The plaintiff, if successful, is entitled to his costs out of the fund, if there be one.34 Otherwise, from the defendant whose claim is finally held bad. These costs, as well as the costs of the successful defendant, must eventually be paid by him whose claim is finally dismissed.36 It has been said that when the bill is dismissed, there can be no further proceedings in the cause as between the defendants; not even by consent; inasmuch as the court has thereby lost jurisdiction.37 After a decree in the plaintiff's favor, the cause is terminated as to him; and in case of his subsequent death the cause will proceed without a revivor.38 - § 89. Bills in the Nature of Interpleader. Where the plaintiff claims for himself some interest in the fund or matter in question, or does not admit the whole of a defendant's claim, or the defendants claim different amounts, although a bill of interpleader may not, a bill in the nature of an interpleader may, perhaps, be sustained. The frame of such a bill and the proceedings thereunder should conform, mutatis mutandis, to those of a strict bill of interpleader. After payment of what he admits to be due, a decree may be entered discharging the plaintiff as to that, and directing the suit, or, if an action at law had previously been begun, the latter, to proceed till his disputed rights are determined.2 § 90. Bills of Certiorari. A bill of certiorari was a bill filed in a superior court of equity for the purpose of removing thither a suit in equity pending in an inferior court, on account of some alleged incompetency in the latter or some defect in its proceedings. Such a bill first stated the proceedings in the inferior court; then the cause of its incompetency, as, for example, that the subject of the action or the parties were not within its jurisdiction, or that, for some other cause, equal justice could not be 34 Dunlop v. Hubbard, 19 Ves. 205; Dowson v. Hardcastle, 2 Cox Eq. 279. 35 Aldridge v. Mesner, 6 Ves. 418; Mason v. Hamilton, 5 Simons, 19; Daniell's Ch. Pr. 1767. 36 Mason v. Hamilton, 5 Simons, 19; Cowtan v. Williams, 9 Ves. 107; Daniell's Ch. Pr. (2d Am. ed.) 1766, 1767. Jennings v. Nugent, 1 Molloy, 134. 38 Anon., 1 Vern. 351; Jennings v. Nugent, 1 Molloy, 134; Daniell's Ch. Pr. done there; and finally prayed a writ of certiorari, to certify and remove the record and the cause to the superior court.2 It did not pray that the defendant should answer, or even that he should appear to the bill, and, consequently, prayed for no writ of subpoena, although a subpoena had to be sued out and served.3 It was considered as an original bill, and filed as such in the superior court. Thereupon, the plaintiff was required to execute a bond in the penalty of £100, with one surety conditioned to prove the suggestions of the bill in fourteen days. A subpœna was next sued out and served; and a writ of certiorari issued directed to the judge of the inferior court, requiring him to certify or send to the court issuing the writ the tenor of the bill or plaint below, with the process or proceedings thereon. The writ having been served and returned, together with the required statement and papers, an order directing them to be filed was then obtained. Testimony to prove or disprove the suggestions of the bill was immediately taken, and the cause referred to a master to report whether they were proven or no. This was required to be done within fourteen days, unless the court specially enlarged the time. If the allegations were proved and showed a sufficient reason for retaining the suit, an order to retain the bill was granted; and the defendant below was obliged to answer, and the cause removed proceeded in the same manner as if it had been originally instituted in the superior court. In no reported case has such a bill been filed in a court of the United States, although petitions for writs of certiorari in proceedings at common law are not uncommon.5 2 Story's Eq. Pl. § 298. 3 Story's Eq. Pl. § 298; Mitford's Pl. ch. 1. 4 Hinde's Pr. 28-32 and 581, 582. 5 See infra, § 365. CHAPTER V. SUBPOENAS TO APPEAR AND ANSWER. § 91. Definition and Form of Subpœna. The first process in a court of equity is the subpoena, which is a writ requiring the defendant to appear and answer the bill under a penalty therein expressed. A similar writ, called quibusdam certis de causis, in the form of a subpoena without any penalty, is also found in some of the early English chancery cases. The process of subpœna constitutes the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill.2 These writs, like all writs and processes issuing from the courts of the United States, must be under the seal of the court from which they issue, and signed by the clerk thereof. Those issuing from the Supreme Court or a Circuit Court must bear teste of the Chief Justice of the United States, or, when that office is vacant, of the associate justice next in precedence; and those issuing from a District Court must bear teste of the judge, or, when that office is vacant, of the clerk thereof. When issued from the Supreme Court the writ must be in the name of the President of the United States. It must be returnable into the clerk's office the next rule day, or, at the election of the plaintiff, the next rule day but one, occurring twenty days from the time of the issue thereof,5 except in the Supreme Court when the return day must be at least sixty days after service of the writ.6 "At the bottom of the subpoena shall be placed a memorandum that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable, otherwise the bill may be taken pro confesso." The penalty named in the writ is now usually two hundred and fifty § 91. 