Service of it.] Personal service of a rule is required, where disobeying the rule will be a contempt of the court, punishable by attachment, see post, p. 305, or where the rule is a rule nisi, for an attachment. Post, p. 308, Stunell v. Tower, 2 Dowl. 673. See Bottomley v. Bellchamber, 4 Dowl. 26. The only exceptions to this are, rules upon the sheriff to return a writ, or bring in the body, '&c., which may be served upon the under-sheriff, or upon any of his clerks at his office. See vol. 1, p. 30, 37. In all these cases, the rule itself must be shown to the party, at the same time that a copy of it is personally served upon him. Post, p. 305, 306.

In all other cases, the rule may be served upon the party's attorney, or the attorney's agent, (see ante, vol. 1, p, 55, 68), either personally or by leaving it for him with his clerk at his chambers or place of business. But merely leaving it with a laundress there, Kent v. Jones, Dowl. 210. Smith v. Spurr, 2

Dowl. 231, or female servant, Alanson v. Walker, 3 Dowl. 258, unless the affidavit state her to be the servant of the party, and unless at the time of service she say that she is authorised to take in papers for her master; or putting it under the door, Strutton v. Hawkes, 3 Dowl. 25, or into the letter box, unless you afterwards call and ascertain that it has been received: will not be sufficient.

Where the party has not appeared, or where he sues or defends in person, and personal service is not required, service of a copy of the rule at his place of business or dwelling house, upon his clerk, or some person who may be presumed to have authority from him to receive it, will be sufficient. Leaving it with his mother, Warren v. Smith, 2 Dowl. 216, or wife, &c., or with a female, who is sworn to be a member of his family, though the degree of relationship be not known, Weedon v. Lipman, 9 Dowl. 111, or leaving it even with his female servant, Thomas v. Ld. Ranelagh, 5 Dowl. 258, at his place of residence, particularly if she say that she has authority to take in papers for her master: see Edwards v. Napier, 9 Dowl. 177, will be sufficient; but leaving it merely with a workman on the premises of the defendant," Hitchcock v. Smith, 5 Dowl. 248, or with his warehouseman at his warehouse and place of business, Ibotson v. Phelps, 6 Mees. & W. 626, or with the landlady at his lodgings, Gardner v. Green, 3 Dowl. 343, or with a person by name, stating that he promised to deliver it to the party, Taylor v. Whitworth, 9 Mees. & W. 478, or with the shopman of the person in whose house he resides, James v. Westdale, Dowl. 104, have been deemed insufficient, where it was not afterwards ascertained that the rule had come to the party's hands. So leaving it at his chambers, &c., when there was no person there to receive it, is insufficient, Chaffers v. Glover, 5 Dowl. 81, unless there be a notice there desiring that papers may be so left. Warren v. Thompson, 2 Dowl. N. C.

Broom

224. So, leaving it for him at his house or place of business which is shut up, and no person there to receive it, Castle v. Sowerby, 4 Dowl. 669, or at a house or place of business which the party has left, Black v. Cloup, 5 Dowl. 270. Mudie v. Newman, 2 Dowl. 639, without ascertaining afterwards whether he has received it, see Englehart v. Morgan, 1 Dowl. 422, will not be sufficient; in such a case, you should make every possible endeavour to serve it, and upon stating those endeavours in an affidavit, and that you do not know where the party is to be found: the court upon application will grant a rule that service at the party's last place of residence, &c., and sticking up a copy of the rule in the office, may be deemed good service, and will enlarge the original rule in the mean time. Probin v. Locock, 1 Dowl. N. C. 197. See Sealy v. Robertson, 2 Dowl. 568. Martin v. Colvill, Id. 694. Davies v. Jenner, 9 Dowl. 45. Wright v. Gardiner, 3 Dowl. 657. v. Stittle, 1 Har. & W. 672. And see Grover v. Fitzroy, 8 Dowl. 29. This service, however, will not be good, unless the leave of the court have been previously obtained. Neilson v. Shee, 8 Dowl. 32. But although the party himself may have left the house, yet if his family be still residing there, a service there will be good. Payett v. Hill, 2 Dowl. 688. So, where the party had been personally served with the writ at his lodgings, a service of a rule to compute upon the daughter of his landlady there, was holden by Patteson, J. to be sufficient. Lawes v. Scales, 2 Dowl. N. C. 342. So, where the party was a member of a certain club, and had accepted a bill payable at the club house, Taunton, J. in an action on the bill, granted a rule to show cause why service of the rule to compute upon the porter at the club house, who had stated that the defendant sent his servant every day to receive messages or letters left there for him, should not be deemed good service; and the rule was afterwards made absolute, and served in the same manner. Ridgway v. Baynton, 2 Doul. 183. So, where the rule and a copy were sent in a letter by post directed to the party, and the rule was returned indorsed," received a copy of the within rule," in the party's handwriting, this was holden to be sufficient. Smith v. Campbell et al. 6 Dowl. 728.

