there are other cases, in which the judge, under particular circumstances, will grant a peremptory summons in the first instance, attendable on the next day, and in default of attendance an order will be made upon it. But where, in an ordinary summons, the attorney's clerk inserted the-word "peremptory" without authority, the court, upon an application to them upon the same subject, ordered the attorney to pay the costs. Finnerty v. Smith, 1 Hodg. 158. There are also some applications to a judge at chambers, which are ex parte, and without summons: such as an application for an order for a capias, and the like. But where a judge at chambers, upon an ex parte application of a party to an arbitration, made an order under stat. 3 & 4 W. 4, c. 42, s. 39, allowing him to revoke his submission, the court rescinded the order, holding that the judge had no authority to make it, without giving an opportunity to the other parties to be heard against it. Clarke v.

Stocken, 2 Bing. N. C. 651.

A summons, if served, is a stay of proceedings from the time it is attendable, Anthill v. Medcalfe, 2 New Rep. 169. Redford v. Edie, 6 Taunt. 240. Trego v. Tatham, 2 Man. & Gr. 509, and if followed up by a second summons, will continue to stay the proceedings until it be disposed of. See Knowles v. Vallance, 1 Gale, 16. Hodgson v. Caley, 8 Dowl. 318. Where the time for pleading expired on the 7th, and on that day a summons for leave to plead several matters was served, attendable on the 8th at 11 o'clock, being the hour at which the judgment office opened; and the plaintiff's attorney instead of attending the summons signed judgment as for want of a plea: the court set aside the judgment for irregularity with costs, holding that from 11 o'clock the summons operated as a stay of proceedings. Wells v. Secret, 2 Dowl. 447. Morris v. Hunt, 2 B. & A.355. Even where a summons, in term time, was made attendable at ten o'clock in the morning before a judge of the King's Bench, a time when a judge of that court, as was well known, never attended at chambers: still it was holden, to be a stay of proceedings from 10 o'clock. Byles v. Walter, 5 Dowl. 232; but see Bebb v. Wales, Id. 458, semb. cont. Where however a summons was taken out to tax an attorney's bill, but the usual undertaking to pay was not entered in the book at the judge's chambers or embodied in the summons: the court held that it did not preclude the attorney from commencing an action for the amount, by suing out a writ, and which he was obliged to do in order to save the statute of limitations. Williams v. Roberts, 3 Dowl. 512. So, where a summons was taken out in vacation, to set aside a writ of execution for a variance in the amount from the sum entered in the master's book in signing judgment, and in the interval between the first summons being attendable, and the attendance on the second summons, the plaintiff entered upon the

roll a judgment according with the writ of execution: the court held that he might do so; the summons was taken out for a collateral purpose, and not in the cause, and was therefore no stay of proceedings. Phillips v. Birch, 2 Dowl. N. C. 97. So where several successive summonses were taken out, but no order obtained on any of them, they were holden not to be a stay of proceedings. Bass v. Cooper et al. 2 Mees. & W. 310. If the order be refused, the party who obtained it has not the same time allowed him to take the next step, that he had when he served the summons; but if the time limited for his taking the next step have expired, he is allowed for that purpose the whole of the day on which his summons has been disposed of. Hughes v. Walden, 5 B. & C. 770: Glover v. Watmore, Id. 769, and see post, p. 321, 322.

Affidavit.] If it be intended to use affidavits before the judge, they must be intituled, and be regular in every other respect, as in an application to the court. See ante, p. 272, &c. If they are intended to be used upon the hearing, it is usual to give the opposite party a copy of them, in order that he may be prepared with answers to them. If the affidavit be used, it is filed with the judge's clerk, who on the last day of each term delivers all the affidavits thus in his custody to the Rule Office. See Needham v. Bristow, 1 Dowl. N. C. 700. See R. G. H. 1 Vict.

