mitted to and remains in the Queen's Prison. To this, however, there is an exception, which it is necessary to mention, which is, where the defendant is detained in the sheriff's custody for a misdemeanour; in that case, when the sheriff brings the defendant before the Court on the habeas corpus, he is only formally turned over to the Queen's Prison, but is, in fact, carried back to the prison from whence he came, charged with the detainer in the suit. In both cases, however, the proceedings, in order to have the bill taken pro confesso, are the same; they are the following:-On a certificate from the proper officer of the Queen's Prison, the plaintiff's agent moves for a habeas corpus cum causis to bring the defendant to the bar of the Court, and that the clerk of records and writs may attend at the return thereof with the record of the plaintiff's bill, in order that it may be taken pro confesso against the defendant; this is a motion of course, and the order having been obtained, the habeas corpus is issued; it must not be returnable earlier than twenty-eight days from the time the defendant was before committed by the Court, and the return-day must be one on which the Court will sit on motions; the writ of habeas corpus is lodged at the Queen's Prison, and on the returnday the officer of that prison brings the defendant into Court, the clerk of records and writs also attends with the bill, and counsel being instructed on behalf of the plaintiff, moves that it be taken pro confesso, which is ordered accordingly. If there be other defendants the suit proceeds in the ordinary manner as against them; but the order to take the bill pro confesso concludes the cause as to the defendant against whom it is so taken.

Where the defendant is imprisoned elsewhere than in the Queen's Prison, detained for a misdemeanour, the only difference in the above proceeding is, that instead of the certificate of the officer of the Queen's Prison, a certificate from the officer in whose custody the defendant is, of the causes of his detainer, espe

cially the commitment in the suit and that for the misdemeanour, which certificate must be verified by affidavit, it is to be obtained, and upon it the order for the habeas, &c. will be obtained.

It appears that if the defendant is in prison for felony, a bill cannot be taken pro confesso against him till his imprisonment, or at least that cause of detainer, is at an end.

Where a defendant has been taken into custody on process of contempt for not answering, the plaintiff's solicitor must not be inactive because the defendant may choose to lie in prison, but the defendant must, if he be in custody of the messenger or Serjeant-at-arms, be brought before the Court within ten days from the time of his arrest; or if he be in the custody of the sheriff, he must be brought, by habeas corpus, before the Court within thirty days from the time he was taken; or if he were previously in the sheriff's custody, within thirty days from the time the attachment against him was lodged with the sheriff, so as to operate as a detainer. When the defendant has been so brought to the bar of the Court and committed to the Queen's Prison, or (if there be a detainer against him for a misdemeanour) back to the sheriff's custody, the plaintiff's solicitor is not to stop his proceedings and let him lie in prison, but must proceed to take the bill pro confesso in the manner which has just been described: the period within which this must be done depends in some degree on circumstances, and is, perhaps, not very exactly defined, but it will be near the truth to state as a general proposition, that the whole proceedings to take the bill pro confesso, should be completed within a period of about eighteen or nineteen weeks from the time of the original arrest or detainer of the defendant upon the attachment; this affords ample time to do every thing necessary, but not very much to lose. These points of practice are governed by the statute 1 Will. IV. c. 36, s. 15, rules 5 & 13. If the bill be not taken pro confesso in due time, the

defendant it payment!

apply to the for his discharge

from custody

of any

of the costs of

contempt, and this he will obtain except under very special circumstances.

By the 1 William IV. c. 36, s. 3, it is recited, that sometimes persons have drawn themselves beyond the seas or otherwise absconded to avoid appearing in Courts of Equity, or being served with process

for that purpose, remedy which it is thereby

1

to

the rule

the

enacted, that if in any suit commenced or to be commenced in any Court of Equity, any defend defendant against whom any subpoena or other process shall issue, shall not cause his appearance to be entered upon such process within such and in manner as according to 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 process of such Court (a); 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

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(a) The affidavit should state the facts upon which the belief is grounded, so as to enable the Court to judge. And, besides the above affidavits, there must be an affidavit of the fact that the defendant has been in England within two years next before the subpoena was issued; see sec. 9 of the Act, and Neale v. Norris, 5 Ves. 1.

or

shall, within the time aforesaid, be posted up in some public place at the Royal Exchange in London (a) ; and if the defendant do not 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 cas being satisfied of the truth thereof, may order the plaintiff's bill to be pro confesso, and make such decree thereupon as shall be thought just, and may thereupon issue process to compel the performance of such decree, either by an immediate sequestration of the real and personal estates and effects of the party so absenting (if any such can be found), r 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 costs to the plaintiff as the

(a) The posting at the Royal Exchange is only applicable in suits in the High Court of Chancery. The provision is dif ferent with respect to Courts of Equity in the Counties Palatine, &c.

said Court shall think reasonable, or until such order shall be made therein as the Court shall think just..

By section 4 it is provided, that if any person against whom any decree shall be made, upon refusal or neglect to enter his appearance, 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.

By section 5 it is provided, that if any decree shall be made in pursuance of the 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 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 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.

By section 6 it is provided, that if any person so served with a copy of such decree shall not, within