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into court by habeas corpus, have refused to appear ; for remedy of the No. I. inconvenience thence ensuing, be it further enacted, That if in any suit 1 W.4, c. 36. which hath been or hereafter shall be commenced in any court of equity, any defendant against whom any subpæna or other process shall within the usual issue, shall not cause his appearance to be entered upon such process time after subwithin such time and in such manner as according to the rules of the pæna or other court the same ought to have been entered in case such process had process has been duly served, and an affidavit or affidavits shall be made to the been issued. 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 and 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 as after mentioned; (that is to say,) a copy of every such order made in his Majesty's high court of chancery, court of exchequer, or the court of the duchy chamber of Lancaster at Westminster, shall be posted up in some public place at the royal exchange in London ; and a copy of every such order made in any of the courts of equity of the counties palatine of Chester, Lancaster, and Durham, or of the great sessions in Wales, shall be posted up at some public place in some market town within the jurisdiction of the court by which such order was made, and nearest to the place where such defendant made his usual abode as aforesaid, such place of abode being also within the jurisdiction of the said court; 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 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 shall be thought just, (1) and may thereupon 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 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 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
(1) Where a defendant, who is the only defendant, absconds, the bill cannot be taken pio confesso against him under this statute on motion, but the cause must be set down for hearing ; Baker v. Keen, 4 Simons, 498.
No. I. costs to the plaintiff as the said court shall think reasonable, or until 1 W.4, c. 36. such order shall be made therein as the court shall think just.
IV. Provided always, That if any person against whom any decree Persons in cus- shall be made upon refusal or neglect to enter his appearance, or appoint tody so neglect- a clerk in court or attorney to act on his behalf, shall be in custody or ing, to be served forthcoming, so that he may be served with a copy of such decree, then with a copy of he shall be served with a copy thereof before any process shall be taken the decree.
out to compel the performance thereof. Persons out of
V. Provided also, That if any decree shall be made in pursuance of the realm af. this act against any person being out of the realm or absconding, in fected by such manner aforesaid, at the time such decree is pronounced, and such perdecrees, if they son shall, within seven years after the making such decree, return, or return within become publicly visible, then and in such case he shall likewise be seven years, to served with a copy of such decree within a reasonable time after his be served with return or public appearance shall be known to the plaintiff; and in case a copy; or in
any defendant against whom such decree shall be made shall, within case of death, their heirs, &c.
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 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.
VI. Provided always, That if any person so served with a copy of Persons not pe- such decree shall not, within six months after such service, appear and hearing of the petition to have the said cause reheard, such decree so made as aforecause within said shall stand absolutely confirmed against the person so served with six months, the a copy thereof, his heirs, executors, and administrators, and all persons decree to be ab- claiming or to claim by, from, or under him, or any of them, by virtue solutely con- of any act done or to be done subsequent to the commencement of such firmed.
suit. Persons peti
VII. Provided always, That if any person so served with a copy of tioning a re- such decree shall within six months after such service, or if any person hearing within not being so served shall within seven years next after the making such seven years, decree, appear in court and petition to be heard with respect to the and giving se- matter of such decree, and shall pay down or give security for payment curity for
of such costs as the court shall think reasonable in that behalf, the percosts, admitted
son so petitioning, or his representatives, or any person claiming under to answer,
cause to be him by virtue of any act done before the commencement of the suit, heard again.
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 the proceedings had then been newly begun, or as if no former decree or proceedings had been
in the same cause. Persons not ap- VIII. Provided always, That if any person against whom such decree pearing within shall be made, his heirs, executors, or administrators, shall not, within seven years, and seven years next after the making of such decree, appear and petition to making such
have the cause reheard, and pay down or give security for payment of petition, to be such costs as the court shall think reasonable in that behalf, such decree absolutely
made as aforesaid shall stand absolutely confirmed against the person barred.
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 No. I. order as shall be just and reasonable according to the circumstances of 1 W. 4, c. 36. the case.
IX. Provided always, That this act shall not extend or be construed Not to affect to extend to warrant or make good any proceeding against any person persons beyond beyond the seas, unless it shall appear to the satisfaction of the court the seas, unless by affidavit or affidavits, before the making of such decree, that such in certain cases person had been in that part of Great Britain called England within two years next before the subpæna in such suit issued against such person.
X. Provided also, That the provisions hereinbefore contained shall As to courts not extend or be construed to extend to warrant or make good any pro- having a limited ceeding against any person in any court of equity having a limited juris- jurisdiction. diction, unless it shall appear to the satisfaction of such court by affidavit, before the making of such decree, that such person had resided within the jurisdiction of such court within one year next before the subpæna in such suit issued against such person.
