The rule last referred to applies only to cases where the defend- CH. X. § 5. ant has appeared by a solicitor, or personally; and not to cases where the plaintiff has entered an appearance for him.' It has Order for been held, however, that in such a case the Court can, under its general jurisdiction, make a special order for service of the traversing note on the defendant.2 The application should be made ex parte; and be supported by an affidavit of service of the bill and interrogatories, and by the Record and Writ Clerk's certificate that the plaintiff has appeared for the defendant, and has filed the traversing note. It seems usual, though not essential, to prove by affidavit that the defendant is within the jurisdiction.3 leave to serve necessary, where de fendant has not appeared. Evidence in support of application. Service In a proper case, the Court will order substituted service of the Substituted traversing note, on application by ex parte motion, supported by service. the affidavit and certificates above mentioned; but leave to serve ex jur. not the note on a defendant out of the jurisdiction will not be given. permitted. A traversing note is to be intituled in the cause, and written Form. on paper of the same description and size as that on which bills are printed. It must be underwritten or indorsed with the name and place of business of the plaintiff's solicitor, and of his agent, if any, or with the name and place of residence of the plaintiff, where he acts in person; and, in either case, with the address for service, if any. The names of several defendants may be included in one traversing note, notwithstanding that they have appeared by separate solicitors. 10 cannot plead, service, with &c., after After service of a copy of the traversing note, the defendant Defendant cannot plead, answer, or demur to the bill, or put in any further answer thereto, without the special leave of the Court; and the cause is to stand in the same situation as if such defendant had filed a full answer or further answer to the bill, on the day on which the note was filed." out leave. Traversing Where the plaintiff filed a traversing note, knowing that the defendant's answer was sworn, though not filed, the traversing note, after treated, in respect of notice, as an answer, and as within the operation of Ord. III. 9; so that the copy should, if possible, be served on the day on which the note is filed. Braithwaite's Manual, 144; Veal's Pr. 24. 1 Anon, 11 Jur. 28, L. C.; Braithwaite's Pr. 68. 2 Moss v. Buckley, 2 Phil. 628; 12 Jur. 487; and for the order in that case, see Seton, 1246, No. 10; and see Laurie v. Burn, 6 Hare, 308; 12 Jur. 598; Horlock v. Wilson, 12 Beav. 545; see also Scott v. Wheeler, 13 Beav. 239. 3 For forms of motion paper and affidavit, see Vol. III. notice that answer sworn, though not filed, ordered off the file. CH. X. § 5. Defendant may move to take traversing note off the file, and to put in a plea, answer, or demurrer, on payment of costs. Traversing note cannot be filed against infant. Married woman. Proof of service of the note. Where demurrer or plea to whole bill overruled. Traversing note cannot note does not prevent motion for decree. note was ordered to be taken off the file, upon payment of costs by the defendant.1 Where a defendant wishes to put in a plea, answer, or demurrer, or a further answer, after a traversing note has been filed, he should apply, on motion, with notice to the plaintiff, for leave so to do, and for that purpose that the note may be taken off the file. The order will only be made on payment of costs by the defendant. The application should be supported by an affidavit explaining the delay, and that the defendant is advised to put in the proposed defence. 8 It seems that a traversing note cannot be filed in the case of an infant defendant; but inasmuch as it is only necessary to file it, in those cases in which an answer has been required, and none put in, a case could scarcely now arise in practice, in which it could be desired to file a traversing note against an infant defendant: no answer being usually required in such a case. Where a married woman is co-defendant with her husband, a traversing note cannot be filed against her separately, unless an order for her to answer separately has been obtained. Due service of the traversing note must be proved against the defendant at the hearing, if he does not appear.* Where a demurrer or plea to the whole bill is overruled, the plaintiff, if he does not require an answer, may immediately file his note, in manner above pointed out, as the case may require, and with the same effect: unless the Court, upon overruling such demurrer or plea, gives time to the defendant to plead, answer, or demur; and in such case, if the defendant does not file any plea, answer, or demurrer, within the time so allowed by the Court, the plaintiff, if he does not then require an answer, may, on the expiration of such time, file such note.5 When a traversing note has once been filed, the plaintiff cannot, without notice to the parties affected by it, obtain an order to take it off the file." The filing of a traversing note does not prevent a cause being heard on motion for decree; but, for that purpose, the traversing note is equivalent to an answer." 1 Rigby v. Rigby, 6 Beav. 265. 