No. XII.

5 & 6 W. 4, c. 16.

II. And whereas sometimes persons have withdrawn themselves beyond the seas, or otherwise absconded, to avoid appearing in courts of equity, or being served with process for that purpose, or being brought into court by habeas corpus, have refused to appear; for Manner of pro- remedy of the inconvenience thence ensuing, be it further enacted, That ceeding in case if in any suit, not being for the foreclosure of a mortgage, which hath of persons not been or hereafter shall be commenced in any court of equity, any deappearing fendant against whom any subpoena or other process shall issue shall within the not cause his appearance to be entered upon such process within such usual time after time and in such manner as according to the rules of the court the same subpoena or ought to have been entered in case such process had been duly served, other process and an affidavit or affidavits shall be made to the satisfaction of such has been issued. court that such defendant is beyond the seas, or that upon inquiry at his usual place of abode he could not be found so as to be served with such process, and that there is just ground to believe that such defendant is gone out of the realm, or has otherwise absconded, to avoid being served with the process of such court, then and in such case the court out of which such process issued may make an order directing and appointing such defendant to appear at a certain day therein to be named; and a copy of such order shall, within fourteen days after such order made, be inserted in the Dublin Gazette, and published on some lord's day immediately after divine service in the parish church where such defendant made his usual abode within thirty days next before such his absenting, and also a copy of such order shall within the time aforesaid be posted up in some public place at the Royal Exchange in Dublin; and if the defendant do not appear within the time limited by such order, or within such further time as the court shall appoint, then, on proof made of such publication of such order as aforesaid, the court, being satisfied of the truth thereof, may order the plaintiff's bill to be taken pro confesso, and make such decree thereupon as shall be thought just, and may thereupon issue process to compel the performance of such decree, either by an immediate sequestration of the real and personal estate and effects of the party so absenting (if any such can be found), or such part thereof as may be sufficient to satisfy the demands of the plaintiff in the said suit, or by causing possession of the estate or effects demanded by the bill to be delivered to the plaintiff, or otherwise, as the nature of the case shall require; and the said court may likewise order such plaintiff to be paid and satisfied his demands out of the estate or effects so sequestered, according to the true intent and meaning of such decree, such plaintiff first giving sufficient security in such sum as the court shall think proper to abide such order touching the restitution of such estate or effects as the court shall think proper to make concerning the same upon the defendant's appearance to defend such suit, and paying such costs to the plaintiff as the court shall order; but in case such plaintiff shall refuse or neglect to give such security as aforesaid, then the said court shall order the estate or effects so sequestered, or whereof the possession shall be decreed to be delivered, to remain under the direction of the court, either by appointing a receiver thereof, or otherwise, as to such court shall seem meet, until the appearance of the defendant to defend such suit, and his paying such costs to the plaintiff as the said court shall think reasonable, or until such order shall be made therein as the court shall think just.

Persons in cus

III. Provided always, That if any person against whom any decree tody so neglect shall be made upon refusal or neglect to enter his appearance, or appoint ing to be served a clerk in court or attorney to act on his behalf, shall be in custody or with a copy of forthcoming, so that he may be served with a copy of such decree, then the decree. he shall be served with a copy thereof before any process shall be taken out to compel the performance thereof.

Persons out of

the realm af

IV. Provided also, That if any decree shall be made in pursuance of this act against any person being out of the realm, or absconding in fected by such manner aforesaid, at the time such decree is pronounced, and such perdecrees, if they son shall within seven years after the making such decree return or be

return within

No. XII.

c. 16.

to

come publicly visible, then and in such case he shall likewise be served with a copy of such decree within a reasonable time after his return or 5 & 6 W. 4, public appearance shall be known to the plaintiff; and in case any defendant against whom such decree shall be made shall within seven years after the making such decree happen to die before his or her return into seven years, this realm, or appearing openly as aforesaid, or shall within the time last be served with before mentioned die in custody before his or her being served with a a copy, or, in copy of such decree, then his or her heir, if such defendant shall have case of death, any real estate sequestered, or whereof possession shall have been deli- their heirs, &c. vered to the plaintiff, and such heir may be found, or if such heir shall be a feme covert, infant, or non compos mentis, the husband, guardian, or committee of such heir respectively, or if the personal estate of such defendant be sequestered, or possession thereof delivered to the plaintiff, then his executor or administrator (if any such there be), may and shall be served with a copy of such decree within a reasonable time after it shall be known to the plaintiff that the defendant is dead, and who is his heir, executor, or administrator, or where he may be served there

with.

