English Order
XXX.

may, after the expiration of such eight days, and within three weeks from the time of such service, apply to the Record and Writ Clerk to enter an appearance for such Defendant; the Record and Writ Clerk is to enter such appearance accordingly, upon being satisfied by affidavit that the Subpoena was duly served upon such Defendant personally, or at his dwelling-house or usual place of abode; and after the expiration of such three weeks, or after the time allowed to such defendant for appearing has expired, in any case in which the Record or Writ Clerk is not hereby required to enter such appearance, the Plaintiff may apply to the Court for leave to enter such appearance for such Defendant; and the Court, being satisfied that the Subpoena was duly served, and that no appearance has been entered for such Defendant, may, if it so thinks fit, order the same accordingly.

The 30th English Order of 1845 is in the precise words of the first section of the above Order 21.

XXXII. The 32nd English Order of 1845 is in the precise Appointment of Guardian. words of the second and third section of the above Order 21. Except that the last word in the English Order is "service," where the above reads "notices," but this evidently causes no difference in the meaning of the language. The New Orders having provided ample means for proceeding with a cause in the absence of the Defendant, and under the form of Bill now used, a discovery (except in bills for discovery alone) not being required, the process of contempt is now abolished.

Process of Con

tempt abolish

ed.

Under the above 20th Order, answering to the English 29th Order of 1845, the appearance cannot be entered by the Plaintiff for the Defendant, as of course, if four weeks have elapsed from the service of the Subpoena, but a motion must be made for leave to enter the appearance. This should be made within a reasonable time, or the Court may require a notice to be given to the Defendant, or even a new Subpoena to be taken out. (Radford vs. Roberts, 2 Hare, 96; Bointon vs. Parkinson, 7 Jurist, 367; Devenish vs. Devenish, 7 Jurist, 841; Edmonds

vs. Nicholls, 6 Beaven, 334; Walker vs. Hurst, 13 Simons, 490.)

These cases were decided under the 8th English Order of 1841, but it is apprehended that the same principle would now apply; for under the new Order the Court will only direct the appearance to be entered" if it think fits."

Under the English Orders of 1845, answering to the 2nd and 3rd classes of the above 21st Order, the following cases have been decided: Of the six days which the notice has to run, one day may be Sunday, (Brewster vs. Thorpe, 11 Jurist, 6.) The Order applies in cases of absent Defendants, being infants, or of unsound mind, (Anderson vs. Stather, 10 Jurist, 383; Biddulph vs. Lord Camoys, 7 Beaven, 580). As to on whom the service may be made, see Hitch vs. Wells, 8 Beaven, 576. In case of the death of the Guardian, 'there must be another application, in the same manner, (Needham vs. Smith, 6 Beaven, 130.)

The appearance, it will be seen by the foregoing Orders, must in ordinary cases be within fourteen days after service of the Writ. Where the Defendant (an infant or of unsound mind) is abroad, an application to serve the subpoena must be made, under the Order as to absent Defendants, (for which see a subsequent chapter), and after the time for appearance the Plaintiff may proceed as by the above Order prescribed.

C

CHAPTER V.

Absent Defendants.

1850.

XXII.

Absent Defendants.

Service of Subpœna out of jurisdiction.

Time to be limited for appearance,

Service of copy

of Bill and Order.

In default, Order for appearance by Plaintiff.

In cases where the Defendant is out of the jurisdiction, the proceedings are to be according to the following 22nd, 23rd, and 24th Orders:

Where a Defendant in any suit is out of the jurisdiction of the Court.

1. The Court, upon application, supported by such
evidence as shall satisfy the Court in what place or
country such Defendant is or may probably be found,
may order that the Subpoena to appear to and
answer, or to answer the Bill, may be served on
such Defendant in such place or country, or within
such limits as the Court may think fit to direct.
2. Such Order is to limit a time (depending on the
place or country within which the Subpoena is to be
served) after service of the Subpoena, within which
such Defendant is to appear to the Bill, and also a
time within which such Defendant is to answer or
demur; or obtain from the Court further time to
make his defence to the Bill.

