contempt in

not answer

ing the same proceedings as heretofore.

not answering, and such defendant shall not have been taken, and the sheriff shall have returned non est inventus, the Court shall, upon motion, without notice, order the serjeant-at-arms to apprehend such defendant, and the same proceedings may thereupon be had, as if such order had been made in the manner heretofore in use (a). But the Court must be satisfied by the affidavit of the solicitor of the plaintiff, or of his town agent, if the attachment was issued by such town agent, that due diligence was used to ascertain the place where such defendant was at the time of issuing such writ, and in endeavouring to apprehend him, and that the person suing forth such writ verily believed at the time of suing forth the same that such defendant was in the county in which such writ was issued (b).

(a) This rule is altered by the 9th Order, of August, 1841, by which it is ordered, that upon the sheriff's return non est inventus to an attachment issued against the defendant for not answering, the plaintiff shall be entitled, on producing the affidavit mentioned in the above rule, to a writ of sequestration, in the same manner that he was before entitled to such writ upon the like return of the serjeant-at-arms.

The decisions, however, with reference to this rule, will still be applicable to the new practice.

(b) In Handfield v. Woolley, 4 Sim. 122, the Vice-Chancellor held, that the affidavit required by this rule must be made by

tiff issues a

2. If any defendant being in contempt When plainfor not answering, and having been brought habeas cor

the clerk who issued the attachment, and that the town agent must join in the affidavit, swearing as to his belief.

To ground an order for the serjeant-at-arms under this rule, the affidavit must state the party's belief that at the time of suing forth the attachment the defendant was in the county into which the writ was issued, and not merely that his last known place of residence was in that county.-Handfield v. Wildes, 2 Russ. & Myl. 91. But it need not state the party's belief that due diligence has been used in ascertaining the defendant's residence, and in endeavouring to apprehend him. It must, however, swear to those facts, and in some way or other satisfy the Court of their truth.-Wright v. Green, 2 Russ. & Myl. 93.

An affidavit which went to show that due diligence had been used to discover the defendant's residence, and not the place where he was at the time of issuing the attachment, was held to be insufficient, for the words of the Act should be precisely followed.-Davis v. Hammond, 5 Sim. 9.

The Court will not order the serjeant-at-arms, upon a return of non est inventus, upon any other affidavit than that of the solicitor, or his town agent, stating that due diligence has been used in endeavouring to apprehend the defendant, as required by Section 1. The affidavit of the town agent showing that he issued the writ, and of the sheriff's officer showing the steps taken by him to apprehend the defendant, and the manner in which his endeavours were eluded, will not be sufficient.-Pugh v. Pugh, 2 Myl. & K. 358. See also Nelthorpe v. Wright, 2 Keen, 253.

When a defendant, against whom an order for a serjeant-atarms has issued, for want of an answer, and non est inventus has been returned, files his answer, and gets the common order for clearing his contempt on payment of costs, and the answer is afterwards successfully excepted to for insufficiency, the plaintiff is entitled to take up and go on with the process of contempt from the point at which it was stopped by the order for clearing the contempt; and, therefore, a sequestration for want of an an

pus, and de

fendant still

refuses to put in his answer, the bill to be taken pro confesso.

to the bar of the Court, shall be committed, or remanded back to the Fleet, the plaintiff may sue forth a habeas corpus as heretofore, but there must be at least twenty-eight days between the day on which the defendant was so committed, or remanded back, and the return of such habeas corpus; and upon such return, in case the defendant shall not have put in his answer, the Court shall order the bill to be taken pro confesso (a).

swer to the exceptions sued out immediately on the defendant's submitting to answer them, and a consequential order to take the bill pro confesso, are regular.-Taylor v. Salmon, 3 Myl. & Cr. 109.

If a defendant escape from the custody of a serjeant-at-arms, the Court will not grant a sequestration, but a second order for a serjeant-at-arms must be obtained.-Morris v. Smith, 8 Sim. 33.

