When a bill is to be taken pro confesso, either at the hearing or upon motion, the plaintiff's clerk in Court must attend with the record of the bill, and then, if upon reading the record, and taking it to be true, the plaintiff appears to have *any equity against the defendant, the Court will decree accord[ *696 ] ingly. And it is to be observed, that where a bill is to be taken pro confesso, the Court hears the pleadings, and itself pronounces the decree, and does not permit the plaintiff to draw up the decree, (as it does in ordinary cases when the defendant makes default at the hearing:) (s) and where upon hearing the case it appeared that the plaintiff had no equity, the bill was dismissed. (1)

It is to be observed, that a decree made upon taking a bill pro confesso against a person absconding to avoid being served with process, under the 1 W. 4, c. 36, sect. 3, is in effect only a decree nisi, the Act allowing the defendant or his representatives to come in and answer the bill, provided they do so within seven years, before which time the decree cannot be made absolute. (u) In all other cases a decree made upon taking a bill pro confesso is absolute in the first instance, and no day is given for showing cause against it. (x) Like any other decree of the Court, it cannot be impeached collaterally, but only upon a bill of review, or to set it aside for fraud; and therefore where a bill was filed for an account of matters which were embraced in a former bill filed some years before, which had been taken pro confesso for want of answer, and the defendant insisted upon the decree in the former suit in bar to the new one, the new bill was dismissed with costs. (y)

In Knight v. Young, (z) however, where an attempt was made on the part of a defendant, by motion, to get rid of a decree taken pro confesso upon a sequestration, and to put in an answer, on the defendant's own affidavit that he had been deranged, Lord Eldon, although he refused the application, appeared to think that a case might occur in which such a proceeding would be allowed, upon the ground of imbecility of mind, when the fact was established by other evidence than that of the defendant himself; and in_Bolton *v. [ *697 ] Glassford (a) his Lordship, although he did not go the length of admitting the party to set aside the decree generally, as if the cause had never been before the Court for hearing, gave relief to the party by limiting the effect of the decree. It appears, however, from the statement of the case in Knight v. Young, that previously to doing this his Lordship had satisfied himself, by the affidavits and documents in the cause, that the defendants, although they held out a long time, did not mean that the cause should be heard pro confesso, and that an answer had in fact been prepared, stating the circumstance upon which they relied, the truth of which was established by many other documents. (b)

It seems that a cause in which a decree has been made upon taking a bill pro confesso may be reheard; and where a bill had been taken pro confesso

(3) Geary v. Sheridan, 8 Ves. 192.

(1) Molesworth v. Lord Verney, 2 Dick. 667. (u) Vide ante, p. 272.

(y) Ogilvie v. Hearne, 13 Ves. 563.

(a) 2 V. & B. 186, cited.

(x) Landon v. Ready, 1 S. & S. 44.
(z) 2 V. & B. 184.

(b) It is stated in a note to Knight v. Young, ubi supra, that the case of Bolton v. Glassford would be reported in the 18th volume of Mr. Vesey's Reports; but no such report, however, occurs. The order in the Registrar's book, however, is as follows: "His Lordship doth declare that the decree is not to be considered as affecting the defendant to the extent of the admission of assets, so far as he can make out to the satisfaction of the Master that there was a debt due to the Crown, in respect of which debt, and to the extent of which, the Master is to be at liberty to give him the benefit, as if there was no admission of assets. Reg. Lib. 1811, A. 1654. (b)

against a husband and wife, and afterwards the husband died, the Court allowed the cause to be reheard on the petition of the wife. (c)

It has been before stated that when a bill has been taken pro confesso against a defendant abroad, who has absconded to avoid process, the defendant, or his representatives, (if he is dead,) may, within six months after being served with a copy of the decree, (which the Act directs to be served upon the defendant or his representative on his coming within the jurisdiction, or dying within seven years,) appear and petition to have the cause reheard. He or his representative may also, without being served, make a similar application by petition any time within the seven years; but if he omit to do so within the seven years this decree will stand absolutely confirmed. (d)

