Costs of Contempt. gards the payment of his costs, or it has become in the event unnecessary for him to do the act for which he was committed or attached, the Court of Equity in which the suit is depending, shall, upon the application of the party in contempt, discharge him from the same, except as to the costs thereof, for which he shall remain in custody; and such costs shall be deemed within the provisions lastly thereinbefore contained (x), and he shall be dischargeable therefrom, and from the process of contempt, in like manner as if the process of contempt were for non-payment of money or costs. It is provided, however, that this order or regulation shall not weaken any of the other powers by the Act given, and that nothing therein contained shall lessen the operation of the Act for the relief of insolvent debtors. (1) By the preceding Section, xvI. they would have over his own proit is enacted, "That where a person perty, and thereupon such articles shall be committed for a contempt in or things so seized and taken shall not delivering to any person or per- be dealt with by the Court as shall be sons, or depositing in Court or else just; and after such seizure it shall be where, as by any order may be di- lawful for the Court, upon the applicarected, books, papers or any other tion of the prisoner, or of any other articles or things, any sequestrator or person in the cause or matter, or upon sequestrators, appointed under any any report made in pursuance of this commission of sequestration, shall Act, to make such order for the dishave the same power to seize and charge of the prisoner upon such terms, ake such books, &c., being in the and if it shall see fit, making any costs custody or power of the person against in the cause, as to the Court shall seem whom the sequestration issues, as proper." CHAP. IX. Or TAKING BILLS PRO CONFESSO. SECT. I. Origin and Nature of the Practice. IN the preceding Chapter the reader's attention has been Nature of the drawn to the method which the Court adopts to compel a proceedings. refractory defendant to obey the writ of subpoena which has issued against him. By means of the process there pointed out, the plaintiff may, if the defendant be 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, he may proceed to compel his submission by taking from him the enjoyment of his property and effects till he complies with the requisitions of the writ. 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 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; it will, therefore, in cases where the whole line of process has been ineffectually employed against the defendant, make an order that the facts of the bill shall be considered as true, and decree against the defendant according to the equity arising upon the case stated by the plaintiff. This proceeding is termed, taking a bill pro confesso. It seems that this practice is not of very ancient standing, Not of ancient and that the custom formerly was, to put the plaintiff to make standing. Nature of the proof of the substance of his bill, but there is no doubt that the course of taking the bill pro confesso is now the established practice of the Court whenever it is necessary to have the decree of the Court against a defendant" who has allowed all the process of the Court to be issued against him without putting in his answer" (a). Where defendant has not appeared. Where defendant has ab sconded, &c. SECT. II. Where the Defendant is not in Custody. As considerable difference exists in the practice of taking a bill pro confesso in cases where the defendant is not in custody, and in those where he is, the reader's attention will be called to the method of proceeding in each case separately; and we shall now proceed to consider the case of a defendant not in custody. It is to be observed, that, till a very recent period, the practice of taking bills pro confesso was confined to cases where the defendant had appeared to the subpœna, but had permitted process of contempt for want of his answer to run on to sequestration, and that it was not till the 5 Geo. 2, c. 25(b) was passed, that the process of the Court could be made effectual against persons who had not entered their appearance. By that Act, provision was first made for ordering a bill to be taken pro confesso and a decree to be made, against persons who absconded, or went out of the realm to avoid being served with the process of the Court. The provisions of that Act, as far as they relate to this proceeding, have all, as we have seen, been repealed and re-enacted by the 1 W. 4, c. 36; 1 Will. 4, c. 36, s. 3. 5, 6, 7, 8, and the course of proceeding to obtain an order to take a bill pro confesso under them has been already pointed out (c). It is important, however, that it should be fixed in the mind of the practitioner that the Operation of (a) Hawkins v. Crook, 2 P. Wms. 557. (a) Johnson v. Desminere, 1 Vern. 223; Gibson v. Scevengton, 1 Vern. (b) Repealed and re-enacted by 1 Will. 4, c. 36. (c) Ante, p. 270. operation of the above mentioned Act is confined to cases Where defend. ant has ap According to the old practice of the Court a plaintiff intending to take a bill pro confesso against a defendant who had appeared, but who was in contempt for want of an answer, was obliged, before he could do so, to go through the whole line of process before pointed out. If upon the attachment the sheriff returned non est inventus, such return was under 1 W. 4, followed by an attachment with proclamations, commission of c. 36, s. 15. (d) Vide ante, 274. In addition to what has been already said upon the subject of taking bills pro confesso, against a party absconding, the reader's attention may be here called to the case of Knowles v. Broome, 1 V. & B. 306, in which, where it was impossible to comply with the directions of the Act, (which requires that a copy of the order for the defendant to appear by a certain day, should, besides being posted up at the Royal Exchange, and inserted in the London Gazette, be published in the parish church of the parish where the defendant last resided, immediately after divine service,) in consequence of the church being under repair, the Court, upon application, after the repairs had been completed (on the authority of Wilkinson v. Coker, 1 Dick. 74), allowed the (e) In Harrison v. Hinde, in Ch. After Appearance. Where provisions of that Act cannot be complied with, old process must be resorted to; but in either rebellion, serjeant-at-arms, and sequestration. These proceedings were attended by considerable expense and delay; and, however necessary all the caution, which this long series of proceedings implies, might have been considered in the infancy of Courts of Equity, in order to soften down the objections to the Courts themselves, it was thought by the commissioners appointed in 1824 to inquire into the practice of the Court, that it was not requisite, at a period when the jurisdiction was fully established, to encumber the suitor with the delay and expense occasioned by the various steps enumerated (f); they therefore recommended that in order to shorten the process to be gone through for taking a bill pro confesso, where the defendant is in contempt for want of an answer, and the sheriff returns non est inventus to the attachment, the plaintiff should be at liberty to pass by the intermediate process of contempt, and to move at once for a serjeant-at-arms; provided, however, that no order for a serjeant-at-arms should be made unless the motion should be supported by an 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 has been used for the purpose of ascertaining where the defendant was to be found at the time of issuing the writ, and that he verily believes that the defendant was then to be found in the county into which it did actually issue, and that due diligence had been used for the service of the process by the officer employed for that purpose (g). This proposition has been embodied in the first rule of the 1 W. 4, c. 36, s. 15, before referred to (h); and according to that rule a plaintiff, if the other requisites required by it can be complied with, may, in proceeding to take a bill pro confesso, omit all the intermediate process between the attachment and the serjeant-at-arms. Where, however, the provision of that rule cannot be complied with, the plaintiff must still proceed through the whole line of process, according to the old practice (i). In either case, however, it is necessary, unless in the case case serjeant-at- of persons having privilege of arms must go; (f) Chanc. Rep. expl. paper, 69. (h) Ante, 605. |