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Court may

appoint clerk

appear when writ of habeas corpus, or other process, issuing Couri by ha- out of any Court of Equity, be brought into or being in Court, and refuse, or neglect, or being in prison

under an attachment, or other process of conin Court, &c. tempt, shall, after fourteen days' notice in writing pearance, and requiring him to enter an appearance, refuse, or proceed in

neglect, to enter his appearance, or to appoint a clerk in Court, or attorney of such Court, to act on his behalf, then such Court may appoint a clerk in Court, &c. and such proceedings may be had in the cause as if such party had actually appeared (a).

the cause.
5 Geo. 2,
c. 25, s. 2.

So if defendant having

S. 12. So if defendant, having privilege of privilege of parliament, neglect to appear on return of prorefuse to ap- cess of sequestration issued against him for not

appearing, the Court may, on motion, or other 45 Geo. 3, application of plaintiff, upon producing the re

turn of such sequestration in Court, appoint a

pear on return of sequestration. c. 124, s. 4.

(a) In Williams v. Jones, 8 Sim. 471, the plaintiff seived the defendant, who was in custody for want of appearance, with notice to enter her appearance within fourteen days; and on her not having done so, he moved that the junior six clerk might be directed to enter an appearance for her. In the mean time, however,

she had been discharged, because the plaintiff had not brought her to the bar of the Court within thirty days from the time of her being in custody, according to Rule 5, p. 143, post : Held that, as the defendant was no longer in custody, the Court had no authority to make the order.

The fourteen days mentioned in this section are exclusive of the first, and inclusive of the last day.--Ansdell v. Whitfield, 6 Sim. 356.

clerk in Court to enter an appearance for such defendant, and such proceedings may be thereupon had as if the party had actually appeared.

covery to be

S. 13. And when such defendant shall have Bill of disappeared to any bill for discovery, or an appear-taken pro ance shall have been entered for him, according given in evito the provisions aforesaid, and he shall refuse, fendant refuse or neglect, to put in his answer within the time after appearallowed by the rules and orders of the Court, 45 Geo. 3, the plaintiff may obtain an order that the bill be taken pro confesso, unless the defendant, within eight days after being served with the order, show good cause to the contrary.

c. 124, s. 5.

in evidence as an answer admitting

S. 14. And every bill so taken pro confesso, Bill taken

, or an examined copy thereof, may be given in may be read evidence as to all such facts and circumstances, and on behalf of such persons as the answer the facts. would have been evidence of, if the same had c. 124, s. 6. been put in, and had admitted the same facts and circumstances, and so with regard to every other bill of discovery taken pro confesso under the provisions of the Act.

S. 15. The following rules and regulations to be adopted by the Court of Chancery for taking bills pro confesso, viz. :

1. When an attachment shall have is. On return of sued against a defendant for a contempt in ventus to at

non est in

tachment for

contempt in not answering 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 (6).

(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 men. tioned 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.

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

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

pus, and de

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 bas 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 fol. lowed.—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 apprebend 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

fendant still refuses to pat in bis 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 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 :

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