V. Provided always, That if any person so served with a copy of such Persons not decree shall not within six months after such service appear and petition petitioning a to have the said cause reheard, such decree so made as aforesaid shall rehearing of the stand absolutely confirmed against the person so served with a copy six months, the cause within thereof, his heirs, executors, and administrators, and all persons decree to be claiming or to claim by, from, or under him or any of them by virtue absolutely conof any act done or to be done subsequent to the commencement of any firmed.

suit.

VI. Provided always, That if any person so served with a copy of Persons petisuch decree shall within six months after such service, or if any person tioning a renot being so served shall within seven years next after the making such hearing within decree, appear in court and petition to be heard with respect to the mat- seven years, ter of such decree, and shall pay down or give security for payment of and giving sesuch costs as the court shall think reasonable in that behalf, the person admitted to curity for costs, so petitioning, or his representatives, or any person claiming under him by virtue of any act done before the commencement of the suit, may be cause to be admitted to answer the bill exhibited, and issue may be joined, and wit- heard again. nesses on both sides examined, and such other proceedings, decree, and execution may be had thereon, as there might have been in case the same party had originally appeared, and the proceedings had then been newly begun, or as if no former decree or proceedings had been in the

same cause.

answer, and the

to be abso

VII. Provided always, That if any person against whom such decree Persons not ap shall be made, his heirs, executors, or administrators, shall not within pealing within seven years next after the making of such decree appear and petition to seven years, have the cause reheard, and pay down or give security for payment of and making such costs as the court shall think reasonable in that behalf, such decree such petition, made as aforesaid shall stand absolutely confirmed against the person lutely barred. against whom such decree shall be made, his heirs, executors, and administrators, and against all persons claiming or to claim by, from, or under him, or any of them, by virtue of any act done or to be done subsequent to the commencement of such suit; and at the end of such seven years it shall and may be lawful for the court to make such further order as shall be just and reasonable, according to the circumstances of the case.

VIII. Provided always, That this act shall not extend or be construed Not to affect to extend to warrant or make good any proceeding against any person persons beyond beyond the seas, unless it shall appear to the satisfaction of the court the seas, unless by affidavit or affidavits, before the making of such decree, that such in certain cases. person had been in Ireland within two years next before the subpoena in such suit issued against such person.

IX. And whereas in many cases persons having privilege of parlia- Appearances ment are named as defendants in suits instituted in courts of equity may be put in against them, either alone or jointly with other persons, for enforcing having privi

for defendants

against them demands and duties cognizable in courts of equity, and in some cases such defendants having privileges of parliament have stood out to the return of process of sequestration issued against them for enforcing appearance, and such process of sequestration hath not been found sufficient to enforce such appearance; be it therefore enacted, That from and after the passing of this act, in case any defendant having privilege of parliament shall, upon a return of process of sequestration issued against him for not putting in an appearance to any original or other bill of complaint instituted against him in a court of equity for enforcing discovery and relief, or discovery alone, (as the case may be,} neglect to appear, that then and in such case such court, upon producing the return of such sequestration in court, may, on the motion or other application of the plaintiff in such cause, appoint a clerk in court to enter an appearance for such defendant so having privilege of parliament, and such proceedings may be thereupon had in the cause as if the party had actually appeared.