3. At the time when such Subpœna shall be served,
the Plaintiff is also to cause such Defendant to be
served with a copy of the Bill and a copy of the
Order, giving the Plaintiff leave to serve the Sub-
pœna.

4. And if, upon the expiration of the time for appearing, it appears to the satisfaction of the Court that such Defendant was duly served with the Subpoena, and with a copy of the Bill and a copy of the Order, the Court may, upon the application of the Plaintiff, order an appearance to be entered for such Defendant.

Affidavits, filed for the purpose of proving the service of a Subpoena upon any Defendant, are to state when, where and how, such Subpoena was served, and by whom such service was effected.

The Plaintiff, having duly caused an appearance to be entered for any Defendant, is entitled as against the same Defendant to the costs of and incident to entering such appearance, whatever may be the event of the suit; and such costs are to be added to any cost which the Plaintiff may be entitled to receive from such Defendant, or set off against any costs which he may be ordered to pay to such Defendant; but payment thereof is not to be otherwise enforced, without the leave of the Court.

enter his own

appearance.

A Defendant, notwithstanding an appearance may have A Plaintiff been entered for him by the Plaintiff, may afterwards may afterwards enter an appearance for himself in the ordinary way, but such appearance by such Defendant is not to affect any proceeding duly taken, or any right acquired by the Plaintiff under or after the appearance entered by him, or to prejudice the Plaintiff's right to be allowed the costs of the first appearance.

In cases where the Defendant is out of the jurisdiction, and the Plaintiff cannot discover his residence, under some special circumstance, proceedings may be had by means of advertising, under the following Order:

Defendants.

1850.

XXIV.

In case it shall appear to the Court by sufficient evi- Absconding dence that any Defendant, against whom a Subpoena to appear and answer, or to answer a Bill, has issued, has been within the jurisdiction of the Court at some time, not more than two years before the Subpoena was issued, and that such Defendant is out of the jurisdiction of the Court, or that upon inquiry at his usual place of abode (if he shall have had any) or at any other place or places where, at the time the Subpoena was issued, he might probably have been met with, he could not be found so as to be served with Process, and that in either case there in just ground to believe that such Defendant is gone out of the juristion, or otherwise absconded, to avoid being served with Process, then and in such case the Court may order that such Defendant do appear at a certain day, to be named in the Order; and a copy of such Order, together with a notice, to the effect set forth in Schedule C. appended to these Orders, may, within fourteen days after such Order shall be made, be inserted in the Canada Gazette, and be otherwise published as the Court shall direct; and in case the Defendant shall not appear within the time

English Order
XXXIII.

English Order
XXXI.
Absconding
Defendants.

limited by such Order, or within such further time as the Court shall appoint, then, on proof made of such publication as aforesaid of the said Order, the Court may order an appearance to be entered for the Defendant, on the application of the Plaintiff

The following is the Form in Schedule C.

A. B., take notice, that, if you do not appear pursuant to the above Order, the Plaintiff may enter an appearance for you, and the Court may afterwards grant to the Plaintiff such relief as he may appear to be entitled to on his own shewing.

The English Order 33, of 1845, is in the words of the above Order 22, with the exception of a few words not materially affecting the sense. In the first section in the English Order, the words are "Subpana to appear to or to appear to and answer", and the above Order reads "to appear to and answer or to answer", saying nothing of a Subpoena to appear merely.

In the second section of the English Order there are the words ("if an answer be required") and the word "plead" is introduced. The difference there is, that in this country, the Order must in all cases state the time within which the Defendant is to answer or demur. Pleas in Equity, are, by the Orders of 1850, entirely abolished in this country, as will be seen by the subsequent Orders, and therefore the word does not occur in the above Order

22.

The Court exercises a discretion on the application for the Order to serve a Defendant abroad, in view of all the circumstances, (Whitmore vs. Ryan, 4 Hare 612; 10 Jurist 368).

After such service, the cause may be carried on to hearing, in the usual way, and in default of Answer, the Bill taken pro confesso as prescribed by the Orders.

The above Order 23 is in the precise words of the English Orders 34, 35, and 36 of 1845.

The above Order 24 is taken from the English Order 31 of 1845, which is in the following words :

In case it appears to the Court by sufficient evidence,