Process to take bill pro confesso

where apearance

for him.

hearing of such motion, to satisfy the Court, that such defendant ought, under the provisions of Order LXXVII., to be deemed to have absconded to avoid, or have refused to obey the process of the Court; and the Court being so satisfied and the answer not being filed, may, if it so thinks fit, order the bill to be taken pro confesso against such defendant, either immediately or at such time or upon such further notice as, under the circumstances of the case, the Court may think proper.

LXXIX. In cases where any defendant, who, under Order LXXVII., against abscon may be deemed to have absconded to avoid, or to have refused to obey ding defendant, the process of the Court, has had an appearance entered for him under has been entered Orders XXIX., XXXI., or XXXIII., and has not afterwards appeared in person or by his own solicitor, the plaintiff may cause to be inserted in the London Gazette a notice, that on a day in such notice named (being not less than four weeks after the first insertion of such notice in the London Gazette) the Court will be moved that the bill may be taken pro confesso against such defendant; and the plaintiff is, upon the hearing of such motion, to satisfy the Court, that such defendant ought, under the provisions of Order LXXVII., to be deemed to have absconded to avoid, or to have refused to obey the process of the Court, and that such notice of motion has been inserted in the London Gazette, at least once in every week from the time of the first insertion thereof up to the time for which the said notice is given; and the Court, being so satisfied and the answer not having been filed, may, if it so thinks fit, order the bill to be taken pro confesso against such defendant, either immediately or at such time or upon such further notice as, *under the circumstances of the case, the Court may think proper.

[*lii]

Upon submitting to decree pro

for his discharge.

LXXX. Any defendant being in custody for want of his answer, and confesso, defen- submitting to have the bill taken pro confesso against him, may apply to dant may apply the Court, upon motion with notice to be served on the plaintiff, to be discharged out of custody; and thereupon the Court may order the bill to be taken pro confesso against such defendant, and may order him to be discharged out of custody upon such terms as appear to be just, unless it appears, from the nature of the plaintiff's case or otherwise, to the satisfaction of the Court that justice cannot be done to the plaintiff without discovery or further discovery from such defendant.

Decree pro confesso.

Not to be taken

on the same day as order made.

Defendant enti

tled

Pro confesso-Hearing: Decree.

LXXXI. No cause, in which an order is made that a bill be taken pro confesso against a defendant, is to be heard on the same day on which the order is made; but the cause is to be set down to be heard, and the Court, if it so thinks fit, may appoint a special day for the hearing thereof.

pro con

LXXXII. A defendant against whom an order to take a bill to appear fesso is made, is at liberty to appear at the hearing of the cause; and if

he waives all objections to the order, but not otherwise, he may be heard and be heard on taking bill pro to argue the case upon the merits as stated in the bill. confesso.

such decree pro

just.

Decree to be ab

LXXXIII. Upon the hearing of a cause in which a bill has been or- Court to make dered to be taken pro confesso, such decree is to be made as to the Court confesso as seems seems just; and in the case of any defendant who has appeared at the hearing and waived all objection to such order to take the bill pro con- solute, when. fesso, or against whom the order has been *made after appearance by himself or his own solicitor, or upon notice served on or after the execution of a writ of attachment against him, the decree is to be absolute..

tration.

[*liii]

defendant.

проп

LXXXIV. In pronouncing the decree, the Court may, either upon the Court, making decree case stated in the bill, or upon that case and a petition presented by the pro confesso, may order replaintiff for the purpose, as the case may require, order a receiver of the ceiver or sequesreal and personal estate of the defendant against whom the bill has been ordered to be taken pro confesso to be appointed, with the usual directions, or direct a sequestration of such real and personal estate to be issued, and may (if it appears to be just) direct payment to be made out and thereby pay of such real or personal estate, of such sum or sums of money, as, at the hearing or any subsequent stage of the cause, the plaintiff appears to be entitled to provided that unless the decree be absolute, such payment is not to be directed without security being given by the plaintiff for restitution, if the Court afterwards thinks fit to order restitution to be made. LXXXV. A decree founded on a bill taken pro confesso is to be pass- fesso to be pass

ed and entered as other decrees.

