of it, was in contempt, and partly that the eight days for showing cause had expired. In opposition to the motion, it was principally insisted that the service of the subpoena to show cause was inoperative, the subpoena being dated the day before Michaelmas term, and not having been served until two days after such term, whilst by the seventh of the orders of the 21st December, 1833, the time for serving any subpœna (except for costs) is limited to the last day of the term next following the term or vacation in which it was sued out. It was also suggested, that the order for setting down the cause again, although obtained after the eight days ended, would not be irregular, provided it were made and served before the plaintiff had procured an order making the decree absolute. In the present instance this could not have been done by the plaintiff before the 7th December, the next motion day. The LORD CHANCELLOR said, that the rule, that a defendant in contempt shall not be heard, could not extend to a step necessitated by the proceedings of the plaintiff'; but if the plaintiff remained quiet, it was not in general competent for the defendant, being in contempt, to make any application, unless to clear it. If, therefore, the subpœna were duly served, the defendant was entitled to the order for setting down the cause again (a); but then such order was, in his opinion, obtained too late, inasmuch as the eight days had elapsed, and it signified not that the plaintiff had not immediately an opportunity of making his decree nisi absolute. On the other hand, if the service of the subpoena were, as was contended, a nullity, in consequence of its taking place after the term, the defendant being in contempt, was not entitled to the order for setting down the cause again, as there could be no proceeding of the plaintiff to render any step on the part (a) King v. Bryant, 3 Mylne & Craig, 191. Perryman, M. R. July 14th, 1838. So Parry v. of the defendant requisite. In either way of considering the case, the order of the 6th December must be discharged. Mr. Wigram for the motion; Mr. Cooper against it. The order for showing cause nisi should di rect the cause to be set down after those al ed, and not fix no authority. Another objection to the order of the 6th December against a decree was raised upon the authority of the Margravine of Anspach v. Noel, 1 Maddock, 310, 313; S. C. 19 Vesey, 573. It was insisted that the order ought, in conformity ready appoint with what is there said by Lord Eldon, to have fixed a day for hearing the cause, instead of directing it to be set down to be heard next after the causes already appointed. decision in the But independently of the inconvenience of permitting a Anspach v. Noel defendant to draw up an order that the cause should be heard on any particular day, it did not appear that what his lordship is reported to have laid down had been acted on. In subsequent orders made by Lord Eldon, the old form had been adopted. For instance, in Cooke v. Gould, 2d January, 1824, the order was in these words: "Upon the humble petition of the above named defendant this day preferred unto the Right Honorable the Lord High Chancellor of Great Britain, for the reasons therein contained, and upon the petitioner paying or tendering to the plaintiff, or his Clerk in Court, the costs of the last day's default in attendance and subsequent costs (if any), to be taxed by Mr. Trower, one of the Masters of this Court, in case the parties differ about the same; It is ordered that this cause be again set down to be heard before his lordship next after the causes already appointed, in order for the petitioner to show cause against the decree made in this cause, on the 23d day of November, 1824, and hereof notice is to be given forthwith." Underhill v. Norton, M. R. February, 1828. The order followed the same form. Injunction. against plough. ing up meadow land and com mitting other waste therein, fendant should fully answer until the de other order to the contrary. Answer putinAction brought by plaintiff for injury sustained by the waste complained of Defendant com This suit was instituted to restrain the defendant, who was the plaintiff's tenant, from ploughing and breaking up meadow ground, and to have compensation for waste already committed in that respect. On the 9th June, 1835, an injunction was awarded to restrain the defendant and his servants, workmen, and agents, from ploughing or in any the bill, or manner breaking up the pieces or parcels of land in the the Court make bill filed in this cause mentioned, or any part thereof, and from committing or permitting any further or other waste or spoil on or to the said pieces or parcels of land and hereditaments, or any part thereof, until the said defendant should fully answer the plaintiff's bill, or this Court make other order to the contrary. In the month of June, 1836, a motion was made that such land a sethe defendant might be committed for a breach of this injunction. The motion was supported by affidavits stating that within the last few days the defendant, with his servants, workmen, and agents, had been