It is to be observed, that by the 4th section of the Act, it is provided that if any person against whom any decree *shall be made, upon refusal [ *698 ] or neglect to enter his appearance, or to appoint a clerk in Court or attorney to act on his behalf, 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. In all other cases where a decree has been made by taking the bill pro confesso the proceedings under it are the same as the proceedings under every other decree made upon a hearing. If the decree directs a reference to the Master, the reference must be proceeded with in the Master's office, in the same way as any other reference. It is however to be observed, that according to the old practice of the Court, where the decree directed the Master to take an account, a bill taken pro confesso could not be read before the Master as evidence of the state of the account; and that where, under a decree, which directed the Master to take an account of all dealings and other transactions between the plaintiff and the defendant, and that the parties should be examined upon interrogatories, &c., the plaintiff offered, by way of evidence in support of his charge, a schedule annexed to his bill, (which had been taken pro confesso,) in which he had set out the account between him and the defendant, the Master required the plaintiff to prove his charge in the usual way, which the plaintiff not doing, the Master made his report that nothing was due. The plaintiff took exceptions to the report; but Lord Thurlow, after taking time to inquire into the practice, over-ruled the exceptions, and put this case: "Suppose the defendant had answered, and the plaintiff had not replied to the answer, must not the plaintiff have proved his charge ?" (e)

This must still be the rule of practice in all those cases in which the bill has been taken pro confesso in the ordinary course, i. e. upon a sequestration against a defendant who is not in custody, and who has not absconded to avoid the process; but there appears to be some doubt whether bills taken pro confesso, under the 1 W. 4, c. 36, against a defendant in custody, or who has absconded, may not be read in evidence, as well before the [ *699 ] Master as elsewhere.

It will be seen, upon reference to the fourteenth section, which has been before set out, (ƒ) (and which is in fact a copy of the sixth section of the 45 G. 3, c. 124, which the Act of the 1 W. 4, c. 36, repeals) that as soon as such an order as therein mentioned (that is to say, the order authorized by the preceding section to take a bill pro confesso, which seeks a discovery upon oath against a defendant having privilege of Parliament) shall have been pronounced for taking such bill pro confesso, such bill so taken pro confesso, or an examined copy

(c) Tooke v. Clarke, 1 Dick. 350. and wife, vide ante, p. 214. (d) Vide ante, p. 272.

As to taking bills pro confesso in cases of husband

(e) Dominicetti v. Latti, 2 Dick. 588.

f) Ante, 686.

VOL. III-2 E

thereof, shall be read in any Court of law or equity, as evidence of the facts, matters and things therein contained, &c. It then goes on to enact, that in like manner every other bill of discovery taken pro confesso under any of the provisions of the Act shall or may be read in evidence of the facts and matters, and things therein contained: (g) so that a question arises whether, under this clause, bills requiring a discovery on oath from other persons than those having privilege of Parliament, can, after they have been taken pro confesso, be read as evidence against such persons?

With respect to the application of this Act to render all bills taken pro confesso under its provisions (whether bills for discovery only or bills for discovery and relief) evidence against persons having privilege of Parliament, there can, after the decision of Sir Thomas Plumer in Logan v. Grant, (h) upon the construction of the 45 Geo. 3, c. 124, s. 5, which has been before referred to, be little doubt: whether it can be extended, under the additional words above mentioned, to render bills taken pro confesso against persons not having privilege of Parliament, evidence against such persons, or if it can, whether such extension will be confined to bills of discovery only (which are the bills specifically pointed out in that part of the section) are points which have not yet been decided. In the absence of authority, therefore, upon these points, all that the writer can do is to call the reader's attention to them, and to ex[ *700 ] press his individual opinion to be, that with respect to bills which are merely filed for a discovery, without praying relief, there can be little doubt that the words before alluded to will, where they have been taken pro confesso under the Act, render them available as evidence against the plaintiffs, although they be not persons having the privilege of Parliament; and that there seems to be no reason why the doctrine of Sir Thomas Plumer in Logan v. Grant should not apply to the case of bills filed by unprivileged persons, as well as to those which are exhibited on behalf of members of Parliament.

(g) The words in italics were not in the 45 Geo. 3, c. 124, s. 5. (h) 1 Mad. 626, ante, 687.

END OF VOL. 1.

INDEX.

ABATEMENT:

Suits by corporations aggregate do not abate, 27.
secus, suits by corporations sole, 28.
Informations do not abate by death of relator, 17.
unless the relator be also a plaintiff, ib.

By marriage of feme sole plaintiff, 153.

effect of death of husband before revivor, ib.