2 Towne v. Bonnin, 1 De G. & S. 128; 11 Jur. 261. For form of notice of motion, see Vol. III. 8 Emery v. Newson, 10 Sim. 564. 4 Evans v. Williams, 6 Beav. 118; and see Reg. Regul. 15 March, 1860, r. 25. For form of affidavit of service of a traversing note, see Vol. III. 5 Ord. XIII. 4. 6 Simmons v. Wood, 5 Beav. 390. For form of notice of motion in such case, see Vol. III. 7 Manière v. Leicester, 5 De G., M. & G. 75; 18 Jur. 320. As to motions to dismiss for want of prosecution, where a traversing note has been filed, see Ord. XXXIII. 10. CHAPTER XI. TAKING BILLS PRO CONFESSO. SECTION I.-Preliminary Order. IN preceding chapters, the reader's attention has been drawn to the method which the Court adopts, to compel a refractory defend ant to appear to, and answer the bill. By means of the process there pointed out, the plaintiff may, if the defendant is not a privileged person, take his body as a security for his obedience; or if he be a privileged person, or manages to keep out of the way so successfully as to avoid an arrest, the plaintiff may proceed to compel his submission, by taking from him the enjoyment of his property and effects, until he submits. It is obvious, however, that in a Court of Equity, where the nature of the relief to be granted frequently depends upon the discovery to be elicited from a defendant by his answer, the mere taking a party into custody, or sequestrating his property, cannot always answer the object of doing that justice to the plaintiff which it is the business of Equity to secure. The Court has, therefore, adopted a method of rendering its process effectual, by treating the defendant's contumacy as an admission of the plaintiff's case, and by making an order that the facts of the bill shall be considered as true, and decreeing against the defendant according to the equity arising upon the case stated by the plaintiff. This proceeding is termed, taking a bill pro confesso.1 Nature of proceeding, pro confesso. It seems that this practice is not of very ancient standing, and Not of that the custom formerly was to put the plaintiff to make proof of ancient standing. the substance of his bill; 2 but the course of taking the bill pro confesso has now, for some time, been the established practice of 1 A rule for an answer where process has not been rightly served, and a decree pro confesso, for want of an answer, are irregular. Treadwell v. Cleaveland, 3 McLean, 288. 2 See Rose v. Woodruff, 4 John. Ch. 547, 548; post, 526, note; Pierson v. David, Iowa, 410; Johnson v. Donnell, 15 Ill. 97; Corradine v. O'Connor, 21 Ala. 573; Attor- Distinction, where defendant is, and where he is not, in custody. CH. XI. § 1. the Court.1 And this practice has been very materially extended and facilitated by Acts of Parliament and General Orders of the Court. Considerable difference formerly existed in the practice of taking bills pro confesso, in cases where the defendant was in custody, and in those where he was not; but the General Orders have so far assimilated the practice in the two cases, that it will be most convenient to state the general rules applicable to all cases in which a bill is taken pro confesso: remarking any peculiarities resulting from the particular circumstances in which a defendant may be placed. Preliminary order to take bill pro confesso necessary; and cause to be set down, to be heard on a future day. Under the statute: against defendant, who has absconded, without appearance; 2 Where a decree is intended to be sought against a defendant, by taking the bill pro confesso, an order for that purpose must be obtained upon motion, of which notice must be given; and then the cause must be set down to be heard; and it cannot be heard on the same day on which the order to have it taken pro confesso is made.1 3 Where the defendant is beyond seas, or has absconded to avoid being served, and it is intended to proceed to have the bill taken pro confesso, without any appearance having been entered by him, or on his behalf, the proceedings must be taken under the stat. 11 Geo. IV. & 1 Will. IV. c. 36, § 3.5 The mode prescribed by that Act must be strictly complied with; and it seems that the Act applies 6 to all cases where a party goes abroad, to avoid process." It has already been observed, that the General Order, enabling 1 Hawkins v. Crook, 2 P. Wms. 556; Johuson v. Desmineere, 1 Vern. 223; Gibson v. Scevengton, ib. 247. In New Hampshire, if the defendant, having received due notice, shall neglect to enter his appearance at the return term, or shall neglect to deliver to the plaintiff's solicitor his plea, answer, or demurrer, within two calendar months after service of the bill, the bill may be taken pro confesso, and a decree entered accordingly. Rule 16 of Chancery Practice, 38 N. H. 608. Rule 18 of the Equity Rules of the United States Court, provides for the entry of an order that a bill be taken pro confesso on failure of the defendant to file, his plea, demurrer, or answer to the bill, in the Clerk's office, on the rule-day next succeeding that of entering his appearance. 