' in the manner thereby directed, or, in case where 'the said Courts respectively should deem fit, upon 'the receiver, steward, or other person receiving or ' remitting the rents of the lands or premises, if any, ' in the suit mentioned, returnable at such time as 'the said Courts respectively should direct, should 'be deemed good service of such party, and after. 'wards, upon an affidavit of such service had, to or'der an appearance to be entered for such party, in such manner and at such time as the said Courts

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respectively should direct, and that thereupon it 'should be lawful for such Courts respectively to 'proceed upon such service so made as aforesaid, as 'fully and effectually as if the same had been duly 'made within the jurisdictions of such Courts respectively" (Sect. 1). And it was further enacted, 'That where it should appear upon affidavit, to be 'made to the satisfaction of the said Courts respectively, that any defendant in any such suit as there' inbefore mentioned could not by reasonable diligence 'be personally served with the subpoena to appear and

answer, or that upon inquiry at his usual place of abode, he could not be found so as to be served with such process, and that there was just ground 'for believing that such defendant secreted or with'drew himself so as to avoid being served with the process of such Court, then, and in all such cases, it 'should be lawful for the Court to order that the 'service of the subpoena to appear and answer should 'be substituted in such manner as the Court should 'think reasonable and direct by such order." (Sect. 2).

It has been determined that these statutes extend to Scotland. (Cameron v. Cameron, 2 My. & Kee. 289; Parker v. Lloyd, 5 Sim. 508). Service abroad of a subpoena to appear was ordered under the 4 & 5 W. 4, c. 82, in a case where English funds were alleged to have been improperly sold out and invested in Austrian stock, and Dutch and Portuguese bonds; (Dodd v. Webber, 2 Beav. 502); and the defendant having made default in entering his appearance, and the service of the subpœna and order having been properly authenticated, the Court ordered an appearance to be entered by the six clerk. (Id). Where a defendant has been served with a subpoena under 2 & 3 W. 4, c. 33, personal notice must be given to him before any subsequent process is applied for. (Hasluck v. Stewart, 6 Sim. 321).

SECTION 6.

Affidavit of Service.

AN affidavit of the service of a subpoena to appear, stating that the deponent served the defendant with it, by leaving a true copy of it, and of the indorsement thereon, with A. the wife of L., the sister of the defendant, at whose house the defendant lodged, is insufficient, as it does not shew where the writ was served. (Bickford v. Skewes, 9 Sim. 428).

SECTION 7.

Irregular Service.

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If there be any objection to the service of the Irregular sersubpoena, the defendant should not appear if he pœna. mean to avail himself of the irregularity; for by appearing he waives the irregularity. He should move to discharge the attachment when it issues. (Bound V. Wells, 3 Madd. 434).

A bill was filed against A. and others, but before he was served with a subpoena, he went abroad. The bill was then amended by stating that A. was out of the jurisdiction, and a decree was made. A. then filed an original bill to impeach the decree, on the ground that he was in England when the former bill was filed, but was not served with process. The bill is not demurrable, on the ground that the decree could not be impeached, except by a supplemental bill in the first suit. (Waterton v. Croft, 6 Sim. 431).

CHAPTER VIII.

SERVING A COPY OF THE BILL.

THE rule already adverted to, that the plaintiff is bound to bring before the Court all persons having any interest in the matter under litigation, compels him to make defendants not only those persons who are actually resisting his claim, but frequently also parties who have the same interest as himself, in

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consequence of the latter refusing to join him as plaintiffs, or its being thought, for other reasons, better that they should be made defendants. Against this class of defendants, it is clear that the plaintiff cannot, by his bill, seek any direct relief. One of the most familiar instances of this peculiarity occurs in the case of a suit by next of kin for the distribution of an intestate's estate. One of the next of kin is competent to sustain such a suit; but in that case, all the others must be made defendants. It is clear, however, that they have the same interest as the plaintiff, and that the plaintiff cannot, by his bill, ask any relief from them. To require such persons to appear and answer the bill, must evidently be wholly nugatory; their appearance and answers merely encumber the record, and lend the plaintiff no assistance: It cannot but be regarded as a great simplification of the proceedings in the cause, that for the future it will be competent for the plaintiff to dispense with such merely formal parties. By the 23rd (C. & L.) it is ordered "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 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 proceed'ings in the cause. But this order is not to prevent 'the plaintiff from requiring a party against whom

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no account, 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 'ordinary way, if he shall think fit."

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This order, it will be observed, does not apply to infant defendants; and the reason is, that such persons are not considered capable of exercising a legal discretion. Their rights are peculiarly under the protection of the Court. It will further be observed, that this order provides that the prayer of process shall not ask for a subpoena "to appear and answer" as against such defendants; but merely that such parties "being served with a copy of the bill, may be bound by all the proceedings in the cause." The order does not expressly require that the copy of the bill should be personally served; but it does not admit of any reasonable doubt that such service must be personal. If the plaintiff, under the authority given by the concluding paragraph of this order, shall require a party, against whom no relief is sought, to appear and answer, "The costs occasioned by the plaintiff having required such party so to appear and answer the bill, and the costs of all proceedings con'sequential thereon, shall be paid by the plaintiff, unless the Court shall otherwise direct." (29 C. & L). By the 24th (C. & L.) it is provided, "That where a plaintiff shall serve a defendant with copy of the bill under the twenty-third Order,

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