made for such purpose: Provided also, that nothing in this act shall be held to make it compulsory upon the complainant or complainants in any suit in any of the said respective courts to serve with process or bring before such courts respectively any party or parties, person or persons, further or otherwise than such complainant or complainants are now by law or the practice of such courts respectively required to do."

By 4 & 5 Will. 4, c. 82, it is enacted, "That all the provisions contained in the 2 Will. 4, c. 33, relating to suits instituted in the said courts respectively concerning lands, tenements, or hereditaments situate in England or Wales or in Ireland respectively, shall be extended and applied to all suits instituted in the said Courts respectively concerning any charge, lien, judgment, or incumbrance thereon, or concerning any money vested in any government or other public stock, or public shares in public companies or concerns, or concerning the dividends or produce thereof; and the provisions in the said act authorizing the said courts respectively to direct that the service in any part of the United Kingdom of Great Britain, or Ireland, or the Isle of Man, respectively, of any subpoena or subpoenas, letter missive or letters missive, and of all subsequent process to be had thereon, upon any defendant or defendants in such suit, then residing in such parts of the United Kingdom or the Isle of Man in which, he, she, or they should be so served, should be deemed good service of or be made upon such defendant or defendants, upon such terms, and in such manner, and at such time as to such courts respectively should seem reasonable, and that thereupon it should and [ *150 might be lawful for such courts respectively to proceed upon such service as fully and effectually as if the same had been duly made within the jurisdictions of such courts respectively, shall be and they are hereby extended to any defendant or defendants in any such suit or suits as herein before mentioned, who shall appear by affidavit to be resident in any place, specifying the same, out of the United Kingdom of Great Britain and Ireland; and that it shall and may be lawful for the said courts respectively, on motion in open court of any of the complainants in any such suit, founded upon an affidavit or affidavits, and such other documents as may be applicable for the purpose of

ascertaining the residence of the party, and the particulars material to identify such party and his residence, and also specifying the means whereby such service may be authenticated, and especially whether there are any British officers, civil or military, appointed by or serving under His Majesty residing at or near such place, to order that service of a subpoena to appear and answer upon the party in the manner thereby directed, or, in case where the said courts respectively shall deem fit, upon the receiver, steward, or other person receiving or remitting the rents of the lands or premises, if any, in the suit mentioned, returnable at such time as the said courts respectively shall direct, shall be deemed good service of such party, and afterwards, upon an affidavit of such service had, to order an appearance to be entered for such party in such manner and at such time as the said courts respectively shall direct, and that thereupon it shall and may be lawful for such courts respectively to proceed upon such service so made as aforesaid as fully and effectually as if the same had been duly made within the jurisdictions of such courts respectively."

And by sec. 2, it is further enacted, "That where it *151 ] shall appear upon affidavit, to be made to the satisfaction of the said courts respectively, that any defendant in any such suit as hereinbefore mentioned cannot by reasonable diligence be personally served with the subpoena to appear and answer, or that upon inquiry at his usual place of abode he could not be found so as to be served with such process, and that there is just ground for believing that such defendant secretes or withdraws himself so as to avoid being served with the process of such Court, then and in all such cases it shall and may be lawful for the Court to order that the service of the subpœna to appear and answer shall be substituted in such manner as the Court shall think reasonable and direct by such order."

In Parker v. Lloyd,(1) an order was granted for service of a subpoena in Scotland, together with a copy of the bill. In M'Master v. Lomax, (2) a query is raised whether the act extends to Scotland, and Lord Brougham refused

(1) 5 Sim. 508,"

Eng. Chan. Reps. vii. 512.

(2) 2 M. & K. 32.b

Eng. Chan. Reps. vii. 247.

the application for an attachment, observing that if the act did apply to Scotland, it was discretionary with the Court either to grant or refuse an application under it. In Cameron v. Cameron,(1) Lord Lyndhurst granted an order that service of a subpoena in Scotland should be good service. Where a defendant is served with a subpoena under the act, and the plaintiff wishes an attachment, he must serve the defendant personally with the notice of motion for the same.(2)

e

(1) 2 M. & K. 32.

Eng. Chan. Reps. viii. 372.

(2) Hasluck v. Stewart, 6 Sim. 321.

Eng. Chan. Reps. ix. 291.

CHAPTER XI.

PROCEEDINGS TO A DECREE PRO CONFESSO ON DEFAULT OF DEFENDANT'S APPEARANCE.

Power of the Court to proceed without an appearance, 152. How bill taken pro confesso under 1 Will. 4, c. 36, 153. Proceedings under said act, 154. Order for defendant to appear, 154. How obtained, and where inserted, published and read, 154. Decree to take bill pro confesso, 155. Proceedings consequent upon, 155.

HAVING Considered the manner in which the Court compels an appearance, I propose to inquire what power the Court possesses of proceeding without one. Before the passing of 5 Geo. 2, c. 25, an appearance by the defendant was considered essential to confer jurisdiction on the Court, and where that could not be enforced, the Court possessed no power of relieving the suitor. It has been shown in what manner the legislature has from time to time provided remedies for this inconvenience by investing the Court with authority in certain cases to enter an appearance for a defendant. It has been seen how the appearance of a defendant in custody brought up to the bar of the Court may be entered, as well as that of a person having privilege of Parliament after a sequestration absolute but in the one case actual custody is necessary, and in the other, notice of the order for sequestration. There still remains a class of cases which require explanation.

If an attachment for want of appearance is returned non est inventus, and all the endeavours of the plaintiff to attach the defendant are fruitless, he is without remedy,[a] [ *153 ] unless *he can satisfy the Court that the defendant absconds to avoid process, in which case the Court will, without the appearance of the defendant, take the bill pro confesso, that is, will assume the statement of the bill to be true, and make a decree accordingly. This power was first conferred upon the Court by 5 Geo. 2, c. 25, which statute has been repealed by 1 Will. 4, c. 36, the latter, however, containing enactments of a similar

nature.

[a] See ante, 140, note.

To take a bill pro confesso under 1 Will. 4, c. 36, a subpœna to appear and answer issues, and if the defendant does not cause his appearance to be entered upon such process, within such time and in such manner, as, according to the rules of the Court, the same ought to have been entered in case such process had been duly served, and an affidavit or affidavits shall be made to the satisfaction of such court that such defendant is beyond the seas, or that, upon inquiry at his usual place of abode he could not be found, so as to be served with such process, and that there is just ground to believe that such defendant is gone out of the realm or otherwise absconded to avoid being served with the process of such court, then, in such case, the Court out of which such process issued may make an order directing and appointing such defendant to appear at a certain day therein to be named; and a copy of such order shall, within fourteen days after such order made, be inserted in the London Gazette, and published on some Lord's day immediately after divine service in the parish church of the parish where such defendant made his usual abode, within thirty days next before such his absenting; and also a copy of such order shall, within the time aforesaid, be posted up in some public place at the Royal Exchange in London. 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 made of such publication of such [*154 ] order as aforesaid, the Court being satisfied of the truth thereof, may order the plaintiff's bill to be taken pro confesso, and make such decree thereupon as may be thought just.(1)

In proceeding under this act the first thing to be obtained is an affidavit that the defendant absconds, framed as near as the facts will allow according to the terms of the act, and containing, in addition, a statement which must make it appear to the satisfaction of the Court, that the defendant has been in England within two years next before the subpoena in such suit issued against the defendant, as required by the 9th sec. of the above act.

A defendant having been outlawed, a motion was