By death of feme covert plaintiff, 154.

secus, by death of husband, 153.

but wife need not proceed with the suit; if she does she will be liable to the whole
costs, ih.

By death of feme covert defendant, 219.

but not on death of baron, 217.

unless new interest accrues to wife, 218.

By bankruptcy of plaintiff; in Chancery, 78.
secus, in the Exchequer, ib.

By death of sole assignee, ib.

Not caused by bankruptcy of a defendant, 254.

Not occasioned by infant plaintiff attaining 21, 108.
Its effect upon a sequestration, 650.

ABROAD:

Vide SEQUESTRATION.

Bankrupt cannot sue for his property abroad, 73.

Property of bankrupt abroad vests in assignees, 74.

Course of proceeding where persons having joint interests are abroad, 310.

Where sequestration not necessary to enable plaintiff to go to a hearing against other
defendants, 634.

Vide EXECUTOR. JURISDICTION OF THE COURT.

Service of subpoena or other process abroad, in what cases good, 278, 279, 280.
Defendant going abroad to avoid process. Vide ABSCONDING.

Peer abroad, service of subpoena or letter missive at his town-house, good, 565.
ABSCONDING TO AVOID PROCESS:

Stat. 5 Geo. 2, c. 25, repealed and re-enacted by 1 Will. 4, c. 36, 270, n.
Proceedings under,

must be in strict conformity with the Act, 274.

to compel appearance, ib.

to take bill pro confesso against, 271.

where only one defendant, 276.

not good unless party has been in England within two years, 273, 275.

to make decree absolute,

where party returns within seven years, 272.

where he does not return, 273.

by defendant to avoid decree, ib.

Minister of parish preventing publication of order liable to indictment, 274.

Affidavit, if upon information, must state from whom information derived, ib.

Act I Will. 4, c. 36, applicable to all cases where party goes abroad to avoid process,
276.

to bills of revivor, ib.

ABSENCE OF PARTIES:

Effect of, how remedied. Vide PARTIES.

Not a ground for dismissal of bill at the hearing, 388.

ABSOLUTE:

In what manner decree made absolute against infant. Vide INFANT.

Stock may be tranferred to, under 28 Geo. 3, c. 87, where executor is abroad, 296.
ACCOUNTANTS TO THE CROWN:

May be relieved in the Court of Exchequer, 176.

pending the passing of their accounts, 177.

but must proceed by bill against the Attorney General, 176.

May file a bill against Attorney General during the passing of their accounts, 177.
ACT OF BANKRUPTCY. Vide BANKRUPTCY.

ACT IN PAIS:

Wife may dispose of her separate property to her husband by, 127.
ACTION AT LAW:

Brought in consequence of a contempt irregularly issued, restrained by injunction, 665.
but without prejudice to the party applying to the Court for compensation, 666.
Will not deprive wife of her right to her choses in action by survivorship unless judg
ment, 155.

ACTS OF PARLIAMENT :

Informations under, 8.

ADDRESS OF A BILL.

Vide INFORMATIONS.

Vide BILL.

ADJUDICATION IN BANKRUPTCY:

Validity of, how to be disputed, according to the old practice, 87.
under the Bankruptcy Court Act, 88.

ADMINISTRATION, LETTERS of:

Limited :

In what cases necessary, where no representative in England, 294.
Special:

how appointed where executor abroad, 295.

under 28 Geo. 3, c. 87, effect of executor returning to England, ib.
Where executor an infant, 296.

PREROGATIVE. Vide PROBATE.

ADMINISTRATOR:

May file a bill before administration sued out, 420.

but must obtain administration before hearing, ib.

and allege in his bill that it has been granted, ib.

defendants may plead that no administration has been granted, 420.

Vide PROBATE.

Defendant, not necessary to aver in bill that administration has been actually taken out,
421.

Need not describe himself as such in the commencement of bill, 464.
ADMINISTRATRIX:

Effect of, upon her right to maintenance out of the income of her property, 135.
upon her right to a settlement, 147.

where wife is a ward of court and has been married clandestinely, 148.

AFFIDAVIT:

Where infants are concerned, master cannot in general receive affidavits under a decree
against infants, 239.

unless by consent of solicitor, ib.

Where the infant's solicitor acquiesced in the use of affidavits instead of examination by

interrogatories, held to he good, 102.

That there is no settlement of wife's money, 122.