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Bill of Costs of a Defendant served with Subpœna, and no Bill filed.

In Chancery.

Lawrence and others v. Wilson and others.

HILARY TERM, 1820.

£ s. d.

Searching if Bill filed

0 3 4

0 16 8

0 1 0

0 6 8

Attending to prefer Costs, and Term Fee

Drawing Bill of Costs, and Copy for the Master

Attending to tax same

Paid the Master

Entering Bill at the Register Office

Paid for Subpoena

Personal Service on Plaintiff

0 26 01 4 086

0 10 0

2 10 0

These Costs must be preferred in the Term in which the Subpoena is returnable, or before the second Seal after, when the Line is struck by the Six Clerk, in his Office Book. In a Town Cause they are taxed £1 6s. 8d.; and in a Country Cause, £1 13s. 4d.

PRACTICAL DIRECTIONS.

AND

REMARKS

RELATING TO THE FOREGOING

Bill of Costs;

And to the Proceedings in General on the Part of a Defendant in the Court of Chancery, in a Suit for the Administration of Assetts.

HILARY TERM, 1820.

IN treating of the Defence to Suits, it may be sufficient for the Purpose of this Work, to observe generally, that where the Interests of the Crown, or of those under its immediate Protection, as the Objects of a Public Charity, are in question; the King's Attorney-General, or during a Vacancy, the Solicitor-General, becomes a necessary Party to support those Interests (a): all other Bodies Politic and Corporate, and Persons of full age, not being Married Women, or Idiots, or Lunatics, defend a Suit by themselves (a). A Married Woman, defends a Suit jointly with her Husband, but if her Claims are in Opposition to those of her Husband, or if she lives separate from him (b); or cannot in Conscience consent to the Answer drawn up by him, or disapproves the Defence he wishes her to make (c);

(a) Red. Ch. Pl. 81. (6) Pre. Ch. 429.

(c) 2 Atk. 50. 2 Eq. Ca. Abr. 66.

she may obtain an Order for leave to defend separately (a); and her Answer may be read against her (b); but if a Husband file a Bill against his Wife, treating her as a femme sole, an Order is not required (c): nor where the Husband is in Exile, or is an alien Enemy, or has abjured the Realm (d), or is out of the jurisdiction of the Court, and not to be found, or the Wife is Sued in respect of her separate Estate (e); but where a Woman has married merely to Defraud her Creditors (f), or obstinately Refuses to join in Defence with her Husband, she may be compelled to make a separate Defence, and an Order may be obtained to issue Process against her separately (g). An Infant defends a Suit by Guardian, appointed upon his personal Appearance in Court, or by Commission (h). Idiots and Lunatics defend by their Committees, who unless interested in the Matters in question, are by Order of Court appointed Guardians for that Purpose as of course (i); but if interested, or if no Committee has been appointed, or the Committee refuses to act, the Court will by Order appoint a Committee for the Purpose of defending the Suit (k); so if a Defendant by Age or Infirmity be reduced to a Second Infancy, or be in the Condition of an Idiot or Lunatic, though not found such by an Inquisition, the Court will upon Affidavit of his incapacity, or Evidence aliunde, appoint a Guardian ad litem(1). A Defendant in a State of Poverty, and, as such, incapable of defending a Suit: before Appearance, or in any Stage of a Suit, may

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obtain an Order to defend in formâ pauperis (a) on Motion as of course, or more usually by Petition to the Master of the Rolls, founded on his own Affidavit "that he is not worth Five Pounds in the World, his just Debts being first paid, his Wearing Apparel and Matters in question excepted;" but no Certificate by Counsel of his just Cause of Suit is required, as in the Cause of a Pauper Plaintiff; an Order made upon the Affidavit of a third Person, and not of the Pauper, has been discharged for irregularity, and the Party dispaupered (b): and so where the Pauper was shewn to be in possession of the Land in question (c); the Privilege has been held to extend only to Persons suing in their own Right, and not in autre droit as Prochein Ami, (d), or as Executor or Administrator (e); on a very recent Occasion, where a Pauper Party sustained the mixed Character of Executor and Legatee, the Question was much considered, and Lord Eldon held that it formed an Exception to the general Rule; but to prevent any undue Practice in suing generally in forma pauperis, and under Colour of the Privilege of obtaining Dives Costs, that a Special Order was necessary to enable the Pauper to proceed in that Character as to the Legacy (f). When the Pauper is once admitted, the Court is very tender of depriving him of his Privilege, by dispaupering (g).

In this place, it may be useful to remark, that by a Decision of Lord Eldon, a Solicitor, in the Exercise of the general Authority given him by his Client, may defend a Suit, but he cannot institute a Suit without an Authority in Writing for that Purpose; and if there be only Assertion against Assertion, the Solicitor having neglected to secure

(a) 11 Hen. VII. and 23 Hen. VIII. Ord. Can. Bea. Ed. 44. 215. 507.

(b) 2 Bro. C. C. 272.

(c) 11 Ves. 49.

(d) 1 Ves. 410.

VOL. I.

L L

(e) Dick. 136. Beam. Costs, 78. 93. 124.

(f) Thompson v. Thompson.. Hil. 1824.

(g) 13 Ves. 511, 516. 16 Ves. 407.

himself by an Authority in Writing, must abide the Consequences of his Neglect (a).

The Appearance of a Defendant is voluntary, or compulsory when enforced by Process.

If the Defendant lives in London, or within twenty Miles, the Cause is termed a Town Cause; and if he has been served with a Subpoena four Days or more before the Return of the Writ, he has until the Return-day to enter his Appearance; if served on the Return-day, or only a Day or two before, he has four Days, exclusive of the Day of Service, to appear (b); and so, if he be served with a Subpoena returnable immediately, within ten Miles of London, (the distance to which that Process is restricted,) he must enter an Appearance within four Days, exclusive of the Day of Service: but where the Defendant lives above twenty Miles (which is termed a Country Cause) he is allowed eight Days exclusively to appear, calculated in like manner from the Return or Service of the Subpœna; but a Party is not bound to appear till the Return of the Subpœna. It is laid down in a Work of great Practical Information, revised by an Author of distinguished Merit, that if the Subpoena be returnable on the last Day of Term, the Defendant is at liberty to appear the first Return of the Term following (c). A Party to a Bill may dispense with the Service of the Process, and come in voluntarily and appear gratis, and be entitled to his Costs as if regularly served with a Subpoena; but it should be remarked, that although a Defendant is not obliged to enter his Appearance before the Return of the Process, yet if he does so before he is regularly required by the Course of the Court, he will be in Contempt for want of Answer after the eight Days exclusively from his Appearance (d); it being decided that the Time allowed by the Rules of the Court after Appearance applies to the Actual Appearance, without regard (c) Prac. Reg. Wy. Ed. 36. (d) 5 Madd. 422.

(a) 3 Meri. 12. 1 Ves. j. 196. (b) Ord. Canc. Bea. Ed. 169.

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