XI. That from and after the passing of this act, if any defendant, by Defendants virtue of any writ of habeas corpus or other process issuing out of any brought into court of equity, shall be brought into court, and shall refuse or neglect, court by habeas or, being within the walls of any prison in England under or charged corpus, or in with an attachment or other process of contempt, shall, after fourteen custody, and days' previous notice in writing requiring him to enter an appearance,
refusing to enter refuse or neglect to enter his appearance according to the rules or
court may enter method required by the said court, or to appoint a clerk in court or at- it for them. torney of such court to act on his behalf, such court may appoint a clerk in court or attorney of such court to enter an appearance for such defendant, and such proceedings may thereupon be had in the cause as if the party had actually appeared.
XII. And whereas in many cases persons having privilege of parlia- Appearances ment are named as defendants in suits instituted in courts of equity may be put in against them, either alone or jointly with other persons, for enforcing for de fendants against them demands and duties cognizable in courts of equity, and in having privilege some cases such defendants having privileges of parliament have stood of parliament in out to the return of process of sequestration issued against them for courts of equity, enforcing appearance, and such process of sequestration hath not been on return of found sufficient to enforce such appearance ; be it therefore enacted,
process of se
questration. That from and after the passing of this act, in case any defendant having privilege of parliament shall, upon a return of process of sequestration issued against him for not putting in an appearance to any original or other bill of complaint instituted against him in a court of equity for enforcing discovery and relief, or discovery alone (as the case may be), neglect to appear, that then and in such case such court, upon producing the return of such sequestration in court, may, on the motion or other application of the plaintiff in such cause, appoint a clerk in court to enter an appearance for such defendant so having privilege of parliament, and such proceedings may be thereupon had in the cause as if the party had actually appeared.
XIII. And whereas in many cases it is necessary, on the part of the In default of persons having legal rights against persons having privilege of parlia- answer to bill ment, to proceed by bill in equity against such persons so having privi- in equity against lege of parliament, to obtain from them discovery on oath of facts in- persons having tended to be used or given in evidence in courts of law against the per
privilege of sons making such discovery; and in cases where such persons having shall be taken
parliament, bill such privilege as aforesaid shall stand out process of contempt, parties entitled to such discovery against them have not sufficient means of compelling or obtaining the same in all cases; be it therefore enacted, That from and after the passing of this act, when any defendant having privilege of parliament shall have appeared to any bill filed against him seeking a discovery upon oath, or when an appearance shall have been entered for such defendant according to the provisions aforesaid, and such person shall refuse or neglect to put in his answer to such bill
No. I. within the time for that purpose allowed by the rules and orders of such 1 W. 4, c. 36. court, than then it shall and may be lawful for the plaintiff in such suit
to apply to the court for an order that such bill shall be taken pro confesso against such defendant, and upon such application such court of equity shall make an order that such bill shall be taken pro confesso, unless the defendant shall within eight days after being served with such
order shew good cause to the contrary. Such bill shall
XIV. That when and so soon as any such order shall have been probe read in evi- nounced by any such court of equity for taking such bill pro confesso, dence as an
such bill in equity, or an examined copy thereof, so taken pro confesso, answer admitting the facts. shall be taken and read in any court of law or equity as evidence of the
facts and matters and things therein contained, in the same manner as if such facts, matters, and things had been admitted to be true by the answer of the defendant put in to such bill; and such bill so taken pro confesso shall be received and taken in evidence of such and the same facts, and on behalf of such and so many persons, as the answer of the defendant to the said bill could and might have been read and received in evidence of, in case such answer had been put in by the defendant thereto, and had admitted the same facts, matters, and circumstances as in such bill stated and set forth ; and in like manner every other bill of discovery taken pro confesso, under any of the provisions of this act, shall or may
be taken and read as evidence of the facts and matters and things therein Rules for courts
contained, to the extent aforesaid. of equity.