1 Judge O. W. Holmes, Jr., in an article on Early English Equity, 1 Law Quarterly Review, 162, note 2, citing Palgrave, King's Council, 131, 132, note x; Scaldewell v. Stormesworth, 1 Cal. Ch. 5. 2 Rule 7. 8 U. S. R. S. § 911. 4 Rule 5 of the Supreme Court of the United States. 6 Rule 12. • Supreme Court Rule 5. dollars; in earlier times it might be life or limb; but it is never enforced; since the taking of the bill as confessed affords a far more substantial remedy. The subpoena should be addressed to the defendant against whom it is issued.9 "When there are more than one defendant, a writ of subpoena may, at the option of the plaintiff, be sued out separately for each defendant, except in the case of husband and wife defendants, or a joint subpœna against all the defendants." 10 If a defendant is sued in a representative capacity, or in both an individual and a representative capacity, he should be so described in the subpoena; which should in this respect follow the prayer of process in the bill.11 Otherwise, the service of the subpœna may be set aside upon motion, as issued without authority.12 Such a defect will, however, be waived, if the defendant enter his general appearance in his representative capacity.13 The usual form of a subpoena in a circuit court of the United States is substantially as follows: THE PRESIDENT of the UNITED STATES OF AMERICA, TO JOHN ABER: GREETING, You are hereby commanded that you personally appear before the Judges of the Circuit Court of the United States of America, for the Southern District of New York, in the Second Circuit Court, in Equity, on the first Monday of December, A.D. 1889, wherever the said Court shall then be, to answer a bill of complaint exhibited against you in the said court by ARCHIBALD BROWN, and do further and receive what the said Court shall have considered in that behalf. And this you are not to omit under the penalty on you of TWO HUNDRED AND FIFTY DOLLARS. WITNESS, Honorable MELVILLE W. FULLER, Justice of the United States at the City of New York, on the first day of November in the year one thousand eight hundred and eighty-nine, and of the independence of the United States of America, the one hundred and thirteenth. ROBERT JONES, Complainant's Solr, Judge O. W. Holmes, Jr., in an article on Early English Equity, 1 Law Quarterly Review, 162, note 2, citing 1 Proceedings Privy Council (21 R. 2, a. d. 1397). 9 Daniell's Ch. Pr. (2d Am. ed.) 495. 10 Rule 12. 11 Carter v. Ingraham, 43 Ala. 78; Walton v. Herbert, 3 Green Ch. (N. J.) JOHN A. SHIELDS, Clerk. 73; Brasher v. Van Cortlandt, 2 J. Ch. (N. Y.) 247. 12 Walton v. Herbert, 3 Green Ch. (N. J.) 73; Brasher v. Van Cortlandt, 2 J. Ch. (N. Y.) 242, 247. 13 Walton v. Herbert, 3 Green Ch. (N. J.) 73; Brasher v. Van Cortlandt, 2 J. Ch. (N. Y.) 242, 247; Buerk v. Imhaeuser, 8 Fed. R. 457. The Defendant is required to enter appearance in the above cause in the Clerk's office of this Court on or before the first Monday of December, 1889, or the bill will be taken pro confesso against him. JOHN A. SHIELDS, Clerk. 8 § 92. Issue of the Subpoena. No process of subpoena can issue from the clerk's office in any suit in equity until the bill is filed in the office. Whenever a bill is filed the clerk must issue the process of subpoena thereon, as of course, upon the application of the plaintiff. The signature of counsel is a sufficient warrant for his so doing. A præcipe, or written order for the subpoena, signed by the attorney is usually first given him. In the early times, the bill was first examined by one of the masters in chancery, whose duty it was to determine whether to dismiss the bill by original or to retain it by subpoena. The present practice, it is said, originated when Sir Thomas More was Keeper. In the Supreme Court of the United States a motion for leave to file a bill must first be made. This is usually heard ex parte; but when leave was asked to file a bill against the President of the United States, under the peculiar circumstances of that case it was thought proper that argument should be heard against the motion for leave. The court refused to extend this exception so as to include a suit by a State against General Grant when in command of the army, but then required ten printed copies of the bill to be filed with the clerk before the hearing, which it determined should be the regular practice in all cases of original jurisdiction brought before it. Whenever any subpoena is returned not executed as to any defendant, the plaintiff is entitled to another subpoena, toties quoties, against such defendant, if he requires it, until due service is made." 8 § 93. When a Subpoena is necessary. No defendant can be brought before the court against his will without the service of a subpoena upon him.1 A general appearance will, however, |