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 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 paying such *costs to the [ *272 ] plaintiff as the said Court shall think reasonable, or until such order shall be made therein as the Court shall think just.

By the 4th section of the same Act it is provided, that 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 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 or plaintiffs, then his or her executor or administrator (if any such there be) may and shall be served with a copy of such deeree within a reasonable time after it shall be known to the plaintiff that the defendant is dead, and who is his or her heir, executor or administrator, or where he, she or they respectively may be served therewith.

The 5th section contains a proviso, that if any person or persons, so served with a copy of such decree, shall not, within six months after such sevice, appear and petition to have the said cause re-heard, such decree so made as aforesaid shall stand absolutely confirmed against the person and persons so served with a copy thereof, his, her and their respective heirs, executors and administrators, and all persons claiming or to claim by, from or under him, her, them or any of them, by virtue of any act done or to be done subsequent to the commencement of such suit.

[ *273 ]

*The 6th section provides, that 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 or persons so petitioning, his, her or their respective representatives, or any person

or persons claiming under him, her or them respectively, 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 the proceedings had then been newly begun, or as if no former decree or proceedings had been in the same cause.

By the 7th section it is provided, that if any person or persons against whom such decree shall be made, his, her or their heirs, executors or administrators, shall not, within seven years next after the making of such decree, appear and petition to have the cause re-heard, 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 and persons against whom such decree shall be made, his, her and their heirs, executors and administrators, and against all persons claiming or to claim by, from or under him, her, them 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; and it is provided, that this act shall not extend or be construed to extend to warrant or make good any proceeding against any person beyond the seas, unless it shall appear to the satisfaction of the Court, by affidavit or affidavits before the making of such decree, that such person had been in that part of Great Britain called England within two years next before the subpana in such suit issued against such person, *nor to warrant or make good any proceeding against any person in any Court of Equity having a limited [ 274 ] jurisdiction, unless it shall appear to the satisfaction of such Court, by affidavit or affidavits before the making of such decree, that such person had resided within the jurisdiction of such Court within one year next before the subpœna in such suit issued against such person.

The whole of the above Act was repealed by the 11 Geo. 4, and 1 Will. 4, c. 36; but as the above clauses were re-enacted by the same statute, the following decisions upon the 5 Geo. 2, c. 25, are still important, as bearing upon the construction of the last Act.

In Burton v. Mattons, (u) Lord Hardwicke expressed his opinion to be, that if the minister of the parish in which, under the 5 Geo. 2, c. 25, the copy of the order directing the defendant to appear is directed to be published, prevents its being so published, as the Act itself is silent and does not mention any penalty for his disobedience, such minister is indictable for the contempt of the order of the Court.

It was also the opinion of Lord Hardwicke, upon the above statute, that it was not sufficient to make an affidavit that the party making it was informed and believed that the defendants withdrew themselves into Ireland to avoid being served with the process of this Court, but that it must be set forth from whom the party deposing received such information. (x)

It has also been held, that in proceeding to take a bill pro confesso against an absconding party, the mode prescribed by the Act must be strictly complied with, and therefore, when an application was made to take the bill pro confesso, upon the certificate of the serjeant-at-arms that the defendant had absconded, and had so secreted himself that he could not be found; but without the affidavit, required by the statute, of the defendant's absconding in foreign parts to avoid the process of the Court, Lord Thurlow refused the motion. (y)

(u) 2 Atk. 114; 1 Barn. 401, S. C. (y) Short v. Downer, 2 Cox, 84.

(x) Burton v. Mattons, 1 Barn. 401.

