In Chancery. Berween 5 Order of the court. A. B. Complainant, and C. D. Defendant. Ir appearing to the court, that process of subpoena to appear and answer in the above cause, directed to the above named defendant C. D. hath been regularly issu ed, but that the said defendant hath not caused his appearance to be entered upon such process, within such time and in such manner, according to the rules of this court, as the same ought to have been entered, in case such process had been duly served-An affidavit being made to the satisfaction of this court, that the said defendant is out of this state-It is ordered by the said court, on the motion of Mr. E. F. solicitor for the complainant, and the said defendant is hereby directed and required to appear and answer the complainant's bill of complaint, within nine months after the date of this order, or that in default thereof, the complainant's bill be taken pro confesso, against him the said defen6 Order to dant: And it is further ordered, that a copy of this and published order, shall within twenty days be inserted in one or more of the public newspapers printed in this state, and be published therein eight weeks successively, at least once in each of said weeks. Isaac L. Kip, July 1818. Assistant Register, be inserted &e. 8 weeks, &c. Furnish the state printer at Albany, and any printer in New-York, with a copy thereof, with directions to have it published eight weeks successively, once a week-when the time for the defendant's appearance is out, procure from each of the printers an affidavit that the publication has been made; which affidavit is in the following form: the printer. City and county of New- 7 Affidavit of York, ss.-G. H. of the city and county of NewYork, being duly sworn, doth depose and say, that the order of which the annexed is a copy has been published in this city for eight weeks successively, once every week, commencing on the ant fails to ap swer in six After the expiration of six weeks subsequent to the 8 If defendtime limited by the order, for the defendant to appear pear and anand answer; if he fails therein, on filing the affidavit of weeks, &c. Bill the Printers, with the register or assistant register, you confesso. enter an order to take the bill pro confesso-vide ante page 76. mutatis mutandis. How to proceed against absent or concealed Mortgagors. to be taken pro against absent The object of this bill is often obtained without Proceedings either sequestration or execution-the equity of re- or concealed demption being foreclosed, and the legal estate vested mortgagors, in the mortgagee. By the 21st section of the act of 10th of April, 1813, it is provided that wherever proceedings shall be had in the court of chancery against any absent or concealed defendant, to the end to procure a foreclosure of satisfaction of any mortgage, it shall be lawful for the court to decree a sale of the mortgaged premises, or such part thereof as shall be sufficient to discharge the said mortgage, besides costs, instead of proceeding to sequestration in the manner by 10th section of this act and the proceedings antecedent to such decree, shall be agreeably to the said last mentioned section: Provided always, that after a sale and conveyance of such mortgaged premises, by a master of the said court, under the decree or order thereof, such sale and conveyance shall not be affected or prejudiced by the appearance of the party within the one year or seven years specified in the said section, but such sale and conveyance shall be valid and effectual as a sale and conveyance under the 11th section of this act : Provided, further, that it shall be lawful for the said court, before such sale and conveyance, to receive the appearance of the defendant, upon such equitable terms as to the payment of costs as the court shall deem meet, and thereupon to stay the said sale, until the final hearing and determination of said cause. The 11th and 12th sections of this act shall and may apply to all cases arising, or to arise, under the last preceding section of this act. And by the 23d section of this act it is made lawful within seven years after a decree under the 1st section of this act for the defendant thereto, or his representatives, to file a bill against the complainant, or his representatives, in the said court, compelling him and them to account for any moneys he or they shall have received by virtue of such former decree, over and above the amount (besides costs) justly due, and payable on such mortgage, the said decree to the contrary notwithstanding; and the court shall proceed on such bill according to the equity of the case. But no proceedings upon such bill shall affect or prejudice the former sale and conveyance of the mortgaged premises, or the title derived under the same: Provided, such sale and conveyance shall have been made agreeably to this act; and by the 24th section of said act, it is further provided, that all sales and conveyances of mortgaged premises, made by any sheriff, of any city or country, before the 17th of April, 1806, by virtue of any decree of the said court, or of any writ issuing therefrom, shall be, and the same are hereby confirmed and declared equally valid and effectual in law, as if the same had been made by the master of the said court. OF THE REMEDY AGAINST THE DEFENDANT, BY ALIAS AND PLURIES ATTACHMENTS. Special Contents. I. Non est inventus on an alias and pluries attachment II. Attachment with proclamation, III. Commission of Rebellion. IV. The defendant taken. V. Sequestration. VI. Writ of assistance. VII. Distringas. VIII. Alias and pluries. IX. Complainant's bill taken pro confesso. X. Notice of 8 days. XI. Affidavit of the service of the subpoena XII. Rule for attachment. XIII. Attachment. XIV. Endorsement. XV. Attachment and proclamation. XVI. Endorsement. XVII. Commission of Rebellion. XVIII. Habeas Corpus. XIX. Endorsement. XX. Sequestration, XXI. Process against a Corporation. XXII. Endorsement. XXIII. Order to take the bill pro confesso, Of the remedy against the Defendant by alias and Although this mode of proceeding against a defendant is seldom or never resorted to of late, (the remedy given by the statute of eighteen hundred and thirteen, being found most convenient, and at the same time, most conducive to the ends of justice,) still it is proper that the student may have some knowledge of it, especially as some occasions may occur in which it may become necessary to adopt it. If the subpoena is duly served and the defendant does not appear, then the complainant may issue an attachment ;(a) if the attachment is returned non est, an alias and pluries attachment; on an alias and and on a non est on an alias and pluries attachment,(b) an additional process is awarded against the defendant, 2. Attach- an attachment with Proclamation, which besides the orment with pro⚫lamation. dinary form of attachment, directs the sheriff to cause public proclamations to be made throughout the county, to summon the defendant personally to appear, and answer the charges brought againt him. 1. Non est pluries attach ment. 3. Commission of Rebellion. Should this writ be returned non est, and the defendant still remain in contempt, A Commission of Rebellion is awarded against him for not obeying the state's proclamation. This commission is usually directed to four commissioners therein named, who are jointly and severally commanded to attach the defendant wherever he may be found within the state, as a rebel and contemner of the laws and government of the same. Upon the return of a non est upon a commission of Rebellion, the court will despatch their sergeant in search of the defendant; this is ordered on motion to (6) Rule 6. (a) Bart. 71. to 113. |