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pœna shall be placed a memorandum, that the defendant is required to file his answer or other defense in the clerk's office on or before the twentieth day after service, excluding the day thereof; otherwise the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately for each defendant, or a joint subpoena against all the defendants.7

If a defendant is sued in a representative capacity, or in both an individual and a representative capacity, he should be so described in the subpoena; which should in this respect follow the prayer of process in the bill.8 A subpoena addressed to John Moore, guardian of John Stiles, is sufficient to give jurisdiction over him individually although it might not be to give jurisdiction over him as guardian. It was held that a writ addressed to "J. O. Baugh, Sheriff of Coahoma County, Mississippi" was against the individual, not against the office and might be served in another State when he was found there.10 If a subpoena is not properly addressed, its service may be set aside upon motion, as made without authority.11 Such a defect will, however, be waived, if the defendant enter his general appearance in his representative capacity.12 Where an unincorporated partnership was described in the subpoena and bill as a corporation, and no appearance was made, it was held that the order thereupon was void, although the writ was served upon one of the partners, who failed to notify the plaintiff of his mistake. There, before suit, the attorney for the co-partnership had inadvertently written to the complainant a letter which implied that the company strong Cork Co. v. Merchants' Refrigerating Co., 171 Fed. 778.

7 Eq. Rule 12. This is copied in part from Eq. Rule 12 of 1842. It makes the return day twenty days, instead of "the next rule day or the next rule day but one, at the election of the plaintiff, occurring after twenty days from the time of the issue thereof." It omits the phrase, added to the former rule Dec. 17, 1900 (180 U. S. 641), "which shall contain the Christian names as well as the surnames of the parties." It adds the words, "and not before," in order to make clear the practice under the former rule. See Arm

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8 Carter v. Ingraham, 43 Ala. 78; Walton v. Herbert, 3 Green Ch. (N. J.) 73; Brasher v. Van Cortlandt, 2 J. Ch. (N. Y.) 247; see Cornell v. Green, 88 Fed. 821.

9 Cornell v. Green, 88 Fed. 821; s. c. in C. C. A., 95 Fed. 334.

10 Tate v. Baugh, 252 Fed. 317. 11 Walton v. Herbert, 3 Green Ch. (N. J.) 73; Brasher v. Van Cortlandt, 2 J. C. (N. Y.) 242, 247.

12 Ibid.; Buerk v. Imhaeuser, 8 Fed. 457.

had a board of directors, and the partnership did business under the name of the Newport Pressed Brick Company.18

The penalty named in the writ is now usually two hundred and fifty dollars. In earlier times it might be life or limb.14 But it is never enforced, since the taking of the bill as confessed affords a far more substantial remedy. The subpoena should be addressed to the defendant against whom it is issued.15

The usual form of a subpœna in a District court of the United States is substantially as follows:

The President of the United States of America, To John Aber: GREETING, You are hereby commanded to appear before the Judges of the District Court of the United States of America for the Southern District of New York, in the Second Circuit, to answer a bill of complaint exhibited against you in the said Court in a suit in Equity, by WILLIAM TERHUNE and to further do and receive what the said Court shall have considered in this behalf; and this you are not to omit under the penalty on you JOHN ABER of TWO HUNDRED AND FIFTY DOLLARS ($250).

WITNESS, Honorable GEORGE C. HOLT, Judge of the District Court of the United States for the Southern District of New York, at the City of New York, on the first day of February, in the year one thousand nine hundred and thirteen and of the Independence of the United States of America the one hundred and thirty-seventh.

ROBERT JONES, Sol'r.

ALEXANDER GILCHRIST, JR., Clerk.

The Defendant JOHN ABER is required to file his answer or other defense in the above cause in the Clerk's office of this Court, on or before the twentieth day after service hereof excluding the day of said service; otherwise the bill aforesaid may be taken pro confesso.

ALEXANDER GILCHRIST, JR., Clerk.

§ 161. Issue of the subpoena. No process of subpoena can issue from the clerk's office in any suit in equity until the bill

13 Baxter v. Jones, 185 Fed. 900. 14 Mr. Justice Holmes, in an article on Early English Equity, 1 Law Quar. Rev., 162, note 2, citing

1 Proceedings Privy Council (21 R. 2, 1397).

15 Daniell's Ch. Pr. (2d Am. ed.)

495.

is filed in the office. Whenever a bill is filed the clerk must issue the process of subpoena thereon, as of course, upon the application of the plaintiff. The signature of counsel is a sufficient warrant for his so doing. A præcipe or written order for the subpoena, signed by the attorney is usually first given him. It has been held that the clerk may issue to an attorney a summons duly sealed and signed without specifying the title of the cause, the names of the parties, or the return day; and that the attorney may fill in the blanks when he wishes to serve the paper.3

In the early times, the bill was first examined by one of the masters in chancery, whose duty it was to determine whether to dismiss the bill by original or to retain it by subpoena. The present practice, it is said, originated when Sir Thomas More was Keeper. In the Supreme Court of the United States a motion for leave to file a bill must first be made. This is usually heard ex parte; but when leave was asked to file a bill against the President of the United States, under the peculiar circumstances of that case it was thought proper that argument should be heard against the motion for leave." Tel special circumstances the court will require notice to be served upon the proposed defendant, and leave to file a bill has been denied. Whenever any subpoena is returned not executed as to any defendant, the plaintiff is entitled to another subpoena, toties quoties, against him, if he required it, until due service is made.9

§ 161. 1 Equity Rule 12. For the rule where a district is divided into two or more divisions, see U. S. v. Eddy, 28 Fed. 226.