Order.] If the order is made upon default of the opposite attorney, as mentioned ante, p. 298, the judge's clerk will draw it up in the terms of the summons; if made by consent, he will draw it up in the terms of the consent as indorsed. But if the parties attend before the judge, the judge after hearing them, if he think fit to make an order, makes a minute of on the back of the summons, and gives it to the successful party, who then takes it to the judge's clerk, and has the order drawn up accordingly. If the party, however, do not like the order which has been made, it is optional with him to have it drawn up or not; Daley v. Arnold, 1 Dowl. N. C. 938; if he do not, the opposite party has no mode of compelling him, but he may proceed to obtain a similar order in the ordinary way, if he will. Macdougall v. Nicholls, 5 Nev. & M. 366, 1 Har. & W. 462. Sometimes an order nisi is granted; and this becomes absolute as of course, on the day therein mentioned, unless cause be shown against it. Humphreys v. Jones, 6 Mees. & W. 418. In such a case, if the party who obtained the order do not attend at the judge's chambers on the day, the best way is to go in before the judge, say that you are ready to show cause against the order, and apply to have it discharged. Per Parke, B. Id. It was at one time doubted whether judges at chambers had a power to award costs; Read

v. Lee, 2 B. & Ad. 415. Spicer v. Todd,

Cromp. & J. 165;

but it is now fully settled that they have, Doe d. Prescott v. Roe, 1 Dowl. 274. Re Bridge & Wright, 4 Nev. & M. 5. Hughes v. Brand, 2 Dowl. 131. Collins v. Aaron, 4 Bing. N. C. 233. Sykes v. M'Clise, 8 Dowl. 145. Clement v. Weaver, 3 Man. & Gr. 551, although they seldom exercise it, except in cases of irregularity. A judge at chambers, however, has no authority to order payment of debt and costs by instalments, without the plaintiff's consent. Kirby v. Ellison, 2 Dowl. 219. If an order be made on payment of costs, this does not imply an undertaking to pay them, nor can payment of them be enforced. Fricker v. Eastman, 11 East, 319.

Care must be taken to serve the order; for until service it is of no effect. See Wilson v. Hunt, 1 Chit. 647. And it should be drawn up and served forthwith, for delay in doing so will be deemed a waiver of it. Charge v. Farkall, 4 B. & C. 865. Kenney v. Hutchinson, 6 Mees. & W. 134.

:

The only mode of reviewing the decision of a judge at chambers, in granting or refusing an order, is by application to the court in which the action or other proceeding is pending if the judge have granted an order, the application may be to rescind it: the court cannot receive it in any other way; Turquand v. Hawtrey et al. 9 Mees. & W. 727. Abbott v. Hopper, 8 Dowl. 19; if he have refused it, the application may be for a rule to the like effect as the order refused. In general a judge's order may be rescinded by the court, even in cases where original jurisdiction is alone given to a judge at chambers, and cannot be exercised by the court. Brown v. Bamford, 9 Mees. & W. 42. Johnstone v. Knowles, 1 Dowl. N. C. 30. But where a statute vests a discretionary power in a judge at chambers, the court will not interfere or rescind his order. And therefore where it was alleged that a judge had awarded a distringas on an insufficient affidavit, the court refused to set aside his order in this respect, because all the statute requires is that the court or a judge shall be satisfied from the affidavit that the defendant keeps out of the way in order to avoid being served with process. Gale v. Winks, 5 Dowl. 348. And where a judge at chambers made an order to exempt an executor from costs, under stat. 3 & 4 W. 4, c. 42. s. 31, and an application was made to the court of King's Bench to rescind that order: the court held that they had no authority to do so; they said that the authority of a judge, under that statute, was co-ordinate with that of the whole court, and they could not therefore interfere. Maddocks v. Phillips, 5 Nev. & M. 370. but see Lakin & Massie, 4 Dowl. 239, cont. So, where a judge makes an order to amend the postea in a case tried before himself, the court will not set it aside, because they have no authority to make him produce his notes. Sandford v. Alcock, 12 Law J. 40, ex.

