vice of a rule is endeavoured to be dispensed with, on the ground of absence or otherwise, the affidavit must shew what efforts have been made

to serve the party before secondary service will be allowed. Mudie v. Newman, 2 D. P. C. 639. See Rules of Supreme Court, 1883, Ord. LXVII.

r. 6.

Where a person keeps out of the way to avoid being served personally with a rule, preparatorily to obtaining an attachment against him, and it is clearly made out to the satisfaction of the court, the court will dispense with personal service. Green v. Prosser, 2 D. P. C. 99.

A sum of money having been paid into court for the benefit of the defendant, M., his solicitor, obtained a charging order for costs upon it under 23 & 24 Vict. c. 127, s. 28. The costs had been taxed ex parte. M. then took out a summons to shew cause why the sum of money paid into court should not be paid out to him in part satisfaction of his taxed costs. This summons could not be served upon the defendant, who appeared to be wilfully evading service of it. L. had acted for the defendant after M. had ceased to do so, and H. had introduced the defendant to M.:- Held, that substituted service of the summons should be allowed; that a notice calling upon the defendant to appear in one month should be put up at the master's office, and served upon L. and H., and advertised in the Times newspaper, and thereupon, if the defendant did not appear, an order might be made on the summons. Hunt v. Austin, Mason, Ex parte, 9 Q. B. D. 598; 51 L. J., Q. B. 455 47 L. T. 300—C. A.

Production of Original.] It is not necessary to produce the original rule on a service of a copy, except in cases where the party is to be brought into contempt. Holmes v. Senior, 4 M. &. P. 828; 7 Bing. 162. See Rules of Supreme Court, 1883, Ord. LXVII. r. 1.

Effect of Delay.]-It is not sufficient to make a party guilty of laches that he has delayed for an unnecessary time to serve a rule, unless it be shewn that the other party is prejudiced by the delay. Gurney v. Gurney, 1 B. C. Rep. 119; 3 D. & L. 734; 15 L. J., Q. B.

265.

When Appearance a Waiver.]—Where the party against whom a rule nisi for an attachment was obtained, appeared and objected that the rule nisi had not been personally served, the court, notwithstanding, made the rule absolute. Lery v. Duncombe, 3 D. P. C. 447; 1 C., M. & R. 737; 5 Tyr. 490; 1 Gale, 60.

Appearing by counsel to object to a notice of motion, on the ground of want of personal service, is a waiver of the objection. Harvey v. Hall,

23 L. T. 391.

b. The Application.

Non-Appearance of Respondent-Affidavit of Service.]-Quære, whether when an order is granted on motion, the respondent not appearing by counsel or otherwise, it is now necessary, as it was under the practice of the Court of Chancery, to produce before the rising of the court an affidavit of due service of the notice of motion. On the 13th July, 1883, the defendant moved on notice, to dismiss the action for want of prosecution. No one appearing for the plaintiff, the order was granted, subject to the production to the registrar of an affidavit of service of the notice of motion. Before the court rose counsel appeared before the judge and asked to be heard, but was refused leave. On the 16th July the affidavit was produced, and the order settled. On the 17th July the order was passed. Bacon, V.-C., refused to discharge the order, and held that the production of the affidavit was sufficient :-On appeal, a certificate of the registrar was produced, shewing that the practice of the Court of Chancery had not been invariably followed in the Chancery Division, the order being in some cases post-dated, and in other cases the date of the affidavit (when subsequent to the date of the order) being omitted:-Held, that, it being clear that the notice of motion had been duly served, there had been no such irregularity as justified the court in discharging the order; but that on certain terms the case must be heard on the merits, as an indulgence. Seear v. Webb, 49 L T. 481-C. A. Affirming

52 L. J., Ch. 832; 49 L. T. 94; 31 W. R. 837.

"Four o'clock Rule."]-Until altered by authority, the rule that where an order has been made upon motion for judgment by default the affidavit of service of notice of motion must be produced to the registrar by four o'clock of the day on which the order has been made, is the right one, and will be strictly enforced in this branch of the court after the end of the present sittings; until which date twenty-four hours' grace will be allowed and service within that time be considered sufficient. In Seear v. Webb (supra), the Court of Appeal did not decide that production of an affidavit three days after the date of the order was sufficient, but only (on the principle fieri non debet, factum valet) that, it being clear that the notice had been duly served, the lateness of production was not, in itself, under the circumstances, a sufficient irregularity to justify them in discharging the order. Rosier, In re, Jones v. Bartholomew, 49 L. T. 442.-Per Pearson, J.

in all cases. Butler, In re, 13 Q. B. 341; 18 L. J., Q. B. 328; 13 Jur. 869.