2 Equity Rule 12.

3 Jewett v. Garrett, 47 Fed. 625. 4 Treatise on Masters of the Chauncerie, 1 Harg. Law Tracts, 302; Daniell's Ch. Pr. (2d Am. ed.) 357.

5 Ibid.

6 Georgia v. Grant, 6 Wall. 241, 18 L. ed. 848.

7 Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437; Georgia v. Grant,

6 Wall. 241, 242, 18 L. ed. 848; Louisiana v. Texas, 176 U. S. 1, 44 L. ed. 347; Minnesota v. Northern Securities Co., 184 U. S. 199, 46 L. ed. 499; Washington v. Northern Securities Co., 185 U. S. 254, 46 L. ed. 897.

8 Mississippi v. Johnson, 4 Wall. 475, 18 L. ed. 437; Georgia v. Grant, 6 Wall. 241, 18 L. ed. 848; Minnesota v. Northern Securities Co., 184 U. S. 199, 46 L. ed. 499; supra, § 3a.

9 Equity Rule 14.

§ 162. When a subpoena is necessary. No defendant can be brought before the court against his will without the service of a subpœna upon him.1 A general appearance will, however, waive such an omission. After a bill has been amended with no further change than the bringing in of new parties defendant, they alone need be served with a new subpoena.3 If, however, it were otherwise substantially amended, according to the English practice a subpoena to answer the amendments had to be served upon all the defendants. A subpoena to appear and answer a bill of revivor if required, should be substantially in the form of a subpoena to an original bill, except that it requires the proper representatives of the party against whom it issues to appear at the next rule-day, which shall occur after fourteen days from the time of the service of the process, and there show cause, if any they have, why the cause should not be revived."

§ 163. Personal service of a subpoena. Except in certain exceptional cases the service of the subpoena must be personal,1 and made within the district.2 Except in such cases it cannot be served in another district in the same State. The defendant must be actually served although he resides within the district. The service of process upon one of two defendants does not give the court jurisdiction over the other. A State has no power to provide that non-residents in suits arising out of their business within a State shall be bound by process served after the agency is at an end upon the agent through whom the business was transacted. A statute, providing that after an attachment had

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2 Toland v. Sprague, 12 Pet. 300, 328, 9 L. ed. 1093, 1104; Picquet v. Swan, 5 Mason, 35; Bourke v. Amison, 32 Fed. 710; Winter v. Koon, Schwartz & Co., 132 Fed. 251; supra, § 61.

3 Lukosewicz v. Phila. & R. Coal & I. Co., 232 Fed. 292; Tauza v. Penn. R. Co., 232 Fed. 294; Rakauskas v. Erie R. Co., 237 Fed. 495.

4 Dutton v. First Nat. Bank, 244 Fed. 236.

5 Wright v. Ankeny, 217 Fed. 988. 6 Flexner v. Farson, 248 U. S. 289.

been levied personal service of the process may be made by leaving the writ at the place where defendant had last stopped, is due process of law in so far as it supports a judgment against the property seized.7

At common law the service should be made in accordance with the State statute. Where the State practice permits the writ to be served by an individual who is not an officer, it need not be served by the marshal. The manner of service upon corporations is described in the following sections.1 10

In equity it must be made by the marshal of the district or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise.11

A copy of an order, that non-resident defendants appear and plead before a day specified therein, may be served by any one, under an order for substituted or statutory service, although the usual practice is to serve it by a deputy marshal of the district where the defendants are found. 12 It was held that the marshal might give an attorney an appointment of a special deputy with the name in blank with oral permission to the attorney to fill in the same.13

"When the marshal or his deputy is a party in any cause, the writs and præcepts therein shall be directed to such disinterested person as the court or any justice or judge thereof may appoint, and the person so appointed may execute and return them." 14 "The service of all process, mesne and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court or judge for that purpose, and not otherwise. In the latter case, the person serving the process shall make affidavit thereof."' 15 When a husband and wife are parties a copy should be served upon each, although the former practice was complied with by service upon the husband alone.16

7 Herbert v. Bicknell, 233 U. S. 70. 8 Amy v. Watertown, 130 U. s. 301, 32 L. ed. 946; Shampeau v. Conn. R. L. Co., 37 Fed. 771; infra, § 453.

9 King v. Davis, 137 Fed. 198, 210, aff'd as Blankenship v. King, C. C. A., 157 Fed. 676.

10 § 164.

11 Equity Rule 15; Deacon V. Sewing M. Co., 14 Rep. 43.

12 Forsyth v. Pierson, 9 Fed. 801. 13 Jewett v. Garrett, 17 Fed. 625. 14 U. S. R. S., § 922.

15 Eq. Rule 15, copied in substance from Eq. Rule 15 of 1842. See Phoenix Ins. Co. v. Wulf, 1 Fed. 775; Hyslop v. Hoppock, 5 Ben. 447.

16 O'Hara v. MacConnell, 93 U. S. 150, 23 L. ed. 840; Robinson v. Cathcart, 2 Cranch C. C. 590.

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