Although the 8th section of the Act requires an affidavit that the defendant had been in the kingdom within two years before the subpæna had issued, yet where that was not the case, the *fact being that the defendant had [ *275 ] been outlawed, Lord Loughborough, upon the authority of two manuscript cases before Lord Camden (2) and Lord Thurlow, (a) which were cited, ordered a bill to be taken pro confesso under the statute, upon an affidavit merely stating that the defendant continued abroad to avoid process. (b) It is to be observed, however, that the case, which appears to have been cited before Lord Loughborough as having occurred before Lord Camden, was that of Mason v. Polier, (c) where the defendant had gone abroad above two years before the filing of the bill, and had settled in Spain, where he continued to reside. The motion was made upon an affidavit by the plaintiff stating that fact, and that he believed the defendant continued to reside abroad to elude justice; and Lord Camden, in making the order, said he had very great doubts on the Act, as it was very penal against the parties: "the grounds are, that the defendant is either gone abroad or absconds to avoid being served; the defendant certainly does not abscond, because he is visible; it cannot be said that he went abroad to avoid being served, for the plaintiff states, the defendant went abroad above two years before the plaintiff thought of filing the bill; and by the Act of Parliament, the defendant is to have been in the kingdom within two years preceding the filing of the bill. But the plaintiff swears he believes the defendant continues abroad to elude justice: the affidavit to be made under the Act, is to be to the satisfaction of the Court; if it be, the Court may make the order." To this case a query is added by the reporter, as to whether this decision is warranted by the Act. He then refers to a similar order made by Sir Lloyd Kenyon, M. R., 29 June, 1786, and adds, "but these cases have been since exploded;" (d) and in a subsequent case, (e) Lord Alvanley, M. R., said he never would conform to the case of Clarke v. Wright, and that he never would make an order upon this Act of Parliament, without a positive affidavit of the defendant's having been in England within the two years. (f) [ *276 ] *It appears that some doubts were formerly entertained, whether this statute applied only to cases where the defendant had never been served at all, or whether it applied to cases where the defendant had been served with a subpana, but afterwards absconded to avoid the subsequent process; but in Mawer v. Mawer, (g) Lord Thurlow was of opinion that it extended to every case where the party had avoided any part of the process whatever, though he might have been served with a subpana, &c. Upon this principle it was held, that although a defendant had appeared and answered the original bill, yet if he could not be found so as to be served with a subpœna to answer to a bill of revivor, the plaintiff might proceed under the 5 Geo. 2, c. 25, to have the bill of revivor taken pro confesso. (h)

The method to be pursued in taking a bill pro confesso against a defendant absconding and going beyond seas, under the 11 Geo. 4, and 1 Will. 4, c. 36, is detailed in the case of Baker v. Keen; (i) and it appears from the case of Turner v. Turner, (k) that even when the absconding defendant is the only

(z) Vide Mason v. Polior, post.

(a) Gascoyne v. Kitchnam, June 29, 1788.

(b) Clarke v. Wright, reported as Anon. 2 Ves. jun. 188.

(c) 1 Dick. 401.

(e) Neale v. Morris, 5 Ves. 1.

(d) i Dick. 403, n.

Vide Bishop of Winchester v. Bourn, ib. 113.

1 Cox, 104; 1 Bro. C. C. 388.

(h) Henderson v. Meggs, 2 Bro. C. C. 127; James v. Dore, 1 Dick. 63.

4 Sim. 498.

(k) Ibid. 497.

defendant, a decree for taking the bill pro confesso under such circumstances cannot be had upon motion, but the cause must be set down for hearing.

The course of proceeding, as stated in Baker v. Keen, was as follows. The bill was filed on the 29th of October, 1832; on the 24th of January, 1833, the plaintiff's counsel obtained an order on motion, (supported by affidavit that the defendant had absconded and gone beyond the seas,) that the defendant should appear to the bill on or before the 1st of March then next. On the 7th of March, 1833, it appearing, by production of the London Gazette, that a copy of the order for the defendant to appear had been inserted therein, and, by affidavit, that the order had been published in the defendant's parish church, and that a copy of it had been posted at the Royal Exchange, according to the directions of the Act, but that the defendant had not appeared; an order was made, on motion, that the plaintiff's clerk in court should attend at the *hearing of the cause with the record of the bill, in order to [ #277 ] have the same taken pro confesso against the defendant. The cause having been set down for hearing, it was ordered, on the 23d of March, 1833, on motion, to be placed at the head of the paper of causes for the 27th of that month, and that the plaintiff's clerk in court should then attend with the record. Accordingly, on that day, the clerk in court attended, and a decree pro confesso was taken.