The court also will not in general review the decision

of a judge, in merely granting or refusing costs. See Davey v. Brown, 1 Bing. N. C. 460. Giraud v. Austin, 1 Dowl. N. C. 703. The application also must be made promptly, and before the other party has proceeded upon the order and incurred expense. Thompson v. Carter, 3 Dowl. 657. And see Orton v. France, 1 Har. & W. 672. Clement v. Weaver, 3 Man. & Gr. 551. Wynne v. Wynne, 9 Dowl. 396. Baden v. Flight, 6 Dowl. 177. See Cocker v. Tempest, 7 Mees. & W. 502. Nor can a motion be made to rescind it, after it has been made a rule of court; the motion in such a case must be to set aside the rule. Id. It has been said that the affidavit in support of the application must bring exactly the same facts before the court that were brought before the single judge, and that the court would not receive an affidavit of any additional fact. Alexander v. Porter, 1 Dowl. N. C. 299. But this has been ruled otherwise by the court of Exchequer, who have holden that either party may use affidavits of additional facts. Gibbons v. Spalding, 12 Law J. 185, ex. Pike v. Davis, 6 Mees. & W. 546. See Thomas v. Evans, 9 Mees. & W. 829. If the affidavits which were used at chambers be intended to be used upon the motion, notice should be given to the judge's clerk to produce them, and he will thereupon hand them to the clerk of the rules; but if he have already returned them to the Rule Office, notice should be given to the clerk of the rules to have them in court. See Needham v. Bristow, 1 Dowl. N. C. 700. The affidavit also must either have the judge's order annexed to it, Hoby v. Pritchard, 5 Dowl. 300, or must set out the substance of it. Shirley v. Jacobs, 3 Dowl. 101. It may be necessary to add, that one judge cannot review the decision of another: and therefore if a judge upon summons refuse an order, it is deemed highly improper to proceed by summons before another judge for the same purpose; if the party be dissatisfied, he should apply to the court. Wright v. Stevenson, 5 Taunt. 850.

The only mode of enforcing a judge's order, is to make it a rule of court, then require the party to obey the rule, and if he neglect or refuse to do so, apply for an attachment, or (if it be for the payment of money) sue out a writ of execution upon the rule. Even where a judge at chambers made an order to discharge a party out of custody, on his undertaking not to bring an action, and he afterwards commenced an action, the court refused to set aside the proceedings in it, until the order should be made a rule of court. Jameson v. Raper, 3 Moore, 65. Formerly an order obtained in vacation, could not be made a rule of court until the following term. R. v. Price et al. 2 Cr. & M. 212. But now it may be made a rule of court in vacation, and the rule be dated on or after the day of the date of the order, and may be intituled as of the previous term, under R. G.H. 2 Vict. mentioned ante, p. 288. Bad

man v. Pugh, 12 Law J. 126, cp. The motion to make the order rule of court, is a motion of course, and absolute in the first instance. Wilson v. Northop, 2 Cr. M. & R. 326.

SECTION IV.

Attachment.

In what cases.

Disobeying rules of court.] Disobeying a rule of court, is a contempt of that particular court, and will in general be punished by attachment. It forms, in practice, the principal class of cases, which are punishable in that manner. There is a difference in this respect between a judge's order and a rule of court; disobeying the latter is a contempt of the court; disobeying the former is not. Baker v. Rye, 1 Dowl. 689. See Woollison v. Hodgson, 3 Dowl. 178. Re Turner, 6 Dowl. 6. But the distinction is more of a formal than of a substantial nature; for the judge's order may be made a rule of court, at any time during the term, see R. v. Price, 2 Dowl. 233, or even in vacation, Badman v. Pugh, 12 Law J. 126, cp., as a matter of course, and then a disobedience of the rule will be punished by attachment. There is one case only which is an exception to this, and it is made so by a particular rule of court: namely, where a judge's order to return the writ or bring in the body, is obtained and served in vacation, although it is necessary to make the order a rule of court before an attachment can issue for disobedience of it, 2 W. 4, c. 39, s. 15, yet it is not necessary to serve the rule; service of the order is sufficient. R. G. M. 3 W. 4, s. 13. R. G. H. 3 W. 4. As to the motion for the rule and attachment in such a case, see Stainland v. Ogle, 3 Dowl. 99. Howell v. Bulteel, Id. in notis. Hinchliffe v. Jones, 4 Dowl. 86. Pilcher v. Woods, 4 Dowl. 329. Forster v. Kirkwall, 4 Dowl. 370, and ante, vol. 1, p. 30, 32.

Where a rule requires a party to pay costs, then, as soon as the amount of the costs is ascertained, upon taxation, by the allocatur of the master written upon it, if the party refuse or neglect to pay them, when demanded, the court will award an attachment against him. But if the rule, instead of ordering the party to pay the costs, merely grant him an indulgence "upon payment of costs," the court will not grant an attachment for non-payment of such costs, even although the party availed himself of the indulgence granted to him, and had the full benefit of it. Doe v. Haddon, Hullock Costs, 401. Stokes v. Woodeson, 7 T. R. 6. Rese v. Fenn, 2 Dowl. 182. Turner v. Gill. 3 Dowl. 30. See King v. Clifton, 5 T. R. 257. So where an order to tax costs was obtained upon the