(a) A defendant, who was in contempt for want of answer, was brought up from the King's Bench Prison, under Rule 6, (p. 144, post,) and turned over to the Fleet, and a counsel and solicitor were assigned him, but he did not put in his answer: Held, that the bill could not be taken pro confesso, under the above rule, until the defendant had been again brought up and remanded.-Viscountess Barnewell v. Cooke, 7 Sim. 320.

Where a subpoena has been served on a defendant resident abroad, and an appearance has been entered for him, under 4 & 5 Will. 4, c. 82, (p. 161, post), the plaintiff may proceed to take the bill pro confesso against him for want of answer, in the same manner as if the subpoena had been served within the jurisdiction of the Court.-Godson v. Cooke, 7 Sim. 519.

The following was the course of proceeding adopted for taking the bill pro confesso, in a case where the defendant was in contempt for want of answer and in custody:

process of

3. The party prosecuting any contempt The writs in may, without order, sue forth the several contempt to writs in process of contempt, returnable without

The defendant Bennett had put in an answer to the bill, in which his wife did not join, and no answer had been put in by her, nor had any order been obtained for them to answer separately. Bennett, being in contempt for want of the joint answer of himself and wife, and being in the custody of the Warden of the Fleet for contempt in another cause, was now brought to the bar of the Court by habeas corpus, for the purpose of having the bill taken pro confesso against him. But the Vice Chancellor ruled, that the bill could not then be taken pro confesso, but that, under Rule 2, he must be remanded to the Fleet, that another writ of habeas corpus must be issued returnable in twenty-eight days; and if the answer was not put in at the return of the writ, the clerk in Court ought to attend with the record, and the bill be then taken pro confesso; and an order was made accordingly. On the 13th December, the second habeas corpus being returned, and no joint answer having been put in, an order was made, on the motion of the plaintiff, that the bill should be taken pro confesso.-Bilton v. Bennett & ux., 4 Sim. 17.

A defendant, in custody for want of the answer of himself and wife, cannot clear his contempt by putting in the separate answer of himself only. And if the plaintiff, after the defendant has been brought up to the bar by habeas corpus, proceed to take the bill pro confesso, the Court will not interfere so as to prejudice the plaintiff's proceedings, by making an order for the defendant to be at liberty to answer separately, and for his discharge, although it may be proved, by the affidavit of the defendant, that he has no control over his wife.—Gee v. Cottle, 3 Myl. & Cr. 180. The order for taking a bill pro confesso, takes effect from the time when it is pronounced, and the Court will not discharge the order, although the answer is filed before the rising of the Court on the day on which the order is made.-James v. Creswicke, 7 Sim. 143.

And in Carr v. Paulett, 7 Sim. 142, a motion by a defendant,

be sued forth

order.

Mode of proceeding where defendant confined for a misdemeanour.

immediately in case the party in contempt resides, or is in London, or within twenty miles thereof, and, in other cases, returnable in vacation, so that there be fifteen days between the teste and return of each of such writs.

4. Where a defendant is confined for a misdemeanour, and has been brought before the Court on an habeas corpus, and turned over to the Fleet pro formâ, but has been carried back to the prison whence he

against whom the bill had been ordered to be taken pro confesso, that the order might be discharged, and he be at liberty to put in his answer, was refused, although he did not mean to enter into evidence, and, the case against him being the same as against the other defendants, he consented to the evidence which had been taken being read against him.

So in Taylor v. Salmon, 8 Sim. 450, a defendant, who was in contempt for want of answer, filed his answer, and obtained an order to clear his contempt, and paid the costs. The answer was excepted to, and the defendant submitted to the exceptions, whereupon a sequestration issued, and afterwards the bill was ordered to be taken pro confesso. Before that order was drawn up, the defendant answered the exceptions. The answer was taken off the file.

Where a defendant, who was in contempt for not answering, on being brought to the bar of the Court, under Rule 6, (p. 144, post), deposed that she was unable, by reason of poverty, to employ a solicitor to put in her answer, upon which the usual reference was made, and the defendant subsequently refused to make any statement to the Master as to the subject of the reference, the Court ordered proceedings to be taken, under the above mentioned rule, for taking the bill pro confesso.— Williams v. Parkinson, 5 Sim. 74.