again ploughing up, contrary to the rules of good husbandry, the close called the First Townsend Close, and in respect of which the injunction was particularly obtained, and had sown the same with barley. The affidavits filed on the part of the defendant stated that previous to such injunction having been obtained, the defendant had ploughed up a part of the First Townsend Close and sown the same with vetches, and which piece of land so ploughed up contained in width about nineteen yards, and in length about 120 yards. That on the 12th of August 1835, the defendant was arrested at the suit of plaintiff and held to bail for the sum of 251. for the alleged injury occasioned by the defendant's ploughing up the said part of said Townsend Close, and which suit at common law was also pending, notwithstanding the proceedings in this present suit in chancery for the same cause. That having put in and filed his answer to said plaintiff's bill he considered that the said injunction was at an end, and that the said injunction was never intended to restrain him mitted to Fleet for breaking up cond time. the said defendant from proceeding with the regular course of tillage which he had began upon the said small piece of land, which had been already ploughed up and sown with vetches; and therefore on or about the 14th day of May then last past the defendant directed his servants to plough the said small piece of ground which had been before sown with vetches, and sow the same with barley, without the most distant idea that by so doing he was infringing upon any rule or order of this Honorable Court or the plain and manifest construction of said injunction. On the 10th August, 1836, it was ordered, that the defendant do stand committed to His Majesty's Prison of the Fleet until the further order of this Court. Witnesses were examined both on the part of the plaintiff and the defendant as to any injury done to the lands by ploughing up the aforesaid piece of meadow. The decree nisi was in these words : This cause coming on this present day to be heard and debated before this Court in the presence of counsel learned for the plaintiff, no one appearing for the defendant, although he was duly served with subpoena to hear judgment in this cause as by affidavit now produced and read appears. Whereupon and upon hearing the order dated the ninth day of June, 1885, the proofs in this cause on behalf of the plaintiff read (a) and what was alleged by the counsel for the plaintiff, this Court doth order and decree that it be referred to the Master in rotation to enquire into the amount of the damage sustained by the plaintiff in consequence of the defendant ploughing up and breaking up the land as in the pleadings mentioned. For the better making of which (a) In Stubbs v. — 10 Vesey, 30, the defendant making default at the hearing, the plaintiff in the usual way took such decree as he could abide by; but desiring the evidence to be entered as read, the Registrar objected, stating the practice to be not to enter the evidence as read; as there can be no appeal against a decree so taken. The Lord Chancellor said he would abide by the practice, and ordered that the evidence should not be entered as read. See Webb v. Litcott, 3 Atkyns, 25; S. C. 1 Dickens, 88. enquiry the parties are to be examined upon interrogatories as the said Master shall direct. And it is ordered, that the injunction granted in this cause to restrain the defendant and his servants, workmen, and agents from ploughing, or in any manner breaking up, the land in the pleadings mentioned be made perpetual. And it is ordered, that the defendant do pay unto the plaintiff his costs of this suit up to this time; such costs to be taxed by the said Master. And this Court doth reserve the consideration of all further directions and of the subsequent costs of this suit until after the Master shall have made his report; and any of the parties are to be at liberty to apply to this Court as there shall be occasion. And this decree is to be binding on the defendant, unless he, on being served with subpoena to show cause against the same, shall at the return thereof show unto this Court good cause to the contrary. But before the said defendant is to be permitted to show such cause, he is to pay unto the plaintiff his costs of this day's default in appearance, to be taxed by the said Master, The principal cases touching this species of waste are, Hastings v. Cooper, Tothill, 52; Curteen v. Heveene, ibid. 114; Brook v. Denton, Howard v. Ridler, Tresham v. Gerrard, Packer v. Newell, Gurnard v. Eyres, Rolls v. Miller, ibid. 143, 144. Tothill gives the names of other cases besides the above. Atkins v. Temple, 1 Reports in Chancery, 8, S. C. Tothill, 209; Cole v. Peyson, 1 Reports in Chancery, 57; Hermier v. Maund, ibid. 62; Tregonwell v. Lawrence, 2 Reports in Chancery, 49; Woodward v. Gyles, 2 Vernon, 119; Goring v. Goring, 3 Swanston, 661; Clark v. Thorp, 2 Vesey, sen. 232; Lord Grey de Wilton v. Saxon, 6 Vesey, 106; Drury v. Molins, ibid. 328; Pratt v. Brett, 2 Maddock, 62; Martin v. Coggan, 1 Hogan, 120; Morris v. Morris, ibid. 238. |