Where a motion beside the merits of the case fails, by reason of some defect in the affidavits, the court will not give leave to renew the appli. cation. Ilderton v. Burt, 6 C. B. 433.

A judgment signed in an action brought by A. in the name of B. having been set aside by a judge's order, a rule nisi was obtained to rescind that order, on the ground that the summons, upon which it was made, had been improperly altered by the defendant's attorney. This rule, which, by mistake, purported to have been moved on behalf of B., was discharged upon an affidavit of B., shewing that the rule had been moved without any authority from him, and that the alteration in the summons had been made with his sanction :-Held, that & second application for the same purpose might be made on the behalf of A., the party really interested. Tilt v. Dickson, 4 C. B. 736.

The court will not entertain a second application upon grounds which might and ought to have been brought forward upon a former occasion. Leggo v. Young, 17 C. B. 549; 25

Counsel.]—A counsel who has argued a case in the special paper cannot bring on a contested motion when called on to move on his argument. Palmer v. Wagstaffe, 22 L. J., Ex. 295; 17 Jur.

581.

The rule of practice in the Court of Exchequer that on the last day of term the counsel in the outer row of the bar shall be called on to move first, was established for the benefit of the junior bar, and must not be evaded by senior counsel taking their stations there. Sharp v. Sherwood, 3 Jur., N. S. 92.

On what Materials made.]—A rule making the same order in several causes, may be moved for on a single affidavit intitled in all the causes. Barrack v. Newton, 1 Q. B. 525.

But two rules moved for under similar circumstances, should be founded on distinct and separate affidavits; for as an indictment for perjury could not be sustained on the affidavits referred to in the second cause already sworn in the first, the court will refuse to act on them. Reg. v. Mizen, 1 D., N. S. 865; 6 Jur. 857.

Ön shewing cause against a rule obtained by the plaintiff to rescind a judge's order, which directed the master to review his taxation, it was objected on the part of defendant that there were no materials before the court to shew what the taxation had been; the defendant's counsel saying he had an answer on the merits, the court ordered the master's allocatur to be produced at once, without imposing any terms. Ashcroft v. Foulkes, 18 C. B. 261; 25 L. J., C. P. 202; 2 Jur., N. S. 449.

Second Application.]—Where a party fails, in the first instance, from the incompleteness of his materials, he cannot afterwards come to the court. Levi v. Coyle, 12 L. J., Q. B. 295; 7 Jur. 724.

The rule that an application once disposed of cannot be renewed under the same circumstances, and for the same objects, is not binding

Drawing up Order.] - In an action of A. against B., the matter was by rule of court referred to the master. A. died before the master's report was read. His executors obtained a rule to shew cause why they should not be made parties to the rule :-Held, that it was not necessary that the second rule should be drawn up on reading the first, provided it adverted to the first, which was in court. Bland v. Dax, 8 Q. B. 126; 15 L. J., Q. B. 1; 10 Jur. 8.

On the last day of term a rule was made absolute on an affidavit of service; the master next day discovering that the affidavit was defective, refused to draw up the rule. The court considering the rule as a pending rule, allowed a motion to be made in the sittings after the term to make the rule absolute on an amended affidavit of service. Dow v. Bell, 4 Ex. 259; 18 L. J., Ex. 391.

In drawing up a rule, it is not necessary to specify the particular document on which it is obtained, but it may be described as a paper writing, provided it is properly verified by affidavit. Platt v. Hall, 2 M. & W. 391; 5 D. P. C. 583.

Construction-Peremptory.]-A peremptory rule only means so far as the party is not prevented by the act of God or some inevitable accident. Mostyn's case, Lofft, 262, 786.

Where a rule is drawn up to shew cause peremptorily on a day named, it may be made absolute as soon as the court has gone through the bar on that day. Lace v. Adamson, 12 M. & W. 807; 8 Jur. 409.

Conditional.]-Where a rule was made absolute for changing the venue from Middlesex to the country, on payment of the costs of the application, "and of all costs reasonably and bonâ fide incurred and rendered useless by the rule;" and, after taxation of the costs, the defendant's attorney gave notice to the plaintiff's attorneys that he abandoned the rule :— Held, that the rule was conditional only, and that the defendant was not bound to abide by

it, although the plaintiff had, in the meantime, incurred the costs of his witnesses who were on their way to town before the rule was made absolute. Pugh v. Kerr, 5 M. & W. 164.

c. Shewing Cause against Rule. Affidavits.]-Appearing to oppose a rule does not waive an objection to the affidavit on which the rule was obtained. Barham v. Lee, 4 M. & Scott, 327; 2 D. P. C. 779; S. P., Clothier v. Els, 3 M. & Scott, 216; 2 D. P. C. 731.

