granted that he might appear within a limited time, upon the equity of the statute of 5 Geo. 2, c. 15, though he had not been in England for two years before the subpoena was issued as required by the 8th sec. of that act.(1) But in subsequent cases it is laid down as necessary that the affidavit in support of the application, under the same act, should state that the defendant has been within the jurisdiction within two years before the subpoena issued; the Court observing that the 8th sec. of that act was peremptory.(2)

The order directing the defendant to appear is obtained upon an exparte motion, supported by the above affidavit. A copy of the order is inserted in the London Gazette, and published in the parish church, and posted at the Royal Exchange, according to the directions laid down in the Act, and before mentioned.

In proceeding under the act of 5 Geo. 2, c. 25, the plaintiff having been unable to have the notice read in the church, in consequence of the church being under [ *155 ] repairs, *the time limited for the appearance of the defendant was enlarged.(3) If a minister of a parish prevents an order for a defendant's appearance being published pursuant to the statute, he is indictable for the offence.(4) There does not appear any provision in 1 Will. 4, cap. 36, for a case where a defendant has made his abode in a place extraparochial, and some difficulty recently occurred, where a defendant had lived in the Temple, in which church the notice was not allowed to be read.

If the defendant does not appear within the time limited upon an affidavit of the publication of the order to appear as aforesaid, the Court, on motion, will order the cause to be set down and that the plaintiff's clerk in court do attend at the hearing of the cause with the record bill. The cause is then set down for hearing, and on coming on, the bill is taken pro confesso.

Upon the bill being taken pro confesso, the Court may issue process to compel the performance of such decree, either by an immediate sequestration of the real and personal estate and effects of the party so absenting (if any

(1) Clarke v. Wright, 2 Ves. 188.

(2) Neale v. Neale, 5 Ves. 1. Winchester v. Beaver, 5 Ves. 113. (3) Knowles v. Broome, 1 V. & B. 305.

(4) Burton v. Mattons, 2 Atk. 113.

such can be found), or such part thereof as may be sufficient to satisfy the demands of the plaintiff in the said suit, or by causing possession of the estate or effects demanded by the bill to be delivered to the plaintiff, or otherwise, as the nature of the case shall require; and the said Court may likewise order such plaintiff to be paid and satisfied his demands out of the estate or effects so sequestered, according to the true intent and meaning of such decree, such plaintiff first giving sufficient security in such sum as the Court shall think proper, to abide such order touching the restitution of such estate or effects as the Court shall think proper to make concerning the same, upon the defendant's appearance to defend such suit and paying such costs to the plaintiff as the Court [ *156 ] shall order; but in case such plaintiff shall refuse or neglect to give such security as aforesaid, then the said Court shall order the estate or effects so sequestered, or whereof the possession shall be decreed to be delivered, to remain under the direction of the Court either by appointing a receiver thereof, or otherwise, as to such Court shall seem meet, until the appearance of the defendant to defend such suit, and his paying such costs to the plaintiff as the said Court shall think reasonable, or until such order shall be made therein as the Court shall think just.(1)

If any person against whom any decree shall be made, upon refusal or neglect to enter his appearance, or appoint a clerk in court or attorney to act on his behalf, shall be in custody or forthcoming, so that he may be served with a copy of such decree, then he shall be served with a copy thereof before any process shall be taken out to compel the performance thereof.(2)

If any decree shall be made in pursuance of this act against any person being out of the realm or absconding in manner aforesaid at the time such decree is pronounced, and such person shall, within seven years after the making such decree, return or become publicly visible, then, and in such case he shall likewise be served with a copy of such decree within a reasonable time after his return or public appearance shall be known to the plaintiff'; and in case any defendant against whom such decree shall be

(1) 1 Will. 4, c. 36, s. 3.