Decree pro con

ed and entered.

to be served on defen

tor;

LXXXVI. After a decree founded on a bill taken pro confesso has Decree been passed and entered, an office copy thereof is (unless the Court dis- dant or his solipenses with service thereof) to be served on the defendant, against whom the order to take the bill pro confesso was made, or his solicitor; and.if the decree be not absolute under Order LXXXIII., each defendant or his solicitor is to be, at the same time, served with a notice, to the effect, that if such defendant desires permission to answer the plaintiff's bill and set aside the decree, application for that purpose must be made to the Court within the time *specified in the notice, or that such defendant will be absolutely excluded from making any such application.

LXXXVII. If such notice as is mentioned in Order LXXXVI. is to be served within the jurisdiction of the Court, the time therein specified for such application to be made by the defendant is to be three weeks after service of such notice; but if such notice is to be served out of the jurisdiction of the Court such time is to be specially appointed by the Court, on the ex parte application of the plaintiff.

and also, if decree not absolute, with a notice of time for opening

decree.

[*liv]

Time for applying to open decree nisi.

Receiver and sedecrce pro con

questrator upon

fesso not to act

LXXXVIII. No proceeding is to be taken, and no receiver appointed under the decree nor any sequestrator under any sequestration issued in pursuance thereof is to take possession of, or in any manner intermeddle without leave of with, any part of the real or personal estate of a defendant, and no other Court.

Rehearing before enrolment,

of

cause taken pro

confesso.

Decree nisi may

be made absolute

1. Where service

jurisdiction.

process is to issue to compel performance of the decree, without leave of the Court, which is to be obtained on motion with notice served on such defendant or his solicitor, unless the Court dispenses with such service.

LXXXIX. Any defendant waiving all objection to the order to take the bill pro confesso, and submitting to pay such costs as the Court may direct, may, before enrolment of the decree, have the cause reheard upon the merits stated in the bill, the petition for rehearing being signed by counsel as other petitions for rehearing.

XC. In cases where a decree is not absolute under Order LXXXIII. the Court may order the same to be made absolute on the motion of the plaintiff, made,

of decree within 1. After the expiration of three weeks from the service of a copy of the decree on a defendant, *where the decree has been served within the jurisdiction.

[*lv]

2. Where served 2.

out of the jurisdiction.

After the expiration of the time limited by the notice provided for by

Order LXXXVI., where the decree has been served without the jurisdiction.

3. Where no ser 3. After the expiration of three years from the date of the decree, where a defendant has not been served with a copy thereof.

vice,

Order absolute And such order may be made either on the first hearing of such motion, may be either Immediate or de- or on the expiration of any further time which the Court may, on the hearing of such motion, allow to the defendant for presenting a petition for leave to answer the bill.

ferred.

The decree not

being absolute, Court may, on

answer and rehear.

XCI. Where the decree is not absolute under Order LXXXIII. and has not been made absolute under Order XC., and a defendant has a case terms, open in- merits not appearing in the bill, he may apply to the Court by petirolment, and upon permit defendant to tion stating such case, and submitting to such terms with respect to costs and otherwise as the Court may think reasonable, for leave to answer the bill; and the Court, being satisfied that such case is proper to be submitted to the judgment of the Court, may, if it thinks fit, and upon such terms as seem just, vacate the inrolment (if any) of the decree, and permit such defendant to answer the bill; and if permission be given to such defendant to answer the bill, leave may be given to file a separate replication to such answer, and issue may be joined, and witnesses examined, and such proceedings had as if the decree had not been made, and no proceedings against such defendant had been had in the cause.

Rights and lia bilities under de.

presentatives.

XCII. The rights and liabilities of any plaintiff or defendant under a cree pro confesso decree made upon a bill taken pro *confesso extend to the representato extend to re- tives of any deceased plaintiff or defendant, and to any persons or person [*lvi] claiming under any person who was plaintiff or defendant at the time when the decree was pronounced; and with reference to the altered state of Court may per parties and any new interests acquired, the Court may, upon motion or petition served in such manner, and supported by such evidence as under the circumstances of the case the Court deems sufficient, permit any party, or the representative of any party, to file such bill or bills, or adopt

mit ulterior proceedings.

such proceedings as the nature and circumstances of the case require, for the purpose of having the decree (if absolute) duly executed, or for the purpose of having the matter of the decree (if not absolute) duly considered, and the rights of the parties duly ascertained and determined.

Joining Issue.