Cause cannot be shewn till an office copy is taken of the affidavit on which the rule nisi was obtained. Brown v. Probert, 1 D. P. C. 659.

If a rule is moved without affidavits, none can be used in answer to it. Atkins v. Meredith, 4 D. P. C. 658.

Right of Reply.]-If cause is shewn against a rule in the first instance, the counsel who obtains the rule has a reply in support of his rule. Anon., 4 Taunt. 690.

The crown has a right to reply on a motion for a new trial, after verdict for the crown. Att.-Gen. v. Tomsett, 2 C., M. & R. 170; 5 Tyr. 514; 1 Gale, 147.

On a motion against which cause is shewn in the first instance, the counsel making the motion has the right to reply as in an ordinary case. Gibson v. Winter, 1 H. & W. 436.

Shewing Cause at Chambers.]-The court has no power, without the consent of parties, to make a rule returnable at chambers on a day out of term. Polluck v. Turnock, 3 Jur., N. S. 92. The court will not, at the close of a term, grant a rule to shew cause at chambers, where the party could have applied earlier. Anom., 2

Chit. 266.

It is competent to the court, in case of necessity, to grant a rule on the last day of term, returnable at chambers. Casse v. Wright, 14

C. B. 562; 23 L. J., C. P. 144.

On the last day of term the court will make a rule nisi concerning a matter of a pressing nature returnable at chambers, but it is not the practice to enlarge rules returnable at chambers without the consent of the parties. Ib.

Other Points.]-The court will not allow a party, as a matter of right, to shew cause against a rule in the first instance, although notice has been given to the other side. Doe d. Wright v. Smith, 3 N. & P. 335; 8 A. & E. 255.

A party upon whom the rule does not call is not obliged to shew cause, because he is served with the rule; and if he does, the court will not give him his costs of appearing. Johnson v. Marriat, 2 D. P. C. 343.

d. Reopening, Altering, and Rescinding. Reopening and Rescinding-When Allowed.] -The court refused to rehear a rule, upon a suggestion that it had been decided upon an erroneous report of the masters on a point of practice. Gingell v. Bean, 1 M. & G. 555; 1 Scott, N. R. 390.

A rule once disposed of, after full argument, cannot be opened again upon a suggestion that new matter has since come to the knowledge of

But if a rule nisi is discharged through mistake of counsel in not stating the terms of the affidavits on which it was founded, the case may be reheard in a subsequent term. Rex v. Middlesex (Sheriffs), 1 Chit. 445.

Upon a statement of counsel that he had moved for a rule to set aside an award, under a mistaken supposition that an affidavit deposing to certain facts had been sworn, the court, on the day after granting a rule nisi, gave leave for the rule to be drawn up as upon reading such affidavit, on condition that it should be sworn on that same evening. Perring v. Kymer, 4 N. & M. 477; 1 H. & W. 20.

had been made absolute without cause shewn, But the court refused to open a rule which upon an affidavit by the attorney, alleging that he had understood the rule to be absolute in the Charlton v. Burfit, 1 M. & Scott,

first instance.

450.

The court will not rescind a rule, on the ground that, at the time of discussion, the parties omitted to state the clause of a particular statute which might have affected its judgment or decision. Dillamore v. Capon, 8 Moore, 462; 1 Bing.

398.

Non-performance of a condition in a rule is no ground for an application to rescind it. Bayntun v. Bayntun, 1 ̊C. B., N. S. 220.

Mistakes in the terms of rules may be attended to on a motion to open them within the same term, or perhaps that following; but where more time has elapsed, the affidavits which were used on the occasion of making the first rule absolute, cannot be referred to in order to open it, unless the new motion is made, and the new rule drawn up on reading them. Lord v. Hope, 5 Tyr. 487.

When a rule nisi has been discharged, the court has no power, on the application of the party who obtained and supported it, to alter it by striking out any portion of it, when the party who has shewn cause objects to the alteration. Kynnaird v. Leslie, 12 Jur., N. S. 468.

If a rule has been drawn up improvidently or by mistake of the officer, it may be discharged on terms. Brooks v. Weston, 8 Moore, 87.

A rule fraudulently obtained will be discharged with costs. Rex v. Page, 2 Ld. Ken. 272.

A rule in the Bail Court will not be permitted to be reopened and argued in the full court, in the term after judgment has been pronounced, although the judge who heard the case sanctions the application to the court. Todd v. Jeffery, 2 N. & P. 443; 7 A. & E. 519; W., W. & D. 613.