(2) 1 Will. 4, c. 36, s. 4.

made, shall, within seven years after the making such decree, happen to die before his or her return into this realm, or appearing openly as aforesaid, or shall within the time last before mentioned, die in custody before his or her being served with a copy of such decree, then his or her heir, if such defendant shall have any real estate sequestered, or whereof possession shall have been delivered to [ *157] the plaintiff, *and such heir may be found; or if such heir shall be a feme covert, infant, or non compos mentis, the husband, guardian, or committee of such heir respectively; or if the personal estate of such defendant be sequestered, or possession thereof delivered to the plaintiff, then his executor or administrator (if any such there be) may and shall be served with a copy of such decree within a reasonable time after it shall be known to the plaintiff' that the defendant is dead, and who is his heir, executor or administrator, or where he may be served therewith.(1)

If any person so served with a copy of such decree shall not, within six months after such service, appear and petition to have the said cause reheard, such decree so made as aforesaid shall stand absolutely confirmed against the person so served with a copy thereof, his heirs, executors, and administrators, and all persons claiming or to claim by, from, or under him or any of them, by virtue of any act done or to be done subsequent to the commencement of such suit.(2)

If any person so served with a copy of such decree, shall within six months after such service, or if any person not being so served, shall within seven years next after the making such decree, appear in Court and petition to be heard with respect to the matter of such decree, and shall pay down or give security for payment of such costs as the Court shall think reasonable in that behalf, the person so petitioning, 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 exhibited, and issue may be joined, and witnesses on both sides examined, and such other proceedings, decree, and execution may be had thereon, as there might have been in case the same party had originally appeared, and

(1) 1 Will. 4, c. 36, s. 5.

(2) 1 Will. 4, c. 36, s. 6.

the proceedings had then been newly begun, or as if no *former decree or proceedings had been in the [ *158] same cause.(1)

If any person against whom such decree shall be made, his heirs, executors, or administrators, shall not, within' seven years next after the making of such decree, appear, and petition to have the cause reheard, and pay down or give security for payment of such costs as the Court shall think reasonable in that behalf, such decree made as aforesaid shall stand absolutely confirmed against the person against whom such decree shall be made, his heirs, executors, and administrators, and against all persons claiming or to claim by, from, or under him or any of them, by virtue of any act done, or to be done subsequent to the commencement of such suit; and at the end of such seven years, it shall and may be lawful for the Court to make such further order as shall be just and reasonable, according to the circumstances of the case.(2)

Although the defendant has appeared to and answered the original bill, if he does not appear to a bill of revivor, the plaintiff must proceed to take the bill of revivor pro confesso, against him, and cannot obtain an order that service of the subpoena to appear and answer bill of revivor on the clerk in court, may be deemed good service.(3)

(1) 1 Will. 4, c. 36, s. 7.

(3) Henderson v. Meggs, 2 Bro. C. C. 127.

(2) 1 Will. 4, c. 36, s. 8.

12*

CHAPTER XII.

APPEARANCE.

A DEFENDANT to a bill, though not served with process,[a] may appear gratis.(1) The defendant, if he reside or is [159]* served(2) in London, or within twenty miles thereof, has four days (exclusive of the day of service) and in all other cases eight days after the service of the subpoena, to enter his appearance to the plaintiff's bill.

The defendant's solicitor instructs his clerk in court to appear to the bill by leaving a precipe in the following

form:

"Mr.

"Please to enter appearance for A. B. and C. D. ats. R. S.

"January, 183-."

"S. G. solicitor for defendant.

The clerk in court enters the appearance, and gives a written notice to the plaintiff's clerk in court that he appears for the defendant, and the appearance is considered as entered from the date of such notice. If the plaintiff amends his bill before the answer of the defendant is filed, it is not necessary for the defendant to enter a new appearance to the amended bill. If the plaintiff amends his bill after the answer of the defendant, the defendant is entitled to the same time after service of subpoena to appear to the amended bill as he is allowed to appear to an original bill,

(1) Fell v. Christ's College, 2 Bro. C. C. 279.

(2) Lord Clarendon's Order says, not if the defendant reside, but if the service was made in London, &c. Beam. Ord. 169; and where a defendant living in the country was served at a house in town, and obtained six weeks' time, the order was discharged. Bound v. Wells, 3 Madd. 434; but see case cited in note.

[a] Or where the subpoena is irregularly served, as where it is served out of the state: the defendant may voluntarily appear: or if he stipulate by an agreement in writing to accept such service, as regular, he cannot afterwards object to the regularity of proceedings pro confesso, against him, founded on such service. Dunn v. Dunn, 4 Paige, 425; see also Seebor v. Hess, 5 Paige, 85. The appearance of the defendant is good, though the writ be void, or its service irregular; he being, by the appearance, regularly in Court. See Gra. Prac. 2d ed. 122.