In an action upon a promissory note against several defendants, who suffered judgment by default, it was holden that service of a rule nisi to compute upon one of them, was sufficient; for by suffering judgment by default, they admitted a joint cause of action, and that quoad hoc they were partners. Figgins v. Ward et al., 2 Dowl. 364. Carter v. Southall, 3 Mees. & W. 128. Amlot v. Evans et al., 7 Mees. & W. 462. Arnold v. Evans, 9 Dowl. 219.

If there be any irregularity in the service, the party's appearing and showing cause against the rule will in general be a waiver of it; Noel v. Eyre, 1 Tidd, Pr. 506, but see Stunell v. Tower, 2 Dowl. 673; even moving to enlarge the rule, will

have the same effect. Cartwright v. Blackworth, 1 Doul. 489 But by the party thus appearing, he does not waive an irregularity in the rule itself or in the copy served,-as for instance, that it is not intituled in the cause, or the like. Wood v. Critchfield, 1 Cr. & M. 72.

In all cases where personal service is not required, or where it is not intended to bring the party into contempt, it is not necessary to show the original rule to the person with whom the copy is left. Bellairs v. Poultney, 6 M. & S. 230. Holmes v. Senior, 7 Bing. 162. By R. G. H. 2 W. 4, s. 51, "it shall not be necessary to the regular service of a rule, that the original rule should be shown, unless sight thereof be demanded, except in cases of attachment."

The rule must be served a reasonable time before the day specified in it for showing cause; where a rule nisi to compute, was served at York on the day cause was to be shown, Gurney, B. held it insufficient to authorise making the rule absolute, even although ten days had elapsed since the service. Farrell v. Dale, 2 Dowl. 15. And if it is to be served upon an attorney, it must be served before nine o'clock at night. R. G. H. 2 W. 4, s. 50. See ante, p. 68. If served so late in the term that the party cannot show cause against it during that term, the court upon application will enlarge it. It may be necessary to mention, that a party who has obtained a rule nisi, is not bound to serve it; nor has the other party any power to compel him to proceed with it. Doe d. Harcourt v. Roe, 4 Taunt. 883. And even after serving it, he may abandon it, and give the other party notice not to appear to show cause against it, offering at the same time to pay him any costs he may have incurred.

Having served the rule, make an affidavit thereof stating the time and manner of service. The rule should be annexed to the affidavit before it is sworn, and the affidavit must be of a service of a "copy of a rule hereunto annexed;" swearing to ́a service of "the rule in this cause," would be bad. Fidlett v. Bolton, 4 Dowl. 282. Where the affidavit stated a service of "a true"-omitting the word " copy," Littledale, J. held it to be sufficient. R. v. Sh. of Stafford, 5 Dowl. 238. And where it stated a service of the original rule itself, and not a copy, it was holden sufficient. Leaf v. Jones, 3 Dowl. 315. Care should be taken that the affidavit be correct in its title, see Anderson v. Baker. 3 Dowl. 107, and the other formal parts of it.

2. Cause shown, &c.

All persons called upon by a rule nisi, must show cause against it, otherwise it will be made absolute against them. But no other person has a right to show cause against it, even

although he may have been served with a copy of the rule; Johnson v. Marriat, 2 Dowl. 343; nor will the court give him costs, although no case be made out against him. Id. When a rule nisi is obtained for setting aside proceedings for irregularity, however, the opposite party, instead of showing cause, may offer to relinquish the irregular proceeding and pay the costs; after which the party who obtained the rule cannot make it absolute. But the opposite party must, in such a case, offer all that the other party would be entitled to by making his rule absolute. Clarke v. Crockford, 3 Doul. 693.

