5 Geo. 2, c. 25.

45 Geo. 3, c. 124.

fendants to suits in equity, by relieving them from the horrors and contamination of a prison, and at the same time providing the means of properly bringing their rights under the consideration of the Court when they are unable from want of funds to defend themselves; and secondly, the power given to suitors of speedily enforcing their claims where defendants, through obstinacy, or other unworthy motives, seek to create unnecessary delay or expense.

The following are its enactments:

Sect. 1 recites, that by the 5 Geo. 2, c. 25, intituled "An Act for making Process in Courts of Equity effectual against Persons who abscond and cannot be served therewith, or refuse to appear;" the 45 Geo.3, c. 124, intituled " An Act to amend an Act passed in the fourth year of his present Majesty, intituled 'An Act for preventing inconveniences arising in cases of Merchants and such other persons as are within the description of the Statutes relating to Bankrupts, being entitled to privilege of Parliament, and becoming insolvent, and to prevent delay in the entering Appearances in Actions brought against Persons having Privilege of Parliament,'" certain provisions were made for entering appearances and taking bills in equity pro confesso; and that it was expedient to alter and amend the law relating to commitments by

courts of equity for contempt, and enacts that the whole of the recited act, 5 Geo. 2, c. 25, and

5 Geo. 2, and

45 Geo. 3 as

courts of

the reading

covery as evi

pealed.

Recited act so much of 45 Geo. 3, c. 124, as relates to courts so much of of equity, and the reading bills of discovery as relates to evidence shall be repealed; but so as not to affect equity, and any thing done or executed in pursuance thereof bills of disrespectively; and that any suit, matter or thing dence rethen in progress under the said acts respectively and not completed, shall be completed under the powers of this act; and that all the powers of this act shall be exercised as well in regard to new suits, commitments, discharges, conveyances, fines, recoveries, matters or things subsisting or remaining to be made, done or perfected, whether the powers of the said acts or any of them respectively should or not have been applied thereto.

S. 2. The warden of the Fleet to keep a register of persons committed for contempt, and report the names and descriptions of all prisoners for contempt to the Lord Chancellor four times a year.

S. 3. After reciting that 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, enacts,

5 Geo. 2, c. 25, s. 1.

that if in any suit which hath been or hereafter shall be commenced in any court of equity, any defendant against whom any subpœna or other process shall issue shall not cause his appearance to be entered within the time and in the manner prescribed by the rules of the Court in case such process had been duly served, and an affidavit or affidavits be made to the satisfaction of the Court that such defendant is beyond the obtained di- seas, or that upon inquiry at his usual place of abode he could not be found so as to be served

If defendant

depart the

realm or ab

scond to

avoid being

served with

process, an

order may be

recting him

to appear within a cer

tain time, and on his

do so, the bill

to be taken

pro confesso.

with such process, and that there is just ground neglecting to to believe he is gone out of the realm, or otherwise absconded, to avoid being served with such process, an order may be obtained directing and appointing such defendant to appear at a certain day therein to be named, and a copy of such order, within fourteen days after it shall be made, shall be inserted in the London Gazette, and published on some Lord's day immediately after divine service in the parish church (a) of the parish where such defendant made his usual abode within thirty days next before such his absenting; and also posted up

(a) In a case where the parish church being under repair the plaintiff could not comply with this part of the direction of the act, he was permitted, on the repairs of the church being completed, to move that the defendant might be ordered to appear to the bill on or before a certain day named in the order.Knowles v. Broom, 1 Ves. & B. 306.

in some public place at the Royal Exchange, London, if made in the Courts of Chancery, or Exchequer, or the Duchy Chamber of Lancaster at Westminster, and if made in any of the courts of equity of the counties palatine of Chester, Lancaster and Durham, or of the great sessions in Wales, then at some public place at some market town within the jurisdiction of the Court by which such order was made, and nearest to the defendant's usual place of abode, such place of abode being also within the jurisdiction; 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 of the publication of such order, the Court may order the bill to be taken pro confesso, and make such decree thereupon, and issue such process by sequestration or otherwise for compelling the performance of such decree as may be requisite, and may likewise order the plaintiff's demands to be satisfied Defendant's out of the property sequestered, the plaintiff be sequesfirst giving sufficient security to abide such plaintiff's order touching the restitution of such property tied on his as the Court may think proper to make con- rity for resticerning the same, upon the defendant's fendant appearance to defend such suit, and paying such costs pear. to the plaintiff as the Court shall order. But in case such security be not given, then the property sequestered to remain under the direction

property to

tered, and

demand satis

giving secu

tution if de

should ap

of the Court, either by appointing a receiver thereof or otherwise, as to the Court shall seem meet, until the appearance of the defendant and his payment of the plaintiff's costs, or until the further order of the Court (a).

(a) An affidavit that the deponent had used all due diligence to discover where the defendant resided, or where her last place of residence was, but without success, save that he had been informed and believed that she had assumed male attire in order to disguise herself, and that she was occasionally seen in the neighbourhood of a certain place, is sufficient to warrant the Court to make an order under this act, with a view to the taking the bill pro confesso.-Graver v. Temple, 9 Sim. 523.

In Lovell v. Hicks, 1 Y. & C. 230, an order which had been obtained for taking the bill pro confesso was discharged, and the defendant was allowed to put in an answer to the plaintiff's amended bill upon terms, it appearing that he had put in a joint answer to the original bill, to which exceptions had been taken, but waved by the plaintiff amending his bill, and that previous to the filing of the amended bill the defendant had gone to America, and there remained till shortly before the application. The cause had also abated by the death of a defendant, so that no additional delay would be occasioned.

In Grant v. Hibbert, 8 Sim. 329, an order was made under this section, directing a defendant who had absconded to appear to the bill. The defendant's only residence in England was at an hotel, where he remained two days, and then sailed for Jamaica. Held, that the order ought to be published in the church of the parish in which the hotel was situated, that being the parish where the defendant made his usual abode within thirty days next before his absenting.

Where a bill is ordered to be taken pro confesso, the decree may be made subsequently, although it is usually taken at the same time. Woollams v. Baker, 6 Sim. 316.