By a recent Act of Parliament, (1) passed for the purpose of "remedying the inconvenience and delays of justice, arising from the defect of jurisdiction in Courts of Equity to effectuate the service of their process in such parts of the United Kingdom of Great Britain and Ireland as are not within the jurisdiction of such Courts respectively," it has been enacted, that it shall and may be lawful for the Courts of Chancery and of Exchequer in England respectively, if they shall so think fit, upon special motion of the complainant or complainants in any suit which has been or shall be instituted in such Courts respectively, concerning lands, or tenements or hereditaments, situate or being within that part of the United Kingdom called England or Wales, to order and direct that service in any part of the United Kingdom of Great Britain and Ireland, and in the Isle of Man respectively, of any subpæna or subpœnas, 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 part of the said United Kingdom or Isle of Man, in which he, she or they shall be so served, shall 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 shall seem reasonable; 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 as effectually as if the same had been duly made within the jurisdictions of such Courts respectively.

*By the second section of the above Act, the same powers are [ *278 ] given to the Courts of Chancery and Exchequer of Ireland in suits concerning lands, tenements and hereditaments in Ireland, to direct process to be served in other parts of the United Kingdom and Isle of Man; and by the third section it is provided, that along with such subpæna or letter missive served under any such order as aforesaid of the said Courts of Chancery and of Exchequer of England and of Ireland respectively, a copy of the prayer of such complainant's bill shall be served upon every such defendant, and that no

() 2 Will. 4, c. 33.

process of contempt shall be entered upon any such proceedings as hereinbefore mentioned, nor any decree made absolute in any of the said Courts in England or Ireland respectively, without the special order of such Court upon special motion made for such purpose, and that nothing in the said Act should 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.

Shortly after the passing of the above Act, the Vice Chancellor (Sir L. Shadwell) made an order upon special motion, that service of a subpoena, together with a copy of the prayer of the bill, upon defendants, in the county of Wigton, in Scotland, should be good service, in a case where the object of the bill was to carry into effect the trusts of a will relative to certain real estates in the borough of Southwark. Upon being served with process pursuant to that order, the defendants appeared, and took out two orders for time to put in their answer, and upon their failure to do which, an application was made to the Vice Chancellor for an order, that an attachment might issue under the writ of the sheriff of Wigtonshire, or other proper officer in Scotland, against the defendant; but as the question involved the framing of a new form of order, his Honor directed the matter to be brought on before the head of the Court; at the same time expressing himself, as he had done previously upon granting the subpana, to be clearly of opinion, that the Act *must be con[ *279 ] strued as extending to Scotland. Lord Brougham, however, upon the motion being made before him, said, that although the words of the Act were certainly large and comprehensive, he entertained no doubt whatever the statute had never been intended or supposed to apply to North Britain. His Lordship said, that the measure had been submitted to Parliament on the suggestion of Lord Plunkett, whose object was to make the process of the respective Courts of Equity in England and Ireland more interchangeably, in all cases where lands the subject of the suit were situated in the one country, and the defendants sought to be affected by it resided in the other; and that if the statute were to be construed in the manner contended for, it would amount to a virtual repeal of one of the articles of the Union, although Scotland was never once mentioned by name in any part of the Act. Under these circumstances, his Lordship availed himself of the discretionary power vested in the Court by the words if they shall so think fit," to decline making the order; (m) but in a subsequent case, (n) Lord Lyndhurst (Chancellor) said, that he was of opinion, that what Lord Plunkett intended was, for the purpose of construing the Act, inconclusive, and that the Act extended to Scotland, and that he had so held in a late case in the Court of Exchequer, where a similar application was made.

A similar order to that in M'Master v. Lomax was subsequently made by the Vice Chancellor, in a case of Parker v. Lloyd, (0) where one of the defendants resided in Edinburgh. It is to be observed, that in cases of this description, it is necessary that some time should be named in the order within which the subpæna must be served.

By the above Act the relief was confined to suits concerning lands, tenements or hereditaments, in England, or Wales or Ireland respectively; and that the service of process under the Act was limited to any part of Great Britain or Ireland, or the Isle of Man ; but by a subsequent Act of Parliament, (p) the