If a rule is obtained and discharged before the single judge in the Bail Court, the full court will not allow a rule for the same purpose to be discussed before them, though on affidavits discovering facts not previously stated. Rossett v. Hartley, 7 A. & E. 552, n. ; 5 N. & M. 415; 1 H. & W. 581.

A side-bar rule obtained without disclosing the whole circumstances of a case will not be suffered to stand. Symonds v. Parmenter, 1 Wils.

86.

Where it is sought to impeach a rule, the materials upon which the rule was founded should be brought before the court. Needham v. Bristowe, 4 Scott, N. R. 773; 4 M. & G. 262.

Amendment, when Allowed.]—Where a rule cannot be served, it may be amended and enlarged, even though it has run out. Grissold v. Harding, 1 C. B., N. S. 556.

An issue went down for trial, when an arrangement was made between the parties (under a rule of court), but through inadvertence the plaintiff did not ask for the costs of the issue :-The court refused to allow the rule to be amended in this respect in a subsequent term. Hayne v. Robertson, 17 C. B. 548.

Where, in an action upon an agreement, a plaintiff obtained a verdict, and a rule was afterwards made absolute to enter a verdict for the defendant, the court, under special circumstances, allowed the rule to be amended by directing a nonsuit to be entered, but only upon the terms of the plaintiff paying the costs of the former action, and of the rule. Sillen v. Holloway, 14 C. B., N. S. 336.

A rule made absolute or discharged in one term cannot be amended in a subsequent term, whether on the civil or crown side of the court. Reg. v. Hearts of Oak Friendly Society,

14 L. T. 360.

the motion and asked for his costs, he was held not to be entitled to his costs of appearance; but inasmuch as, upon his being served with the notice of motion, no intimation was given him that he need not appear, and no tender was made to him of his costs of being advised as to the effect of the motion, he was allowed 40s. costs. Ib.

Of Abandoned Motions.]—When a counsel intends to ask for the costs of a motion as abandoned, it is his duty before doing so to communicate his intention to the counsel who is instructed to move. Aitken v. Dunbar, 46 L. J., Ch. 489; 25 W. R. 366; S. P., Yetts v. Biles, 25 W. R. 452.

Under old Practice.]-Costs cannot be given Weldron on the refusal of a rule to shew cause. v. Norris, 2 W. Bl. 769. There being no rule to tax upon. Poole v. Watson, 1 Jur. 71.

Costs of shewing cause against a rule in the first instance are never given. Rex v. Long, 1 M. & R. 139; S. P., Reed v. Speer, 5 D. P. C. 330; Harvey v. Divers, 16 C. B. 497.

Though notice of motion was given. Gerrard V. Gaskell, 2 Chit. 401.

So where a party shews cause successfully in the first instance he is not entitled to costs. Fitch v. Green, 2 D. P. C. 439.

Where cause is shewn against a rule in the first instance, the costs are in all cases in the discretion of the court, and will rarely be given. Norris v. Carrington, 16 C. B., N. S. 396.

e. Costs.

On Non-Appearance of Parties giving Notice.] -When notice had been given of a motion before the court to rescind a judge's order, and the parties giving the notice did not appear, the court ordered them to pay the costs of the other party appearing to shew cause against the motion. Perry v. Exchange Trading Company, 1 Q. B. D. 77; 45 L. J., Q. B. 224; 24 W. R. 318.

Of Parties Served with Bad Notice.]-Where a notice of motion was not given two clear days before the day for the hearing :-Held, that the party served was not bound to appear, and therefore was not entitled to his costs of doing so. Daubney v. Shuttleworth, 1 Ex. D. 53; 45 L. J., Ex. 177; 34 L. T. 357; 24 W. R. 321.

Pascoe, 4 D. P. C. 566; 1 H. & W. 651.

A rule which does not ask for costs cannot be made absolute with costs. Gleddon v. Trebble, 9 C. B., N. S. 367.

The general practice is for the court not to give costs where they are not asked for by the rule, unless there are special circumstances. Marriott, In re, 1 C. B., N. S. 499.

Where a rule prays for several things, to some of which the party is entitled, and to others not, but cause is shewn against all, no costs are given on either side; though if cause had been shewn against the bad part only, the party shewing would have had costs. Aliren v. Furnival, 2 D.

P. C. 49.

Where an affidavit answered a rule nisi for setting aside proceedings for irregularity, with costs, but was written in a cramped and slovenly hand, the court refused to grant the costs of the opposition. Bane v. Jones, 8 D. & R. 114.

If a rule is drawn up in the alternative, the party who fails on the substantial question is not entitled to the costs of the rule, although he succeeds upon the alternative. MAndrew v. Adam, 1 Scott, 99; 1 Bing. N. C. 270; 3 D. P. C. 120.