9. Form of the bond to be We command you that you do on the day of bring before us into our court of Chancery, wheresoever it shall then be, the body of by whatsoever name and addition of names he is called or known, who is detained in our said prison in your custody, (together with an account of the causes of his being taken or detained in custody,) to perform and abide such order and decree as our said court shall make in this behalf, and hereof fail not, and bring this writ with you. Witness, James Kent, Esquire, our Chancellor at New-York, the day of in the year of our Lord one thousand eight hundred and eighteen. Endorsement. By the Hon. James Kent, Chancellor of the state of New-York. The Form of the Bond to be given conditioned for the Know all men BY THESE PRESENTS, that We, N. O. given, condi- and P. Q. of the city and county of New-York, &c. &c. defendant's ap. are held and firmly bound unto A. B. of the city and pearance. county aforesaid, in the penal sum of three hundred tioned for the dollars, to be paid to the said A. B., his executors, administrators or assigns, and for the same payment well and truly to be made, we bind ourselves jointly and severally and our and each of our heirs, executors, and administrators, firmly by these presents, sealed with our seals, and dated, &c. &c. The condition of this obligation is such, that if the above bounden N. O. and P. Q. do appear (here mention the return day of the attachment) before our court of Chancery, on the day of wheresoever the said court shall then be, to answer to a bill of com plaint exhibited against him in our said court by A. B., then this obligation to be void, otherwise to be and remain in full force. Sealed and delivered in the presence N., O. P. Q. After an attachment for not appearing shall have been issued to the county in which the defendant is an inhabitant, and returned non est, the complainant may, at his election, issue alias and pluries attachments, or proceed as in the case of a defendant absent from the state, or concealed therein. HOW TO PROCEED AS IN THE CASE OF A DEFENDANT ABSENT FROM THIS STATE, &C. Special Contents. I. Affidavit proving the absence of the defendant. III. After the expiration of six weeks, to enter an order to IV. Form of the affidavit. V. Order of the court thereon. VI. Order to be inserted and published in one or more of the public Newspapers. VII. Affidavit of the Printer. VIII. Defendant failing to appear and answer in six weeksbill to be taken pro confesso. How to proceed as in the case of a defendant absent from this state. THE mode of proceeding against a defendant by alias and pluries attachments being reserved for another place the intention of this part of the Treatise is to point out the mode by which the complainant may pro ceed as in the case of a defendant absent from this state, or concealing himself therein, according to the several acts and rules of court, made and provided for the purpose of extending and modifying the powers of the court. The dilatory proceedings of common law, owing to those processes of contempt, which could ultimately entitle a complainant to a decree pro confesso, being found not only inconvenient but inadequate to attain the ends of justice, by giving a defendant an opportunity of avoiding the service of a subpœna. To remedy which the stat. of 5th George the 2d. S. 25. was passed in England, and in this state the statute of 3d of April, 1801, continued by 16th of April, 1813. Which provides, that if a defendant to any bill in equity shall not appear according to the rules of said court, in cases where process for that purpose shall issue, whether such process be served or not, and it shall be made appear by affidavit, to the satisfaction of the court that the defendant is out of the state, or cannot upon due inquiry be found, or doth conceal himself therein, the said court may by order direct the defendant to appear at a certain day therein to be named, which order shall within twenty days thereafter be published in one or more of the public papers printed in this state, for eight weeks successively, once at least in every week; and if the defendant shall not appear by the time so limited, or within some future time to be appointed by the court, if necessary, and on proof of the publication of the order aforesaid, the court may by order direct the bill to be taken pro confesso, and make such decree thereon as shall be just; and may issue process to compel its performance, either by sequestration of the real and personal estate and effects of the defendant so ab sent or concealed as aforesaid, or such part thereof as shall be sufficient to satisfy the complainant's said bill, or by causing possession of the estate or effects demanded by the bill to be delivered to the complainant, and may likewise order the complainant's demands to be satisfied out of the estate and effects so sequestered according to the true intent and meaning of the decree of the said court, such complainant first giving such security, and in such sumn as the court may direct, to abide such order as may be made touching the restitution of such estate and effects, in case the defendant shall afterwards appear and be admitted to defend such suit, upon payment of costs or otherwise, as the court may direct; but if no such security shall be given, the estate and effects so sequestered, shall remain under the direction of the court, to abide such order as shall be just in the premises-And further, if any absent person, against whom any decree is or shall be made, his heirs, devisees, executors, administrators or assigns, as the case may require, shall within one year after notice in writing given him or them of such decree, or within seven years after such decree, if no such notice in writing hath been given, as aforesaid, appear in court and petition to be heard touching the matter of the said decree, and shall pay or give security for payment of such costs as the court shall think reasonable in that behalf, the person so petitioning may be admitted to appear and answer the complainant's bill, and thereupon such proceedings shall be had as if the absent defendant had appeared in due season, and no decree had been made, but the said decree shall after seven years after making thereof, if not set aside in manner aforesaid, be deemed and adjudged confirmed against such absent defendant, and all persons claiming under him, by virtue of any act done subsequent to the commencement of such suit, and proving the ab. fendant at the end of the said seven years the court may make such order in the premises, as shall be just and rea sonable. In addition to the preceding act; it is provided by the act of 10th of April, 1813, sec. 15. that the court of chancery shall have power to establish rules for the proceedings to take a bill pro confesso, against the defendant in every case not otherwise provided by law, and also for the proceedings so as to entitle either party to a decree or order of the court, against the opposite party, by default. And on the basis of the above statute, rules or orders of the court have 1 Affidavit, been adopted, which provide, that whenever it shall sence of the de- appear by affidavit, that the defendant is absent from fitate, from this state, or cannot upon diligent search and inquiry, intermediate the test and return of a subpœna, to appear and answer, be found therein, an order may be en2 Order re-tered, requiring him to appear and answer the complainquiring him to appear and an- ant's bill, if concealed within the state, in three months; if in any other of the United States, within four months; and if in foreign parts, within nine months after the date of such order: and a copy of such order having been published in the mode required by law, the complain3 After the ant may after the expiration of six weeks subsequent six weeks, to to the time limited by such order, enter an order to to take the bill take the bill pro confesso. (a) this swer. expiration of enter an order pro confesso. If the affidavit proving the absence or concealment of the defendant, does not state some probable cause for inferring that he is within the state, or some part of the United States, he shall always, within the intent of this rule, be held to be in foreign parts. (b) The subpoena being sued out and returned, make an affidavit in the following form: |