X. And whereas in many cases it is necessary, on the part of the persons having legal rights against persons having privilege of parliament, to proceed by bill in equity against such persons so having privilege of parliament, to obtain from them discovery on oath of facts intended to be used or given in evidence in courts of law against the persons making such discovery; and in cases where such persons having such privilege as aforesaid shall stand out process of contempt, parties entitled to such discovery against them have not sufficient means of compelling or obtaining the same in all cases; be it therefore enacted, That from and after the passing of this act, when any defendant having privilege of parliament shall have appeared to any bill filed against him seeking a discovery upon oath, or when an appearance shall have been entered for such defendant according to the provisions aforesaid, and that such person shall refuse or neglect to put in his answer to such bill within the time for that purpose allowed by the rules and orders of such court, that then it shall and may be lawful for the plaintiff in such suit to apply to the court for an order that such bill shall be taken pro confesso against such defendant, and upon such application such court of equity shall make an order that such bill shall be taken pro confesso, unless the defendant shall within eight days after being served with such order show good cause to the contrary.

XI. That when and so soon as any such order shall have been pronounced by any such court of equity for taking such bill pro confesso, such bill in equity, or an examined copy thereof, so taken pro confesso, shall be taken and read in any court of law or equity as evidence of the facts and matters in things therein contained, in the same manner as if such facts, matters, and things had been admitted to be true by the answer of the defendant put in to such bill; and such bill so taken pro confesso shall be received and taken in evidence of such and the same facts, and on behalf of such and so many persons, as the answer of the defendant to the said bill could and might have been read and received in evidence of in case such answer had been put in by the defendant thereto, and had admitted the same facts, matters, and circumstances as in such bill stated and set forth; and in like manner every other bill of discovery taken pro confesso, under any of the provisions of this act, shall or may be taken and read as evidence of the facts and matters and things therein contained, to the extent aforesaid.

XII. And for remedying the practice of courts of equity in regard to process of contempt and the taking of bills pro confesso, be it further enacted, That the rules and regulations herein-after provided and contained shall be adopted by the high court of chancery in Ireland, and shall from henceforth become orders and rules of the said court of chancery, and be observed and enforced in and by the said court; (that is to say,)

No. XII.

c. 16.

1. That where a defendant is confined for a misdemeanor, and has been brought before the court upon an habeas corpus, and there- 5 & 6 W. 4, upon has been turned over to the said marshalsea, pro formá, but has been carried back to the prison from whence he came with his cause, another writ of habeas corpus may issue, directed to the gaoler or keeper of the prison to which he has been carried back, and thereupon the defendant shall be brought into court, and remanded to the prison from whence he came, with his cause, without being turned over again to the said marshalsea, and the bill may be taken pro confesso in the same manner in all respects as if the defendant had been all along in the custody of the marshal of the said marshalsea.

2. That if the defendant, under process of contempt for not appearing or not answering, be in actual custody, and shall not have been sooner brought to the bar of the court under process to answer his contempt, the plaintiff, if the contempt be not sooner cleared, shall bring the defendant by an habeas corpus to the bar of the court within thirty days from the time of his being actually in custody, or detained (being already in custody) upon process of contempt, and if the last day of such thirty days shall happen out of term, then within the four first days of the ensuing term; and where the defendant is in custody of the serjeant at arms or of the messenger upon an attachment or other process the plaintiff shall, within ten days after his being taken into such custody, or if the last of such ten days shall happen out of term, then within the first four days of the next ensuing term, cause the defendant to be brought to the bar of the court; and in case any such defendant shall not be brought to the bar of the court within the respective times aforesaid the sheriff, gaoler or keeper, serjeant at arms or messenger, in whose custody he shall be, shall thereupon discharge him out of custody without payment by him of the costs of contempt, which shall be payable by the party on whose behalf the process issued; and this rule shall apply to every defendant in custody before and at the time of passing of this act who shall not have been brought to the bar of the court, but the thirty days allowed in the first above-mentioned case and the ten days allowed in the second above-mentioned case shall be reckoned from the first day of the

next term.

3. That if a defendant, upon being brought before the court upon an habeas corpus, shall make oath (which shall be administered to him by the registrar, and he shall be examined in open court,) that he is unable by reason of poverty to employ a solicitor to put in his answer, the court shall thereupon refer it to a master in rotation to inquire into the truth of that allegation, and to report thereon to the court forthwith, and thereupon the court may make such order as upon other reports of the like nature under the provisions hereinafter contained.

