orders for carrying it into effect, will be more fully considered in a subsequent chapter.

CHAPTER VII.

OF SUBPOENAS, AND PARTICULARLY OF THE SUBPOENA TO APPEAR AND ANSWER.

1. Of Subpoenas generally, 36.

2. Of the Subpœna to appear

and answer, 39.

3. Service of the Subpœna to appear and answer, 41.

4. Substituted Service, 42. 5.Service of Subpœna Abroad, 44.

6. Affidavit of Service, 48. 7. Irregular Service, 49.

SECTION 1.

Of Subpoenas generally.

IT has been stated that the bill concludes with a prayer for process. The process is a writ commonly called a subpoena, commanding the defendants to appear on a day named and answer the plaintiff's bill, and abide by the decree and order of the Court. This particular writ is called a "Subpoena to appear and answer." The writ of subpoena is used for a variety of other purposes, and derives in each case its distinctive appellation from the special occasion to which it is applied: as, Subpoena to rejoin; Subpœna to hear judgment; Subpoena for costs, &c. The form and mode of issuing these writs and other particulars incident thereto, are collectively prescribed