and that the above named defendant caused his ap- day of Your petitioner therefore prays that your honor will be pleased to order the said defendant to put in an answer to the said bill within such time as your honor shall be pleased to direct, or that the said bill be taken pro confesso. G. H. Solicitor for the Complt. L. M. of Counsel. Let the following certificate of the clerk accompany the above petition, stating when the bill was filed and the defendant's appearance is entered: In Chancery. Between A. B. Complainant, C. D. Defendant. 2. Certificate I certify that the bill in of the clerk, day of stating when and the bill was fi. led and the ap this cause was filed on the the defendant's appearance was entered in my office on perance the last, and that no answer tered, and no day of of the defendant in this suit hath been filed, Sept. Elmendorf, Clerk in Chancery. 1818. After presenting the complainant's petition to the chancellor, accompanied with the certificate of the clerk, let the following order be obtained, or such an order as the chancellor may deem proper, taking into consideration the circumstances of the case. answer filed. en In Chancery. Between 3. Order of the chancellor. a copy of the A. B. Complainant, and C. D. Defendant. On reading and filing a petition of the complainant in this cause, setting forth that he had filed his bill of complaint in this cause on the day of day of last, and caused a writ of subpoena to be issued and duly served on the defendant; that the defendant caused his appearance in this cause to be entered on the last past, but had not yet answered the said bill, and praying that he might be ordered to answer in such time as the chancellor should direct, or that the bill be taken pro confesso, against him; and on reading and filing a certificate of Edmund Elmendorf, Esquire, one of the clerks of the court, whereby it appears that the facts stated in the said petition are true; and on motion of L. M. of counsel for the petitioner, It is ordered, that the defendant file his answer to the said bill in weeks after ser vice of a copy of this rule, or that the said bill be taken pro confesso against him. After obtaining the chancellor's order for the defendant to answer, let the following notice, with a copy of the said order, be served on the adverse solicitor : In Chancery. Between A. B. Complainant, C. D. Defendant. Please to take notice 4: service of that an order has been granted by the chancellor reorder on the quiring the defendant to file his answer in the above cause within the time limited therein, or that the bill be taken pro confesso, of which order the following is a adverse solici. tor. copy: In Chancery. Between {{ A. B. Complainant, C. D. Defendant. On reading and filing 5 Copy of the petition of the complainant, in this cause, setting forth that he had filed his bill of complaint, &c. (vide Order ante page 78.) After the service of the copy of the chancellor's order on the adverse solicitor, let the following affidavit be made and filed with the clerk: In chancery. Between A. B. Complainant, C. D. Defendant. the order, G. H. of the city and Affidavit of the service of county of New-York, maketh oath and saith that he, the order, &c. this deponent, did on the day of last past serve the defendant in the above cause with the of day take the bill the petition of the complainant in this cause, setting pro confesso. forth that he had filed his bill of complaint, &c. See the order ante page 78. and set it forth here. After filing an affidavit of G. H. solicitor of the complainant, in the above cause, that a copy of the chancellor's order was duly served on the adverse solicitor, that he has received no notice of an answer being put in, and that he does not believe that any answer has been put in, let the following order be entered to take the complainant's bill pro confesso: In Chancery. Between A. B. Complainant, C. D. Defendant. 8 Order to been entered in this cause on the take the com- . An order having day of plainant's bill in the year of our Lord one thousand eight hundred default of an- and sixteen, requiring the above named defendant to pro confesso in swer only. cause his answer to be filed within weeks from the date of the same order, or in default thereof that the complainant's bill be taken pro confesso against him. And it appearing by the affidavit of G. H. solicitor for the complainant, that he hath served the opposite solicitor with a copy of the said order, that he hath received no notice of the defendant's answer being filed, and that he does not believe that any answer has been filed. And on motion of G. H. solicitor for the complainant, it is ordered that the complainant's bill of complaint, be and the same is hereby taken pro confesso against the said defendent, to the end, that such decree may be made thereupon, as may be just.* * The proceedings for the foreclosure of a mortgage are the same as those which come under the 2d and 3d branch of this subject. Vide post-A reference to a master to compute the amount due on a mortgage. CHANCERY PRACTICE. ATTACHMENT. Special Contents. I. How to proceed against the defendant by attachment II. How an attachment is obtained. III. The intervening time between the test and return of an attachment. IV. Affidavit of the service of a copy on the defendant's wife or servant. V. Order for an attachment. VI. Form of an Attachment. SECOND GENERAL HEAD, In relation to the appearance of the defendant. In the preceding part of this treatise, under the title of appearance, having endeavored to point out the mode of proceeding against a defendant, in failure of his entering his appearance where the service of the subpœna has been personal, by taking the bill pro confesso, under this head it is intended to point out the mode of proceeding against him by attachment, where the service of the subpoena shall have been personal or otherwise. service of the If the service of the subpoena is not on the person of 1. When the the defendant, but on his wife or servant, at his dwell-subpœna has been personal, ing house or usual place of abode, as it may be, by the or otherwise. third rule of court, and the defendant does not appear in due time, an attachment* may be issued against An attachment differs from a capias at common law, in this, that upon a cepi corpus, returned upon a capias, the sheriff is obliged actually to produce the body of the defendant in court, or he is liable to be amerced under stat. West. 2. c. 59. but in an attachment, it is sufficient if he detain the defendant in custody till compliance. The words of the attachment being only "quod habeas corpus ad respondendum,” and not as in the capias, “quod habeas corpus ejus corum uobis ad respondendum→ Barton." |