4. That on the thirtieth day of January, the thirtieth day of April, the thirtieth day of July, and the thirtieth day of October in every year, or if any of those days happen on a Sunday, then on the following day, one of the masters of the court of chancery, to be named by the court, shall visit the said marshalsea prison, and examine the prisoners confined there for contempt, and shall report his opinion on their respective cases to the court; and thereupon it shall be lawful for the court to order, if it shall see fit, that the costs of the contempt of any such prisoner shall be paid out of the interest and dividends arising from the several government or parliamentary securities standing in the name of the accountant general of the said court of chancery, intituled "Account of Monies placed out for the Benefit and better Security of the Suitors of the High Court of Chancery," and "Account of Securities purchased with Surplus Interest arising from Securities carried to an Account of

No. XII.

5 & 6 W. 4, c. 16.

Monies placed out for the Benefit and better Security of the Suitors of the High Court of Chancery," or out of any cash standing to either of such accounts, or to any other account which is now or hereafter may be standing to the credit of the suitors of the said court of chancery, (after and subject to the payment of all charges which by any act heretofore passed are directed to be paid thereout,) and to assign a solicitor and council to such prisoner, for putting in his answer and defending him in formá pauperis, and to direct any such prisoner, having previously done such acts as the court shall direct, to be discharged out of custody; provided that if any such defendant shall become entitled to any funds out of such cause, the same shall be applied, under the direction of said court, in the first instance, to the reimbursement of the suitors fund.

5. That it shall be lawful for the master visiting the said marshalsea, or to whom the case of a prisoner shall be referred by the court itself, to examine the prisoner, and all other persons whom he may think it proper to examine upon oath, and to administer an oath or oaths to any such prisoner and other persons accordingly, and to cause any officers, clerks, and ministers of any court of law or equity to bring and produce upon oath before him any records, orders, books, papers, or other writings belonging to the said courts, or to any officers within the same as such officers.

6. That if it shall appear to the satisfaction of the court that any such prisoner is an idiot, lunatic, or of unsound mind, although no commission has issued, the court shall appoint a guardian to put in his answer, and discharge the defendant, providing for the costs in any of the ways pointed out by this act, as shall seem just; and if the court shall see fit, the defence may be made by such guardian in formá pauperis.

7. That where the defendant has been brought to the bar of the court for his contempt in not answering, and refuses or neglects to answer, (not being idiot, lunatic, or of unsound mind,) the court may, upon motion or petition, of which due notice shall be given personally to the defendant, authorize the plaintiff to amend his bill, without such amendment operating as a discharge of the contempt, or rendering it necessary to proceed with the process of contempt de novo; but after such amendment the plaintiff may proceed to take the amended bill pro confesso, in the same manner as if it had not been amended: Provided nevertheless, that if the defendant shall be desirous to answer such amended bill, the court shall allow him such time as shall seem just for that purpose; but if he shall not within the time allowed by the court put in a sufficient answer to the amended bill, the process for taking the bill pro confesso may be resumed and carried on.

8. That in every case where the defendant has been brought to the bar of the court to answer his contempt for not answering, and shall refuse or neglect to answer within the next twenty-one days, the plaintiff shall be at liberty, with the leave of the court, upon ten days' previous notice to the defendant, after the expiration of such twenty-one days, unless good cause be shown to the contrary, instead of proceeding to have the bill taken pro confesso, to put in such an answer to the bill as herein-after is mentioned, in the name of the defendant, without oath or signature, and thereupon the suit shall proceed in the same manner as if such answer were really the answer of the defendant, with which the plaintiff was satisfied; and the costs of the contempt and of putting in such answer may be provided for in like manner as if the defendant himself had put in such answer; and such answer, besides the formal parts thereof shall be to the following effect; that the defendant leaves the plaintiff to make such proofs of the several matters in the bill alleged as