XCIII. No subpoena to rejoin is hereafter to be issued; and only one replication is to be filed in each cause, unless the Court otherwise orders; and the replication is to be in the form set forth at the foot of this Order, or as near thereto as circumstances admit and require; and upon the filing of such replication, the cause is to be deemed to be completely at issue; and each defendant may, without any rule or order, proceed to examine his witnesses, and the plaintiff may, in like manner, proceed to examine his witnesses so soon as notice of the replication being filed has been duly served on all the defendants who have filed an answer or plea, or against whom a traversing note has been filed.

Form of Replication.

"Between A. B.

"and

Plaintiff.

"C. D., E. F., G. H., &c.

Defendants.

"The plaintiff in this cause hereby joins issue with the defendant C. D." [all the defendants who have answered or pleaded, or against whom a traversing note has been filed,] “and will hear the cause on bill and answer against the defendant E. F." [all the defendants against whom the cause is to be heard on bill and answer,]“ and on the order to take the bill as confessed against the defendant G. H." [as the case may be.]

Commission to examine witnesses.

[*lvii]

examine wit

barristers or soli

rected to two

XCIV. Commissions to examine witnesses within the jurisdiction of Commission the Court are to be directed to two commissioners only, and, unless nesses to be di. the Court otherwise orders, are to be made returnable without delay; and the commissioners are to be either barristers or solicitors not concerned tors; in the cause, and each one of such two commissioners is to have all such power and authority to examine witnesses, as have heretofore been vested in the acting commissioners named in the commissions to examine but one alone to witness which have heretofore been issued; but the commissioner first named in the commissions to be hereafter issued is alone to act in the execution of any commission, unless he is, by illness or other sufficient cause, incapacitated from acting therein, in which case the commissioner secondly named is alone to act in the execution of such commission.

act.

After replica.

tion, plaintiff

XCV. Immediately after the replication is filed, the plaintiff, if he thinks fit, may give notice to all other parties entitled to examine wit- may give notice nesses in the cause, of his intention to sue out a commission for that pur- Carriage of, by pose; and the plaintiff, if he gives such notice within two days after the plaintiff.

of cominission.

defendant.

filing of the replication, or before any defendant has given notice of his intention to sue out a commission, is to have the carriage of the commission.

[*lviii] * XCVI. After the expiration of two days from the filing of the repliCarriage of, by cation, if the plaintiff has not previously given notice to all other parties entitled to examine witnesses in the cause of his intention to sue out a commission for that purpose, any defendant may give notice to all the other parties entitled to examine witnesses in the same cause, of such defendant's intention to sue out a commission for that purpose; and any defendant so giving such notice is to have the carriage of the commission, unless such notice be given by more than one defendant, in which case the defendant who first gave such notice is to have the carriage of the commission.

Parties

may agree on commismissioners.

Parties not agree. ing, the Master

to select or nomicommis

nate sioners.

[*lix]

Master to deter

mine

as to

questions

XCVII. Where the parties entitled to examine witnesses in the cause agree to the nomination of persons to be commissioners, and to the order in which such commissioners are to be named, the record and writ clerk upon being applied to for the purpose, is to cause a commission directed to such persons to be sealed and delivered to the person entitled to have the carriage thereof.

XCVIII. If all the parties entitled to examine witnesses in the cause have not, within four days after the filing of the replication, agreed to the nomination of persons to be commissioners, any party entitled to examine witnesses in the cause may apply to the Master to whom any former reference in the cause has been made, or to the Master in rotation in case no former reference has been made, for a warrant, returnable in two days requiring the other parties to attend for the purpose of having commissioners named; and such Master is to grant such warrant, and the same being duly served, all parties, on the return thereof, are to propose commissioners; and if, among the persons so proposed, there are two or more to whom no just objection is made, the Master is to select or nominate and certify to be commissioners such two of the proposed persons as appear to him most proper to perform the duty; but if it appears that no one or only one of such proposed persons is free from just objection, the Master, as the case may be, is to nominate and certify two proper persons, or to nominate one proper person and certify him and the person free from objection, to be the commissioners.

XCIX. If any question arises as to the commissioner who is to be first questions named, or as to the party who is to have the carriage of the commission, commissioner, the Master is to determine such question, and to name the party who is to have the carriage of the commission.

and the carriage.

Master may al low additional commission,

C. If any party entitled to examine witnesses in a cause shall desire to have any additional commission or commissions, application is to be made to the Master for leave to sue out such additional commission or commissions; and upon the Master's certificate that such additional commission,