2 Ord. XXII. 1; 11 Geo. IV. & 1 Will. IV. c. 36. §§ 3, 15; and see Collins v. Collyer, 3 Beav. 600; Brown v. Home, 8 Beav. 607. For forms of order, see Seton, 12651267, Nos. 1-7; and for forms of notice of motion, see Vol. III. 3 See Pendleton v. Evans, 4 Wash. C. C. 335; Rose v. Woodruff, 4 John. Ch. 547. An order to take a bill pro confesso, unless the defendant answers it by a day given, cannot be anticipated, and a decree pro confesso passed in anticipation of such day. Fitzhugh v. McPherson, 9 Gill & J. 52. It is error to take a bill pro confesso against several defendants, when process has been served only upon one. Robertson v. Crawford, 1 A. K. Marsh. 449. As to what service of the subpoena is necessary before a bill can be taken as confessed, see Sawyer v. Sawyer, 3 Paige, 263; Sullivant v. Weaver, 10 Ohio, 275; Treadwell v. Cleaveland, 3 McLean, 283. 4 Ord. XXII. 6; Brown v. Home, ubi sup. 3 See ante, pp. 456, 457. 6 Short v. Downer, 2 Cox, 84; see Baker v. Keen, 4 Sim. 498, where the proceed. ings are set out in detail. Mawer v. Mawer, 1 Cox, 104; 1 Bro. C. C. 388; Henderson v. Meggs, 2 Bro. C. C. 127; James v. Dore, 1 Dick. 63. Rule 5, of the Rules for Practice in Chancery in Massachusetts, provides for notice to defendants in Equity suits, who reside out of the Commonwealth, and the method to be pursued to entitle the plaintiff in such cases to obtain an order to have his bill taken for confessed. In Maine, where the rights of a defendant in Equity, who resides out of the State, and has had notice of the suit, but does not appear and answer, will not be prejudiced by the decree, the bill may be taken pro confesso as to him. Adams v. Stevens, 49 Maine, 362; see Evarts v. Beeker, 8 Paige, 506; Christy v. Christy, 6 Paige, 170. a plaintiff to enter an appearance for an absconding defendant,1 CH. XI. § 1. applies to the same circumstances as those provided for by the Act; and although it seems that this order has not superseded the Practice Act, it is undoubtedly the usual practice, in all cases where it is intended to take a bill pro confesso against a defendant, to enter superseded an appearance for him, and to proceed under the provisions of the Order. General Order. Where any defendant, whether within or not within the jurisdiction of the Court, does not put in his answer in due time after appearance entered by or for him, and the plaintiff is unable, with due diligence, to procure a writ of attachment, or any subsequent process for want of answer, to be executed against such defendant, by reason of his being out of the jurisdiction of the Court, or being concealed, or for any other cause, then such defendant is, for the purpose of enabling the plaintiff to obtain an order to take the bill pro confesso, to be deemed to have absconded to avoid, or to have refused to obey, the process of the Court. And where any defendant who, under the last-mentioned rule, may be deemed to have absconded to avoid, or to have refused to obey the process of the Court, appears in person or by his own solicitor, the plaintiff may serve upon such defendant or his solicitor a notice, that on a day in such notice named (being not less than fourteen days after the service of such notice), the Court will be moved that the bill may be taken pro confesso against such defendant; and the plaintiff must, upon the hearing of such motion, satisfy the Court that such defendant ought, under the provisions of the last-mentioned rule, to be deemed to have absconded to avoid, or to have refused to obey, the process of the Court; and the Court, if so satisfied, and if an answer has not been filed, may, if it so think fit, order the bill to be taken pro confesso against such defendant, either immediately, or at such time, or upon such further notice as, under the circumstances of the case, the Court may think proper." 1 Ord. X. 6; ante, p. 459. 2 Wilkin v. Nainby, 4 Hare, 476; 10 Jur. 735; Dresser v. Morton, 1 C. P. Coop. t. Cott. 376; see, however, Fortescue v. Hallett, 3 Jur. N. S. 806; 5 W. R. 747, V. C. K. 8 Where a defendant had been duly served with the bill and interrogatories, but did not appear or answer, and withdrew himself beyond the jurisdiction, the Court ordered notice to be given to him, that unless an answer was put in within fourteen days from the service of the notice, an appearance would be entered for him, and proceedings taken to have the bill taken pro confesso. Grover and Baker Sewing Machine Company v. Millard, 8 Jur. N. S. 713, V. C. W. 4 Ord. XXII. 2. The sheriff's officer must swear, that he has used due diligence. Yearsley v. Budgett, 11 Beav. 144. 5 Ord. XXII. 2. 6 6 For form of notice, see Vol. III. Short notice of motion allowed, where a defendant, who had obtained further time, refused to put in his answer, and an attachment could not be executed against him. Wedderburne v. Thomas, 10 Jur. N. S. 92, V. C. W. 7 Ord. XXII. 3. If a defendant, after appearing, will not answer, the bill will be taken pro confesso. Caines v. Fisher, 1 John. Ch. 8. And where the bill is for relief only, and states sufficient ground, the process for contempt to compel an answer is not necessary. Caines v. Fisher, supra. In New Jersey, a decree pro con fesso may be taken at any time after the time limited for the defendant to plead, answer, or demur has expired. It may be taken without notice, and, of course, under the statute, by General Defendant not answer ing, and not to be found, have ab deemed to sconded to avoid process. Where he has appeared in person, or by his solicitor, motion to take bill pro confesso to be given. notice of |