XV. And for remedying the practice of courts of equity in regard to process of contempt and the taking of bills pro confesso, be it further enacted, That the rules and regulations herein-after provided and contained shall be adopted by the high court of chancery, and shall from henceforth become orders and rules of the said court of chancery, and be observed and enforced in and by the said court; (that is to say, 1. That when a writ of attachment shall have duly issued against any
defendant for contempt in not answering the bill, and such defendant shall not have been taken under such writ, and the sheriff of the county into which such writ shall have issued shall make a return of non est inventus to the same, the court shall, upon motion by or on behalf of the plaintiff, (notice of which shall not be required,) order that the serjeant at arms (1) attending the court do apprehend such defendant and bring him to the bar of the court to answer his contempt, and the same proceedings may thereupon be had as if such order had been made in the manner heretofore in use; provided that before such order shall in any such case be made, the plaintiff applying for the same shall be required to satisfy the court, by the affidavit of the solicitor of the plaintiff, or of his town agent, if the writ of attachment was issued by such town agent, that due diligence (2) was used to ascertain the place where such defendant was at the time of issuing such writ, and in endeavouring to apprehend such defendant under the same, 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 into which such writ was issued. (3)
(1) On a motion for a sergeant-at-arms under this rule, the affidavit must be made by the clerk who issued the attachment, and the town agent must join in the affidavit, swearing as to his belief; Handfield v. Woolley, 4 Simons, 122.
(2) The affidavit 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, but it must swear to those facts, and in some way or other satisfy the court of their truth; Wright v. Green, 2 Russ. and M, 93.
(3) An affidavit relating to the defendant's residence, and not to the place where he was at the issuing of the attachment, is insufficient; Daris v. Hammond, 5 Simons, 9.
And it is not sufficient in the affidavit to state that at the time of issuing the writ of attachment, the defendant's last and only known place of abode was in the county into which the writ issued ; it must state the party's belief that at that time the defendant was in the county into which the writ issued; Handheld v. Wilde, 2 Russ. and M.91,
2. That if any defendant, being in contempt for not answering the bill, No. I.
shall have been brought to the bar of the court under process for 1 W. 4, c. 36. such contempt, and shall have been committed or remanded back to the prison of the Fleet, the plaintiff may sue forth the writ of habeas corpus in the manner and form heretofore in use in the like cases, provided that there shall be at least twenty-eight days between the day on which such defendant was so committed or remanded back and the return of such writ of habeas corpus; and upon or after the return of such writ of habeas corpus, in case such defendant shall not have put in his answer, the court shall order the bill to be taken pro confesso against such defendant, in the same manner as is now usual in the like cases upon the return of a writ of alias pluries habeas corpus, and such decree shall thereupon be made as shall be thought just; but in regard to any defendant in custody before and at the time of the passing of this act, there shall be at least thirty days between the time of passing this act and the return of such last-mentioned writ of habeas corpus; and it shall not be necessary in the case of any defendant now in custody as aforesaid, who shall have been brought to the bar of the court as aforesaid, to sue forth more than one writ of habeas corpus in
order to take the bill pro confesso. 3. That the party prosecuting any contempt shall be at liberty, without
order, to sue forth the several writs in process of contempt, returnable immediately in case the party in contempt resides or is in London or within twenty miles thereof; and that in other cases, the party prosecuting a contempt shall be at liberty, without order, to sue forth such several writs, returnable in vacation, provided that there be fifteen days between the teste and the return of
each of such writs. 4. That where a defendant is confined for a misdemeanor, and has been
brought before the court upon an habeas corpus, and thereupon has been turned over to the Fleet pro forma, but has been carried back to the prison from whence he came, with his cause, another writ of habeas corpus may issue, directed to the gaoler or keeper of the prison to which he has been carried back, and thereupon the defendant shall be brought into court, and remanded to the prison from whence he came, with his cause, without being turned over again to the Fleet prison, and the bill may be taken pro confesso, in the same manner in all respects as if the defendant had been all
along in the custody of the warden of the Fleet. 5. That if the defendant, under process of contempt for not appearing
or not answering, be in actual custody, and shall not have been sooner brought to the bar of the court under process to answer his contempt, the plaintiff, if the contempt be not sooner cleared, shall bring the defendant by an habeas corpus to the bar of the court within thirty days from the time of his being actually in custody, or detained (being already in custody) upon process of contempt, and if the last day of such thirty days shall happen out of term, then within the four first days of the ensuing term ; and where the defendant is in custody of the serjeant at arms, or of the messenger, upon an attachment or other process, the plaintiff shall, within ten days after his being taken into such custody, or if the last of such ten days shall happen out of term then within the first four days of the next ensuing term, cause the defendant to be brought to the bar of the court; and in case any such defendant shall not be brought to the bar of the court within the respective times aforesaid, the sheriff, gaoler or keeper, serjeant at arms or messenger, in whose custody he shall be, shall thereupon discharge him out of custody without payment by him of the costs of contempt, which shall be payable by the party on whose behalf the process issued ; and this rule shall apply to every defendant in custody before and at the time of passing of this act, who shall not have been