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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 Defendani's out of the property sequestered, the plaintiff be seques first giving sufficient security to abide such plaintiff's order touching the restitution of such property tied on his as the Court
to make con- rity for resticerning the same, upon the defendant's appear-fendant ance 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
tution if de
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.
S. 4. Parties in custody to be served with Parties in a copy of the decree before any process be served with taken out to compel the performance thereof.
custody to be
copy of de-
The following shows the course of proceeding for taking a bill pro confesso where the defendant absconds.
In Baker v. Keen, 4 Sim. 493, the bill was filed on the 29th of October, 1832. On the 24th January, 1833, Mr. Simons, for the plaintiffs, obtained an order op motion, supported by affidavit, that the defendant had absconded and gone beyond the seas, that the defendant should appear to the bill on or before the 1st of March then next. On the 7th of March, 1833, it appearing by production of the London Gazette and by affidavit, that the directions of the act had been complied with, but that the defendant had not appeared, an order was made on motion that the plaintiff's clerk in court should attend at the hearing of the cause with the record of the bill, in order to have the same taken pro confesso. The cause baving been set down for hearing, it was ordered, op motion, on the 23d March, 1833, to be placed at the head of the paper of causes for the 27th of that month, and that the plaintiff's clerk in court should then attend with the record. Accordingly on that day the clerk in court attended, and a decree pro confesso was taken.
As to the course of proceeding for taking a bill pro confesso against a corporation, see Brickwood v. Harvey, 8 Sim. 201.
In a case where the attorney-general had not put in his answer within a reasonable time, the Court ordered that he should put in his answer within a week after service of the order, or that the bill should be taken pro confesso against him.-Groom v. Attorney-General and others, 9 Sim. 324.
An insufficient answer will not prevent a bill being taken pro confesso.— Turner v. Turner, 1 Dick. 316.
So if a bill be amended after answer, and no answer be put in to the amended bill, the plaintiff is entitled to a decree pro confesso.-Jopling v. Stuart, 4 Ves. 619.
years after decree to be served with
heir or executor to be served.
S.5. If any person, being out of the realm, within seven or absconding at the time of such decree being
pronounced, shall within seven years after the copy of it; making such decree, return, or become publicly his death, his visible, then he shall be served with a copy of
such decree within a reasonable time ; and in 5 G. 2, c. 25, case he shall die within the seven years before
his return, or appearing openly, or shall die in custody within such period before being served with a copy of such decree, then his heir or executor, according to the nature of the property sequestered, or if such heir be a feme coverte, infant, or non compos mentis, then the husband, guardian, or committee of such heir shall be served with a copy of such decree within a reasonable time after the death of the defendant and who is his heir, executor or administrator, shall be known to the plaintiff.
S. 6. Persons not petitioning for a rehearing
within six months after being served with a petition for copy of such a decree, the same to stand abso
Decree to stand absolutely confirmed, if no
S. 7. But if any person so served shall
within six months after such service, or not and paying being so served shall within seven years next mitted to an- after the making of such decree, petition for a defend as if rehearing and pay, or give security for payment able, then he, or his representatives, or any person claiming under him, by virtue of any act done before the commencement of the suit, may be admitted to answer the bill, and the cause will proceed to a hearing in the same manner as if no decree had been made.
of such costs as the Court shall think reason
S. 8. And if he, his heirs, executors, or admi- If no petition nistrators, shall not petition within seven years, years, decree such decree to stand absolutely confirmed, and the Court
make such further order as shall 5 Geo. 2,
to stand ab
C. 25, s. 7.
S. 9. But persons beyond the seas not to be Persons beaffected, unless it shall appear to the satis- to be affected, faction of the Court, by affidavit, that such per- land within sons had been in England within two years next fore subpæna before the subpoena in such suit issued against 5 Geo. 2,
two years be.
C. 25, s. 8.
S. 10. And the before abstracted provisions Not to extend not to extend to make good any proceedings Equity, hav. against any person in any Court of Equity jurisdiction, having a limited jurisdiction, unless it shall ap- 5 Geo. 2, pear to the satisfaction of such Court, on affidavit, that such person had resided within the jurisdiction of the Court within one year next before such subpæna issued.
c. 25, s. 9.
S. 11. If any defendant, by virtue of any Defendant