When.] The rule specifies on what day cause is to be shown against it. But by R. G. E. 2 W. 4, the days between Thursday next before, and the Wednesday next after Easter-day, shall not be reckoned or included in any rules. This however is a matter of observance for the clerk who draws up the rule. Cause is seldom shown on the day mentioned in the rule; but it may on the next, or on any other day during the same term, (See Smith v. Coller, 3 Dowl. 100) that may be convenient to the counsel on both sides. In the Exchequer, however, if rules be granted in one term, to show cause on any day certain in the next, cause must be shown on the very day for which the rules are drawn up. Warner v. Wood, 3 Dowl. 262. On the last day of term, the court will not allow cause to be shown against a rule for setting aside an award; ante, p. 260, Bignall v. Gale, 2 Man. & Gr. 364; and the rule, in such a case, must consequently be enlarged until the next term. Nor will the court usually hear a rule argued on the last day of term, in which any nice matter of law is to be discussed, but they in general order it to be enlarged until the term following.

But if the party against whom a rule is to be applied for, be apprized of it in time, he may, if the court will allow him, show cause against the rule in the first instance, that is to say, immediately after its being moved for; Quin v. King, 4 Dowl. 736; in which case the counsel, who moves the rule, is entitled to a reply. Anon. 4 Taunt. 690.

Affidavit.] It seems that it is only in cases where the rule nisi has been obtained upon affidavit, that an affidavit may be used in showing cause against it. Atkins v. Meredith, 4 Dowl. 658. And therefore where a rule nisi for a new trial was moved for on the judge's report alone without affidavit, the court refused to allow the other party to use an affidavit in showing cause. Doe v Baytup, 1 Har. & W. 270. It may be sworn at any time before cause is actually shown against the rule. Braine v. Hunt, 2 Dowl. 391. Graham v. Beaumont, 5 Dowl. 49. And the party showing cause, may in fact make use of any affidavits on the files of the court, in the same cause, Ryan v. Smith, 9 Mees. & W. 223, whether filed by the party

showing cause or his opponent; Price v. Hayman, 4 Mees. & W. 8. Chambers v. Bryant, 12 Law J. 139, qb.; but it is usual in such a case, to give notice to the opposite party of your intention to do so.

In the court of Queen's Bench, where a rule is enlarged from one term to another, the rule by which it is enlarged always requires that the affidavits, to be used in showing cause, shall be filed one week before the term. And by R. M. 36 G. 3, in all cases where a special time is limited in any rule, before which any affidavit is required to be filed, no affidavit filed after the time, shall be used in court or before the master, unless it appear to the satisfaction of the court that the filing of it within the time limited was prevented by inevitable accident. And the same is the practice in the Common Pleas; except that the affidavits to be filed before Trinity Term, may be filed four days before the term, instead of a week. See Harding v. Austen, 8 Moore, 523. This rule formerly was not very strictly enforced; see Hoar v. Hill, 1 Chit. 27; but the courts now hold parties to a strict observance of it. Gilson v. Carr, 4 Dowl. 618. Turner v. Unwin, Id. 16, 1 Har. & W. 186. Cosby v. Betts, 1 Dowl. N. C. 503. Wright v. Lewis, 8 Dowl. 298. And when thus filed, the opposite party may use and observe upon them, whether the party filing them intends to make use of them or not. Price v. Hayman, 4 Mees. & W. 8.

Cause shown, how, &c.] The first thing to be done is to get an office copy of the affidavit and rule on which the rule was moved; for until this has been obtained, counsel cannot be heard. Brown v. Probert, 1 Dowl. 629. But when the affidavits, intended to be used on showing cause, are filed, as above mentioned, it is not necessary for the other party to obtain office copies of them, before he is heard in support of his rule. Pitt V. Coombs, 4 Nev. & M. 535, 1 Har. & W. 13.

In showing cause, and indeed in supporting the rule also, the counsel will be obliged to confine themselves strictly to the facts stated in the affidavits. See Aliven v. Furnival, 2 Dowl. 49.

No affidavits can be read in reply to those used in showing cause against the rule. Shaw v. Mansfield, 7 Price, 709. See Bury v. Clench, 1 Dowl. N. C. 848.

It may be necessary to mention, that a party called upon to show cause against a rule, may oppose the rule in person, or by a new attorney, without notice to the other party of any order to change his former attorney. Lovegrove v. Dymond, 4 Taunt. 669.

In deciding the case, the court cannot make any order upon a person, who is not a party to the rule, not even upon the attorney of either of the parties, however reprehensible his conduct may have been. Cheslyn v. Pearce, 4 Dowl. 693. Norton v. Curtis, 3 Dowl. 245.